author: SPURLOCK, Justice. MASSEY, Chief Justice,

text:
    Mike MONCRIEF, County Judge, et al., Appellants, v. Marshall TATE et al., Appellees.
    No. 17981.
    Court of Civil Appeals of Texas, Fort Worth.
    Feb. 2, 1978.
    Tim Curry, Dist. Atty., and Joe Lockhart and Cue L. Lipscomb, Asst. Dist. Attys., Fort Worth, for appellants.
    Steves, Morgan & Harper, James Henley Morgan, Fort Worth, for appellees.
   OPINION

SPURLOCK, Justice.

Plaintiffs were civil service employees of Tarrant County, Texas. They were discharged from their positions as janitors-custodians at the end of 1976 on the theory that such employees’ positions were being abolished, whereas the Commissioners Court at the same time entered into a contract with an independent contracting firm to perform the same duties that had previously been performed by these county employees. The employees attempted, but failed to obtain relief through the Civil Service Commission, then, the employees filed suit in district court. This suit was filed as an appeal from the ruling and order of the Civil Service Commission and sought relief by way of declaratory judgment for reinstatement with back pay.

The trial court rendered judgment in pertinent part that:

“IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the Plaintiffs . . . (names deleted from this quotation) ... be reinstated to their Civil Service positions with Tarrant County with back pay to be calculated at rates prevailing for their respective classifications and grades during their absence from employment plus interest thereon at six (6%) per cent per annum from date of judgment minus an amount for any pay period earned from other regular employment during that pay period and that the costs of this suit be taxes (sic) against the Defendant, TARRANT COUNTY.” (Emphasis added.) Defendants have attempted an appeal from this judgment.

At the outset, we are confronted with the question as to whether the judgment in this case is a final judgment. This is crucial because there can only be one final judgment in a case from which an appeal will lie (with certain exceptions, none of which apply here). Tex.R.Civ.P. 301.

In dismissing the appeal in McCormick v. Hines, 503 S.W.2d 333 (Tex.Civ.App.—Amarillo 1973, no writ), the court wrote: “[Ojbviously, a judgment disclosing on its face that the court has reserved some issue for further action until a later date is not final.” The court further wrote: “Where, as here, future action by the court will be necessary in order to settle and determine the entire controversy, the judgment is not final.” Id. at 335.

In dismissing the appeal in Howard Gault & Son, Inc. v. First National Bank, 523 S.W.2d 496 (Tex.Civ.App.—Amarillo 1975, no writ), the court wrote:

“A judgment is considered final only if it determines the rights of the parties and disposes of all of the issues .involved so that no future action by the court will be necessary in order to settle and determine the entire controversy. . . . ” (Emphasis added.) Id. at 498.

In Joseph v. City of Ranger, 188 S.W.2d 1013 (Tex.Civ.App.—Eastland 1945, writ ref’d w.o.m.), the court dismissed an appeal from an interlocutory judgment because the judgment attempted to be appealed from was not a final judgment. The Eastland court of civil appeals wrote:

“In this case the declaratory judgment as entered by the court will not end the controversy, for the reason there are a number of other issues involved in the case that will have to be determined before a final judgment can be entered therein. . . . ” Id. at 1014.

We are confronted with the same situation in the case at bar. The judgment discloses on its face that it is not final in that there are still matters unresolved that will require the presentation of evidence in the trial court; i. e., the amount that each employee’s recovery for back pay will be mitigated, depending on each employee’s earnings during the period of his discharge.

We hold that the judgment sought to be appealed from is interlocutory in nature and no appeal will lie to this court based upon the actions taken. Since no final judgment has been entered so as to confer jurisdiction over the attempted appeal, it is our duty to dismiss the appeal on our own motion. This attempted appeal is dismissed without prejudice to the rights of any party to perfect its appeal from any final appeal-able judgment subsequently entered in this cause.

MASSEY, C. J., concurring.

MASSEY, Chief Justice,

concurring.

By the Official Opinion in this case I have been persuaded to concur.

However, in connection with any possible future use I believe to fully understand the Official Opinion, it might be of advantage that a reader have available the opinion I originally prepared and proposed. For that purpose I present a copy, as follows:

“Marshall Tate and others, all employees (or ex-employees) of Tarrant County, Texas, (and its Commissioners Court chaired by the Honorable Mike Moncrief, County Judge,) were in effect, discharged from their positions as janitors-custodians at the courthouse(s) as of the end of the calendar year of 1976. There was no resolution by the Commissioners Court to such effect. Beginning January 1, 1977, on the theory that there was an abolishment of such employees’ positions, the Commissioners Court entered into a contract with an independent contractor to accomplish the performance of those same duties formerly their obligation as county employees. Tate and the other employees were notified in writing through agency of the Director of County Services” that their last working day would be December 31, 1976. Therein it was stated “This lay-off is being conducted according to Civil Service Rule XIV, Section 14.1.-1, 14.1.3, 14.1.4, and 14.1.6.”

About five years prior the Commissioners Court had by its own order adopted a county civil service system pursuant to the provisions of V.A.T.S. Title 44, “Courts-Commissioners”, Art. 2372h-6, “Civil service system in counties of 300,000 or more”. All of the affected employees were “covered” civil service employees as of the time of their discharge. The Director of County Services served notice in writing upon the county Civil Service Commission that it was necessary to “delete” the positions in which these employees had theretofore been serving. All this was done several weeks prior to January 1, 1977.

The employees appealed because of what they considered their discharge and presented their petition to the Civil Service Commission. They failed to obtain relief. Pursuant thereto the following represents the written record of the Commission action:

“DECISION OF TARRANT COUNTY CIVIL SERVICE COMMISSION REGARDING THE LAYOFF OF CUSTODIAL EMPLOYEES
The intent and good faith of actions by the Tarrant County Commissioners’ Court is a matter of law to be adjudicated in the District Court. This Civil Service Commission does not have the statutory jurisdiction to look behind the intent and good faith economic policies of the Tar-rant County Commissioners’ Court. No fact complaints have been received by this Civil Service Commission regarding the order or sequence of the individuals being ‘laid off’ in the terms of the Commissioners Court, or ‘terminated’ in the words of Petitioners’ Counsel. No fact questions regarding the propriety of the operation of this Civil Service Commission Rules and regulations have been presented to warrant overturning the Civil Service Commission order regarding the order and sequence of the Petitioners’ dismissal.
The question of a valid or invalid intent by the Tarrant County Commissioners’ will not be considered by the Civil Service Commission. This Civil Service Commission, thereby finds no fault in the procedure used relevent (sic) to tenure, seniority or sequence in the reduction of employees by Tarrant County Commissioners’ Court subject to rule 14.”

Thereafter the employees promptly filed suit in District Court. Cautiously, they coupled their case, as an appeal from the ruling and Order of the Civil Service Commission, with pleadings appropriate to an original action to obtain a declaratory judgment directing reinstatement because their termination was without authority and null and void. Their theory was that any question of jurisdiction of the District Court was thereby eliminated.

Following trial in the District Court judgment was rendered in favor of the employees that they be reinstated to their civil service positions. Additional adjudication, which in our opinion was not absolutely essential to the judgment and therefore severable, and treated severed, was that they have their back pay, less amounts for any pay earned from other regular employment. From this judgment Moncrief, County Judge, et al., have brought their appeal to this Court.

We affirm the judgment ordering reinstatement. Treating it as a severable, and severed, judgment we reverse and remand the remainder of the provisions by judgment, necessarily constituting premature and improper supplemental relief based upon that portion of the judgment which is affirmed — and actually remaining to be tried if not settled administratively. By such action of remand we recognize that there was no complete adjudication of supplemental relief such as authorized by the provisions of V.A.T.S. Art. 2524-1, “Uniform Declaratory Judgments Act,” § 8, “Supplemental relief,” but the right of appeal existed independently of the ineffective judgment provisions relative to supplemental relief because as a Declaratory Judgment ordering reinstatement the Act provides it shall have the force and effect of a final judgment or decree.

We hold that the trial court’s jurisdiction was invoked; that any question thereon which might otherwise have obtained was eliminated and not necessary to be here determined by the joinder of action for declaratory judgment with action by way of appeal from the decision of the Civil Service Commission.

Furthermore, we hold that the nature of the proof made was sufficient to support the judgment whether tested under the Substantial Evidence Rule or by the tests applicable to the ordinary suit.

We overrule the challenges made upon the Findings of Fact and Conclusions of Law of the District Court. These are: fact findings (X) that the employees were terminated as opposed to having been “laid off,” and (XI) that at time of termination there did not exist a “lack of work” or “lack of funds” within the meaning of the rules of the Civil Service Commission; and legal conclusions (V) that the termination was not made in good faith; and (VII) that the termination was null and void.

By provision of V.A.T.S. Art. 2372h-6, § 8, “Civil service system in counties of 300,000 or more,” Tarrant County was obliged upon its adoption to create the county’s Civil Service Commission. By the statute such Civil Service Commission was obliged to make, publish, and enforce rules, consistent with the purposes of the Act, relating to:

(3) promotions, seniority, and tenure;
(4) layoffs and dismissal;

The Civil Service Commission did make the rules required. A copy thereof was made a part of the record in the trial court. Those necessary to be noticed are:

First: RULE VII, “Discipline”, Sec. 7.1, “Suspensions, Demotions, Removals”, and Sec. 7.2, “Cause for suspension, demotion or removal” of persons in the classified service shall be made in accordance with and under the provisions of Rule VII; further, that the tenure of every person holding a position under the provisions of the rules shall be during good behavior, but that any such person might be removed, demoted, suspended, etc. for any other following causes;
(a) Incompetency;
(b) Inefficiency;
(c) Insubordination;
(d) Dishonesty;
(e) —and other causes through (m), none of which could have possible application to the situation posed by this case.
Second: RULE XIV “Layoff, Resignation, Reinstatement and Reemployment, and Retirement”. (It was to sections under this rule that the letter of the “Director of County Services” made reference in the written notification to Tate and the other employees.) Thereunder are provisions to be considered, viz:

Sec. 14.1.1, “layoff”, providing that “[wjhenever it becomes necessary through lack of work or funds, to reduce the number of employees in any class in the classified service . . ” there should be administrative procedure culminating in action by the Civil Service Commission, which, “upon finding that such procedure is in the public interest, may authorize an appointing authority to lay off employees . . . ” etc.

Sec. 14.1.3, “Layoff Ratings”, which contains provisions by which the order of making the “layoffs” are to be determined.

Sec. 14.1.4, “Seniority For Layoff Purposes”, which contains provisions relative to seniority considerations to be considered in determining “layoff ratings”.

Sec. 14.1.6, “Demotion in Lieu of Layoff”, which contains provisions which afford- an employee otherwise to be laid off the option to accept lower rated employment where a lower classification exists to which he might be willing to be reduced in order to continue in capacity of employee.

The Rules of the Civil Service Commission apply to all “removals” of persons in the employ of Tarrant County in the classified service. Thereby is provided that there must be compliance with authorization and procedure by provision of RULE VII (and/or, of course, by Texas statutory law). Since there was not any termination of the status of such employees (as Civil Service Employees of Tarrant County) under provisions of RULE VII there was not in this case any effective discharge or termination of the employees’ status as such. The abolition of an office or position Under civil service must not violate the civil service rules as to discharges. 15A Am.Jur.2d 104, “Civil Service”, § 72, “(Abolition of Office or Reduction of Working Force; Reorganization) — Generally”. It is obvious this legal principle was in the mind of the trial court when it made its Findings of Fact and Conclusions of Law, as follows:

FINDINGS OF FACT

I

Defendants are officials and employees of Tarrant County, Texas, a bodies politic and were duly served and answered in their official capacities.

II

Prior to April, 1974, Tarrant County adopted a civil service system under Article 2372h-6, V.A.T.S.

III

On August 3,1972, the Civil Service Commission adopted rules as authorized by Section 8 of Article 2372h-6, V.A.T.S. which rules included Rule XIV relating to “layoffs.”

IV

Immediately prior to December 31, 1976, Plaintiffs, Marshall Tate, Sam H. Flood, Ernest S. Thompson, Andy Adkins, John E. Cawthorne, Johnny Sepeda, Lucien Chavez, Newton Braziel, William H. Ward, Irvin Loftin, Audrey 0. Williams, Bennie V. Shaw, Lucy Rhodes, Bennie J. Jones, Walter Wells, and Howard Priddy, were employees of Tarrant County, Texas.

V

Each of the Plaintiffs hereinabove named were permanent employees of Tarrant County, Texas, as that term is defined in the Rules of the Tarrant County Civil Service Commission and each had tenure within the meaning of Article 2372h-6, V.A.T.S.

VI

Each of the Plaintiffs named hereinabove was terminated by the County as of December 31, 1976.

VII

On the next working day following the termination of the named Plaintiffs, the work theretofore performed by the Plaintiffs was taken over and performed by persons not subject to the rights and protections of Article 2372h-6, V.A.T.S. The janitorial work done by the Plaintiffs prior to January 1, 1977, and that done by others outside the civil service system thereafter was substantially identical.

VIII

The Commissioners’ Court of Tarrant County, Texas adopted no order terminating Plaintiffs but did adopt Order No. 45449 authorizing the contracting of janitorial services with an independent contractor.

IX

Servants of Tarrant County notified each of the named Plaintiffs that he was being “laid-off” pursuant to Rule XIV, Sections 14.1.1, 14.1.3, 14.1.4, and 14.1.6, which provide

“Whenever it becomes necessary through lack of work or funds, to reduce the number of employees in any class in the classified service, the appointing authority of the department concerned shall notify the Director of Personnel in writing of the number of employees to be laid off, the class title, and the date the employees are to be laid off.”

X

The Plaintiffs were terminated and were not “laid-off” as those terms are known and used in the field of labor relations and as the term “laid-off” is used in the Rules of the Civil Service Commission of Tarrant County.

XI

At the time of the termination of the named Plaintiffs, there did not exist a “lack of work” or “lack of funds” within the meaning of the rules of the Civil Service Commission of Tarrant County.

XII

Prior to the termination of Plaintiffs, the Commissioners’ Court of Tarrant County made an abortive attempt to abolish the civil service system of Tarrant County by declaring its previous Orders invalid under the Open Meetings Act and then readopting all of those orders except that order creating the civil service system. That attempt of the Commissioners’ Court of Tarrant County to abolish its civil service system by means other than those provided by statute was declared inoperative by Attorney General’s Opinion H-594.

XIII

The Commissioners’ Court of Tarrant County caused two feasibility studies to be made with respect to its janitorial services. The first was conducted prior to the County’s abortive attempt to abolish the civil service system; the second was conducted subsequent to the issuance of Attorney General’s Opinion H-594.

XIV

The Plaintiffs herein filed timely appeal of their termination to the Tarrant County Commissioners’ Court which heard their appeal and failed to grant affirmative relief.

XV

The termination of the named Plaintiffs herein resulted in their removal from the positions they had previously held and directly affected their rights and status as encompassed by Article 2372h-6, V.A.T.S. and the rules adopted thereunder.

CONCLUSIONS OF LAW

I

The parties are properly before the Court.

II

The Court has jurisdiction under Article 2524-1, V.T.C.S. and Article 2372h-6, Section 9, V.A.T.S.

III

In Texas, the presumption of good faith of Commissioners’ Court does not obtain in matters relating to employee’s rights and status.

IV

Courts may consider past actions of a Commissioners’ Court and circumstances surrounding termination of a civil service employee to determine whether or not the termination was made in good faith.

V

The question of good faith in the termination of a County employee having tenure under civil service is a question of law for the Court. The termination of the named Plaintiffs herein was made in a proximate context of an abortive attempt by the Commissioners’ Court to abolish the civil service system in Tarrant County and was not made in good faith.

VI

The termination of the named Plaintiffs herein is null and void and those Plaintiffs are entitled to reinstatement with back pay for each pay period with back pay to be calculated at rates prevailing for their respective classifications and grades during their absence from employment plus interest thereon at six (6%) per cent per annum from date of judgment minus an amount for any pay period earned from other regular employment during that pay period.

VII

The “laid-off” Plaintiffs herein were terminated in contravention of the Civil Service Rules of Tarrant County, Texas.

The conclusions of law that termination of the employees was improper — even assuming the absence of procedural defect— was adequately supported by the evidence. The issue of “good faith” in the aspect applicable to the facts of the case before us, i. e., in the abolishment of a civil service position, presents a question of whether there was an abuse of discretion on the part of the governing board (Commissioners Court) which occasioned the action, or whether its action was arbitrary presented a question of law for the court. City of San Antonio v. Wallace, 161 Tex. 41, 338 S.W.2d 153, 157 (1960).

In the City of San Antonio case, by the Supreme Court, is the holding that, in this particular form of case, the burden lies upon the state agency (Tarrant County and its Commissioners Court) to prove its “good faith”. In the posture of the proceedings the agency was obliged to make the proof and obtain the finding in accord that the termination of its employees was neither made by an abuse of its discretion so to do nor that its action was arbitrary. The City of San Antonio, which had by ordinance attempted to abolish certain classified positions of firemen and policemen under provision applicable by the Civil Service Act, had by this method sought to discharge its employees while continuing the work of those in the positions formerly occupied by contracting with an independent contractor to furnish other individuals to perform the same services. The City of San Antonio wholly omitted to discharge its burden of proof (settled as incumbent by the opinion of the Supreme Court), believing that' as applied thereto — if the issue had any importance — that the complaining employees would be obliged to prove the municipalities’ want of “good faith”.

Of concern to us is certain language in City of San Antonio. The court wrote (p. 157) “As above pointed out, there were no pleadings which suggested that the questioned ordinance was adopted in the interest of either economy or increased efficiency, and the City relies heavily upon the doctrine that public officials are presumed to act in good faith.” (Emphasis supplied.)

Unlike City of San Antonio there was in the instant case the attempt to show that Tarrant County’s action (disregarding the want of conformity to Art. 2372h-6 and RULE VII of the Tarrant County Civil Service Commission) was motivated by the consideration of economy. All the proof was to the effect that pursuant to studies and investigations caused to be made in advance Commissioners Court honestly believed that thousands of dollars per year could be saved by “going the independent contractor route” in changing the method of providing custodial-janitorial services at its buildings.

The trial court, under the rule announced in the City of San Antonio case, could have disbelieved the evidence so presented. We have no doubt, however, that it did believe that the commissioners were thus honestly motivated.

The only material difference of this case from City of San Antonio lies in the state of the evidence. In the case before us there was attempt of the party in the position of the City of San Antonio to introduce evidence to justify its action on the ground of economy, and such evidence was not contradicted. In other words, evidence which was absent on behalf of the City of San Antonio was by and in behalf of Tarrant County placed in the record on the trial from which the appeal was taken.

In instances where in pursuance of a rule that a civil service office or position may be abolished in good faith certain factors have been considered as evidence of good faith in the abolishment, namely; the fact that a municipality had been unable to pay its financial obligations for a number of years;' the fact that no rank in the police force, either in name or substance, was created similar to that of chief of police, which had been abolished; the fact that after the dismissal of members of a police force, following reduction of personnel for reasons of economy, no officers were appointed to take their places; and the fact that a new office or position created to take the place of an old one consisted of duties separate and distinct from that of the office or position abolished. 15A Am.Jur.2d, p. 105, “Civil Service”, § 73, “Factors indicating good faith”. In such cases the abolishment of offices or positions have generally been upheld.

In the case before us it is conceded that, from a financial standpoint, Tarrant County could have continued as before, with retention of the employees discharged; that the county enjoys favorable financial resources. Thus, the type of proof considered in the preceding paragraph was not available to prove facts tending to establish the existence of the county’s “good faith”. (That it not be overlooked it is to be remembered that the abolition of an office or position under civil service must not violate the civil service rules as to discharges.)

In the final analysis it must be recognized that the public policy of this state as evidenced by its civil service law, which is to place employees for the most part upon a merit system and free them from political control, cannot be circumvented and where there is litigation the court will scrutinize carefully any attempt at circumvention. City of San Antonio v. Wallace, supra; City of Wichita Fails v. Harris, 532 S.W.2d 653, 658 (Tex.Civ.App.—Fort Worth 1975, writ ref’d n. r. e.).

In view of the public policy we have concluded that where there is abolishment of a civil service position of custodian-janitor in the interest of economy in instances where there exists no compelling reason to effect the saving, with the continuation of the identical work and function of the employee discharged by supplying another (or others) with whom there is arrangement for the same purpose, a trial court commits no error in finding and concluding that there was want of “good faith” in an abolishment of the position, and/or in the termination of the employment of the civil service employee in his protected position. To hold otherwise would be to afford opportunity for one in a position like unto that (or those) formerly enjoyed by the county’s employees here affected to be “legislated out of office” so that another might take his place in contravention of public policy.

Upon such a premise we hold that the trial court, even assuming, as we do, that such court did believe that the attempt of the Commissioners Court was admirably inspired in the interest of county government economy, was justified in declining to conclude that the affected employees had been terminated by “good faith” action of Commissioners Court. (Reference should be made to the opinion in City of San Antonio, supra, upon the meaning of the term “good faith” as applied to the particular situation posed.)

We are not prepared to go as far as California, where adoption of state Civil Service was constitutionally provided. There the cases seem to discredit any use of an independent contractor system to replace civil service employees on the ground that the purpose of the Civil Service Act of that state is circumvented when necessary services are continued to be performed by persons working for the contractor and thus not under the civil service system. See State Compensation Insurance Fund v. Riley, 9 Cal.2d 126, 69 P.2d 985 (Cal.Sup.1937); and Stockburger v. Riley, 21 Cal.App.2d 165, 68 P.2d 741 (Cal.Dist.Ct. of Appeal, 1937, hearing by Sup.Ct. denied). In the instant case we are merely obliged to pass upon the question of whether there was an abuse of discretion by the trial court; whether that court erred by the refusal to find the action of Commissioners Court was in “good faith”, as the meaning of such term is to be understood. This we have done.

Judgment is in part affirmed, and in part and as a judgment in a severed action is reversed and remanded. That part of the judgment which is affirmed is the declaration and settlement of dispute and that appellees named in the judgment be reinstated in their civil service positions. That part of the judgment which is treated as severed and reversed relates to appellees’ monetary entitlement; heretofore observed as actually not yet tried and adjudicated so that there was judgment thereupon which was ripe for any appeal as upon supplemental relief to be adjudicated pursuant to provisions of V.A.T.S. Art. 2524-1, “Uniform Declaratory Judgments Act”, § 8, “Supplemental relief”.

All costs are taxed against the appellants.

The foregoing sets out what I originally proposed to be the official opinion in the case. As earlier stated, it is copied for better understanding of the opinion which is the Official Opinion of the Court, in which I concur.


source: Caselaw Access Project

author: DUNAGAN, Chief Justice.

license: Public Domain

text:
    Edgin Brent BROOKS, Appellant, v. Carol Ann BROOKS, Appellee.
    No. 1078.
    Court of Civil Appeals of Texas, Tyler.
    Feb. 2, 1978.
    Rehearing Denied March 3, 1978.

      Tom Wells, Wells, Wells & Bastían, Paris, for appellant.
    Frank Supercinski, Longview, for appel-lee.
   DUNAGAN, Chief Justice.

This is a divorce case. The appellant, Edgin Brent Brooks, originally brought suit for divorce in January 1975. In October 1976, the appellee, Carol Ann Brooks, filed a cross-petition for divorce against the appellant. The case was set for hearing on February 22, 1977. The divorce was granted on this date and the appellee, Carol Ann Brooks, was awarded a judgment against the appellant for FOURTEEN THOUSAND AND NO/100 ($14,000.00) DOLLARS and household goods as her part of the property. The total cash estate of the parties was TWENTY-FIVE THOUSAND AND NO/100 ($25,000.00) DOLLARS to THIRTY-FIVE THOUSAND AND NO/100 ($35,000.00) DOLLARS. The appellant timely perfected his appeal from the trial court’s judgment upon four points of error, the first of which is the alleged error of the trial court in overruling his motion for continuance because of the absence of the appellant-plaintiff.

The appellant by and through his attorney of record, Tom Wells, on the 22nd day of February, 1977, filed a motion for continuance. The motion for continuance stated that counsel had only seen his client on two occasions and that he had been unable to notify him that the case was still going to trial on the 22nd day of February, 1977.

The petitioner was notified of the day of the setting of the case by registered mail. On the 11th day of February, 1977, the petitioner’s attorney talked to him at which time the petitioner requested his attorney that the case be continued if possible and his attorney advised him that he had no control over the matter but would do what he could and that he would contact Mr. Supercinski, the attorney for Mrs. Brooks, and see if some compromise could be worked out as far as the setting of the date of trial was concerned. Petitioner’s attorney told him that he would call him back at his home in Longview as soon as he had talked to Mr. Supercinski. He was never able to contact Mr. Brooks after that time. At the hearing on the motion for new trial it was developed that on the day this case was set for trial and heard, February 22nd, 1977, that due to a defect in appellant’s telephone it would not ring. For that reason he could not receive incoming calls. He reported this defect to the telephone company on February 22nd, 1977. The phone was back in working order at 3:30 p. m. on the same day the defect was reported. However, this defect did not prevent outgoing calls from being made. On the day of the trial he saw his wife in front of the Longview Courthouse. Despite seeing her in town, in front of the Courthouse on the day of trial of the divorce action and knowing his wife had to come from Monahans, Texas, he decided to go to the barber shop instead of going to the Courtroom of the Domestic Relations Court where the case was being heard. After getting his hair cut, he called his attorney’s office in Paris, Texas, and was informed that his lawyer was in town. He returned to his mother’s house and was unable to use the phone because it was out of order. He remained at his mother's house until the trial was over. There is no evidence in the record that the appellant ever made inquiry of his attorney as to whether or not he was successful in changing the date of the trial setting or that he contacted the trial court or the clerk’s office or anyone else to attempt to ascertain if the case still remained set for February 22, 1977.

It was the legal duty of the appellant to keep himself posted as to the setting of the case for trial, and to be present to testify and aid his counsel. Turnbow v. Southern Engine & Pump Company, 237 S.W. 321 (Tex.Civ.App.—Galveston 1922, n. w. h.) and Adams v. Overland Automobile Company, 202 S.W. 207 (Tex.Civ.App.—Dallas 1918, n. w. h.).

Moreover, appellant’s motion for continuance did not set forth appellant’s purported testimony or disclose in what manner his testimony would be material to the case. That ground alone is sufficient to support the court’s action in overruling appellant’s motion for continuance. Berry v. Berry, 257 S.W.2d 780 (Tex.Civ.App.—Eastland 1953, n. w. h.) and Mitchell v. Mitchell, 233 S.W.2d 187 (Tex.Civ.App.—Amarillo 1950, n. w. h.); 12 Tex.Jur.2d sec. 22, p. 570. Rule 252, Tex.R.Civ.P., clearly states the motion shall show the materiality of the wanted testimony. Where a motion for continuance does not conform to the provision of a rule regulating the same, the presumption is that the court did not abuse its discretion. Oates v. Oates, 533 S.W.2d 107, 108 (Tex.Civ.App.-Tyler 1976, n. w. h.).

The law is well established in this State that the action of the trial court in granting or denying an application for a continuance rests within the sound discretion of the trial judge and will not be disturbed on appeal unless the record discloses a clear abuse of discretion. Piano v. Gulf Coast Investment Corporation, 429 S.W.2d 554 (Tex.Civ.App.-Houston [14th Dist.] 1968, writ dism’d); Hernandez v. Heldenfels, 374 S.W.2d 196, 202 (Tex.1963); Panhandle Broadcasting Co. v. Cercy, 363 S.W.2d 792 (Tex.Civ.App.-Amarillo 1962, n. w. h.); Sears Roebuck & Co. v. Jones, 303 S.W.2d 432 (Tex.Civ.App.—Waco 1957, writ ref’d n. r. e.); Mitchell v. Mitchell, supra; and 12 Tex.Jur.2d p. 565, sec. 19.

The defendant-appellee, Carol Ann Brooks, appeared in person and by counsel. Appellant-plaintiff, Edgin Brent Brooks, did not appear in person, but was represented by counsel. Even though appellant did not appear and testify, the case was tried by using his deposition. See Taylor v. Holland Electric Co., 386 S.W.2d 598, 601 (Tex.Civ.App.-Beaumont 1965, writ dism’d).

Viewing all the facts and circumstances as the record before us reflects, we are of the opinion that the trial court did not abuse its discretion. Appellant’s point of error No. 1 is overruled.

Appellant’s second point of error alleges that the trial court abused its discretion in dividing the property of the parties. The trial court stated in its conclusion of law No. 6 that the property division was an equitable one regardless of the community or separate property nature of the property involved. The appellant disputes this finding. Also, the appellant states that the evidence in the record is insufficient to base this property division upon, especially regarding the amount of his retirement benefits at Brown & Root, Inc.

The trial court is authorized to divide the property in a manner it deems just and right. Texas Family Code Ann., sec. 3.63; Spiller v. Spiller, 535 S.W.2d 683, 684 (Tex.Civ.App.—Tyler 1976, writ dism’d); Cooper v. Cooper, 513 S.W.2d 229, 233 (Tex.Civ.App.—Houston [1st Dist.] 1974, n. w. h.); Roye v. Roye, 404 S.W.2d 92 (Tex.Civ.App.—Tyler 1966, n. w. h.). The provisions of sec. 3.63 of the Texas Family Code do not require the property division to be equal. The trial court is given broad discretion in a divorce case in making its division of the property of the parties and this discretion will not be disturbed on appeal unless the court has clearly abused this discretion. Roye v. Roye, supra; Wetzel v. Wetzel, 514 S.W.2d 283,285 (Tex.Civ.App.—San Antonio 1974, n. w. h.); Cooper v. Cooper, supra.

Appellee’s testimony about the estate of the parties and the supporting evidence of Roger Logan by deposition support the court’s finding and judgment as to the property in question. Upon the trial of the ease on its merits appellant’s counsel objected that the deposition of Logan had not been on file more than one day and the court sustained this objection and excluded the deposition. Appellee perfected a bill of exception. At the hearing on the motion for new trial it was brought out that the Logan deposition had been timely filed. Therefore it was error for the deposition to have been excluded. We think the evidence supports the court’s findings and judgment in respect to division of the property.

The fourth point of error complains of a finding of fact by the trial court that the appellant withheld all household goods of the parties and denied the appellee access to them. Appellant states that the record does not support such finding. Appellant has not shown nor made any attempt to show how this ruling of the court affected the judgment or the outcome of the trial. If such finding of the trial court was not supported by evidence of probative force, which we do not hold, such error does not amount to such a denial of the rights of the appellant as would reasonably calculate it to cause and probably did cause the rendition of an improper judgment in the case. Rule 434, T.R.C.P. Therefore, if it was error, it was harmless. Appellant’s points of error Nos. 2 and 4 are overruled.

The appellant upon oral argument of this case informed the court that his point of error No. 3 was now moot and did not desire to further pursue it.

The judgment of the trial court is affirmed.


author: MOORE, Justice.

text:
    Billy Joe FANNIN, Appellant, v. Clara Maude HALL et al., Appellees.
    No. 1069.
    Court of Civil Appeals of Texas, Tyler.
    Feb. 2, 1978.
    Rehearing Denied March 3, 1978.

      William D. Perkins, Lufkin, for appellant.
    Grover Russell, Jr., Fairchild, Hunt & Price, Center, for appellees.
   MOORE, Justice.

This is a damage suit arising out of an automobile collision. Plaintiffs, Mrs. Clara Hall and Mrs. Willie Ola Savage, were driving east on Highway 84 in Cherokee County, Texas, in an automobile driven by Mrs. Hall. Defendant, Billy Joe Fannin, was proceeding west on Highway 84 and, as he was attempting to turn left off the highway at an uncontrolled intersection, he collided with the automobile occupied by the plaintiffs.

Trial was to a jury. In response to special issues, the jury found that the defendant was guilty of negligence proximately causing the collision in that he failed to keep a proper lookout and drove into plaintiffs’ lane of traffic when such movement could not be made with safety. The jury further found that the plaintiff, Mrs. Hall, was guilty of contributory negligence in failing to keep a proper lookout and also in failing to turn her vehicle to the right prior to the collision, and that such negligence proximately caused the collision, but found that she was not driving at an excessive rate of speed. Plaintiff, Mrs. Hall, moved to disregard the findings of contributory negligence and proximate cause and further moved for judgment non obstante ve-redicto. The trial judge granted both motions and rendered judgment for Mrs. Hall non obstante veredicto. After disregarding the contributory negligence findings, the court entered judgment on the verdict awarding plaintiff, Clara Hall, the sum of $50,000.00 and plaintiff, Willie Ola Savage, the sum of $5,000.00. Defendant perfected this appeal.

We affirm.

Defendant presents four points of error, complaining of the trial court’s granting the judgment n. o. v. and disregarding the jury’s findings that (1) plaintiff, Clara Hall, was negligent in failing to keep a proper lookout; (2) such failure was a proximate cause of the collision; (3) plaintiff, Clara Hall, was negligent in failing to turn her vehicle to the right immediately prior to the collision; and (4) such failure was a proximate cause of the collision. He contends that there was ample evidence of probative force to support each of the foregoing findings of contributory negligence and the court was therefore without authority to disregard them.

A judgment n. o. v. is proper only where there is no evidence of probative value to support the submission of a special issue. Harbin v. Seale, 461 S.W.2d 591 (Tex.1970). In acting upon a motion for judgment n. o. v., all testimony must be considered in the light most favorable to the party against whom the motion is sought, and every reasonable intendment deducible from the evidence is to be indulged in that party’s favor. Douglass v. Panama, Inc., 504 S.W.2d 776 (Tex.1974).

Initially it should be noted that the evidence with regard to how the accident actually occurred is confined to the testimony of Billy Joe Fannin, defendant, Ronny Lough, the investigating officer, and Mrs. Savage, the passenger in the Hall automobile. Plaintiff Clara Hall, who was almost 71 years of age at the time of the accident, was rendered non compos mentis after the accident and was therefore unable to testify-

The evidence shows that the collision occurred on State Highway No. 84, a two-lane highway approximately three miles east of the city of Rusk, during daylight hours on July 18, 1973, at approximately 7:30 p. m. The weather was clear and the highway was dry. Shortly before the collision, the defendant, who was then nineteen years of age, was driving a 1973 Ford automobile owned by his uncle in a westerly direction on Highway 84 on his way home from work. His home was situated approximately one and one-half miles south of the highway. In reaching his home it was necessary for him to turn left across the highway and enter an oil road which led to his residence. The oil road intersected the highway at a point described by some of the witnesses as being “in a valley.” Defendant testified that as he approached the intersection, he saw a pickup truck approaching. He testified that when he came to a point on the highway directly opposite the oil road, he turned on his directional lights, came to a complete stop and waited there until the pickup truck was clear. According to his testimony, his visibility of the road ahead of him extended to the top of a hill which he estimated to be approximately 150 feet away. He testified that, after looking both backward and forward and not seeing any traffic, he turned to his left; that after traveling approximately one or two feet he collided with the plaintiff’s automobile. He testified unequivocally that he did not see the plaintiff’s vehicle until the time of the impact. At one point in his testimony he estimated the speed of the Hall automobile at 80-100 miles per hour, but later admitted he did not know the speed. He admitted having drunk two beers at about six o’clock that afternoon.

Mrs. Savage, age 77 at the time of trial, testified that she first saw the defendant’s vehicle as it was coming down the hill some distance away from the point of the intersection. She testified that the defendant, without stopping and without turning on his directional lights, continued down the highway toward them until he reached the point of the intersection with the oil road when he suddenly turned to his left, striking the Hall automobile on the left side. She testified that immediately prior to the impact she and Mrs. Hall were situated at a point where the oil road intersected the highway and were traveling on their side of the highway at approximately 50 m. p. h. She testified that, shortly before the collision, she observed that Mrs. Hall appeared to be looking directly ahead of her down the highway. When asked if it would have been possible for Mrs. Hall to have pulled her automobile to the right in order to avoid the collision, she testified that at that particular time Mrs. Hall could not have turned to the right because she didn’t have time to do so. She estimated that about a second elapsed between the time she saw the defendant turn to his left and the time of the impact. Immediately after the impact, she testified that the Hall automobile spun around on the highway and that both she and Mrs. Hall were thrown out of the automobile. The automobile then crossed the highway and collided head-on with a large tree.

Ronny Lough, a highway patrolman called by the plaintiffs, testified that he investigated the accident shortly after it occurred. According to his testimony the point of impact was approximately two feet left of the center stripe in the plaintiff’s lane of travel. He testified that, upon viewing the two vehicles, he was of the opinion that the defendant’s vehicle struck the plaintiff’s vehicle on the left front fender near the door, and that the defendant’s automobile was damaged at the front of the left fender. He was unable to find any skid marks on the highway at or near the point of impact.

Photographic evidence was offered showing the topography of the highway, as well as the condition of the two automobiles after the collision. According to the photographs, the highway at the point where the oil road intersected was straight with moderately-sized hills on either side thereof. There was a slight curve to the right as the highway approached the intersection from the direction in which the defendant was traveling. There was no testimony as to the exact distance from the top of the hills on either side of the oil road to the point of the intersection. According to the photographs the plaintiff’s automobile was struck on the left front fender and extended all the way back to the rear fender, with the main impact being at or near the left front door. The imprint of a tree is shown on the front end of the plaintiff’s automobile at a point slightly left of the center of the radiator. The photographs show that the defendant’s automobile was damaged on the left front end of the bumper and on the left front end of the fender.

On the basis of the foregoing testimony defendant first argues that there was at least some evidence of probative force to support the jury’s findings that Mrs. Hall failed to keep a proper lookout proximately causing the collision and that therefore the trial court erred in disregarding the jury’s findings to that effect.

Defendant does not dispute the fact that his own failure to keep a proper lookout and his conduct in driving into the plaintiff’s lane of traffic constituted negligence and that such negligence was a proximate cause of the collision. Under these circumstances, in order for the defendant to escape liability for his own negligent conduct, he had the burden of pleading and proving his defense of contributory negligence. Samford v. Duff, 483 S.W.2d 517 (Tex.Civ.App.-Corpus Christi, 1972, writ ref’d n. r. e.); MacDonald v. Skinner, 347 S.W.2d 950 (Tex.Civ.App.-El Paso 1961, writ dism’d).

Every motorist has a duty to keep a proper lookout, but he is not required to anticipate negligence or other unlawful conduct on the part of another. Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273 (1958); De Winne v. Allen, 154 Tex. 316, 277 S.W.2d 95 (1955).

We must assume that a reasonably prudent person in plaintiff’s position who is keeping a proper lookout would have seen defendant’s vehicle as it was coming down the hill from the opposite direction some distance from the intersection. Furthermore, if we take as true defendant’s testimony that he came to a complete stop and turned on his left turn signal before turning, we must assume that a reasonably prudent person who is keeping a proper lookout would have seen the vehicle stopped with its turn signal on. We find no evidence, direct or circumstantial, that Mrs. Hall failed to see defendant’s vehicle as it was either approaching the intersection some distance away or stopped at the intersection with its turn signal on. The testimony of Mrs. Savage that she, Mrs. Savage, did not see defendant come to a complete stop with his turn signal on at the intersection does not give rise to an inference that Mrs. Hall failed to see that which was clearly visible. Mrs. Savage testified twice that she did not know when Mrs. Hall saw the vehicle. As explained in Samford v. Duff, supra, at p. 523:

“There is no presumption that a person is guilty of contributory negligence simply because an accident occurred, [citing cases] ‘It is held that contributory negligence is not established by evidence which is equally consistent with the exercise of care by plaintiff, or where the inference of due care is just as reasonable as is the inference of the absence thereof.’ [citing cases]”

We think the presumption of due care is especially applicable when the victim is rendered non compos mentis after the accident, for the same reasons that ordinary care is presumed on the part of a deceased. See North Texas Producers Association v. Stringer, 346 S.W.2d 500 (Tex.Civ.App.—Fort Worth 1961, writ ref’d n. r. e.). Therefore, we do not believe that there is any evidence to support the jury’s finding that Mrs. Hall failed to keep a proper lookout.

However, assuming arguendo that there is sufficient circumstantial evidence from which the jury could have inferred that plaintiff failed to keep a proper lookout, such negligence would not amount to a defense barring recovery on her part unless the proof also shows that the failure to keep a proper lookout was a proximate cause of the collision. In order for defendant to establish that plaintiff’s negligence was a proximate cause of the collision, there must be facts in the evidence from which the jury could have inferred that a proper lookout would have revealed something to Mrs. Hall which, if seen, would have alerted an ordinary prudent person to danger at such time and distance that evasive action could have been taken in order to prevent the accident. That is to say, the situation must be such that the collision would not have occurred “but for” the failure to keep a proper lookout. Thornton v. Campise, 459 S.W.2d 455, 458 (Tex.Civ.App.—Houston [14th Dist.] 1970, writ ref’d n. r. e.); Samford v. Duff, supra, at 524. Put another way, the failure to keep a proper lookout can only be a proximate cause where the keeping of it would have prevented the unfortunate occurrence. Texas & P. Ry. Co. v. Shoemaker, 98 Tex. 451, 84 S.W. 1049 (1905); Thomas v. Sarrett, 505 S.W.2d 345 (Tex.Civ.App.-Corpus Christi 1974, writ ref’d n. r. e.).

The case of Thornton v. Campise, supra, is particularly close in point. In that decision the court said that although the evidence showed that the defendant put on his left turn signal and the jury could have inferred that the plaintiff did not see such signal, the turn signal alone was not sufficient to alert the plaintiff to the danger that the defendant might wrongfully turn in front of him, and thus it was not sufficient to give rise to his duty to take evasive action. Because the plaintiff in that case was not put on alert as to any possible danger until defendant already began to turn into him, at which instant there was no time to take any evasive action, the court held that there was no evidence to support the jury’s finding that failure to keep a proper lookout was a proximate cause of the collision. See also Mobile Oil Co. v. Dodd, 528 S.W.2d 297 (Tex.Civ.App.—Corpus Christi 1975, writ ref’d n. r. e.); Mrs. Baird’s Bread Co. v. Williams, 425 S.W.2d 1 (Tex.Civ.App.—Texarkana 1968, writ ref’d n. r. e.).

In the instant case, even if Mrs. Hall did not see defendant’s vehicle as it approached the intersection, there is nothing to show that, had she seen it, she should have anticipated at that time that the defendant would pose a danger by illegally turning left into her lane of travel. According to the testimony of both the defendant and Mrs. Savage, defendant suddenly turned to his left. Taking as true defendant’s testimony that he came to a complete stop and engaged his left turn signal, we fail to see how such conduct would have given the plaintiff notice that he intended to turn illegally into her lane. Her duty to take evasive action arose only after defendant had already begun turning into her lane of traffic. The uncontradicted testimony of Mrs. Savage was that only about a second elapsed from the time defendant pulled into the plaintiff’s lane and the time of the impact. In response to a hypothetical question, Ronny Lough, the investigating officer, testified that, assuming the time between the instant a driver began to turn left into the opposite lane and the instant of impact was one second, there would not be enough time for the driver having the right of way to pull right or take other evasive measures to avoid the accident. Once it was shown that defendant turned into the plaintiff’s lane of travel, or it was obvious he was going to do so, it must also be shown that the plaintiff still had time to take evasive action.

As we view the record, the only probative testimony of the speed of the Hall vehicle was that given by Mrs. Savage, who testified that they were traveling at a rate of approximately 50 m. p. h. At this rate of speed the Hall vehicle would be traveling at the rate of around 73 feet per second. It is recognized, as a matter of law, that the reaction time for a normal driver to react to danger is three-fourths of a second. Thornton v. Campise, supra, at 461; Samford v. Duff, supra, at 525. Thus, in view of the normal reaction time and Mrs. Savage’s testimony that only about a second elapsed from the time defendant pulled into the plaintiff’s lane and the time of impact, Mrs. Hall would have traveled about 55 feet before she could have taken evasive action, at which time she would have been only around 18 feet from the point of impact. This, of course, would have left no meaningful time or distance for evasive action. Thus, even if she had failed to keep a proper lookout, there is no evidence that the keeping of a proper lookout would have prevented the accident, since she would not have had sufficient time to take evasive action once her duty to take such action arose. Consequently, we hold that there is no evidence in the record to support the jury’s finding as to causation, and the trial court therefore did not err in disregarding the jury’s findings as to proper lookout and proximate cause. Defendant’s first and second points of error are accordingly overruled.

Under his third and fourth points of error, defendant contends that the court erred in disregarding the jury’s findings that the plaintiff failed to turn her automobile to the right and that such failure was a proximate cause of the collision. He contends that there was at least some evidence to support such findings that the plaintiff was contributorily negligent and therefore the findings should have been sustained. We do not agree.

As pointed out above, Mrs. Hall’s duty to take evasive action arose only after defendant had already begun turning into her lane, at which instant, after taking into consideration a normal reaction time, there was only 18 feet in which she could have pulled to the right and avoided the collision. We do not find any evidence in the record from which the jury could have inferred that Mrs. Hall was negligent in failing to pull to the right. However, assuming, arguendo, that Mrs. Hall failed to use the care of an ordinary prudent person in not turning to her right within the remaining 18 feet, there is no evidence that, had she pulled to her right, she could have gotten far enough to the right to have prevented the accident. As with the failure to keep a proper lookout, the cases have held that the failure to take measures to avoid the accident can only be deemed a proximate cause where such evasive action would have prevented the accident. Williams v. Hill, 496 S.W.2d 748 (Tex.Civ.App.—Tyler 1973, writ ref’d n. r. e.); Pace v. Gutierrez, 492 S.W.2d 356 (Tex.Civ.App.—Amarillo 1973, no writ). Therefore, we hold that even if there were evidence from which the jury could have concluded that Mrs. Hall was negligent in failing to turn to the right, such negligence could not have been a proximate cause of the collision, since under the record before us there is no evidence that in the remaining 18 feet she could have gotten far enough to her right to have prevented the accident. Accordingly, we find no error in the court’s action in disregarding the jury’s findings in this regard and in granting the plaintiff a judgment n. o. v. Defendant’s third and fourth points of error are overruled.

The judgment of the trial court is affirmed.

      . Mrs. Hall appears herein by and through her duly appointed guardian, Essie Mae Crump.

      . The accident occurred prior to the enactment of the Texas comparative negligence statute.

      .The judgment rendered in favor of Mrs. Savage, the passenger in the Hall automobile, is not challenged by defendant on this appeal.


author: J. CURTISS BROWN, Chief Justice.

text:
    J. W. B., Appellant, v. The STATE of Texas, Appellee.
    No. 1779.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Feb. 8, 1978.
    Tom Lambright, Houston, for appellant.
    James Hury, Criminal Dist. Atty., Gerald A. Burks, Asst. Dist. Atty., Galveston, for appellee.
   J. CURTISS BROWN, Chief Justice.

This is an appeal from an adjudication that the appellant was a child who had engaged in delinquent conduct.

The State of Texas instituted proceedings to have the appellant, J. W. B., declared a child who had engaged in delinquent conduct. The State alleged that he intentionally and knowingly operated an automobile in Galveston County, Texas on September 18, 1977 without the effective consent of the automobile’s owner. The conduct with which the appellant was charged constitutes a third degree felony in Texas. Tex. Penal Code Ann. § 31.07 (1974). At all relevant times in these proceedings the appellant was sixteen years of age, having been born on September 10, 1961.

An adjudication hearing was held in Galveston County, Texas on October 7, 1977. At the conclusion of the hearing the appellant was found to be a child who had engaged in delinquent conduct.

The appellant asserts, in his sole point of error, that the County Court at Law No. 2 erred in that finding because it lacked jurisdiction to sit as a juvenile court. Although we believe that court has juvenile jurisdiction, we do not reach the issue raised by the appellant because we are unable to answer the threshold question of whether that was the court that entered the adjudication order. The record reflects that the State’s original petition and first amended petition were filed in the Family District Court for the 306th Judicial District of Texas. The 306th District Court later transferred the cause to the County Court at Law No. 2. All subsequent rulings in these proceedings were signed by the judge of the County Court at Law No. 2 as “Acting Judge” of the 306th District Court. The statement of facts reflects that testimony in the cause was taken in the County Court at Law No. 2, but the adjudication order shows that evidence and arguments were presented in, and judgment rendered by, the 306th District Court.

We know of no statutory authority by which juvenile cases filed in the 306th District Court may be transferred to the County Court at Law No. 2. Nor are we aware of any authority by which the judge of a county court at law may sit as “acting judge” in a district court. The adjudication order is reversed, and the cause remanded to the Family District Court for the 306th Judicial District of Texas for further proceedings consistent with this opinion.

Reversed and remanded.


author: KLINGEMAN, Justice.

text:
    Lorenza M. VELASQUEZ, Appellant, v. Jake SCHUEHLE d/b/a Jake Schuehle Ford and Ford Motor Company, Appellees.
    No. 15855.
    Court of Civil Appeals of Texas, San Antonio.
    Dec. 28, 1977.
    C. Darby Riley, James E. Porter, San Antonio, for appellant.
    R. Michael Simmons, Thompson & Simmons, San Antonio, for appellee.
   KLINGEMAN, Justice.

This is a venue action. Plaintiff, Lorenza Velasquez, a resident of Bexar County, Texas, sued defendants in Bexar County, Texas for damages for alleged violations of the Texas Consumer Credit Code, the Texas Deceptive Trade Practices Act, and the Federal Truth in Lending Act, arising out of a retail installment sale of a new automobile. Defendant, Jake Schuehle, d/b/a Jake Schuehle Ford, filed a plea of privilege to be sued in Medina County, the county of his residence. Plaintiff timely filed a controverting plea asserting that venue is proper in Bexar County, Texas under the Texas Consumer Credit Code, Art. 5069-7.-01 et seq. After a hearing without a jury the trial court sustained the plea of privilege and ordered the case transferred to the District Court of Medina County, Texas. Although a request for findings of fact and conclusions of law was made by plaintiff, none was ever filed. Defendant, Ford Motor Credit Company, filed an answer but did not file a plea of privilege.

The pertinent venue provisions of the Texas Consumer Credit Code then in effect [Tex.Rev.Civ.Stat.Ann. art. 5069-8.04 (1971)] may be summarized as follows: All actions brought under this subtitle shall be brought (1) in the county of defendant’s residence; (2) or in the county where the interest, time price differential, or other charge and amount in excess of the amount authorized by this subtitle shall have been received or collected; (3) or where such transaction has been entered into; (4) or where the parties were paid the interest, time price differential, or other charge in excess of the amount authorized by this subtitle decided when such transaction occurred; (5) or where he resides.

Plaintiff, in her petition, alleged, among other things, that defendants violated the Texas Consumer Credit Code by: (1) failure to make required disclosures before extending the credit; (2) failure to disclose cost of credit insurance before obtaining specific affirmative indication of the consumer’s desire to obtain the insurance; (3) failure to disclose a full statement of closing costs prior to the time down payment was made; (4) misstatement of the amount of license, title, and registration fees and consequential misstatements of finance charges; (5) failure to individually itemize all other charges included in the amounts of credit extended but not part of finance charges.

Appellee asserts that Art. 5069-8.04 is a special venue provision and that under such a venue provision it is necessary that a plaintiff who is contesting a plea of privilege, both plead and prove a cause of action and that this was not done here.

Plaintiff asserts that the trial court’s holding is incorrect because (1) it was not necessary to establish a cause of action under such venue provisions of the Texas Consumer Credit Code to maintain venue in Bexar County, Texas, but it was only necessary to establish any one of the five venue facts provided therein; (2) even if it was necessary to prove a cause of action, the record here establishes such proof in that it is undisputed that the retail installment contract was not completed as to a number of the essential provisions at the time that it was signed by the parties; and that plaintiff proved a prima facie cause of action.

The uncontradicted testimony of plaintiff shows: (a) that the installment sales contract was not completely filled out at the time she signed it; (b) that the cash price was not filled out, and the amount of the down payment was not shown; (c) that the credit insurance was not filled out; and (d) that there were other blanks.

Plaintiff’s uncontradicted testimony also shows that (a) she signed such contract in Bexar County, Texas; (b) that at the time she signed such contract she gave Van Horn, appellee’s salesman, her trade-in, transferred title of the trade-in to appellee, and obtained possession of the new car; all of which occurred in Bexar County, Texas.

Plaintiff also testified that Van Horn told her he would fill in the balance of the contract and that a copy of the completed contract would be mailed to her, but that she did not receive a copy of the contract at the time she signed it. The uncontradicted testimony also shows that plaintiff was a resident of Bexar County, Texas at the time she signed the contract and at the time the suit was filed.

The only other witness to testify was defendant, Jake Schuehle, who testified that he lived in Hondo, Medina County, Texas, and operated an automobile dealership there; that Mr. Van Horn worked for him and that he was the salesman who sold the car to plaintiff; that Mr. Van Horn no longer works for him; that he does not know who filled in the contract, but it is usual practice for each salesman to fill out his own contract; that at the time he signed the contract it was filled out, but he does not know if the contract was filled out at the time plaintiff signed it; that a copy of the contract is usually given to the buyer at the time he buys the car; that he could have refused to accept the contract up to the time he signed it and until he signed it, it was no contract. Van Horn did not testify-

Appellee argues vigorously that no contract came into existence until he accepted and signed the contract and that this occurred in Hondo, Medina County, Texas; and that venue therefor is properly in Medina County.

To constitute a valid contract in writing it is not necessary that the agreement be signed by both parties, for it one party signs, the other may accept by his acts, conduct, or acquiescence in the terms of the contract. Morgan v. Stover, 511 S.W.2d 362 (Tex.Civ.App.—Eastland 1974, writ ref’d n. r. e.); Orgain v. Butler, 478 S.W.2d 610 (Tex.Civ.App.—Austin 1972, no writ); Rubin v. Polunsky, 366 S.W.2d 234 (Tex.Civ.App.—San Antonio 1963, writ ref’d n. r. e.); Chavez v. Goodman, 152 S.W.2d 826 (Tex.Civ.App.—El Paso 1941, no writ); 13 Tex.Jur.2d Contracts § 76 at 220 (1960); 1 Corbin on Contracts, Acceptance by Overt Acts § 62 (1950).

As we construe the testimony, both the offer and acceptance occurred in Bexar County, Texas, and the transaction occurred in Bexar County, Texas.

We have been cited no cases, nor have we found any, construing this venue provision. Both parties cite and rely on cases construing an analogous statute, Art. 5069-1.06, which concerns suits for penalties for charging excessive interest. The venue provisions of Art. 5069-1.06 (Usury) are virtually identical to Art. 5069-8.04 and provide: All actions brought under this article shall be brought (1) in the county where the defendant resides; (2) or in the county where the interest in excess of the amount authorized by the subtitle shall have been received or collected; (3) or where such transaction has been entered into; (4) or where the parties who paid the interest in excess of the amount authorized by this subtitle resided when such transaction occurred; (5) or where he resides. Two cases construing the above statute have reached somewhat different results. The Fort Worth Court of Civil Appeals, in Donald v. Agricultural Livestock Finance Corp., 495 S.W.2d 592 (Tex.Civ.App.—Fort Worth 1973, no writ), held that a plaintiff could maintain venue in the county where the suit was filed by proof of any one of the above five venue facts. The Beaumont Court of Civil Appeals, in National Mortgage Corp. of America v. Maxwell, 541 S.W.2d 626 (Tex.Civ.App.—Beaumont 1976, no writ), held that a plaintiff who resides in a county other than the one of the suit, had to prove (a) that the contract was entered into in such county; and (b) that the contract was usurious, in order to maintain venue there. The Beaumont Court distinguished Donald on the fact that in the Donald case the plaintiff lived in the county of venue. It is to be remembered that in the case here before us the plaintiff lives in the county where the suit was instituted.

Irrespective of whether you follow Donald or National Mortgage Corp. of America, we have concluded that the trial court erred in granting the plea of privilege. We reach this result because we have concluded that plaintiff established by un-contradicted testimony (1) that she resided in Bexar County, the county of the suit, at the time the suit was filed; (2) that the transaction was entered into in Bexar County; and (3) that the retail installment contract was not completed as to various essential provisions at the time it was signed by the buyer.

The judgment of the trial court, transferring the cause to Medina County, is reversed and the cause is remanded to the District Court of Bexar County, Texas for a trial on the merits.

      . This article was amended by the 65th Legislature effective August 31, 1977 as follows: “Action under this Chapter may be brought in the county where the transaction was entered into or where the Defendant resides at the time the action was filed. Such action may be brought within four years . . . .” Tex.Laws 1977, ch. 111, § 1, at 231.


author: DIES, Chief Justice. KEITH, Justice,

text:
    Lucille HINDS, Appellant, v. SOUTHWESTERN SAVINGS ASSOCIATION OF HOUSTON, Texas, Appellee.
    No. 8053.
    Court of Civil Appeals of Texas, Beaumont.
    Dec. 29, 1977.
    Rehearing Denied Jan. 19, 1978.
    Barry S. Berger, Houston, for appellant.
    J. Michael Bell, Houston, for appellee.
   DIES, Chief Justice.

Plaintiff below, Lucille Hinds, sued Southwestern Savings Association of Houston, defendant below, to recover a sum of money deposited in a joint account by plaintiff and her former husband in defendant’s institution. The money was deposited prior to 1969, and the language of the signature card required that signatures of both husband and wife for any withdrawal from such account so long as both parties were alive. On or about January 4, 1969, her former husband was paid the entire deposit by the defendant. She brought this suit on March 24, 1976. Defendant filed a motion for summary judgment, which the trial court granted, and from which plaintiff perfects this appeal. Since the parties concede that the two-year statute of limitations is inapplicable, the sole question for us to decide is the date the four-year statute of limitations began to run.

Plaintiff’s affidavit in opposition to the motion for summary judgment states: “On or about April 9, 1972, I, for the first time, learned upon inquiry at Defendant’s main branch, that the sum of $11,022.37 was missing from the account in question.”

The general rule is that where a deposit of money is made, the statute of limitations begins to run in favor of the depositor only on demand and refusal or the assertion of some adverse claim by the depositary. 54 C.J.S. Limitations of Actions § 145 at p. 71 (1948). See also Delaney v. Farmers State Bank in Merkel, 115 S.W.2d 736, 739 and 740 [(Tex.Civ.App.—Eastland 1938) reversed on other grounds, 134 Tex. 160, 133 S.W.2d 757 (1939)]. In First State Bank v. Shannon, 159 S.W. 398, 401 (Tex.Civ.App.—Amarillo 1913, writ ref’d), we find, “. . . the statutes of limitation did not begin to run until demand and refusal to pay”; and in Farmers’ Nat. Bank v. J. W. Wallace & Co., 263 S.W. 1105, 1107 (Tex.Civ.App.—Texarkana 1924, no writ): “It is conceded that limitation does not begin to run against a claim for bank deposits until after demand and refusal of payment.”

In Yeaman v. Galveston City Co., 106 Tex. 389, 167 S.W. 710, 723-724 (1914), our Supreme Court said:

“The holding of these authorities is upon the principle that the trusteeship of a corporation for its stockholders is that of an acknowledged and continuing trust. . It has all the nature of a direct trust, to which, it is generally held, statutes of limitation have no application until there is a clear and unequivocal disavowal of the trust, and notice of it brought to the cestui que trust.”

We see no reason not to apply this principle to a savings and loan institution holding money for depositors, especially since the statute Tex. Rev. Civ. Stat. Ann. art. 852a, § 6.08 (Supp.1977) expressly condemns such an institution from doing what defendant did here.

We believe the affidavit of Lucy Hinds raises a fact issue; hence the granting of the summary judgment was improper. Gibbs v. General Motors Corporation, 445 S.W.2d 589 [(Tex.Civ.App.—Eastland 1969) reversed 450 S.W.2d 827 (Tex.1970)]. The order of the trial court is reversed, and the cause is remanded for trial.

REVERSED and REMANDED.

KEITH, Justice,

dissenting.

Perhaps the rule enunciated by the majority should govern the rights between savings and loan associations and the patrons of such institutions. But, even a cursory review of the authorities cited discloses that up until today no court or legislative body had so held.

Three of the cases cited deal with the relationship between commercial banks and their depositors; another case involved a lost stock certificate; and, the last case enunciates hornbook law in this state with reference to summary judgments. None touch savings and loan associations even tangentially. The single statute cited simply authorizes such entities to accept joint deposits from patrons with a right to survivorship; it has nothing to do with the problem confronting the court.

The alacrity with which the majority seized upon language formerly applicable to commercial banks serves to emphasize the fallacy underlying the holding. In the first place, the authorities cited are not now controlling even as to commercial banks. See Banking Code, Tex. Rev. Civ. Stat. Ann. art. 342-701 (1973), and Liberty Mutual Ins. Co. v. First National Bank in Dallas, 151 Tex. 12, 245 S.W.2d 237, 240 (1951). Savings and loan associations “are sui gen-eris in the corporate family.” 13 Am. Jur. 2d Building and Loan Associations § 3, at 145 (1964). Such institutions are defined by statute, Tex. Rev. Civ. Stat. Ann. art. 852a, § 1.03(2) (1964), in this language:

“ ‘Savings and Loan Association’ shall mean an association whose primary purpose is to promote thrift and home financing and whose principal activity is the lending to its members of money accumulated in savings accounts of its members on the security of first liens on homes and other improved real estate.”

Such institutions have “members” [Art. 852a, § 1.03(10) (Supp.1977)] but the statute does not contain a definition of a depositor or of a deposit. On the other hand, commercial banks in Texas have been granted extremely broad powers; contrast the statute defining savings and loan associations with the language found in Banking Code, Tex. Rev. Civ. Stat. Ann. art. 342-301 (1973), setting out the powers of state banks.

The rule enunciated by the majority likely will come as a distinct surprise to plaintiff’s counsel. On the appeal her counsel has sought to excuse her from the reach of the limitation statutes by calling upon the so-called “discovery” or “blameless ignorance” exceptions to the statutes of limitation, relying heavily upon footnote one in Justice Pope’s dissent in Robinson v. Weaver, 550 S.W.2d 18, 22 (Tex.1977). I have given careful consideration to those cases but remain unpersuaded that they control the case at the bar.

Our Supreme Court has held in Robinson v. Weaver, supra (550 S.W.2d at 19):

“For the purposes of application of statutes of limitations, a cause of action generally can be said to accrue at the time when facts come into existence which authorize a claimant to seek a judicial remedy. Williams v. Pure Oil Company, 124 Tex. 341, 78 S.W.2d 929 [931] (1935).”

But, in order to claim the benefit of the “discovery” rule, plaintiff labored under another burden — the necessity of showing a fraudulent concealment of the existence of a cause of action. In our case, plaintiff has made no contention that the defendant concealed the breach of the contract or was guilty of any actionable fraud. In Owen v. King, 130 Tex. 614, 111 S.W.2d 695, 697, 114 A.L.R. 859 (1938), the Court held:

“The fraudulent concealment of a cause of action by the defendant, even though that cause of action may not have arisen in fraud, will avoid the bar of the statute of limitation, where the plaintiff, after exercising ordinary diligence, fails to discover the existence of a cause of action. But the concealment must be fraudulent. Mere failure to disclose a cause of action or mere concealment of a cause of action, when the defendant owes no duty to disclose, is not fraudulent concealment.” (emphasis supplied)

Or, as stated by Justice Walker in Nichols v. Smith, 507 S.W.2d 518, 519 (Tex.1974):

“When the defendant is under a duty to make a disclosure but fraudulently conceals the existence of a cause of action from the one to whom it belongs, the guilty party will be estopped from relying on the defense of limitations until the right of action is, or in the exercise of reasonable diligence should be, discovered.”

See also Maddox v. Oldham Little Church Foundation, 411 S.W.2d 375, 381 (Tex.Civ.App.—Tyler 1967, writ ref’d n. r. e.).

Moreover, as stated in Nichols v. Smith, supra, the plaintiff had the burden of alleging and supporting the allegation of fraudulent concealment of the cause of action if she was to avoid the summary judgment. (507 S.W.2d at 520) As indicated earlier, plaintiff did not charge the defendant with fraud nor did she make any effort to prove fraudulent concealment.

In recent years, we have seen a great deal of blurring of the formerly distinct images of the commercial banks, savings and loan associations, and credit unions. Each has expanded into areas ordinarily considered to belong exclusively to one or the other of the different types. However, the legal base and statutory framework of each type of institution is different from the other. I have grave doubt as to the wisdom of an opinion which equates a depositor in a savings and loan association with one depositing his money in a demand account in a commercial bank. The legislature undoubtedly had reasons for creating the two types of institutions and I find no grave or pressing reason to undermine the statutory distinctions so made.

The legislature knew the difference between time and demand deposits and savings deposits, each being treated separately in the Banking Code [Art. 342-301(a), (f), and (g)]; but no such mention of either type of deposit was made when it came to regulating savings and loan associations in a comprehensive statute.

I respectfully suggest that if a new type of account in savings and loan associations is to be created — one which is payable on demand — such should be accomplished by action of the legislature and not by an intermediate court.

I would affirm the judgment of the trial court.

      . Delaney v. Farmers State Bank in Merkel, 115 S.W.2d 736, (Tex.Civ.App.—Eastland 1938), reversed, 134 Tex. 160, 133 S.W.2d 757 (1939); First State Bank v. Shannon, 159 S.W. 398 (Tex.Civ.App.—Amarillo 1913, writ ref’d); and Farmers’ Nat. Bank v. J. W. Wallace & Co., 263 S.W. 1105 (Tex.Civ.App.—Texarkana 1924, no writ).

      . Yeaman v. Galveston City Co., 106 Tex. 389, 167 S.W. 710 (1914), where the court had to first determine if the claimant’s predecessor was a stockholder or only entitled to become a stockholder.

      . Gibbs v. General Motors Corp., 450 S.W.2d 827 (Tex.1970).

      . Tex. Rev. Civ. Stat. Ann. art. 852a, § 6.08 (Supp.1977).


author: OSBORN, Justice.

text:
    Darlene PRICE, Appellant, v. AMERICAN HOME ASSURANCE COMPANY, Appellee.
    No. 6645.
    Court of Civil Appeals of Texas, El Paso.
    Dec. 30, 1977.
    Rehearing Denied Feb. 8, 1978.
    Malcolm McGregor, Monte B. Roberts, Jr., El Paso, for appellant.
    Scott, Hulse, Marshall & Feuille, George W. Finger, James T. McNutt, Jr., El Paso, for appellee.
   OPINION

OSBORN, Justice.

This is an appeal from a summary judgment denying any recovery in a workmen’s compensation case arising out of injuries sustained by a waitress who went to sleep and had a car wreck while driving home after having worked for 25 hours over a period of 28 hours. She seeks recovery under Article 8309, Sec. 1, which defines “injury sustained in the course of employment,” but not under Article 8309, Sec. lb, which permits recovery in certain instances where travel is performed by an employee. We affirm.

The carrier filed its motion for summary judgment based upon the testimony of Darlene Price given in a deposition on file in this case and the answers to interrogatories. The facts are not in dispute. Mrs. Price, who was employed as a waitress-cashier at Sambo’s Restaurant, worked her regular shift from 10:00 o’clock p. m. on April 28, 1974, until 6:00 o’clock a. m. on April 29, 1974. The employee who was to relieve her at 6:00 o’clock a. m. on the 29th did not report to work and Mrs. Price was required to continue on duty until she was relieved at 1:30 o’clock p. m. She went home and rested for a short period and came back to work at 4:30 o’clock p. m. on the 29th and remained on duty until 2:00 o’clock a. m. on the 30th. At that time, she left the restaurant and started home, but went to sleep while driving on the freeway and hit the rear of another car, resulting in the injuries and disability for which she now seeks compensation benefits.

The sole and only issue as raised by the motion for summary judgment and this appeal is whether or not Mrs. Price was in the course of employment when she was injured. Article 8309, Sec. lb, provides for compensation benefits in certain instances where injuries are incurred in travel by an employee. This Court has discussed the application of that Statute and the cases arising from it in two recent decisions. Liberty Mutual Insurance Company v. Chesnut, 539 S.W.2d 924 (Tex.Civ.App.—El Paso 1976, writ ref’d n. r. e.); Texas Employers’ Insurance Association v. Byrd, 540 S.W.2d 460 (Tex.Civ.App.—El Paso 1976, writ ref’d n. r. e.). Those cases recognize the holding in Janak v. Texas Employers’ Insurance Association, 381 S.W.2d 176 (Tex.1964), that injuries sustained during travel are in the course of employment and therefore compensable, “only when transportation is (1) furnished as a part of the contract of employment, or (2) is paid for by the employer, or (3) is under the control of the employer, or (4) when ‘the employee is directed in his employment to proceed from one place to another place.’ ”

The Appellant in this case recognizes that she cannot come within any of these four provisos of the travel section of the compensation Statute. Thus, the cases interpreting and applying Article 8309, Sec. lb, are not urged as controlling, even though this is a case involving “travel injuries.”

Instead, the contention is made that there is coverage under Article 8309, Sec. 1, because the condition of sleepiness developed while Mrs. Price was on the job and at her place of employment, and thus the injuries which she sustained originated in the employer’s work. Finding no Texas case to support this position, Appellant relies primarily upon cases from other jurisdictions. Particularly, she cites cases where recovery has been permitted where an employee became intoxicated at a company party and then had an accident on the way home. See Henderson v. Sherwood Motor Hotel, Inc., 105 N.H. 443, 201 A.2d 891 (1964); McCarty v. Workmen’s Compensation Appeals Board, 12 Cal.3d 677, 117 Cal.Rptr. 65, 527 P.2d 617 (1974).

One of the very first cases to consider “injury sustained in the course of employment” is American Indemnity Co. v. Dinkins, 211 S.W. 949 (Tex.Civ.App.—Beaumont 1919, writ ref’d). The facts in that case established that Mr. Dinkins, an employee at the Magnolia Refinery at Beaumont, was killed in a motorcycle accident about Viths of a mile from the Refinery gate as he was proceeding home from work. In denying recovery, the Court noted that the record established “that Dinkins did not receive the injury while engaged in or about the furtherance of the affairs of the Magnolia Petroleum Company, but, on the other hand, it plainly shows that he was bent on his own rest and refreshment, and that at the time of the injury the employer was exercising no control whatever over him * * *.” The Court went on to note that the Legislature had defined “an injury received in the course of employment” as “one which must ‘originate in the work,’ and in addition be received by the employe ‘while engaged in or about the furtherance of the affairs or business of his employer, * * *.’ ” Based upon that language, the Court concluded that “it clearly appears that the spirit of the Texas law requires that the employé must be actually about the furtherance of his master’s business when the casualty occurs * * *.” The holding in this case was expressly approved in Lumberman’s Reciprocal Ass’n v. Behnken, 112 Tex. 103, 246 S.W. 72 (1922). It was again cited with approval in Smith v. Texas Employers’ Ins. Ass’n., 129 Tex. 573, 105 S.W.2d 192 (1937), where the Court noted that for an injury to have been sustained in the course of employment it must be established (1) that the injury occurred while the employee was engaged in or about the furtherance of the employer’s affairs or business, and (2) that the injury was of such kind and character as had to do with and originate in the employer’s work, trade, business, or profession.

While noting the decision in Smith v. Texas Employers’ Ins. Ass’n., supra, this Court, in Jones v. Texas Indemnity Ins. Co., 223 S.W.2d 286 (Tex.Civ.App.—El Paso 1949, writ ref’d), said:

“ * * * An injury does not arise out of employment unless the employee is engaged in the business of his employer.”

In Walker v. Texas Employers’ Insurance Association, 443 S.W.2d 429 (Tex.Civ.App.—Fort Worth 1969, writ ref’d), the Court noted that one engaged in a purely personal mission is not doing something in furtherance of his employer’s business.

The rule as first announced by the Courts on course of employment has never changed. In a most recent compensation case, Texas Employers’ Insurance Association v. Page, 553 S.W.2d 98 (Tex.1977), the Court, in construing Section 1 of Article 8309, said:

“ * * * Thus, for a claimant to recover under our statute he must meet two requirements. First, the injury must have occurred while the claimant was engaged in or about the furtherance of his employer’s affairs or business. Second, the claimant must show that the injury was of a kind and character that had to do with and originated in the employer’s work, trade, business or profession. * * * ”

Even if we hold that because of the long hours on the job, Appellant became sleepy and thus rationalize that the cause of the automobile accident was such that it did originate in the employer’s work, the first requirement has not been satisfied. The injury occurred while Mrs. Price was on a personal trip going to her home from her place of employment, and not while she was engaged in or about the furtherance of the affairs or business of her employer. Thus, the first requirement set forth in the Page case has not been satisfied.

The Appellant’s point of error is overruled. The judgment of the trial Court is affirmed.

      . All Article references are to Tex.Rev.Civ.Stat.Ann.


author: WALTER, Justice.

text:
    STATE DEPARTMENT OF PUBLIC WELFARE, Appellant, v. Carl Anson MARTIN, Appellee.
    No. 5063.
    Court of Civil Appeals of Texas, Eastland.
    Jan. 12, 1978.

      Robert N. Carter and David J. Adkins, State Department of Public Welfare, Abilene, Leland W. Greene, Dist. Atty., Snyder, for appellant.
    Norman Arnett, Rotan, for appellee.
   WALTER, Justice.

This is a summary judgment case. State Department of Public Welfare sought to establish paternity and support for an illegitimate child. The defendant, Carl Anson Martin, pleaded the one-year statute of limitations provided for in Texas Family Code, Section 13.01. The court sustained defendant’s motion for a summary judgment. The State has appealed.

The State contends the limitation statute, Section 13.01 of the Texas Family Code, should not apply retroactively.

Section 13.01 requires suits to establish the parent-child relationship between a child who is not the legitimate child of a man and the child’s natural father by proof of paternity must be brought before the child is one year old. This limitation statute became effective September 1, 1975.

The child, C.A.M.B., was born July 13, 1975. At the time this suit was filed, the child was one year, six months, and eighteen days old. This child was born prior to the effective date of the one-year limitation statute.

In Alvarado v. Gonzales, 552 S.W.2d 539 (Tex.Civ.App.-Corpus Christi 1977, no writ), the court said:

“We conclude that the Legislature intended Section 13.01 of the Texas Family Code, as amended and revised in 1975, to apply only to those suits to establish the paternity of illegitimate children born after September 1, 1975, the effective date of statute. We hold that the statute may not be applied retroactively. It does not bar appellant’s action.”

We are of the opinion Alvarado v. Gonzales, supra, supports the State’s contention.

The judgment is reversed and remanded for trial on the merits.


author: O’QUINN, Justice.

text:
    KIMBELL, INC., d/b/a Buddie’s Grocery Store, Appellant, v. James M. BLOUNT, Appellee.
    No. 12629.
    Court of Civil Appeals of Texas, Austin.
    Jan. 18, 1978.

      Louis S. Muldrow, Ñaman, Howell, Smith, Lee & Muldrow, Waco, for appellant.
    William 0. Whitehurst, Jr., Kidd, White-hurst & Rohn, Austin, for appellee.
   O’QUINN, Justice.

James M. Blount brought this suit in district court of Bell County to recover damages growing out of personal injuries alleged to have been sustained when Blount slipped and fell on the floor of a grocery store in Killeen owned and operated by Kimbell, Inc., doing business as Buddie’s Grocery Store, which was domiciled in Tar-rant County.

Kimbell filed its plea of privilege to be sued in Tarrant County, and Blount filed his controverting affidavit. Upon hearing, the trial court overruled Kimbell’s plea of privilege, from which order Kimbell has appealed. We will reverse the trial court’s judgment and render judgment that the plea be sustained and the cause be transferred to district court of Tarrant County.

By the controverting affidavit, Blount sought to retain venue in Bell County under Subdivisions 9a and 23 of Article 1995, V.A.C.S. It was the burden of Blount, as plaintiff, to plead specifically and prove the facts relied on to bring the case within one of the exceptions of Article 1995. A. H. Belo Corporation v. Blanton, 133 Tex. 391, 129 S.W.2d 619 (1939). It is settled that Blount had the burden to prove a cause of action against Kimbell to maintain suit in Bell County under both Subdivisions 9a and 23. Furr’s Super Market, Inc. v. Jernigan, 380 S.W.2d 193, 194 (Tex.Civ. App.—Amarillo 1964, no writ), and cases there compiled.

Venue facts required to be proved in this case, under Subdivision 9a, were (1) that an act or omission of negligence occurred in Bell County where suit was filed, (2) that the act or omission was that of Kimbell by its servant, agent or representative, acting within the scope of employment, and (3) that such negligence was a proximate cause of plaintiff’s injury. Watkins v. Goolsby, 337 S.W.2d 363 (Tex.Civ.App.—Eastland 1960, no writ).

Subdivision 23, which provides that suits against a corporation may be brought in the county “in which the cause of action or part thereof arose,” places the burden on plaintiff to prove all elements of his cause of action properly arising in the county where suit is brought. Teague Brick & Tile Co. v. Snowden, 440 S.W.2d 419, 422 (Tex.Civ.App.—Houston (14th Dist.) 1969, no writ); Socony Mobil Co. v. Southwestern Bell Tel. Co., 518 S.W.2d 257, 267 (Tex.Civ.App.—Corpus Christi 1974, no writ); Wright v. Climatic Air Sales, Inc., 527 S.W.2d 518, 520 (Tex.Civ.App.—Houston (1st Dist.) 1975, no writ).

In actions designated “slip and fall cases,” plaintiff has the burden to prove (1) that defendant placed the foreign substance on the floor, or (2) defendant knew the substance was on the floor and negligently failed to remove it, or (3) that the substance had been on the floor for such period of time it would have been discovered and removed by defendant in the exercise of ordinary care. Plaintiff must discharge the burden by proving, either by direct or circumstantial evidence, the elements necessary to support the allegations of negligence. J. Weingarten, Inc. v. Tyra, 381 S.W.2d 215, 218 (Tex.Civ.App.—Tyler 1964, no writ); Brookshire Bros., Inc. v. Cherry, 387 S.W.2d 108 (Tex.Civ.App.—Tyler 1965, writ ref’d n.r.e.); H. E. Butt Grocery Company v. Russell, 391 S.W.2d 571 (Tex.Civ.App.—Waco 1965, writ ref’d n.r.e.).

Blount testified that he went into defendant’s grocery store in the late afternoon or early evening of Christmas Eve, in 1974, to buy groceries, and after he had “parked the cart, and walked over towards the egg counter,” his “feet shot out from under me or something, substance that was slick.” Blount added, “I don’t know what it was. I didn’t see nothing. And I fell, broke this arm and injured my back.”

On cross examination, Blount admitted he never at any time saw any liquid or substance on the floor, neither saw, felt, smelled, nor by any other sense, could say of his own personal knowledge that there was anything on the floor, and did not find any liquid substance on or about his clothing following the fall. Blount stated, by deposition and again at the hearing, that he was looking to see what grade of eggs he wanted, and while standing completely still, simply slipped and fell.

In addition, Blount offered the testimony of Robert Pegelow, who witnessed the fall. Pegelow testified that the store was always very busy, and that on this particular night many people were walking up and down most of the store aisles. Pegelow approached the egg counter just ahead of Blount and observed “wet footsteps” and a “large puddle.” “I thought it was water,” Pegelow said. “It was a clear substance.” The puddle was “L-shaped,” a clear liquid, about six to eight feet in length. Pegelow testified that he did not know what the liquid was, did not know where it had come from, and had no personal knowledge as to how long the substance had been there.

Pegelow was willing to speculate, and did, that the puddle had been on the floor “awhile” because of the number of footprints and cart tracks extending from the puddle for a distance in several directions, some of which tracks and prints were beginning to get faint. Pegelow stated that Blount fell “almost immediately” after Pe-gelow had walked ahead of Blount through the puddle, and in this brief time, two couples had pushed carts through the puddle. Pegelow added that there were “at least a dozen” persons in and around the same area within these few seconds. Pegelow saw no store employees in the vicinity and none near the adjacent stockrooms prior to the time Blount fell.

In further speculation, Pegelow suggested that the substance was either liquid wax or liquid detergent, although the witness admitted that he did not know if the substance was either wax or detergent. Because there was no evidence of some container, such as broken glass, Pegelow speculated that the puddle probably was the result of an unfinished cleanup operation by store employees. But, when asked whether he had seen any physical evidence of a cleanup effort, Pegelow replied in the negative. Pegelow conceded that it was only a “guess” that the liquid had come from a mop bucket or the like.

There simply is no evidence that the agents or employees of Kimbell caused the liquid substance or puddle to be on the floor, or that Kimbell, through its agents, knew of the presence of the “clear liquid” at the place where Blount fell. There is a complete lack of evidence that the substance was there for such length of time that it was the duty of Kimbell, in the exercise of ordinary care, to know of its presence and remove it.

We can only conclude that Blount failed to establish negligence on the part of Kim-bell. Appellee’s failure to prove an essential venue fact requires reversal of the judgment of the trial court.

The order of the trial court denying Kim-bell’s plea of privilege is reversed. We render judgment that Kimbell’s plea be sustained, and the case is ordered transferred to district court of Tarrant County.