author: YOUNG, Justice.

text:
    Dorothy H. BONHAM, Appellant, v. Matthias BALDESCHWILER, Appellee.
    No. 926.
    Court of Civil Appeals of Texas, Corpus Christi.
    June 12, 1975.
    Rehearing Denied Aug. 29, 1975.
    Charles R. Cunningham, Corpus Christi,. for appellant.
    B. Mills Latham, Dyer, Redford, Burnett, Wray & Woolsey, Corpus Christi, for appel-lee.
   OPINION

YOUNG, Justice.

In this automobile rear end collision case, Dorothy H. Bonham sued Matthias Baldes-chwiler to recover damages for personal injuries she alleged she sustained when the automobile she was driving was struck from the rear by the automobile defendant was driving. At the time of the collision, the plaintiff was stopped near an intersection behind stopped traffic waiting to turn left.

In response to special issues the jury found that defendant failed to maintain an assured clear distance; refused to find that such failure was negligence; found that such failure was a proximate cause. Further, the jury refused to find defendant negligent in other respects (brakes and lookout); refused to find that plaintiff was injured in the collision; and failed to answer the issue awarding damages. Based on the jury verdict, the trial court entered judgment that plaintiff take nothing. The plaintiff appeals.

The testimony about the collision is rather meager. Only the appellant, the appel-lee, and Mr. Johnny Rios, the police officer who investigated the accident, testified in this regard. On April 3, 1971, in Corpus Christi, Texas, the collision occurred at about 12:30 p. m. in the 3400 block of South Alameda Street near its intersection with Sinclair Street. Just before the accident, the appellant had been driving her Chevrolet automobile south on South Alameda, a two-way street with two lanes of traffic in each direction. It had been, or was, raining that day and the street was wet. Appellant had stopped her car in the inside lane in deference to one or two proceeding vehicles waiting to turn left on Sinclair. While she was stopped, the appellee while traveling in the same inside lane struck the rear of her automobile with the Volkswagen car he was driving.

In nine points of error, the appellant complains of both the liability and the damage aspects of the case. We will discuss the liability feature first. In that regard, appellant in her fifth point attacks the jury finding to special issue number 2, which was one issue of a cluster inquiring about assured clear distance, negligence, and proximate cause, by appellee.

The jury’s responses to these issues were as follows: (1) that Matthias Baldeschwiler failed to maintain an assured clear distance between his vehicle and the vehicle driven by Dorothy H. Bonham; (2) refused to find that such failure was negligence; and (3) that such failure was a proximate cause of the occurrence in question. “Assured clear distance” was defined as it is in 1 State Bar of Texas, Texas Pattern Jury Charges § 5.09 (1970).

We note that the case, regarding special issues numbered 1, 2 and 3, was tried below and briefed here on the theory of whether there was a statutory violation of assured clear distance under Vernon’s Tex.Rev.Civ.Stat.Ann. art. 6701d § 61(a) (Supp.1974) and whether there was excuse for such violation, if any. We are not here called on to resolve the propriety of submitting the excuse issue (number 2) or the possibility of conflict in the answers to the special issues numbered 1 and 2.

As we construe appellant’s fifth point, she just complains about the legal and factual insufficiency of the evidence supporting special issue number 2. And we will consider the point as making only those complaints. We will deal with the no evidence contention first. In reviewing a no evidence point, we examine only the evidence in favor of the jury finding; i. e., the negative finding to the inquiry whether the defendant’s failure to keep an assured clear distance between his vehicle and that of the plaintiff was negligence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

According to the appellee, the car he was driving belonged to his daughter and he did not normally drive it. He said that it was raining at the time of the accident and the street was slick. In his opinion, he was a safe distance behind appellant as she stopped, even considering the rainy and wet conditions; that he observed the appellant’s vehicle in front of him in time to apply his brakes and stop; and that he took the wet street conditions into consideration and was driving with extreme caution due to those conditions. The foregoing is some probative evidence that supports the jury’s answer to special issue number 2. Appellant’s “no evidence” contention is overruled.

Next, the appellant also asserts that the jury’s negative answer to special issue number 2 is contrary to the great weight and preponderance of the evidence. In addressing this contention, we consider all the evidence presented to the jury in light of the rules applicable to this type of point of error. Traylor v. Goulding, 497 S.W.2d 944 (Tex.Sup.1973); In re King’s Estate, supra.

In that regard, we consider all of the evidence; that which is favorable to the appellee’s viewpoint, and the evidence and inferences in favor of the appellant. South Alameda consists of four lanes for two-way traffic. Even though it was, or had been, raining and the street was wet, the appellee admitted that he saw the appellant stopped, or stopping, from 250 to 300 feet in front of him in the inside lane. There was no evidence that there was traffic in the outside lane. The appellee stated his vehicle was in good condition; that his brakes were working.

So what we have as reasons for appellee’s failure to stop is simply that the street was wet and his car slid. These facts, standing alone, do not free him from liability. See Meinen v. Mercer, 390 S.W.2d 36 (Tex.Civ.App.—Corpus Christi 1965, writ ref’d n. r. e.). Because the appellee saw the appellant’s vehicle 250 to 800 feet away stopped, or stopping, in deference to stopped traffic preceding her, while he knew it was raining and the street was wet, and he did not timely stop or turn into the outside lane, we find that the jury’s negative answer to special issue number 2 inquiring whether the appellee’s failure to maintain an assured clear distance is contrary to the great weight and preponderance of the evidence. Therefore, the appellant’s “contrary to the great weight and preponderance of the evidence” contention is sustained. ⅝

The remainder of appellant’s points are directed to the damage aspect of this case. Because we have ruled, in our discussion of liability, that the case should be reversed and remanded, we deem it unnecessary to resolve appellant’s remaining points. Additionally, the errors complained of, especially those about references indicating payment for damages because of a prior trial, are not likely to occur in another trial.

The judgment of the trial court is accordingly reversed and remanded for a new trial.

      . “ ‘Assured clear distance’ means that distance which would be maintained by a driver using ordinary care when following another vehicle, considering the speed of such vehicles, and the traffic upon and conditions of the street, so that the following vehicle can be safely brought to a stop without colliding with the preceding vehicle, or veering into other vehicles, objects or persons on or near the street.”


source: Caselaw Access Project

author: CURTISS BROWN, Justice.

license: Public Domain

text:
    Lucy Ullrich WILLIAMS, Relator, v. Honorable Wells STEWART, Respondent.
    No. 1246.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    July 16, 1975.
    William J. Rohrbach, Jr., Philip P. Mabry, Houston, for relator.
    David Ball, Houston, for respondent.
   CURTISS BROWN, Justice.

This is an original proceeding on an application for a writ of mandamus.

Lucy Ullrich Williams (Williams or relator) seeks a writ of mandamus to compel the Honorable Wells Stewart, Judge of the Court of Domestic Relations No. 1 of Harris County (respondent), to proceed to trial and judgment.

The instant proceeding arises out of a suit brought by Williams against- Emmett A. Shields. The petition alleged that Shields was the natural father of a minor child born of Williams out of wedlock. The prayer sought support of the minor child and the medical and hospital expenses related to the birth of the child. Shields filed an answer consisting of a general denial and an allegation that Williams had failed to state a cause of action within the jurisdiction of the Court of Domestic Relations. He next filed a motion to dismiss the case, again alleging lack of jurisdiction of the claim. After a hearing on the motion, the trial court dismissed the suit with prejudice. The order of dismissal was signed by respondent on June 24, 1975.

In Gomez v. Perez, 409 U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56 (1973), the United States Supreme Court held that the State of Texas may not discriminate between legitimate and illegitimate children by providing that the latter do not have the same legally cognizable right to support as the former. The Court of Domestic Relations of Harris County is given concurrent jurisdiction with the District Courts in “cases involving justi-ciable controversies and differences between spouses, or between parents, or between them, or one of them, and their minor children, or between any of these and third persons.” Vernon’s Tex.Rev.Civ.Stat. Ann. art. 2338-5, § 3 (1971). This statute also expressly provides for jurisdiction of independent actions including child custody and support of minors. The Family Code, Tex.Fam.Code Ann., V.T.C.A. (1975), as of the date of the institution of this suit, provides a method by which the legitimate minor child may obtain support. There is no question but that these procedures are within the jurisdiction of the Courts of Domestic Relations. We recognize the lurking problem of paternity that exists in cases of this sort. See Gomez v. Perez, supra. However, to say that the Court of Domestic Relations has no jurisdiction with regard to an illegitimate child seeking support, while it does have jurisdiction to determine support for a legitimate child, seems to fly in the face of the Gomez v. Perez, supra, decision as well as the fourteenth amendment (U.S.Const. amend. XIV).

Therefore, at least insofar as the petition sought an adjudication of paternity and child support, the case was within the jurisdiction of the Court of Domestic Relations No. 1 of Harris County.

The question, however, is whether relator is entitled to a writ of mandamus. Under Tex.Rev.Civ.Stat.Ann. art. 1824 (1964), this Court has the power to command a trial court to proceed to trial and judgment. We may, of course, require the trial court to exercise discretion. Jones v. Smith, 470 S.W.2d 305 (Tex.Civ.App.— Houston [1st Dist.] 1971, no writ). However, we cannot require a trial judge to exercise discretion in any particular manner. Jones v. Smith, supra. Even if the trial court’s action amounted to an abuse of discretion, Article 1824 does not give us power to correct abuses, even where there is no adequate remedy by appeal. Johnson v. Court of Civil Appeals, 350 S.W.2d 330 (Tex.Sup.1961); Crane v. Tunks, 160 Tex. 182, 328 S.W.2d 434 (1959).

In the instant case the trial court did not refuse to exercise discretion, rather it exercised discretion and found that it was without jurisdiction and entered judgment accordingly. The dismissal was an exercise of judicial discretion and we are without jurisdiction by way of mandamus to compel the respondent to vacate the judgment of dismissal and to try this case on the merits.

Petition for writ of mandamus denied.

Petition denied.


author: EVANS, Justice.

text:
    Larry Julian BLACKMON, Appellant, v. Patricia Louise BLACKMON, Appellee.
    No. 16553.
    Court of Civil Appeals of Texas, Houston (1st Dist.)
    July 31, 1975.

      Vern J. Thrower, K. D. Keenan, Houston, for appellant.
    Anthony L. Vetrano, Jr., Houston, for appellee.
   EVANS, Justice.

This involves a motion to suspend two orders entered by the Court of Domestic Relations No. 1 filed pursuant to the provisions of Section 11.19(c) of the Texas Family Code, V.T.C.A., which provides:

“An appeal from an order, judgment, or decree, with or without a supersedeas bond, does not suspend the order, decree, or judgment unless suspension is ordered by the court entering the order, decree, or judgment. The appellate court, on a proper showing, may permit the order, decree, or judgment to be suspended.”

The record reflects that appellant, Larry Julian Blackmon, and appellee, Patricia Louise Blackmon, were divorced on July 17, 1972 in Cause No. 906672. Under such decree Patricia Blackmon was granted custody of their minor child, Jennifer Dawn Blackmon.

On September 17,1974 Patricia Blackmon filed habeas corpus action (Cause No. 997102) seeking return of the child to her and on October 4, 1974 the court by docket sheet entry ordered the return of the child to her by 12:00 noon on October 5, 1974. A written order to this effect was subsequently signed and entered on January 3, 1975. On April 2,1975 the trial court by interline-ation of this order and by docket sheet entry purported to amend the order so as to require compliance by return of the child on April 4, 1975 at 5:00 o’clock p. m.

On September 17,1974, the same date the above mentioned action was filed, a separate action to modify custody was instituted by Larry Blackmon in the same court (Cause No. 997045). By order dated November 18, 1974 and entered November 26, 1974, Larry Blackmon was appointed managing conservator of the child and Patricia Blackmon was appointed possessory conservator with further provision that she was not to be entitled to visitation for six ' months after the child had been returned to Larry Blackmon and not at that time until further orders of the court. This order recited that Patricia Blackmon though duly and properly served with citation failed to enter her appearance on the matter.

On April 1, 1975 Patricia Blackmon filed her petition in this proceeding (Cause No. 1020274) for writ of habeas corpus, asserting that she was entitled to have the child returned to her under the provisions of the divorce decree. To this petition Larry Blackmon responded with a so-called plea in abatement, asserting among other grounds, that the issues raised by the petition had been adjudicated and determined by the court’s order of November 18,1974. On the basis of this pleading the court on April 4, 1975 dismissed the cause on the stated ground that it did not have jurisdiction.

On April 11,1975 Larry Blackmon filed a motion in Cause No. 1020274 seeking to set aside the order dated October 4, 1974 (in Cause No. 997,102) which had been entered on January 3, 1975 and which, as amended by interlineation, required return of the child on April 4, 1975. Among other grounds Larry Blackmon asserted in this motion that the trial court lacked authority to amend or modify the terms of the order since more than thirty days had elapsed since the date of its rendition and/or entry, and that the court’s dismissal of the cause (No. 1020274) on April 4, 1975 precluded any further action in the case. On May 22, 1975 the motion to set aside was overruled and this appeal was taken from that action of the trial court. During the pendency of this appeal appellant filed motion to suspend the order appealed from pursuant to Section 11.19(c) of the Texas Family Code. On May 30, 1975 we denied this motion.

On May 30, 1975, during the pendency of this appeal, the trial court entered an order purporting to reinstate this cause (No. 1020274) on its docket. By separate order also entered on May 30,1975, the trial court ordered Larry Blackmon to return the child to Patricia Blackmon on June 1,1975. It is these two orders which Larry Blackmon now seeks to have suspended pending this appeal.

Both of the orders which movant here seeks to have suspended were entered in the same proceedings (No. 1020274) as the order appealed from but subsequent to the date of that order. Both orders relate to the same subject matter as the order on appeal.

Pending an appeal the trial court is without authority to take any action in a case which disturbs the status quo of the matters on appeal. Gureton v. Robbins, 319 S.W.2d 735 (Tex.Civ.App.—San Antonio, 1958, writ dism’d). The two orders in question are therefore without effect insofar as they may interfere with the appellate function of this court in considering the rights of the parties under the state of the record as it existed at the time the appeal was perfected. However Section 11.19(c) of the Texas Family Code pertains only to the suspension of orders and decrees which are the subject matter of an existing appeal. This section does not, in our opinion, provide a basis for the suspension of an order which is subsequently entered in the same proceeding, even though the lower court may have lacked authority to enter such an order. Therefore, we deny the motion to suspend.


author: TUNKS, Chief Justice.

text:
    Ed "Tracy” MAXON, Appellant, v. Ralph D. FRANZ, Appellee.
    No. 1182.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    July 16, 1975.
    Rehearing Denied Aug. 6, 1975.
    Shelton E. Padgett, Bracewell & Patterson, Houston, for appellant.
    William M. Holland, Jr., Holland, Gem-oets & Tindall, Edward J. Landry, Senior Asst. County Atty., Houston, for appellee.
   TUNKS, Chief Justice.

In November 1972, the appellee, Ralph D. Franz, was elected to the office of Constable, Precinct No. 6 of Harris County, Texas, for a four year term to begin January 1, 1973, and to end December 31, 1976. In early 1973 the Commissioners Court of Harris County began a program to reform the boundaries of the eight Justice of the Peace and Constable precincts of Harris County. The boundaries of those precincts had not been changed since their original establishment in 1876. The Commissioners Court adopted a reorganization plan which became effective on July 1,1973. Under the new division of precincts, Franz’ place of residence was in an area covered by the newly designated Precinct No. 5.

No other holder of the office of Constable of Harris County immediately before the new division became effective resided in the new Precinct No. 5. Under the old division Franz’ same place of residence was in the old Precinct No. 6.

The Commissioners Court adopted an order designating the holders of the offices of Constable and Justice of the Peace in the newly created precincts. By that order Franz was named as the holder of the office of Constable, Precinct No. 5.

In November 1974, the appellant, Ed “Tracy” Maxon, appeared on the general election ballot as the Republican nominee for the office of Constable, Precinct No. 5 of Harris County. Franz did not run for that office and no one else was nominated as the Democratic nominee for that position. Franz has taken, and still takes, the position that there was no vacancy in the office of Constable, Precinct No. 5 to be filled by the November 1974 election because his term does not end until December 31, 1976. Maxon, being the only named candidate for the office on the November 1974 ballot, naturally got the majority of the votes cast.

On December 10,1974, Franz filed suit in the 129th District Court of Harris County, and on December 30, 1974, filed his second amended original petition naming Maxon, the State of Texas, the County of Harris, the incumbent County Judge and the newly elected County Judge, who was to take office on January 1, 1975, as defendants. The pleading stated that the suit was to determine title to the office of Constable, Precinct No. 5. The petition asked that the trial court issue an ex parte restraining order prohibiting Maxon from assuming or attempting to assume the office and, after hearing, a temporary injunction to that effect. The prayer asked that on final trial Franz be awarded title to the office and Maxon be enjoined from assuming or attempting to assume it.

The trial court granted the requested ex parte restraining order and, after hearing, granted the temporary injunction. Franz then filed a motion for summary judgment, in which the defendant Harris County joined. Maxon also filed a motion for summary judgment. The defendant State of Texas was dismissed from the case. The parties filed an agreed statement of facts. The trial court granted Franz’ motion for summary judgment and overruled that of Maxon. The judgment rendered adjudges that Franz is entitled to the office in question and enjoins Maxon from assuming it until December 31, 1976. Maxon duly appealed from that judgment.

The principal question involved in this case is the constitutionality, as applied to these facts, of Vernon’s Tex.Rev.Civ.Stat.Ann. art. 2351½(0) (1971). That statute provides:

When boundaries of justice of the peace precincts are changed, so that existing precincts are altered, new precincts are formed, or former precincts are abolished, if only one previously elected or appointed justice of the peace or constable resides within a precinct as so changed, he shall continue in office as justice or constable of that precinct for the remainder of the term to which he was elected or appointed. If more than one justice or constable resides within a precinct as so changed, or if none resides therein, the office shall become vacant and the vacancy shall be filled as other vacancies; provided, however, that in precincts having two justices, if two reside therein, both shall continue in office, and if more than two reside therein, both offices shall become vacant.

Franz is the only person who resided within the boundaries of new Precinct No. 5 who had been elected or appointed Constable of such geographical area. If the first sentence of Article 235lV2(c) is constitutional, as applied to his situation, he is entitled to keep that office until December 31, 1976. We hold that the statute as so applied is constitutional.

The principal authority upon which the appellants rely is an opinion issued from the office of the former Attorney General of Texas, the late Crawford C. Martin, on May 8, 1967. The opinion is designated M-68 and is captioned “Re: Constitutionality of Article 2351V2C Texas Revised Civil Statutes”. In that opinion the fact situation which produced the request for the opinion was stated as follows:

The fact situation upon which your request is based is a proposed transfer of two voting precincts (Precincts 142 and 158) from Justice Precinct No. 2 in Bexar County to Justice Precinct No. 1. You state further that none of the officers involved live in the voting precincts to be transferred, and each would still live in the area where he was elected after the change.

The opinion was summarized as follows:

SUMMARY
Under the facts submitted, a proposed transfer of voting precincts 142 and 158 from Justice Precinct No. 2 to Justice Precinct No. 1 of Bexar County, which does not affect the residence of any of the present office holders, will not create a vacancy in any of the offices of the two precincts, but the provisions of Article 2351½0, Vernon’s Civil Statutes, for continuation in the office of the incumbents after a change in boundaries of Justice Precincts, is unconstitutional as an attempt on the part of the Legislature to control that which has been vested exclusively with the Commissioners Courts. To the extent of their conflict with this opinion, Attorney General’s Opinions V-790 (1949), V-1032 (1950), and WW-536 (1958) and C-112 (1963) are overruled.

In the body of the opinion the following language appears as the reason for the conclusion reached:

If a change in boundary lines of itself creates a vacancy in the office by abolishing the existing precincts, then Article 2351V2C collides with Section 28, of Article V of the Texas Constitution, which provides as follows:
“Vacancies in the office of Judges of the Supreme Court, the Court of Criminal Appeals, the Court of Civil Appeals and District Courts shall be filled by the Governor until the next succeeding general election; and vacancies in the office of County Judge and justices of the peace shall be filled by the Commissioners Court" until the next general election for such offices.”

Article V, Section 28 of the Texas Constitution, Vernon’s Ann.St., empowers the Commissioners Court to fill vacancies in the offices of County Judge and Justice of the Peace, but it makes no mention of the office of Constable.

The authority for the Commissioners Court to fill a vacancy in the office of Constable arises from Tex.Rev.Civ.Stat.Ann. art. 2355 (1971). The general language of the opinion as to the unconstitutionality of Article 23511/2(c) is, in view of the reason given therefor, wholly inapplicable to this case. Since the authority of the Commissioners Court to fill a vacancy in the office of Constable is statutory rather than constitutional, Article 2351½(0), as it relates to continuation in the office of Constable, does not in any respect “collide” with the Constitution.

Even if the statute were unconstitutional as it relates to continuation in the office of Justice of the Peace, which we do not hold, it would not necessarily be unconstitutional in its relation to continuation in the office of Constable. In W.U.T. Go. v. State of Texas, 62 Tex. 630, 684 (1884), the Texas Supreme Court said:

“When, therefore, a part of a statute is unconstitutional, that fact does not authorize the courts to declare the remainder void also, unless all the provisions are connected in subject-matter, dependent on each other, operating together for the same purpose, or otherwise so connected together in meaning that it cannot be presumed the Legislature would have passed the one without the other. The constitutional and unconstitutional provisions may even be contained in the same section, and yet be perfectly distinct and separable, so that the first may stand though the last fall. The point is not whether they are contained in the same section, for the distribution into sections is purely artificial; but whether they are essentially and inseparably connected in substance. If, when the unconstitutional portion is stricken out, that which remains is complete in itself, and capable of being executed in accordance with the apparent legislative intent, wholly independent of that which was rejected, it must stand.”

Particularly applicable to the facts of this case is the holding in City of Taylor v. Taylor Bedding Mfg. Go., 215 S.W.2d 215 (Tex.Civ.App.—Austin 1948, writ ref’d), wherein it was held that even if a statute is invalid when applied to certain persons, circumstances or subject matter, it may be valid as to other persons, circumstances or subject matter.

Other authorities supporting the proposition that the validity of the statute here in question must be considered in the light of its application to the office of Constable, regardless of its validity as applied to the office of Justice of the Peace, are: Sharber v. Florence, 131 Tex. 341, 115 S.W.2d 604 (1938); Hatten v. City of Houston, 373 S.W.2d 525 (Tex.Civ.App.—Houston 1963, writ ref’d n. r. e.); Houston Oil Co. of Texas v. Lawson, 175 S.W.2d 716 (Tex.Civ.App.—Galveston 1943, writ ref’d); 12 Tex.Jur.2d Constitutional Law § 47 (1960).

Our holding that Article 2351½(0) is constitutional as to its application to the office of Constable is not to be construed as a holding or a suggestion that the statute is unconstitutional as to its application to the office of Justice of the Peace. Those two provisions of the statute are clearly severa-ble. They relate to the continuation in two named, separate and distinct offices. The statute’s severability as between those two offices is suggested by the fact that Tex.Const, art. V, § 28 provides for the filling of vacancies in one of them but not in the other. The question as to the validity of the provison for continuation in the office of Justice of the Peace is not before this Court in this case.

Franz took an oath of office and filed a bond upon his taking the office of Constable, Precinct No. 6, on January 1, 1973. After the redistricting became effective on July 1,1973, he did not take another oath or file another bond. Maxon argues that Franz, by his failure to take a new oath and file a new bond, vacated the office of Constable, Precinct No. 5, under the provisions of Tex.Rev.Civ.Stat.Ann. art. 6883 (1960). We hold otherwise/ Before the redistricting Franz held the office of Constable of the precinct in which he resided. The language of Article 235lV2(c) provides that after the redistricting, “. . . he shall continue in office as . constable of that precinct for the remainder of the term to which he was elected or appointed.” It does not matter that the number of the precinct in which Franz resided was changed from 6 to 5; he “continued” in the office in which he had been elected and for which he had already qualified by taking an oath and filing a bond. He was not required to so qualify again.

The points of error of the plaintiff have been considered and are overruled.

The judgment of the trial court is affirmed.


text:
    NORTHSHORE BANK, Appellant, v. James T. PALMER, Appellee.
    No. 1177.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    July 9, 1975.
    Rehearing Denied July 30, 1975.
    T. D. Smith, William E. Heitkamp, Houston, for appellant.
    John Bennett Lay, Bennett Lay, Kucera, Lay & Lang, Houston, for appellee.
   CURTISS BROWN, Justice.

James T. Palmer (Palmer or appellee) brought suit against Northshore Bank (Bank or appellant) for the wrongful dishonor of several checks. Trial was to a jury which answered special issues paraphrased as follows: (1) That someone other than Palmer endorsed his name on a $275 cheek; (2) That thereafter, Bank intentionally refused payment of checks written by Palmer; (3) That the bank attempted to collect an overdraft resulting from the charge-back against the account of the $275 check and insufficient check fund charges resulting from its dishonor of Palmer’s checks after it knew or should have known that the endorsement was a forgery; (4) That Palmer had suffered actual damages of $2,000; (5) That Palmer was entitled to punitive damages of $3,500; and (6) That the dishonor of the checks was not a result of a mistake. A Texas Rules of Civil Procedure 301 motion for judgment notwithstanding the verdict or in the alternative to disregard the answer to special issues four and five was filed by the Bank. The trial court overruled this motion and entered judgment for Palmer for $5,500.

Liability for the wrongful dishonor of an item is governed by Tex.Bus. & Com. Code § 4.402, V.T.C.A. (UCC 1968) which provides:

A payor bank is liable to its customer for damages proximately caused by the wrongful dishonor of an item. When the dishonor occurs through mistake liability is limited to actual damages proved. If so proximately caused and proved damages may include damages for an arrest or prosecution of the customer or other consequential damages. Whether any consequential damages are proximately caused by the wrongful dishonor is a question of fact to be determined in each case.

Appellant attacks the submission and answers to the special issues on damages. Its attack on the actual damages contends that the trial court erred in overruling its Rule 301 motion. The answer to special issue number four is attacked on a factual sufficiency basis as well. In connection with this issue the jury was instructed as follows:

In connection with this issue you are instructed that you may take into consideration for finding actual damages the sum of money, if any, not repaid to James T. Palmer by Northshore Bank after North-shore Bank charged the check, payable in the amount of $275.00, dated October 18, 1971, marked as Pltfs. Ex. 1 against his account, the damage to the credit and reputation of James T. Palmer, if any, mental anguish suffered by James T. Palmer, if any, the time lost by James T. Palmer from his employment and schooling, if any, on the occasion or occasions in question.

Appellant did not object to the instruction. Tex.R.Civ.P. 274. The gist of its argument with regard to the 301 motion is that the “actual damages” were established conclusively as to two of the elements: (1) the sum of money not repaid to Palmer after the charge-back and (2) the loss of time from employment and schooling. The Bank claims there was no evidence as to mental anguish or damage to credit and reputation. Given the lack of objection to the instruction in this case, loss of credit and mental anguish were properly considered here as “consequential” damages.

There was testimony by Palmer that he had lost approximately one week of time from school and work. At the time the Bank dishonored the checks, Palmer v/as in the process of becoming certified as a pipe welder. There was oral and documentary evidence as to the approximate salary he was making at that time. There was also testimony by an officer of the bank as well as bank records to show that in addition to the charge-back of the $275 forged instrument, Palmer was charged $15 for checks drawn on insufficient funds. This was supplemented by evidence of humiliation, embarrassment and of having been turned down for credit for the first time in his life. Given this evidence, the trial court did not err in overruling the Rule 301 motion. Eu-banks v. Winn, 420 S.W.2d 698 (Tex.Sup.1967); Leyva v. Pacheco, 358 S.W.2d 547 (Tex.Sup.1962). Further, after reviewing the entire record under appropriate standards, we believe that there was factually sufficient evidence to support the jury’s finding on actual damages.

Appellant cites State Nat. Bank of Iowa Park, Tex. v. Rogers, 89 S.W.2d 825 (Tex.Civ.App.—Fort Worth 1935, no writ), as authority for the proposition that a depositor may not recover exemplary damages for wrongful dishonor. This case was decided before the enactment of Section 4.402, supra, and is not applicable. The authors of the code did not attempt to specify whether the bank’s liability sounds in contract or tort. See Comment 2 to Section 4.402, supra. We think that the liability is “statutory” and more in the nature of tort than contract. The jury did not find that the dishonors were the result of a “mistake” which would have limited appellee to recovery of his actual damages only. In the instant case, unlike State Nat. Bank of Iowa Park, Tex. v. Rogers, supra, actual damages were established. Gustason v. Northeast National Bank, 486 S.W.2d 596 (Tex.Civ.App.—Fort Worth 1972, no writ), seems to be the only Texas case decided since the Legislature enacted Section 4.402, supra. Although mental anguish and exemplary damages were not involved in the case, the Court by way of dicta cited 8 Tex.Jur.2d Banks § 261 to the effect that:

[djamages may be recovered for loss of time, money, and credit, provided a foundation for such recovery is laid by the pleadings, but not otherwise. But exemplary damages based on malice or damages for mental suffering are not recoverable.

In addition to this statement being dicta, the case is distinguishable on at least two grounds. First, the court did not consider the full impact of Section 4.402 since the court merely sustained an attack on a summary judgment in favor of the bank and the allowable elements of damages were not before it. Second, all of appellant’s attacks here are based upon claimed éviden-tiary deficiencies and not upon any improper elements being submitted to the jury. No objections to the issues were made on the basis that the issues submitted elements of damages which were not recoverable under the statute. The jury found, and appellant does not attack the finding, that the acts of dishonoring the checks were done intentionally. While there was no issue regarding a lack of good faith, appellant did not object to the lack of submission of such an issue. Tex.R.Civ.P. 274. The jury was instructed with regard to exemplary damages as follows:

In connection with this issue you are instructed that punitive damages may be recovered only where there has been oppressive conduct or a reckless or malicious disregard of the rights of another. Punitive damages are intended as a warning and an example to prevent the defendant and others from the commission of like offenses and wrongs. In a legal sense an unlawful act done willfully and purposely is, as against that person, malicious.

The issue of malice or reckless disregard of Palmer’s rights, if supported in the evidence, must be deemed found in his favor. Tex.R.Civ.P. 279.

A forger had secured a number of printed checks of one Marvel Fikes and proceeded to include Palmer as one of his victims. A person showed up at the Bank seeking to cash the $275 check payable to Palmer. The teller ascertained that Palmer had an account with the Bank and paid out the money. She could not testify as to whether this person was or was not Palmer. Some four or five days later, the check was returned by the bank on which it was drawn because the signature was not like the signature of Fikes which it had on file.

The checks written by Palmer, which are in question here, had already been paid by the Bank, when the situation with respect to the forgery became known to it. The officer in charge immediately charged Palmer’s account with the forged check despite his protestations that his endorsement was a forgery. When he went to see the bank officer to deny endorsement and receipt of the proceeds of the forged check, the officer called over a uniformed guard. Even though the checks had been cleared for payment and were covered by sufficient funds when presented, the Bank recalled them and returned them marked “paid in error” or “account closed”. Palmer immediately reported the forgery to the police, contacted the bank on which the forged Fikes check was drawn, and contacted Mr. and Mrs. Fikes. He then underwent the embarrassment of calling on each of the payees of the dishonored checks. The Bank never relented. They charged appellee $5 for each check they considered drawn on “insufficient funds”. Additionally, after all of the claims of Palmer were known to the Bank officer having charge of the matter, the Bank placed the claimed balance due in the hands of a collection agency, where it rests today. The Bank never has paid Palmer the $275 which under the jury’s findings is wrongfully charged to his account. Under the Bank’s own evidence, each step it took was deliberate and intentional and done with a knowledge of Palmer’s claim of right. The exemplary damages found by the jury are reasonably related to the amount of actual damages found and are fully justified under the evidence. We overrule appellant’s points attacking special issue number five and the answer of the jury thereto.

The case is affirmed.

Affirmed.


author: WALTER, Justice.

text:
    Lana Vonne SHARP, Appellant, v. G. C. STACY et al., Appellees.
    No. 4805.
    Court of Civil Appeals of Texas, Eastland.
    July 11, 1975.
    Rehearing Denied Aug. 8, 1975.
    Ben D. Sudderth and Keith Woodley, Comanche, for appellant.

      Virgil T. Seaberry, Eastland, for appel-lees.
   WALTER, Justice.

Lana Vonne Sharp, Vicky Don Stacy, and Charles Van Stacy, also described in the judgment as Charles Von Stacy, filed suit against G. C. Stacy, E. V. Stacy, E. J. Stacy, C. D. Stacy, and Maud Stacy for title and possession to the Southeast quarter of Section 13, Block 1, H. & T. C. Ry. Co. Survey in Eastland County, Texas. The special issues submitted to the jury were answered favorably to the plaintiffs. Defendants’ motion to disregard the jury’s findings and for judgment non obstante veredicto was granted. The plaintiffs have appealed contending the court erred in disregarding said findings and granting judgment non ob-stante veredicto.

Charles Henry Stacy and wife, Maud Stacy had record title to the 160 acre tract of land. Charles Henry Stacy died intestate in 1957. He was survived by his widow, Maud Stacy, and the following children: Charles Junior Stacy, G. C. Stacy, E. V. Stacy, E. J. Stacy and C. D. Stacy. Charles Junior Stacy died intestate in 1973, and was survived by his widow, Ramona Maxine Stacy, and the following children: Lana Vonne Sharp, Vicky Don Stacy and Charles Stacy.

This suit was instituted by Junior Stacy’s widow and his children against the above named defendants. Junior Stacy’s widow deeded her interest in the property to the children after the suit was filed and she was dismissed from the case. Plaintiffs allege prior to December 11, 1941, Charles Junior Stacy and his father and mother entered into an agreement that the land would be purchased in the parents’ names but that Charles Junior Stacy would pay for it. Pursuant to such agreement J. B. Brandon and wife conveyed the land to Charles Henry and Maud Stacy; that Junior Stacy went into possession of the land; worked the land and used the money derived from his labor in paying for it; Charles Henry and Maud Stacy held legal title but the equitable ownership was vested in Junior Stacy. The plaintiffs allege that under these circumstances they are entitled to a judgment declaring them to be the equitable and beneficial owners of the fee simple title.

The defendants pleaded not guilty and asserted that the plaintiffs’ cause of action was barred by the Statute of Frauds.

The jury found that Charles and Maud Stacy made an oral agreement with Junior Stacy whereby Junior Stacy was to go into possession of and work the land in question and use the money derived therefrom to pay for same and in return Charles and Maud Stacy were to convey the land to Junior Stacy; that Junior Stacy went into possession of the land; that Junior Stacy worked the land and used the money to pay for the land; that Junior Stacy made valuable improvements pursuant to said agreement; that said improvements were made in “good faith belief” that the property was his; that Junior Stacy’s possession of the land was exclusive and adverse to Charles Stacy and Maud Stacy; that Junior Stacy placed such permanent improvements on the land relying upon the representation that such land would be given to him and that the fair and reasonable cost of such improvements was $10,000.

The appellants contend the record contains some evidence of probative force to support the jury’s answers. They also contend such evidence satisfies all the requirements of Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114 (1921), to remove a parol sale of land from the operation of the Statute of Frauds.

In Martinez v. Delta Brands, Inc., 515 S.W.2d 263 (Tex.1974), the court said:

“When a party asserts that there is no evidence to support jury findings, we must review the evidence in its most favorable light, considering only the evidence and inferences which support the findings, and rejecting the evidence and inferences contrary to the findings. Butler v. Hanson, 455 S.W.2d 942 (Tex.1970); Langlotz v. Citizens Fidelity Insurance Company, 505 S.W.2d 249 (Tex.1974). It would be our duty to affirm the judgment of the Court of Civil Appeals if the evidence offered to show negligence were proven to be no more than a scintilla of proof. Thus if the evidence created nothing more than a mere surmise or suspicion of the existence of negligence, such evidence would be, in legal effect, no evidence. Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059 (1898). But if negligence may be reasonably inferred from direct evidence, then there is more than a scintilla of evidence. Calvert, ‘No Evidence’ and ‘Insufficient Evidence’ Points of Error, 38 Texas Law Review 361, 363 (1960).”

In Hooks v. Bridgewater, supra, 229 S.W. at page 1118 the court said:

“The opinion in Wooldridge v. Hancock, 70 Tex. 18, 6 S.W. 818, discloses that the court had in mind those very situations where, as here, the parol agreement did not contemplate the surrender of the possession of the land in the lifetime of the owner; but it held that alone to be a sufficient reason for denying the enforcement of the agreement. The opinion declares that where an owner of land makes a verbal sale or gift of it to take effect after his death but retains the possession, no title is acquired, ‘for it is essential, in case of parol gift or sale of land, that possession should accompany or follow the gift or sale; and there being no intention to part with the title — as was true of Davis — until some indefinite time in the future, there could be no exclusive adverse possession as against the owner, which seems to be necessary in order’ to ripen into a title.”

One of the principal questions to be decided in this case is whether there is any evidence to support the jury’s answer that the possession of Junior Stacy of the land in question was exclusive and adverse to Charles Henry and Maud Stacy.

Charles Henry and Maud Stacy purchased the land in question in 1941 when Junior Stacy was about fifteen years of age. They moved on the place in 1943 and were living there when Mr. Stacy died in 1957. Mrs. Stacy has never lived on any other place since they moved there and was still residing there at the time of trial, claiming it as her homestead.

Junior Stacy was married in 1945. He and his wife lived on the place for about one month after they were married. Junior Stacy farmed the land and made improvements to the land from the time he was married until his death except two or three years when he was not able to do so.

The evidence establishes conclusively that Junior Stacy’s possession of the land in question was not exclusive and adverse. Thornton v. Central Loan Co., 164 S.W.2d 248 (Tex.Civ.App.—Austin 1942, writ ref.); Munk v. Weidner, 9 Tex.Civ.App. 491, 29 S.W. 409 (1895, no writ), and Leverett v. Leverett, 59 S.W.2d 252 (Tex.Civ.App.—Texarkana 1933, writ ref.).

Appellants contend that even though the oral agreement for the sale of the land is barred by the statute of frauds, they are nevertheless entitled to recover for the improvements. Their claim for improvements included net wire fencing, barbed wire fencing, stock tank, metal gates and other improvements.

The appellants’ pleadings and proof concerning improvements reveal some were made before Charles Henry Stacy died intestate in 1957 and some were made subsequent to his death. Appellants pleaded the fair and reasonable cost of improvements at the time of making them and also alleged the improvements increased the value of the land in the amount of $15,000.00. The appellants had the burden of pleading, proving, and securing jury findings that the improvements increased the value of the land. They have a finding, in answer to special issue number 8, that the fair and reasonable cost of such improvements in Eastland County was $10,000.00. This issue was objected to as being immaterial and not a proper element of damages.

We find that special issue number 8 was an immaterial issue and the court was authorized in granting the judgment notwithstanding the verdict. In Lynch v. Lynch, 130 S.W. 461 at page 464 (Tex.Civ.App.—1910) the court said:

“. . . The only testimony as to the value of the improvements was the cost to Calvin Lynch and his second wife of making same. In determining the allowance, if any, to be made to appellants on account of the improvements, not their cost, but the increased value of the land because of them, controlled. Spicer v. Henderson, Tex.Civ.App., 43 S.W. 27; Thomas v. Quarles, 64 Tex. 491, 493; Herndon v. Reed, 82 Tex. 647, 653, 18 S.W. 665.”

In Pigg v. International Hospitals, Inc., 421 S.W.2d 169 (Tex.Civ.App.—Dallas 1967, writ ref. n. r. e.), the court said:

“. . . Rule 301, T.R.C.P., authorizes the court to disregard any special issue jury finding that has no support in the evidence. It has been held repeatedly that a jury finding which is immaterial to the real issues in the case, even though supported by evidence, may likewise be disregarded. First American Life Ins. Go. v. Slaughter, 400 S.W.2d 590 (Tex.Civ.App., Houston 1966, writ ref’d n. r. e.); Schiller v. Rice, 151 Tex. 116, 246 S.W.2d 607 (1952); Owens v. State, 342 S.W.2d 183 (Tex.Civ.App. — Fort Worth 1961 no writ).”

We have considered all of appellants’ points and find no merit in them. They are overruled.

The judgment is affirmed.


author: KEITH, Justice.

text:
    Joseph C. WAGNER et al., Appellants, v. AUSTIN SAVINGS AND LOAN ASSOCIATION, Appellee.
    No. 7712.
    Court of Civil Appeals of Texas, Beaumont.
    June 19, 1975.
    Rehearing Denied July 24, 1975.

      John F. Morehead, William F. Turman, Donald F. Nobles, Austin, for appellants.
    Coleman Gay, Austin, for appellee.
   KEITH, Justice.

This is a usury suit. Harris-Wagner Corporation, a defunct Texas corporation, borrowed money from the defendant, Austin Savings and Loan Association. Plaintiff Wagner alleged that he owned one-third of the capital stock of the defunct corporation; Harris intervened, aligned himself with Wagner, and alleged that he owned the other two-thirds of the stock of the corporation. We will designate Wagner and Harris, collectively, as the plaintiffs. They sought to recover, as individuals, the penalties authorized by Vernon’s Tex.Rev.Civ. Stat.Ann. art. 5069-1.06 (1971). After a trial to the court, judgment was entered for defendant and plaintiffs appeal.

There is little dispute in the facts and the trial court filed extensive findings of fact. After a careful review of the evidence, we are of the opinion that such findings have substantial support in the evidence and our statement of the case will be taken largely therefrom.

Plaintiffs’ corporation applied to defendant for a line of credit to be used in the development of Castlewood Forest, Section One, a sudivision in Travis County owned by the corporation. It was contemplated that an initial loan of $50,000 would be required and that other loans would be made to the corporation in the development of the subdivision. This initial loan was made on October 1, 1968, as evidenced by a note due on or before three years after date which bore interest at 7¾% per annum payable semiannually.

The deed of trust securing such note covered thirty lots in the subdivision and provided that partial releases from the lien could be obtained by paying $2,500 for each lot so released, $2,000 of which would be credited to the face of the note and $500 charged as a release fee. The corporation was not obligated to secure the release of lien on any lot or to pay any release fee unless it so desired. Released fees of $500 each were paid on various dates between November 22, 1968, and August 13, 1969, and eighteen of the lots covered by the original deed of trust were released.

The defendant deducted two “points” or $1,000 from the face of the loan and this amount was never made available to plaintiffs’ defunct corporation. A large part of the original loan was disbursed shortly after its execution and the balance as needed by the corporation. Interest was charged only after disbursements had been made. Defendant collected as interest: $785.68 on March 25, 1969; $213.27 on April 10, 1969; for a total amount of $998.95.

In establishing its line of credit for the development of the subdivision, the corporation assigned to defendant a refund contract which it was contemplated that the City of Austin would execute in favor of the corporation. This refund contract, as finally executed, provided that City would refund to the corporation 80% of the amount it expended in constructing the water system in the subdivision, plus interest at the rate of 3% per annum, payable over a period of not more than 25 years. Payments by City under the contemplated contract would be from a portion of the revenue it received from the operation of the water system through sale of water to residents of the subdivision. The utility refund contract was not executed by City until August 21,1969, nearly eleven months after its assignment to defendant; but there was testimony that the utilities so constructed by the corporation had been approved by City shortly after October 1, 1968.

There was testimony that after its execution by City, the utility refund contract had a cash value of about 50% [or approximately $12,000] of the amount that would be refunded eventually by City but a developer with a good credit rating could borrow up to about 60% of its value. The Court, however, concluded that: “[T]he testimony as to the cash value [of the utility refund contract] on October 1, 1968, of the certificate which was thereafter issued on August 21, 1969, is uncertain, and it would be impossible to assign a dollar value to it on the earlier date [October 1,1968, the date of the $50,000 note].”

Defendant received from the City under the refund contract the amounts shown opposite the respective dates: March 30, 1971 —$723.05; March 6, 1972 — $1,117.07; March 2, 1973 — $1,163.09.

In addition to the original loan, defendant made nineteen other loans to the corporation. One of such loans, in the amount of $35,046.66, was secured by a second lien on the thirty lots covered by the first lien securing the first $50,000 loan; the other loans were secured by liens on single lots in the subdivision where the corporation was building residences for sale. The aggregate of such additional loans was in excess of $480,000.

The corporation defaulted upon the $50,-000 note when there was an unpaid balance of $11,523.29 on the loan and at a time when the second lien note of $35,046.66 was due and delinquent. Defendant bid in the property at the trustee’s sale for the amounts due upon the two notes, leaving no deficiency balance on either. The trustee’s sale took place on March 3, 1970. Suit was instituted on January 12, 1973.

At the outset of our discussion, it is well to note that the contract involved was not, on its face, one calling for usurious or unlawful interest. Thus, as said by Justice Johnson while upon the Court of Civil Appeals and speaking for the court in Richards v. Moody, 422 S.W.2d 200,202 (Tex.Civ.App. —Houston [14th Dist.] 1967, writ ref’d n. r. e.):

“In such instance it is the plaintiff’s obligation to establish that there was a corrupt agreement or scheme to cover usury and that such agreement or scheme was in full contemplation of the parties. Slaughter Co. v. Eller, Tex.Civ.App., 196 S.W. 704, err. ref."

And, we say, as did Justice Johnson in the case just cited, “In the case at bar, the record will not support the conclusion that there was a corrupt agreement or scheme that was, in fact, in contemplation of the parties.” Id.

The trial court having filed findings of fact and conclusions of law, we invoke another rule of law of wide acceptance. It was articulated in Rich v. Ferguson, 45 Tex. 396, 399 (1876): “A jury being waived, and the cause submitted to the judge, his decision is entitled to all the presumptions in its favor that a verdict of the jury should have.” The rule has continuing vitality. See, e. g., Ligon v. Chas. P. Davis Hardware, Inc., 492 S.W.2d 374, 375, 376 (Tex.Civ.App.—Austin 1973, no writ):

“Findings of fact by the court are comparable to a jury verdict upon special issues, and when supported by some competent evidence those findings will not be disturbed on appeal. 4 McDonald, Texas Civil Practice, § 16.05 (Rev.Ed.1971).”

See also, Jacobini v. Zimmerman, 487 S.W.2d 249 (Tex.Civ.App. — Fort Worth 1972, no writ); Kroger Company v. Warren, 420 S.W.2d 218 (Tex.Civ.App. — Houston [1st Dist.] 1967, no writ).

As noted earlier, defendant charged the corporation a two percent premium for the making of the loan ($1,000) and this sum was never made available to the corporation. The first conclusion of law filed by the trial court is quoted in the margin and is attacked by plaintiffs’ seventh point which is also quoted in the margin.

The 1960 constitutional amendment to Tex.Const. art. XVI, § 11, Vernon’s Ann. St., was designed to permit the legislature greater flexibility in defining usury and in classifying lenders, the pertinent portion thereof reading:

“The Legislature shall have authority to classify loans and lenders, license and regulate lenders, define interest and fix maximum rates of interest.”

The legislature, pursuant to such constitutional authorization, has adopted several classifications applicable to this case. First, it has classified borrowers. Corporations may be charged legal interest not to exceed one and one-half percent per month. Tex.Rev.Civ.Stat.Ann. art. 1302-2.-09 (Supp.1974-1975), added by Acts 1967, 60th Leg., p. 713, ch. 296, § 1. But another Act, approved two days earlier, provided that individuals could not, except as otherwise provided by law, be charged a rate of interest in excess of ten percent per annum. Tex.Rev.Civ.Stat.Ann. art. 5069-1.02; Acts 1967, 60th Leg., p. 609, ch. 274, § 2. See also, Sud v. Morris, 492 S.W.2d 335, 337 (Tex.Civ.App.—Beaumont 1973, no writ).

The legislature also classified lenders and made special provision with reference to savings and loan associations which were regulated by the Texas Savings and Loan Act, Tex.Rev.Civ.Stat.Ann. art. 852a (1964). Such associations are authorized by § 5.07 thereof to charge premiums for the making of such loans which shall be in addition to interest authorized by law and shall not be deemed a part of the interest collected or agreed to be paid on such loans “within the meaning of any law of this State which limits the rate of interest which may be exacted in any transaction.”

Plaintiffs make no constitutional challenge of this statute and the meaning thereof is clearly dispositive of the contention now advanced by plaintiffs.

The amendment to the constitution noted earlier, and the subsequent statute, render inoperative as authority the single case cited by plaintiffs, Independent Lumber Co. v. Gulf State Bank, 299 S.W. 939 (Tex.Civ.App.—Galveston 1927, writ ref’d). Plaintiffs, by post submission brief, call our attention to an article by P. Loiseaux, “Some Usury Problems in Commercial Lending,” 49 Tex.L.Rev. 419, 422 (1971). The author predicts that “a court undoubtedly would label a payment for ‘points’ as interest within the broad definition.” We do not use the broad definition; instead, using the constitutional grant of power to classify borrowers and lenders along with the statutory enactment as to savings and loan associations, we hold that such “points” are not interest within the usury statutes. Point seven is overruled.

Plaintiffs’ first three points complain that it was error for the trial court to find that the release fees did not constitute interest but were analogous to prepayment penalties. It was contemplated by the parties that the original loan would be used for the construction of the utilities, without which no lot could be sold. Thereafter, the borrower would begin the construction of a residence on one of the lots so that it could be sold. It sought, and procured, a partial release as to the particular lot; and, after selling the house, defendant financed the purchaser in his acquisition thereof, a process which was repeated on many occasions.

Having examined the record carefully, we find that the trial court’s second finding of fact, quoted in the margin, is supported by the evidence. This was followed by a conclusion of law reading:

“The provision for a payment of $2,500.00 in order to secure the release of a lot does not render the loan usurious, since a partial release was a privilege of the borrower, which it was not required to pay unless it wanted a partial release. The situation is analogous to a provision for a prepayment penalty which is con-; tained in many notes or deeds of trust.”

We have noted earlier the legislative authorization for savings and loan associations to charge “points.” The same statute, Tex.Rev.Civ.Stat.Ann. art. 852a, § 5.07, also authorizes savings and loan associations to charge “penalties for prepayments.” By the statute, these penalties are not interest under the usury laws. Thus, if such charges were levied for prepayment, plaintiffs’ points are without merit.

Tex.Rev.Civ.Stat.Ann. art. 5069-1.01 (1971) defines interest as “the compensation allowed by law for the use or forebearance or detention of money.” The privilege of paying a note in advance of maturity is not compensation for “use or forebearance or detention of money.” On the contrary, the prepayment so made is compensation for not being required to use or keep the money. It is an option available to the borrower.

In Vela v. Shacklett, 12 S.W.2d 1007,1008 (Tex.Comm’n App., 1929), the Court said:

“The provision in the contract for the prepayment privilege is not a contract for the forbearance of an existing indebtedness or a loan of money. .
“The lender in this case had no right to require the payment of three months’ advance interest. This was purely optional with the borrower. There being no right to demand payment, there was no forbearance, and, without forbearance, no usury.”

See also, Gulf Coast Investment Corporation v. Prichard, 438 S.W.2d 658, 661 [Tex.Civ.App. — Dallas, writ ref’d n. r. e., 447 5.W.2d 676 (Tex.1969)], and cases therein cited.

But, plaintiffs argue “that the Vela case and those that follow same [including Prichard ] disregard a basic distinction under the Texas Usury Statutes.” We disagree. As applied to this case, the language heretofore referred to in Art. 852a, § 5.07, removes the prepayment penalty from the reach of the usury statute. We will continue to follow the statute and the earlier decisions of our courts. The first three points of error are overruled.

Plaintiffs bring forward three points attacking the trial court’s finding that the assignment of the utility contract should be allocated over all of the loans made by the defendant to the corporation rather than concluding that the assignment was interest allocable only to the original note of $50,-000. The subsidiary points are that, in reaching this conclusion, the trial court improperly admitted parol evidence supporting his conclusion when the instrument was unambiguous on its face. Again, we note that the burden was on the plaintiffs to convince the trier of the facts that the value of the assignment was interest which made the transaction in question usurious.

In essence, the trial court found that the financing of a subdivision was a three-step process: the installation of the utilities, the construction of houses on the lots, and the sale of the houses and lots. Except for a single loan of $35,046.66, defendant made eighteen interim loans ranging from $20,-000 to $34,500 to finance houses in the subdivision.

Plaintiffs’ defunct corporation, to succeed in its venture, had to have the utilities in place before it could sell the houses; and, only through the sale of the completed houses could it hope to make a profit. Indeed, plaintiffs do not even now contend that the additional loans were not in contemplation of the parties when the original loan of $50,000 was made, nor do they contend that the additional loans aggregating $480,000 were not made. Instead, their sole contention is that since these additional loans were not mentioned in the assignment, evidence introduced showing the true consideration was inadmissible as varying the terms of the written instrument.

We readily admit that the parol evidence rule has continuing validity; but, as was said by Judge Sharp in McFarland v. Shaw, 45 S.W.2d 193, 195 (Tex.Comm’n App., 1932, holdings approved): “ ‘Many of the exceptions to the parol evidence rule are quite as well settled as the general rule.’”

One of these rules is set out in Pitta v. Camp County, 120 Tex. 558, 39 S.W.2d 608, 614 (1931);

“Where the consideration, moving a grantor to execute a written conveyance of property, is not contractual in its nature, it is permitted to prove the real consideration, the doing of which does not infringe upon the rule that the terms of a valid written instrument cannot be varied by oral testimony. This is especially true, where the oral testimony does not contradict the written instrument, but rather shows what the real consideration is. La-nier v. Foust, 81 Tex. 186, 16 S.W. 994; Taylor v. Merrill, 64 Tex. 494, and authorities there cited.”

The rule was stated in slightly different language by Justice Denton, while upon the Court of Civil Appeals, in Rubin v. Adams, 368 S.W.2d 42, 44 (Tex.Civ.App.—Amarillo 1963, writ ref’d n. r. e.):

“The general rule is that the recitals of a written instrument as to the consideration is not conclusive, and it is competent to inquire into the consideration and show by parol evidence the nature of the real consideration.”

We say, as did Justice Denton in Rubin: “In the ease at bar the parol evidence did not vary the terms of the written instrument.” Id. Instead, such evidence simply showed the real consideration for the execution of the assignment.

Plaintiffs, always laboring under the burden of establishing usury, fail for still another reason in their attack upon the court’s findings and conclusions with reference to the assignment of the utilities contract. Usury, under the controlling case law of this state, is not proved by showing that the lender is to receive something of doubtful value.

Beavers v. Taylor, 434 S.W.2d 230 (Tex.Civ.App.—Waco 1968, writ ref’d n. r. e.), discusses many of the cases on the subject and enunciates the rule prevailing in this state. There the borrowers agreed to pay the lender, in consideration of the loan and of the services rendered by her, a percentage of the gross sales of Fully Formed Top Company. She rendered no personal services but the percentage payments to her under the contract amounted to about 20% annually on the note, all of which she dutifully reported on her income tax return as “interest.” The Court denied the claim of • usury, saying:

“The contract here provided for payments of a percentage of gross sales of the Fully Formed Top Company. If Fully Formed Top Company had no gross sales, there would have been no payment. A loan is not usurious where the promise to pay a sum depends upon a contingency. Pansy Oil Co. v. Federal Oil Co., Tex.Civ.App., er. ref., 91 S.W.2d 453. And a contract is not usurious where the lender is to receive uncertain value, as here, even though the probable value is greater than lawful interest.” (434 S.W.2d at 231, emphasis supplied)

In Pansy Oil Co. v. Federal Oil Co., 91 S.W.2d 453, 457 (Tex.Civ.App. — Texarkana 1936, writ ref’d) (cited in Beavers, supra), the court quoted from an out of state case, saying:

“ ‘It is settled law that when the promise to pay a sum above legal interest depends upon a contingency, and not upon the happening of a certain event, the loan is not usurious.’ ”

Our record discloses that City was not obligated to pay anything under the contemplated utility agreement until several contingencies had occurred, the first of which was that the corporation would complete the installation of the utilities in accordance with the governing city ordinance. Next, the City would pay only portions of the sums received from the users of water by the occupants of the homes to be constructed upon the thirty lots in the subdivision, there being no water users in the subdivision at the time of the assignment. Moreover, even after construction of the homes, purchaser-occupiers of the homes must move in and consume the water. These were all contingencies, not certain events.

The trial court properly concluded that it was “impossible to assign a true dollar value to the contract thereafter to be issued, and the receipt by defendant of money from that source obviously was dependent on several circumstances [contingencies].”

After careful consideration of the entire record, we find no error and the judgment of the trial court is Affirmed.

      . “Art. 852a, Sec. 5.07, provides that associations such as defendant in this cause ‘. . may charge premiums for making such loans as well as penalties for prepayments or late payments; . . . ’ and under that provision defendant had the right to charge a premium of 2%, ($1,000.00) for making the loan.”

      . “The trial court erred in concluding, if it concluded, that the ‘points’ were not interest.”

      . See generally, R. Pearce and J. Williams, “Punitive Past to Current Convenience—A Study of the Texas Law of Usury,” 22 Sw. L.J. 233, 235 (1968).

      . Other lenders, upon compliance with the applicable statutes, are permitted to charge rates of interest greatly in excess of ten percent per annum. See, e. g., “Regulated Loans,” Tex.Rev.Civ.Stat.Ann. art. 5069, § 3.01 et seq., and particularly §§ 3.15 and 3.16.

      . Finding of Fact No. 2: “. . . The deed of trust covered 30 lots, and it provided that partial releases from the lien of the deed of trust cou'd be secured by paying $2,500.00 to defendant, of which $2,000.00 would be credited upon the note and $500.00 would be charged as a release fee. There was, of course, no obligation on the corporation’s part to secure the release of any lot or to pay any release fee unless it desired to secure a release.”

      . In refusing the writ with the notation “no reversible error,” the Supreme Court in Prichard noted “that a correct result was reached by the Court of Civil Appeals.” The prepayment question was the keystone to the opinion in the intermediate court.


author: COULSON, Justice.

text:
    John M. STEVENSON, Jr., Appellant, v. CULLEN CENTER, INC., et al., Appellees.
    No. 1180.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    July 16, 1975.
    Rehearing Denied Aug. 13, 1975.

      Will G. Dickey, Bires & Dickey, Houston, for appellant.
    Sam W. Davis, Jr., Vinson, Elkins, Searls, Connally & Smith, Alvin K. James, Asst. Atty. Gen., Joe Resweber, County Atty., Gregory Gregg, Asst. County Atty., Houston, for appellees.
   COULSON, Justice.

John M. Stevenson, Jr., (hereinafter Stevenson or appellant) appeals from an order of the district court of Harris County denying his application for a temporary injunction seeking to enjoin action by appellees, Cullen Center, Inc. (hereinafter Cullen), Ralph D. Franz, Constable Precinct 5, Harris County, Texas, individually and in his official capacity, and Paul Heath Till, Justice of the Peace, Precinct 5 of Harris County, Texas, under the distress warrant statute of the State of Texas. Stevenson contends that the distress warrant statute is unconstitutional and is in violation of the provisions of the fourteenth amendment of the Constitution of the United States of America in that the distress warrant statute does not afford citizens affected by its provisions the minimum standards of due process of law.

Stevenson was engaged in the real estate business. He occupied office space in the Executive Plaza Building in Houston, Texas. Stevenson subleased the office space from Cullen. A disagreement arose between Stevenson and Cullen concerning the amount of rent due and payable to Cullen by Stevenson. Commencing August 1, 1974, Stevenson did not pay any rent. During November 1974, Stevenson received a letter from Cullen demanding that Stevenson either pay the rent or vacate the premises. In response to the letter from Cullen, Stevenson instructed Cullen to “take it up with my lawyer”.

On January 10,1975, Cullen took affirmative action against Stevenson. Under the authority of Vernon’s Tex.Rev.Civ.Stat. Ann. art. 5239 (1962), the distress warrant statute, Cullen filed an affidavit in the office of the Justice of the Peace, Precinct 5, Harris County, Texas, posted a bond in the sum of $18,157 and sought the issuance of a distress warrant from the Honorable Judge Paul H. Till to seize the personal property of Stevenson in the office space occupied by him in the Executive Plaza Building. Pursuant to Texas Rules of Civil Procedure 612, Judge Till issued the requested distress warrant on January 10, 1975. On or about 3:30 P.M. on Friday, January 10,1975, Deputy Constable James Berry, acting under the authority and at the discretion of Constable Ralph Franz, executed the distress warrant and seized the personal property of Stevenson located in the office space in the Executive Plaza Building by evicting all persons found on the premises and by changing the lock on the only door which provided access to said office space.

Pursuant to Tex.R.Civ.P. 619, citation was issued by Judge Till and served upon Stevenson on January 10, 1975. Citation was returnable to the district court of Harris County “at or before ten o’clock a. m. of the Monday next after the expiration of twenty days from the date of service thereof .. . Tex.R.Civ.P. 619.

Stevenson posted a replevy bond in the amount of $3,836, that being the alleged value of the property seized pursuant to the distress warrant. The bond was approved and filed on January 14, 1975, and Stevenson’s property was returned to his custody at that time by the delivery to him of the key to the only entrance to the office space.

Stevenson filed his answer in the district court on February 17, 1975, and asserted a counterclaim against Cullen Center, Inc., Ralph D. Franz, Constable, Precinct 5, Harris County, individually and in his official capacity, and Paul Heath Till, Justice of the Peace, Precinct 5, Harris County, Texas. Stevenson sought, among other things, to obtain a temporary restraining order, a temporary injunction, a permanent injunction, the immediate discharge of the property of Stevenson from the distress warrant lien and the prohibition of execution of any further distress warrants against the property of Stevenson. In such counterclaim, Stevenson sought to recover from the cross-defendants actual damages in the alleged sum of $500,000, and exemplary damages against Cullen in the additional alleged sum of $500,000. In the counterclaim Stevenson further sought a declaratory judgment to the effect that Article 5239 and the relevant portions of the Texas Rules of Civil Procedure providing for the execution of distress warrants were unconstitutional under amendment fourteen to the Constitution of the United States of America.

On February 25, 1975, a hearing on Stevenson’s application for a temporary injunction was held in the district court of Harris County, Texas. Following the hearing, the trial court entered an order denying Stevenson’s application for the temporary injunction. Stevenson has perfected this appeal from that denial.

Stevenson’s appeal involves the applicability and effect of the following cases, North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975); Mitchell v. W. T. Grant Company, 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974); Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972); Southwestern Warehouse Corp. v. Wee Tote, Inc., 504 S.W.2d 592 (Tex.Civ.App. — Houston [14th Dist.] 1974, no writ). In both Fuentes and North Georgia Finishing, the Supreme Court of the United States held state statutes providing for the impoundment or taking of personal property without notice, opportunity for an early hearing, or participation of a judicial officer to be in violation of the due process clause of the 14th amendment. In Wee Tote this Court held Tex.Rev.Civ.Stat.Ann. art. 4076 (1966), the Texas Pre-Judgment Garnishment statute, to be unconstitutional as a violation of procedural due process. The Mitchell case involved the Louisiana writ of sequestration. The United States Supreme Court held that, although the writ was issued without notice and without a hearing, the overall system provided sufficient protection for the debtor’s interest as to avoid the pitfalls of due process involved in the Fuentes and North Georgia Finishing cases.

Article 5239 provides that:

When any rent shall become due, or the tenant about to remove from such leased or rent buildings, or remove his property therefrom, it shall be lawful for the person to whom the rent is payable, his agent, attorney or assignee, to apply to a justice of the peace of the precinct where the building is situated for a distress warrant, which shall be issued on an affidavit and bond .

The procedural structure for obtaining a distress warrant is provided for by Tex.R.Civ.P. 610-620.

The Rules provide that the landlord or its attorney may swear by affidavit that a given amount for rent is due or produce a writing signed by the tenant to that effect. The affidavit must state that the amount sued for is either for rent due or for advances made to the tenant. The person applying for the warrant must then execute a bond approved by the justice of the peace, in double the amount or value of the rent or advances sued for. The justice of the peace must then issue the distress warrant to the proper enforcement officer. The warrant is made returnable to the court having jurisdiction of the amount in controversy on or before 10:00 o’clock A.M. of the Monday next after the expiration of fifteen days from the date of issuance of the writ. The officer charged with the execution of the warrant must seize the property of the tenant or so much thereof as shall be of value sufficient to satisfy the debt and costs and safely keep it in his possession. The tenant may replevy the property by giving bond within ten days from the date of levy. The bond must be double the amount of the debt or, at the tenant’s election, for the value of the property seized. At the time of the issuance of the warrant, the justice of the peace must issue a citation to the tenant requiring him to answer before the court of proper jurisdiction at or before 10:00 A.M. of the Monday next after the expiration of twenty days from the date of service of citation. The property levied upon, unless replevied by the tenant, will be held by the court or the proper officer thereof until the termination of the proceedings between the parties. No special provision is made, either by statute or by the Rules of Civil Procedure, for immediate post execution hearing on the rights of the parties to the property.

The most recent United States Court decision concerning writs of sequestration, garnishment, distress or similar proceedings without a prior hearing was the North Georgia Finishing case. The opinion in that case was written by Justice White, who also authored the Supreme Court’s opinion in the Mitchell case. In holding the Georgia statute unconstitutional, Justice White distinguishes the Mitchell decision with the following language:

That case upheld the Louisiana sequestration statute which permitted the seller-creditor holding a vendor’s lien to secure a writ of sequestration and, having filed a bond, to cause the sheriff to take possession of the property at issue. The writ, however, was issuable only by a judge upon the filing of an affidavit going beyond mere conclusory allegations and clearly setting out the facts entitling the creditor to sequestration. The Louisiana law also expressly entitled the debtor to an immediate hearing aftér seizure and to dissolution of the writ absent proof by the creditor of the grounds on which the writ was issued. (Id. 95 S.Ct. at 722).

Justice White focuses upon three variables in evaluating the statutes involved. Two considerations are the participation of a judge in the process and the specificity of the allegations contained in the affidavits relied upon by the judge in deciding upon the issuance of the writ. The Justice’s third concern was with the availability of an immediate hearing after seizure to determine, under adversary conditions, the validity of the creditor’s claims. These are the criterion which must be applied to Article 5239 in evaluating the constitutionality of that statute.

Article 5239 clearly provides that the distress warrant may only be issued by a justice of the peace. However, Tex.R.Civ.P. 610 states that “[t]he plaintiff, his agent or attorney shall make oath that the amount sued for is rent or advances ... or shall produce a writing signed by such tenant to that effect, and shall further swear that such warrant is not sued out for the purpose of vexing and harassing the defendant.” The rule itself does not provide for an affidavit which goes beyond mere conclusory allegations or which clearly sets out the facts entitling the creditor to his relief. It is only necessary that the plaintiff state that the debt alleged is for rent, arid that the warrant is not sought for purposes of vexing or harassing the defendant. Although the affidavit sworn to by the representative of Cullen in this case does set out specific facts entitling the creditor to relief, we cannot say that the Rule itself requires such an affidavit. Hence, the justice of the peace is empowered to issue the distress warrant upon the receipt of an affidavit which quite possibly would contain only conclusory allegations concerning the existence of the debt and the intent of the creditor. We conclude that these rules do not provide that degree of protection for the tenant’s interest which was contemplated by the Supreme Court of the United States.

With regards to the third concern, the availability of an immediate post seizure hearing to determine the rights of the parties to the property in question, we again find the Texas Rules deficient. Although the tenant is served with citation on the day of the execution of the distress warrant, there is no provision for any special hearing. Rather, the contest between the parties would apparently become a part of the normal docketing procedures in the court of appropriate jurisdiction. The rights of the tenant to the property impounded as a result of the issuance and execution of the distress warrant can not be determined in an adversary proceeding under the Rules of Civil Procedure of the State of Texas until the case is tried on its merits. We conclude that the Texas Rules of Civil Procedure relating to distress warrants afford insufficient consideration of the rights to due process of the tenant.

Article 5239 fails to meet those standards of minimal due process as required by the fourteenth amendment of the Constitution of the United States of America, and must, therefore, be held to be unconstitutional.

The order of the trial court which denies the requested temporary injunction is reversed and this cause is remanded to the trial court to enter such orders which may be required consistent with this judgment.


author: OSBORN, Justice.

text:
    TEXAS ALCOHOLIC BEVERAGE COMMISSION, Appellant, v. Emma D. VALENCIA, d/b/a La Moremita, Appellee.
    No. 6451.
    Court of Civil Appeals of Texas, El Paso.
    July 23, 1975.
    Rehearing Denied Aug. 13, 1975.
    John L. Hill, Atty. Gen., David M. Kendall, First Asst. Atty. Gen., Joe B. Bibrell, John H. Richards, Asst. Attys. Gen., Austin, for appellant.
    Rocha, Carabin, Tutt & Rosenberg, P. C., Thomas Rocha, Jr., San Antonio, for appel-lee.
   OPINION

OSBORN, Justice.

This case involves a Beer Retail Off-Premise License which was cancelled by the Texas Alcoholic Beverage Commission in an order dated August 9, 1974, following a hearing the preceding day. On August 14, 1974, Appellee filed an appeal from the cancellation order in the District Court of Midland County and obtained an order suspending the Commission’s order pending a trial on the merits and setting the case for trial on September 17, 1974.

The case was called for trial on October 21, 1974, with all the parties present and ready. Counsel for Appellee contended that under the holding in Richardson v. City of Pasadena, 513 S.W.2d 1 (Tex.1974), Ap-pellee had been denied procedural due process of law at the Commission hearing where the only evidence presented was by way of affidavits, and thus there was no opportunity to confront or cross-examine witnesses. The Trial Court sustained Appellee’s appeal, and on December 4, 1974, entered a judgment setting aside and holding for naught the Commission’s order, dated August 9, 1974, which had cancelled Appellee’s beer license.

Appellant presents two points of error challenging the Trial Court’s judgment. It is not necessary for us to pass upon those points. Article 666-14, Tex.Penal Code Aux.Laws (1974), provides that all appeals from a cancellation order “ * * * shall be tried before the Judge within ten (10) days from the filing thereof, * * *.” On the face of the record, this case was not tried within such statutory period.

Therefore the proceedings which occurred after ten days from the date of the filing of the appeal in District Court were void and the Commission’s cancellation order has become final and enforceable. Cook, Administrator, Texas Alcoholic Beverage Commission v. Spears, 524 S.W.2d 290 (Tex.1975); Cook, Adm., Texas Alcoholic Beverage Commission v. Walker, 18 Tex.Sup.Ct.J. 441 (July 19, 1975).

The stay order of the District Court is set aside and the Commission’s cancellation order is affirmed.


text:
    E. Leon PHILLIPS et al., Appellants, v. Lloyd E. ZMOTONY et ux., Appellees.
    No. 1067.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Jan. 8, 1975.
    Rehearing Denied Jan. 29, 1975.

      No appearance for E. Leon Phillips.
    Edward J. Wheeler, Felton & Montgomery, Pasadena, for appellees.
   COULSON, Justice.

This is an appeal from an interlocutory order denying a temporary injunction after a hearing involving a covenant restricting the use of land.

By instrument dated May 30, 1952, and filed for record on June 2, 1952 in Harris County, Texas, Stanley D. Anthony, the owner of 67.61 acres of land out of the W. H. Anthony Survey in Harris County, Texas, dedicated to Harris County for public use as a county road a 60 foot strip of land containing 4.5 acres and dedicated to the Harris County Flood Control District for public use as drainage ditches two parcels of land, one containing 1.2 acres and the second containing 1.3 acres and in said instrument the owner agreed that said 67.61 acres would be held and thereafter conveyed subject to covenants, conditions, stipulations, easements and restrictions as therein set forth. Among other things, said instrument provides as follows:

3. Except as herein provided, no part of said tract shall be used for anything other than residential purposes. .
6.No trailer, . . . placed on any part of said tract, shall at any time be used as a residence, nor shall any residence of a temporary character be permitted.
All of the restrictions, covenants, conditions, stipulations, and easements, herein set forth shall be deemed to be covenants running with the land and shall continue and be binding upon the said Stanley D. Anthony, his heirs, and assigns. . . The covenants, conditions, stipulations, easements, and restrictions, herein set forth shall be binding on the said Stanley D. Anthony, his heirs, and assigns, and on all parties claiming, by, through, or under him or them, and all subsequent owners of property in said tract of land, each of whom shall be obligated and bound to observe the same; .... The said Stanley D. Anthony and/or any other owner or owners of any of said parts of said tract of land, shall have the right to enforce the observance and performance of said covenants, conditions, stipulations, easements, and restrictions; and in order to prevent a breach or to enforce observance or performance of the same, shall have the right, in addition to all other legal remedies, to an injunction, either prohibitive or mandatory.

In November of 1973, the defendants Lloyd E. Zmotony and wife Betty Cathleen Zmotony, purchased a 2½ acre tract out of said 67.61 acre tract of land facing on the dedicated public road known as Anthony Lane.

On May 28, 1974, Lloyd E. Zmotony and wife moved a mobile home measuring fourteen feet wide by eighty feet long onto their 2½ acre tract with the intention that it would become the permanent residence of their daughter and her three children. „

Prior to the movement of said mobile home onto the lot and while same was still on Anthony Lane, Mrs. Della Thomas, an owner of land in said 67.61 acre tract, notified the daughter of the defendants that the deed restrictions prevented trailer houses on the property. The daughter conveyed this notice to the defendants. At the time of such notice, the mobile home was being pulled by a truck which was hooked to a tongue which was attached to the front of the trailer. The mobile home was mounted on four axles with wheels. Notwithstanding such notice and protest, the mobile home was moved upon the tract and was thereafter connected to a private water supply. The defendants at the time of the hearing had contracted for electric power and installation of a septic tank. The wheels and the trailer tongue were removed and the mobile home was lowered onto concrete blocks and anchored to the ground with “tie-downs.” The defendants had started to install skirts at the bottom of the trailer to make it rodent proof. To move the mobile home, it would be necessary to jack up the trailer, put the wheels back onto the axles with lugs and to reattach the tongue. The mobile home could then be moved by a truck.

The defendant, Lloyd E. Zmotony, stated that he was not told anything about the restrictions on the land when the deal was closed at the title company. However, the dedication and restrictions dated May 30, 1952 were filed for record on June 2, 1952 and are recorded in volume 2449, page 713 of the deed records of Harris County, Texas. On May 31,1974, the appellant E. Leon Phillips, together with other property owners in said 67.61 acre tract, instituted suit against the appellees requesting among other things that a mandatory temporary injunction be granted commanding the defendants to remove from their property the trailer house thereon and that a temporary injunction be issued enjoining defendants from violating any of the subdivision restrictions and covenants or permitting any other person from doing so and that on final hearing said temporary injunction be made permanent.

After a hearing on June 10, 1974, pursuant to a show cause order, the trial court denied the plaintiff’s request for a temporary injunction. It is from that order that E. Leon Phillips has perfected this appeal.

The appellant states as his only point of error: “The trial court abused its discretion in refusing to grant Plaintiff’s Application for a Temporary Injunction, requiring the Defendant to remove the mobile home from the subdivision.”

The defendants, Lloyd E. Zmotony and wife, Betty Cathleen Zmotony, appel-lees before this Court, have not filed a brief. Therefore, all statements made by the appellant’s brief as to the facts are accepted as correct under Texas Rules of Civil Procedure, rule 419.

In reviewing the discretionary action of the trial court, we can reverse its decision only in those cases in which we determine that the trial court has abused its discretion or erred in the application of the law to the facts of the case. City of Spring Valley v. Southwestern Bell Tel. Co., 484 S.W.2d 579 (Tex.Sup.1972); Southland Life Ins. Co. v. Egan, 126 Tex. 160, 86 S.W.2d 722 (1935).

In construing a restrictive covenant, the court must give effect to the words set out together with what is necessarily implied, in assessing the intentions of the parties to the covenant. H. E. Butt Grocery Company v. Justice, 484 S.W.2d 628 (Tex.Civ.App.—Waco 1972, writ ref’d n. r. e.). The defendants in their original answer contend that they were not violating any restrictions or covenants running with the land as the home fourteen feet wide and eighty feet long was not a trailer and that they had never intended to use it as a trailer or as a vehicle, but that they had purchased it for the purpose of putting it on their lot, affixing it to their realty to use it as a home to be permanently tied to the ground with cables, connected with a permanent sewer system and for it to become a part of the real estate.

In the ease of Bullock v. Kattner, 502 S.W.2d 828 (Tex.Civ.App.—Austin 1973, writ ref’d n. r. e.), restrictions containing substantially the same provisions as herein-above quoted were in issue. In that case the trial court refused to grant enforcement of the restrictions. On appeal, the Austin Court reversed and remanded with instructions that an appropriate order be entered compelling compliance with the restrictions. It was held that the mobile home was a trailer within the meaning of the restrictions stating: “A trailer, sans wheels, placed on blocks and hooked to light and water is still a trailer . . . even though it may be a mobile home.” 502 S.W.2d 829.

In the case before this Court, the intent of the restrictions are clear. The 67.61 acres of land is to be used only for residential purposes. No trailer is to be used as a residence. The mobile home is a trailer and is excluded by the restrictions.

The defendants had constructive knowledge of the existence of the restrictions in their chain of title and are bound by those restrictions. Gulf Production Co. v. Continental Oil Co., 139 Tex. 183, 132 S.W.2d 553 (1939); Smith v. Bowers, 463 S.W.2d 222 (Tex.Civ.App.—Waco 1970, no writ). In addition thereto, the defendants had actual knowledge of the restrictions. They were warned that they were violating the restrictions, disregarded the warnings and proceeded to move the mobile home upon their land at their own peril. The right to injunction to prevent the violation of restrictions is established in the state of Texas. Atkins v. Fine, 508 S.W.2d 131 (Tex.Civ.App.—Austin 1974, no writ).

No affirmátive defense was asserted which would be the basis for denying the issuance of the temporary injunction as requested. We therefore reverse the judgment of the trial court and remand the case to that court so that it may enter an appropriate order compelling the appellees to remove from their property the trailer house situated thereon and that the appellees be temporarily enjoined, pending a trial on the merits, from violating the restrictions and covenants or permitting any other person from doing so on appellees’ said land.

Reversed and remanded with instructions.

Writ granted July 9, 1975.