author: YOUNG, Justice.

text:
    TRUCKER’S, INC., Appellant, v. SOUTH TEXAS CONSTRUCTION COMPANY et al., Appellees.
    No. 1213.
    Court of Civil Appeals of Texas, Corpus Christi.
    Dec. 8, 1977.

      Joe Glenn Thompson, Thompson & Redford, Houston, for appellant.
    John C. North, Jr., North, White & Black-mon, Corpus Christi, L. Perry Young, Wharton, for appellees.
   OPINION

YOUNG, Justice.

This suit for hauling services on a highway construction project was brought by Trucker’s, Inc., (formerly Stafford Trucking Company) against Bay Prairie Aggregate Corporation, subcontractor; South Texas Construction Company and Austin Bridge Company, prime contractors and principals on a payment bond; and St. Paul Mercury Insurance Company, surety on the bond. All defendants answered.

Thereafter plaintiff filed a motion for summary judgment against Bay Prairie. The trial court granted that motion for the full amount sought by plaintiff in its petition, but Bay Prairie has not appealed. A motion for summary judgment was also filed by all defendants, except Bay Prairie, against the plaintiff wherein the defendants alleged that any recovery against them by plaintiff was barred 1) because of the plaintiff’s.untimely claim notice to the defendants under Article 5160 and, 2) because of the inapplicability of Article 5472e. The trial court granted that motion of the defendants and the plaintiff appeals. We affirm.

The judgment on appeal here was based on the pleadings alone since there were no affidavits or other summary judgment evidence before the court.

Because there was no summary judgment evidence presented at the hearing in the trial court, we must consider as proven the facts alleged by the plaintiff. Bexar Plumb, v. McKettrick, Etc., Architects, 532 S.W.2d 112 (Tex.Civ.App.-Houston [1st District] 1975, no writ). We summarize plaintiff’s allegations in part, with appropriate paragraphs of plaintiff’s petition noted, all as follows:

IV. Construction Company and Bridge Company are co-venturers and were awarded a contract by the Texas Highway Department for the construction of a project in Wharton County for a total contract price of $3,173,130.00.
V. In accordance with the provisions of Article 5160 Construction Company and Bridge Company as prime contractors and principals provided the Texas Highway Department with a payment and performance bond, each in a. form approved by the Texas Highway Department. Each bond was executed together with the principals by Insurance Company as surety, payable to the Texas Highway Department as the governmental awarding authority.
VI. Construction Company and Bridge Company then entered into a subcontract with Bay Prairie for Bay Prairie to provide the aggregate for the project and all labor and material needed for the procurement of the aggregate.
VII. Whereupon Bay Prairie entered into a separate agreement with plaintiff whereby plaintiff was to perform the hauling of the aggregate from a supply point in Colorado County and from there to the job site in Wharton County.
VIII. In accordance with the agreement (a copy is attached to the petition as Exhibit “B” and is incorporated therein) plaintiff performed the hauling between September 30, 1975 and October 15,1975.
IX. Plaintiff rendered billing by documents (copies of which are attached to the petition as Exhibit “A” and are incorporated therein) to Bay Prairie for all amounts due.
X. After all credits and offsets the remaining balance owed is $19,048.17 which Bay Prairie has failed to pay. Therefore plaintiff is entitled to interest, reasonable attorney’s fees and costs of court.
XI. Because of Bay Prairie’s refusal to pay the amount of the billing, plaintiff gave notice on January 5, 1976, by certified mail with return receipt requested to Construction Company, Bridge Company and Insurance Company.
XII and XIII. A notice of the amount due and the nature of the work done (a copy is attached to the petition as Exhibit “D” and is incorporated therein) and a sworn statement of account (a copy is attached to the petition as Exhibit “C” and incorporated therein) were both sent by the plaintiff to each of the defendants.
XIV. More than 60 days has elapsed since the filing of plaintiff’s claim and neither of the prime contractors nor the surety has made any payment on such claim.

In the remainder of its petition the plaintiff alleged additional grounds for entitlement to recovery under the alternative theories of substantial notice compliance, of unjust enrichment, or of trust funds under Article 5472e.

The plaintiff has brought forward three points of error. In its first and second points the plaintiff contends that the trial court erred in granting summary judgment: 1) by basing its action on the pleadings alone; 2) because the pleadings raised genuine issues as to material facts.

In that regard our Supreme Court in Texas Department of Corrections v. Herring, 513 S.W.2d 6 (Tex.Sup.1974), set out the general rule. The rule is that where a plaintiff’s petition fails to state a cause of action and the defendant levels no special exceptions to the pleading which would give the plaintiff an opportunity to amend to state a cause of action, the trial court errs in granting a summary judgment on the pleadings alone. Further, if the defendant does file special exceptions to the pleadings which are sustained, the trial court would be authorized to dismiss plaintiff’s suit if the plaintiff still failed, even after amendment, to state a cause of action.

The Court in Herring did recognize an exception to the general rule: i. e., where a plaintiff pleads facts which affirmatively negate his cause of action, it is proper for the trial court to grant the motion of the defendant for summary judgment. The granting of a summary judgment on the pleadings alone is not novel. For example, see Hargrove v. City of Rotan, 553 S.W.2d 246 (Tex.Civ.App.-Eastland 1977, no writ); Smith v. Coffee’s Shop For Boys & Men, Inc., 536 S.W.2d 83 (Tex.Civ.App.-Amarillo 1976, no writ); Siegel v. McGavock Drilling Co., 530 S.W.2d 894 (Tex.Civ.App.-Amarillo 1975, writ ref’d n. r. e.); Morris v. Hargrove, 351 S.W.2d 666 (Tex.Civ.App.-Austin 1961, writ ref’d n. r. e.); Schroeder v. Texas & Pacific Ry. Co., 243 S.W.2d 261 (Tex.Civ.App.-Dallas 1951, no writ).

Our problem is to determine whether the case before us is covered by the Herring rule, or the exception to that rule.

Because plaintiff’s recovery depends on provisions of Article 5160, we deem it appropriate here to set out in part pertinent portions of that Article:

“A. Any . . . firm, or corporation, hereinafter referred to as ‘prime contractor,’ entering into a formal contract in excess of $125,000 with this State, ... or any other governmental or quasi-governmental authority, authorized under any law of this State, ... to enter into contractual agreements for the prosecution or completion of any public work, shall be required before commencing such work to execute to the aforementioned governmental authority . the statutory bonds as hereinafter prescribed. Each such bond shall be executed by a corporate surety or corporate sureties duly authorized to do business in this State. . . (T)he bonds shall be payable to the governmental awarding authority concerned, and shall be approved by it as to form. Any bond furnished by any prime contractor in an attempted compliance with this Act shall be treated and construed as in conformity with the requirements of this Act as to rights created, limitations thereon, and remedies provided.
⅜ !(C * * ⅝4 #
(b) A Payment Bond, in the amount of the contract, solely for the protection of all claimants supplying labor and material as hereinafter defined, in the prosecution of the work provided for in said contract, for the use of each such claimant.
⅝ ⅜ ⅜ * *
B. Every claimant who has furnished labor or material in the prosecution of the work provided for in such contract in which a Payment Bond is furnished as required hereinabove, and who has not been paid in full therefor, shall have the right, if his claim remains unpaid after the expiration of sixty (60) days after the filing of the claim as herein required, to sue the principal and the surety or sureties on the Payment Bond jointly or severally for the amount due on the balance thereof unpaid at the time of filing the claim or of the institution of the suit plus reasonable attorneys’ fees; provided:
(a) Notices Required for Unpaid Bills, other than notices solely for Retainages as hereinafter described.
Such claimant shall have given- within ninety (90) days after the 10th day of the month next following each month in which the labor was done or performed, in whole or in part, or material was delivered, in whole or in part, for which such claim is made, written notices of the claim by certified or registered mail, addressed to the prime contractor at his last known business address, or at his residence, and to the surety or sureties. Such notices shall be accompanied by a sworn statement of account stating in substance that the amount claimed is just and correct and that all just and lawful offsets, payments, and credits known to the affiant have been allowed. Such statement of account shall include therein the amount of any retainage or retainages applicable to the account that have not become due by virtue of terms of the contract between the claimant and the prime contractor or between the claimant and a subcontractor. When the claim is based on a written agreement, the claimant shall have the option to enclose, with the sworn statement of account, as such notice a true copy of such agreement and advising completion or value of partial completion of same.
* * * * * *
(b) Additional Notices Required of Claimants Who Do Not Have a Direct Contractual Relationship With the Prime Contractor.
Excepting an individual mechanic or laborer who is a claimant for wages, no right of action shall be legally enforceable, nor shall any suit be maintained under any provision of this Act by a claimant not having a direct contractual relationship with any prime contractor for material furnished or labor performed under the provisions of this Act unless such claimant has complied with those of the following additional requirements which are applicable to the claim:
* * * * * *
(2) Such Claimant shall have given written notice by certified or registered mail ... to the prime contractor within thirty-six (36) days after the 10th day of the month next following each month in which the labor was done or performed, in whole or in part, or material delivered, in whole or in part, that payment therefor has not been received. A copy of the statement sent to the subcontractor shall suffice as such notice.” (Emphasis supplied.)

From the plaintiff’s petition we note that plaintiff stated that its work was finished October 15, 1975, and that it gave notice January 5, 1976, to the defendants of its claim for the amount due therefor. This notice as alleged was tardy, because plaintiff was required by Section B(b)(2) of Article 5160, as set out above, to have given such notice not later than December 16, 1975.

Plaintiff attempts to overcome its pleadings by demonstrating that judicial interpretations of Article 5160 do not require strict compliance with notice provisions of that Article. In support of its position plaintiff cites: Lesikar Construction Company v. Acoustex, Inc., 509 S.W.2d 877 (Tex.Civ.App.—Fort Worth 1974, writ ref’d n. r. e.); Citadel Construction Company v. Smith, 483 S.W.2d 283 (Tex.Civ.App.—Austin 1972, writ ref’d n. r. e.); Seldon v. S & S Aggregates Company, 441 S.W.2d 950 (Tex.Civ.App.—Eastland 1969, writ ref’d n. r. e.); United Benefit F. Ins. Co. v. Metropolitan Plumbing Co., 363 S.W.2d 843 (Tex.Civ.App.—El Paso 1962, no writ). Although these cases stand for the proposition that Article 5160 is to be given a liberal construction, we do not feel they are controlling in the present case. Each of these cases involves a determination of whether a timely notice, lacking in some respect as to form, was sufficient notice. Therefore, in each of the cited cases even though substantial compliance was approved as to the type of notice given, the prime contractor was notified of the debt prior to the expiration of the period within which notice was required.

In United Benefit Fire Insurance Company, the issue of strict construction versus liberal construction of Article 5160 (as amended in 1959) was first considered. The Court there decided in favor of liberal construction because of the remedial nature of the Article and held that timely notice even though defective as to form was sufficient compliance with the Article. The Court’s decision was based upon the Legislature’s use of “broad general terms” when prescribing the type of notice required for compliance with the Article. The Court noted, however, that “other requirements of the statute are more specific and indicate that the Legislature intended some of the provisions should be strictly complied with.”

In Bunch Electric Company v. Tex-Craft Builders, Inc., 480 S.W.2d 42 (Tex.Civ.App.—Tyler 1972, no writ) the Court there held that the notice time limit provision of Article 5160 was mandatory and said the following in that regard:

“The requirement of notice within ninety (90) days is not a mere statute of limitations, but is a substantive condition precedent to the existence of the cause of action. . . . ”

In Bunch, the Court there was considering the times of notice (90 days) under Sections B(a) and B(c) of Article 5160 where the claimant has a contract with the prime contractor. Even so, the Court’s reasoning there would apply also to the time of notice (36 days after the 10th of the month after the month of the performance of work) under Section B(b)(2) of the Article 5160 where the claimant has no contract with the prime contractor, as here. We hold, therefore, that the plaintiff’s failure in the present case to give timely notice is a bar to any claim under Article 5160.

Plaintiff further argues that fact issues exist about whether the payment bond was for the full amount of the contract as required by Article 5160 so as to exempt appellees from liability under Article 5472e. Again plaintiff has pled itself out of court in that regard by its allegation in paragraph V of its petition wherein it stated that the appellees executed a payment bond in accordance with Article 5160.

Another contention by the plaintiff is that it can recover under the trust fund theory of Article 5472e. This Article is not applicable, however, where the full contract account is covered by a payment bond, as alleged here.

A further assertion by the plaintiff is that a fact issue was raised about plaintiff’s right of retainage under Sections B(b) and B(c) of Article 5160. This contention is also negated by the plaintiff by a statement in Exhibit “C” attached to and incorporated in plaintiff’s petition which says “Said agreement does not provide for retainage.” Plaintiff’s points one and two are overruled.

In its final point, plaintiff seeks equitable relief regardless of strict compliance with statutory provisions. We overrule this point also because of the reason we have given that timely notice is a condition precedent to the existence of a cause of action.

We have carefully considered all of appellant’s points of error and they are overruled.

The judgment of the trial court is affirmed.

      . All statutory references are to Vernon’s Rev. Civ.Stat.Ann.


source: Caselaw Access Project

author: ROBERTSON, Justice.

license: Public Domain

text:
    Everett C. WARREN, Jr., et al. v. James J. HARTNETT, Administrator, et al.
    No. 19360.
    Court of Civil Appeals of Texas, Dallas.
    Dec. 28, 1977.
    Rehearing Denied Jan. 26, 1978.
    H. C. McCracken, Jr., McCracken, Shields & Taylor, Carrollton, for appellant.
    Wm. Andress, Jr., Wm. Andress & Associates, Dallas, for named appellees.
    Leonard E. Choate, Dallas, for Texas Scottish Rite Hospital.
   ROBERTSON, Justice.

Everett C. Warren, Jr. and other heirs at law moved to set aside the probate of the holographic will of Callie Lastor, deceased. At the close of contestants’ evidence, the trial court directed a verdict for the proponents. Contestants allege two points of error on this appeal. First, they argue that the alleged will was a contingent will which was precluded from taking effect by the non-occurrence of the contingency. Alternatively, they argue that sufficient evidence was introduced to support the submission of an issue on lack of testamentary capacity to the jury. We disagree with these arguments, and accordingly, affirm the judgment of the trial court.

Contingency of the Will

According to the parties’ agreed interpretation of the instrument, the holographic will of Callie Lastor, reads as follows:

24 Nov (November 1969) I make a weld (will) by myself I put it in the box at Bank so if enny thank (anything) hapen (happens) to me when I have my teeth pull (pulled) I goin (going) Monday 1 Dec. (December 1, 1969) I want the Steate (Estate) to take care of my fare (affairs) and the (they) cane (can) take the money it (needs) to see after my fare (affairs) I want my state (estate) sold and (divided) between my fondle (family) I (am) goin (going) to give ther (their) mane (names) Ernest Warren Houston Tex the (he) is my nuefue (newphew) and Callie Rasco and hear (her) Husband Sunney Rasco Irving, Tex
and Rosllee (Rosalee) and Tomie (Tommy) Forgy (Fogus) Irving Tex
and Jane (James) Serchurgerg (Ranschuber) of San Tone (San Antonio) nefue my (my nephew)
and I goin (going) to leve (leave) a nuff (enough) money to take care of Snow Ball cat I want Ernest Warren to see after him I leving (leaving) 4 Thousand Dollars and when he (Snowball) die I want the rest to go to Mason Hone (home) ofr (for) creepl (Crippled) Children and I want Grover Warren my brother. To get (in touch) 4406 Cardinal Drive Dallas Tex Brother Evertt (Everett) Warren address Rout # 1 Box 90 Troup, Texas Eugene Lastor Jr. 1840 Meadow Valley St. Dallas Texas
I want every thank (thing) sold and (divided) between then (them) but I want the cat (to have) 3 thousan (Thousand) dollars fro (for) the Cat Snowball and when he did (dies) I want th (the) rest of his money to go to Mason hone (home) for (crippled) children.
I (am) goin (going) on plan (plane) to morrow to San ton (San Antonio) (If) (something) happens I want the state (estate) to see after.
Callie
Mrs. B. H. Lastor

Contestants argue that the two phrases “if enny thank (anything) hapen (happens) to me when I have my teeth pull (pulled)” and “I (am) goin (going) on plan (plane) to morrow to San ton (San Antonio) (If) (something) happens . . .establish that the operation of the will is contingent upon death occurring as a result of one of the two specified events. They urge that since Mrs. Lastor’s death was not due to either of the named events, the will never became effective and was not entitled to probate. We disagree. As we construe the will, the conditional language creates and ambiguity regarding the meaning of the instrument. This is because the conditional language does not necessarily refer to the effectiveness of the will. The phrase “I make a will by myself” can be viewed separately from “I put it in the box at the bank so if anything happens to me . . ..” Construed in this fashion, the conditional language only relates to the testatrix’s reason for placing the will in the safety deposit box at the bank. In other words, the statement may simply reflect her concern over the will’s safety and accessibility upon her death from the named event, rather than her intention to make her will contingent. The other phrase, “I am going on plane tomorrow to San Antonio if something happens I want the estate to see after,” also does not necessarily reflect a contingent intent. By this language, the testatrix may simply be reflecting her concern that her estate be settled in the event of her death from the plane trip. Such a manifestation of concern is consistent with an inducement to the will’s execution, rather than as a condition precedent to its effectiveness.

Since we find that the language of the will is ambiguous, our construction of the instrument is guided by the rules set forth in Ferguson v. Ferguson, 121 Tex. 119, 45 S.W.2d 1096, 1097 (1932):

1. The fact that the testatrix left a will implies that she did not intend to die intestate.
2. A will is construed to be general and not a contingent will unless the intention to the contrary clearly appears either expressly or by necessary implication from a reading of the entire will.
3. If a will is open to two constructions, it will be given the interpretation which prevents intestacy.
4. If the intent to make a contingent will is not apparent, the event mentioned in the will will be treated as an inducement which motivated the preparation and execution of the will, and the will is entitled to probate as a general will.

Applying these rules to the present case, we conclude that this will is not a contingent will. The contingent intent is not apparent from either the express language or by necessary implication. Both “conditional” phrases are ambiguous, and accordingly, we are obliged to adopt the construction which prevents intestacy.

Contrary to the contestant’s arguments, this case is not controlled by our supreme court’s opinion in Bagnall v. Bagnall, 148 Tex. 423, 225 S.W.2d 401, 402 (1950). While it is true that Bagnall held that the expression of a condition in a will conclusively demonstrates the intent to create a contingent will, that rule cannot apply in cases where a condition does not necessarily relate to the effectiveness of the will. The will construed in Bagnall was as follows:

Remember me W. W. Bagnall by this. If any thing happens to me. While gone. All my belongings and estate goes to James B. Bagnall Brother of mine.

This conditional language clearly related to the will’s effectiveness, and there was no need to resort to rules of construction. Where ambiguity exists, however, we are not obligated to give conditional language conclusive effect, and we must be guided by the rules of construction we have stated above.

Testamentary Capacity

Contestants next argue that the trial court erred in instructing a verdict for proponents because there was evidence to support the submission of an issue on testamentary capacity to the jury. We disagree. Although we recognize that an instructed verdict is proper only if there is no evidence to support submission of necessary issues, and that we must indulge every inference that may be properly drawn from the evidence against the action of the trial court, Echols v. Wells, 510 S.W.2d 916 (Tex.1974); Stockton v. Kroger Co., 559 S.W.2d 101 (Tex.Civ.App.—Dallas 1977) (Not yet reported), we nevertheless conclude that the instructed verdict was proper in this case. Other than that found in the holographic document itself, the only evidence of the testatrix’s mental condition is her statement in 1974 that “she had been rocking along drinking too much, eating too little,” and testimony that the testatrix was seen having one cocktail at a Christmas party in 1968. No legitimate inference of testamentary incapacity can be drawn from these facts.

Contestants urge that we should consider also the testimony of a handwriting expert who testified that, due to alcoholism, the deceased did not have sufficient mental ability to understand her business, the nature and extent of her property, or the natural objects of her bounty. This opinion was based upon the expert’s comparison of the handwriting of the will with two postcards written earlier. We cannot give this testimony any probative effect. The evaluation of abnormal mental conditions is peculiarly within the field of medi-ca1 science, particularly psychiatry, and also, perhaps, abnormal psychology, but we are aware of no recognized field of scientific inquiry which permits divination of mental capacity by persons whose expertise is limited to handwriting analysis. We recognize that non-physicians may qualify as medical experts by virtue of special experience, St. Louis, B. & M. Ry. Co. v. Davis, 262 S.W. 928, 925 (Tex.Civ.App.-Galveston 1924, writ dism’d); Missouri K. & T. Ry. Co. of Texas v. Farris, 124 S.W. 497, 499 (Tex.Civ.App.—1910, writ ref’d); 2 McCormick & Ray, Texas Law of Evidence § 1421 (2d ed. 1956), however, this witness did not demonstrate any special training or experience in the observation or treatment of persons with mental disorders. Although she stated that she had “lots of experience” with alcoholics, and that she had seen their handwriting, mere association with alcoholics and examination of their handwriting is not sufficient “special experience” to qualify a person as an expert in the fields of alcohol-related disorders and the effects of those disorders on a person’s handwriting. Compare Doherty v. Dean, 337 S.W.2d 153 (Tex.Civ.App.-Austin 1960, no writ) (psychologist held qualified to evaluate mental attributes despite lack of medical degree); St. Louis, B. & M. Ry. Co. v. Davis, supra (nurse held qualified to testify regarding patients physical condition); Missouri, K. & T. Ry. Co. of Texas v. Farris, supra (Witness held qualified despite failure to attend medical school since he had studied anatomy and lectured on other medical subjects).

Since the handwriting experts opinion cannot be treated as that of an expert witness qualified to diagnose or treat mental disorders, it can only be given the weight of the opinion of a lay witness. Even as that of a lay person, however, the testimony is still deficient because the witness did not state enough related facts, based upon her personal knowledge of the testatrix’s characteristics, to support her opinion. Singleton v. Carmichael, 305 S.W.2d 379 (Tex.Civ.App.-Houston 1957, writ ref'd n. r. e.). She did not base her opinion on any actual observation of the testatrix, and there is no direct evidence that the testatrix was, in fact, subject to alcoholism. From handwriting alone, the witness drew the conclusion that the testatrix was an alcoholic and that because of this alcoholism she did not have testamentary capacity at the time she wrote the will. We conclude that this testimony lacked probative value. See Hamill v. Brashear, 513 S.W.2d 602 (Tex.Civ.App.-Amarillo 1974, writ ref’d n. r. e.).

Affirmed.

      . Letters and words in parentheses supplied by agreement of the parties.


author: COLEMAN, Chief Justice.

text:
    Ralph THRIFT et al., Appellants, v. Whorton JOHNSON, Appellee.
    No. 16974.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Dec. 29, 1977.

      Austin & Arnett, Donald R. Arnett, Cary V. Sorensen, Houston, for appellants.
    Charles V. Bialkowski, Houston, for ap-pellee.
   COLEMAN, Chief Justice.

This is an appeal from a judgment for the plaintiff in a suit to recover security deposits paid to the lessor in accordance with the terms of a lease agreement, and for statutory penalties and attorney’s fees. The issues involved require the application of Article 5236e (Supp.1976), Tex.Rev.Civ.Stat.Ann. The case was tried to a jury and the judgment was entered on the jury verdict.

In 1974 Whorton Johnson, the plaintiff, entered into a six month lease for an apartment at the Shibui Apartments. In 1975 he entered into a six month lease for an apartment at the Willow Valley Apartments. Both of these apartments were under the same management and the lease form used in each case was the same although certain changes were written into the second lease. The plaintiff terminated both leases before the dates specified in the leases, and the owner refused to return the $50.00 security deposits paid under the terms of each of the leases.

The rental contract provided for a rental in the sum of $160.00 per month and for a security deposit in the sum of $50.00. It provided that “refund shall be made in accordance with the attached security deposit agreement.” Paragraph 16 of the rental agreement provides:

“If resident fails to vacate on or before the expiration or termination date, resident’s deposit will be forfeited and owner shall be entitled to triple rents for the holdover period, plus any damages such as loss of prospective residents, plus attorneys fees. If resident attempts to remove his property from the apartment in contemplation of moving therefrom prior to the end of the contract term, then all monthly rentals which are payable during the remainder of the term shall be accelerated automatically without notice, and shall be immediately due and payable (same as acceleration upon default of a home mortgage payment). Owner shall use diligence to relet the apartment, and all subsequent rentals received by the owner in mitigation of damages (less costs of reletting) shall be credited to such indebtedness and/or judgment or shall be refunded to the resident, whichever is appropriate. Even if the apartment is relet without any loss of rentals, resident’s deposit will be forfeited as liquidated damages for owner’s effort, inconvenience, and administrative costs in reletting the apartment, which forfeiture shall not affect or diminish owner’s other rights or remedies under this contract.”

Paragraph 17 of the lease provides generally that the resident will not be released from the terms of the contract on grounds of voluntary or involuntary business transfer unless otherwise agreed to in paragraph 21, which in the form is a blank area for the insertion of special provisions. There is a provision that in the event the resident is or becomes a member of the Armed Forces on extended active duty and receives change-of-duty orders to depart the local area the resident may terminate the rental contract by giving 30 days written notice. In that event resident agrees to furnish owner a certified copy of the official orders which warrant termination of the rental contract. This paragraph was modified in the second lease agreement by this provision inserted in paragraph 21:

“7 days notice required on move out. # 17 amended by letter from Aztex Eng. Co. showing intent of transfer out of town sufficient for release from lease and return of deposit.”

The Security Deposit Agreement attached to each of the rental contracts provides that the rental deposit “shall be returned to resident only if certain conditions are met.” The first condition is that the full term must have expired or terminated without default by the resident. The second is that 30 days written notice must have been given to owner’s representative prior to the date of termination or expiration. In the second lease this provision has been stricken and the notation inserted “see # 21 on lease.”

The evidence establishes that the plaintiff failed to give the required notice before he vacated the premises covered by the first lease. The 1975 lease (the second lease) was for a term beginning on the 21st of April 1975. The check introduced in evidence dated 4-22-75 in the amount of $160.00 bears a notation — rent 4-22 to 5-22. This notation cannot have the effect of changing the date on which the monthly rental becomes due from the 21st day of the month to the 22nd day of the month by reason of the parol evidence rule. The lease provides that it becomes effective on the 21st day of April 1975 and terminates on the 21st day of October 1975. It provides that the rent shall be $160.00 per calendar month, payable in advance on or before the 21st day of the month.

There is a letter from the Aztex Engineering Company dated May 14, 1975 directed to the manager of the Willow Valley Apartments notifying them that Whorton Johnson would be transferring from Houston to Carrizzo Springs, Texas on May 23, 1975. Johnson testified that he had received a call from his office indicating that he was being transferred and that a letter was on its way to him since the company manager did not know the address of the apartment manager. He testified that he received the letter the next morning and took it over to Mrs. Foster’s office. She was gone and he taped it to the door. He testified that he received a reply from Mrs. Foster the next morning which was taped to his door. This letter was introduced into evidence and bears the date May 16, 1975. Mr. Johnson also testified that he moved out of the apartment three or four days after receiving the letter from Mrs. Foster. Mr. Johnson gave no other notice of his intention to terminate the lease. This evidence establishes that the required seven days notice of termination was properly given.

The letter dated May 16, 1975 which was taped to the plaintiff’s door was signed “Willow Valley Apartment, Jessie Foster, Manager” and was addressed to “Mrs. Hunt”. Mrs. Hunt signed (as office manager) the letter from Aztex Engineering to Willow Valley Apartments giving notice that Mr. Johnson was being transferred.

Section 3(a) of Article 5236e, supra provides that in the event actual cause exists for retaining all or any portion of the security deposit, the landlord shall return to the tenant the balance of the security deposit, if any, together with a written description and itemized list of all deductions. Such deductions are limited by this section to damages and charges for which the tenant is legally liable under the rental agreement or as a result of breaching the rental agreement. It places the burden of proving the reasonableness of such damage or charges on the landlord.

Section 4(a) of Article 5236e, supra provides that a landlord who in bad faith retains a security deposit in violation of this act is liable for $100.00 plus double the amount of that portion of the deposit which was wrongfully withheld from the tenant, together with reasonable attorney’s fees in a lawsuit to recover the security deposit.

Section 4(b) provides that a landlord who in bad faith fails to provide a description and itemized list of damages and charges pursuant to the requirements of the act, forfeits all rights to withhold any portion of the security deposit.

Section 4(c) provides that in any court action brought by a tenant under this Act the landlord bears the burden of proving that his retention of the security deposit or any portion thereof was reasonable. It also provides that failure to return a security deposit in 30 days or failure to provide a written description and itemization of deductions within 30 days is “prima facie evidence and a presumption that” the landlord acted in bad faith.

With respect to the second lease the jury found that the retention of the security deposit by the Willow Valley Apartments was done in bad faith. The trial court submitted a definition of the term “bad faith” as being the opposite of “good faith”, generally implying or involving an actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one’s rights or duties, but by some interested or sinister motive. There is evidence that the defendants refused to fulfill their contractual obligation to return the security deposit prompted not by an honest mistake as to their right or duty but by an interested motive.

The apartment manager’s letter to Aztex Engineering stated his interpretation of the rental contract as requiring a letter from Aztex Engineering to be furnished him upon Mr. Johnson’s “move in” stating that he was subject to transfer and would give one week’s written notice upon his being transferred. The letter then stated that they had received no such letter from Aztex Engineering and that Mr. Johnson had not given a written notice of his intention to move and that for these reasons it would be impossible to return Mr. Johnson’s deposit. The letter further stated that the lease was for six months and that Johnson was obligated to remain for the full term. The letter stated that it was the company’s policy to enforce the lease agreement and that it was legally and morally committed to institute legal action for its damage “as well as credit action with the Apartment Association and the Credit Bureau.” The manager then suggested that Johnson could “buy out” of his lease for 80% of one full month’s rent.

Subsequently on July 3, 1975, more than 30 days after Mr. Johnson had moved out of the apartment, he was sent a letter stating that the apartment was left very dirty and that a maid service had been employed to clean it at a cost of $20.00. The letter continues:

“This left a balance of $30.00 refundable on your deposit, however, we found that you had resided in another of our projects during the month of April of last year. It appears to us from the two applications that you visit Houston anually and use apartments to avoid motel bills. In checking we also found a balance of 12 days rent was owing from your stay at the Shibui Apartments from April 10, 1974 to your move out date of May 20, 1974. You had paid rent through May 8, 1974 leaving a balance of $51.00 in rent due.”
“After giving you credit for your deposit refund of $30.00 we find you still owe us a balance of $21.00. Please make your check for $21.00 payable to the Shibui Apartments . . . ”

A copy of this letter was sent to Mr. Allen Narmore, Vice President Houston Apartment Association. At the trial of this case the defendant stipulated that no rental was due to it from Mr. Johnson. No evidence was introduced at the trial of the case to prove the reasonableness of the damages or charges made by the landlord and claimed as deductions from the security deposit.

With regard to the second lease the landlord failed to return the security deposit in 30 days and failed to provide a written description and itemization of deductions within the 30 days after the termination of the lease. These facts constituted prima facie evidence that the landlord acted in bad faith. Wilson v. O’Connor, 555 S.W.2d 776 (Tex.Civ.App.-Dallas 1977, no writ history). The content of the letters strengthened the presumption of bad faith.

The jury refused to find that the defendant and the plaintiff intended for the plaintiff to supply a letter from Aztex Engineering Company as part of the lease contract before moving into # 27 of the Willow Valley Apartments. The provision requiring a 30 day written notice to be given the landlord prior to date of termination of the lease agreement was eliminated from the April 21, 1975 lease. The handwritten special provision merely provided for 7 days notice. The balance of the provision is ambiguous but a reasonable interpretation of the writing construed in connection with paragraph 17, which it purports to amend, is that the resident is entitled to terminate the contract by furnishing the owner the letter from his employer stating that the employer intends to transfer the tenant out of the city together with 7 days notice of the tenant’s intention to terminate the lease. The tenant substantially complied with this provision by delivering to the manager of the apartment complex the letter from his employer. This letter contained the date on which he was to be transferred and was received by the apartment manager 7 days prior to the date on which the next rental payment became due. The court did not err in rendering judgment for the return of this security deposit, together with the statutory penalties and attorney’s fee.

The jury refused to find that the owner retained the security deposit under the 1974 lease in bad faith. The plaintiff was allowed a recovery of the $50.00 security deposit. Mr. Johnson did not give a proper notice of his intention to terminate that lease within 30 days from the date that he moved out of the apartment. He received a letter from the manager stating that the owner would be unable to refund the deposit because Johnson did not live out the term of the lease and did not give proper notice. Prior to the date on which Johnson moved out of his apartment, the apartment had been leased to another tenant. This tenant moved in on the same date that Johnson moved out. The jury found that there was no loss of rentals, no owner’s effort, no inconvenience, and no administrative costs incurred as a result of plaintiff vacating premises at the Shibui Apartments. The jury also found that the owner accepted a surrender of the premises and waived the right to enforce the rental contract. See, Dean v. Lacey, 437 S.W.2d 433 (Tex.Civ.App.-Beaumont 1969, no writ).

Article 5236e, supra, recognizes the right of the landlord if authorized by a rental contract, to retain all or a part of the security deposit where the tenant fails to give the proper advance notice of surrender required by the rental agreement. We construe Section 3(a) of that Act as requiring, in a suit by the tenant to recover the security deposit, the landlord to prove on the trial that the tenant is legally liable under the rental agreement or as a result of breaching the rental agreement for damages or charges equal to or in excess of the security deposit or the amount thereof retained by the landlord. This section further requires the landlord to prove at the trial that the damages or charges by reason of which the security deposit or portion thereof is retained are reasonable.

This construction of the statute comports with settled Texas law that penalty clauses in contracts will not be enforced.

“The right of competent parties to make their own bargains is not unlimited. The universal rule for measuring damages for the breach of a contract is just compensation for the loss or damage actually sustained. By the operation of that rule a party generally should be awarded neither less nor more than his actual damages. A party has no right to have a court enforce a stipulation which violates the principle underlying that rule. In those cases in which courts enforce stipulations of the parties as a measure of damages for the breach of covenants, the principle of just compensation is not abandoned and another principle substituted therefor. What courts really do in those cases is to permit the parties to estimate in advance the amount of damages, provided they adhere to the principle of just compensation. Stewart v. Basey, 150 Tex. 666, 245 S.W.2d 484 (1952).

When the rule of Stewart v. Basey is applied to the provision in the rental contract providing for forfeiture of the security deposit, it seems clear that the provision is a penalty clause. The contract reserves to the owner his cause of action for such damages as he may be able to prove and also permits him to retain the security deposit. It does not appear that the damage which might accrue from a breach of the contract by the tenant would be difficult to ascertain. As a consequence under the applicable decisions the owner would be unable to forfeit the security deposit in the absence of proof of actual damage. Langever v. R. G. Smith & Co., 278 S.W. 178 (Tex.Comm.App.1925, judg. adopted).

There was no evidence introduced at this trial to show that the landlord suffered any damage by reason of Johnson’s abandonment of the leased premises. The rental agreement authorizes the landlord to retain the entire deposit in the event the tenant vacates the apartment or terminates the lease prior to the end of its term. While the landlord was entitled to retain the security deposit under the terms of the lease, he was required at the trial to prove the reasonableness of his action in doing so. No such issue was submitted or raised by the evidence in this case. The issue was waived. The trial court did not err in entering a judgment requiring the defendant to return the security deposit made in connection with the 1974 rental agreement. Reintsma v. Greater Austin Apartment Maintenance, 549 S.W.2d 434 (Tex.Civ.App.—Austin 1977, writ dism’d).

The judgment is affirmed.


author: CLAYTON, Justice.

text:
    Elroy M. SATTERLEE, Tax Assessor-Collector, Pasadena Independent School District, et al., Appellants, v. GULF COAST WASTE DISPOSAL AUTHORITY et al., Appellees.
    No. 8025.
    Court of Civil Appeals of Texas, Beaumont.
    Dec. 29, 1977.
    Rehearing Denied Jan. 19, 1978.

      Stanley D. Baskin, Pasadena, Joe Reswe-ber, County Atty., Harris County, Houston, for appellants.
    Rufus Wallingford, Frank Harmon, M. L. Skelton, Donald B. McFall, Ben Rice, Lawrence L. Bellatti, Houston, for appellees.
   CLAYTON, Justice.

This is an appeal by the appellants, Carl S. Smith, Tax Assessor-Collector, Harris County, Texas, and Elroy M. Satterlee, Tax Assessor-Collector, Pasadena Independent School District, from an adverse judgment rendered by the 152nd District Court of Harris County, Texas, declaring certain real property and improvements thereon, owned by appellee, Gulf Coast Waste Disposal Authority (hereinafter referred to as “the Authority”), exempt from ad valorem taxation. The other appellees, Champion International Corporation, Atlantic Richfield Company, Air Products & Chemicals, Inc., Crown Central Petroleum Corporation, and Petro-Tex Chemical Corporation (hereinafter referred to as “the participating industries”), were third-party defendants against whom the appellants sought to collect ad valorem taxes on the subject property. The determination by the trial court that the property was exempt from ad valo-rem taxation resulted in a take nothing judgment with respect to the appellants’ third party action.

This was a non jury trial, and the trial court filed findings of fact and conclusions of law in the following particulars:

1. The Authority is a governmental agency and body politic and corporate of the State of Texas.
2. The Authority is the owner of the property involved herein.
3. The property is devoted exclusively to the use and benefit of the public.
4. The property is exclusively owned by the Authority.

Based upon the above findings, the trial court held that the property is exempt from ad valorem taxation, and that the defendants are not entitled to recover the ad valo-rem taxes which they have levied and assessed against the property from the plaintiff and the third-party defendants.

Appellants attack the judgment of the trial court on the grounds that the evidence is insufficient to support the finding that the subject property is devoted exclusively to the use and benefit of the public, and that the trial court erred in finding the property to be exclusively owned by the Authority, and erred in holding the property exempt from taxation because there is no constitutional or statutory provision providing for such exemption.

The evidence presented on the trial before the court shows the Authority is a conservation and reclamation district created pursuant to Tex.Const. art. XVI, § 59, and is a governmental agency and body politic and corporate of the State of Texas. Enabling legislation entitled the Gulf Coast Waste Disposal Authority Act [Tex.Rev.Civ. Stat.Ann. art. 762M-2 (Supp. 1970)] was passed in 1969. The Authority was created by the legislature to develop and implement a waste control management program for Harris, Galveston, and Chambers Counties (art. 762M-2 § 1.01, Gulf Coast Waste Disposal Authority Act). The Authority operates approximately twenty plants or facilities, which are engaged in the treatment of both residential and industrial wastes. All of these facilities are operated by the Authority and are staffed with Authority personnel.

Pursuant to Tex.Rev.Civ.Stat.Ann. art. 7621d~2 (Supp. 1970) the Authority is authorized to acquire facilities by purchase, gift, or lease, and is empowered to issue its bonds for the acquisition and construction of its waste treatment facilities. The Authority has the power of eminent domain and the power to tax. The property in dispute here, known as the Washburn Tunnel Plant, was acquired by the Authority through proceeds from the sale of its bonds.

In accordance with its statutory mandate to abate and prevent water pollution through the operation and ownership of treatment facilities, the Authority purchased approximately thirty-five acres of land in Harris County from Champion International Corporation, and after such purchase, additional waste treatment improvements were constructed thereon, which were also financed through the sale of bonds. In connection with the purchase of the Washburn Tunnel Plant, the Authority entered into an agreement with five industries located on the Houston Ship Channel. These industries are referred to as the participating industries. This agreement obligates the industries to use the plant for treatment of their waste.

While the facilities agreement applies to and obligates the participating industries, the agreement specifically provides that the Authority may enter into contracts with other persons for the treatment of industrial wastes with the approval of the participating industries, which approval cannot be unreasonably withheld.

The plant is designed for the aerobic treatment of industrial waste. The liquids generated by the treatment are discharged into the Houston Ship Channel, and the solids are dealt with by the Authority’s sludge handling equipment. The plant is now engaged in treating the wastes of all five of the participating industries, plus the wastes from the General American Transportation Corporation (GATX). Additionally, the Authority regularly reserves approximately ten percent of the capacity of the plant for use by “drop-in” customers. The Authority has entered into a long-term (twenty-five years) contract with GATX for the treatment of its wastes. The Atlantic Richfield Co. has been ordered by a district court to use the Authority’s plant facilities. All of the regulatory permits required to discharge the treated wastes are held in the name of the Authority. The Authority is currently negotiating with both the City of Pasadena and Harris County for the treatment of wastes generated by the plant itself and the City of Pasadena’s sewage system.

The evidence further shows that no one has exercised any control over the Wash-burn Tunnel facility other than the employees of the Authority, and the Authority can refuse and has refused to treat the waste of the participating industries. Further, the Authority is responsible for the quality of the waste dumped into the Houston Ship Channel. Tex.Const. art. VIII, § 2(a) provides: “. . . the legislature may, by general laws, exempt from taxation public property used for public purposes . . .” Tex.Rev.Civ.Stat.Ann. art. 7150, § 4 (1960) provides: “All property, whether real or personal, belonging exclusively to this State, or any political subdivision thereof . .” is exempt from taxation.

Tex.Const. art. VIII, § 2(a) is not self-enacting. It simply authorizes the legislature to exempt property from taxation within the limits of its provisions, namely: public property used for public purposes. This has been construed to mean publicly owned property used for public purposes. Leander Ind. Sch. Dist. v. Cedar Park Water Sup. Corp., 479 S.W.2d 908 (Tex.1972).

Appellants contend that the property in dispute, the Washburn Tunnel Plant, •does not belong exclusively to the Authority, in that the conditions of the facilities agreement with the participating industries and the restrictions contained in the deed under which the Authority purchased the property reflects that the Authority received only an equitable interest, an easement, and a right to use the property. We do not agree.

The conditions in the facilities agreement referred to in effect provides that the Authority will receive waste from each participant, expand capacity at the request of any participant, and restrict the use of the subject property to the use of the participants unless otherwise agreed by all participants. These conditions affect the use of the property and not the legal title. We have already seen, from the evidence referred to above, that the property is used by industries other than those made parties to the facilities agreement. GATX is not one of the participating industries, and it is using the facilities under a twenty-five year contract. The Authority regularly reserves approximately ten percent of the capacity of the Washburn Tunnel Plant for use by “drop-in” customers. Atlantic Richfield Co. has been ordered to use the Authority’s facilities by a district court. We do not agree with appellants’ contentions that those conditions prevent a showing of exclusive ownership in the Authority. The Authority holds record title and is in exclusive possession of the property. This is clearly sufficient to constitute the Authority the exclusive owner within the holding of the Leander case and Tex.Rev.Civ.Stat. Ann. art. 7150 § 4 (1960). Sebastian Independent School Dist. v. Ballenger, 297 S.W.2d 238 (Tex.Civ.App.—San Antonio 1956, no writ).

Appellants further contend that exclusive ownership cannot exist because the deed to the Authority contains a possibility of a reverter. The deed conveys the property to the Authority “so long as the Subject Property is used as a facility for the treatment of ‘Industrial Waste’ and upon cessation of such use, the Subject Property . . . shall automatically revert to Grantor.”

The record reflects the Authority’s ownership of the property is in fee subject only to a possibility of a reverter at some indeterminate time, at least twenty-five years in the future because of the contract with GATX and perhaps longer because of the district court’s order with reference to Atlantic Richfield. The possibility of a revert-er does not prohibit fee simple title from vesting in the hands of the Authority. Texas Turnpike Company v. Dallas County, 153 Tex. 474, 271 S.W.2d 400 (1954); Dickenson v. Board of Trustees, 204 S.W.2d 418 (Tex.Civ.App.—Fort Worth 1947, writ ref’d).

The evidence presented to the trial court was of such probative value as to support the trial court’s findings that the subject property is exclusively owned by the Authority.

There can be no question that the property in dispute is used for public purposes as is required under the holding in the Leander case, for it to be exempt under Tex.Rev.Civ.Stat.Ann. art. 7150 § 4 (1960).

The legislature has declared in Tex.Rev. Civ.Stat.Ann. art. 762M-2 § 1.02 (Supp. 1970):

“It is hereby found and declared that the quality of waters in Chambers, Galveston, and Harris Counties is materially affected by the disposal of wastes throughout those counties; . . . that solid wastes, as well as other kinds of waste, may impair water quality by seepage, drainage, and otherwise; that creation of the Gulf Coast Waste Disposal Authority would advance the established policy of the state to maintain the quality of the waters in the state consistent with the public health and public enjoyment thereof . . . ; and that impending shortage of water in the district for beneficial uses requires that all reasonable measures be taken to prevent and abate water pollution, and to reclaim polluted water for beneficial uses.”

The property in question is located in the heart of the State’s largest industrial area and is engaged in a sophisticated treatment of industrial waste. The Authority’s plant is open to users other than the participating industries and is unquestionably devoted to the public purpose of treating and purifying liquid discharged into the State’s waters. This evidence is of probative value to support the trial court’s findings that the Authority’s property is devoted exclusively to the use and benefit of the public.

In view of the trial court’s findings that the subject property is exclusively owned by the Authority and is devoted exclusively to the use and benefit of the public and that the Authority is a body politic and corporate of the State of Texas, all of which findings are supported by evidence of probative value, we hold that the subject property owned by appellees is exempt from ad valorem taxes under the provisions of Tex.Rev.Civ.Stat.Ann. art. 7150 § 4 (1960).

We further hold that such property is exempt from such taxation under the provisions of Tex.Const, art. XI, § 9, under authority of our Supreme Court in Lower Colorado River Authority v. Chemical B. & T. Co., 144 Tex. 326, 190 S.W.2d 48, 50 (1945), wherein the Court states:

“. . . that LCRA is a governmental agency serving a public purpose . and that all benefits derived from its efforts are public benefits. Hence, its property is public property devoted exclusively to public use and is exempt from taxation under Art. XI, Sec. 9, of the Constitution . . . .”

We are aware of the decision in the Leander ease, supra 479 S.W.2d at 913, wherein it refers to the “erroneous misinterpretation” in the LCRA case, but we also note the court states, “The holding in Lower Colorado River Authority will not be disturbed since it is now firmly embedded in our jurisprudence . . .

Appellants further complain that the trial court erred in holding that all costs of court should be taxed against the parties incurring the same. We agree with this point. Numerous cases have held that taxing authorities are exempt from payment of court costs in delinquent tax suits, and this is true even when the taxpayer initiates the action. Nacogdoches Independent School Dist. v. McKinney, 513 S.W.2d 5 (Tex.1974); City of Amarillo v. Paramount Terrace Christian Church of Amarillo, 530 S.W.2d 323 (Tex.Civ.App.—Amarillo 1975, writ ref’d n.r.e.); Seguin Independent School District v. Blumberg, 402 S.W.2d 552 (Tex.Civ.App.-San Antonio 1966, writ ref’d n.r. e.). This part of the trial court’s judgment is reformed to provide that all court costs incurred by appellees are adjudged against them, and no costs are adjudged against appellants.

The judgment of the trial court as reformed is affirmed.

AFFIRMED AS REFORMED.


author: WALTER, Justice.

text:
    The CITY OF AUSTIN et al., Appellants, v. Carol Marie COOKSEY et al., Appellees.
    No. 5033.
    Court of Civil Appeals of Texas, Eastland.
    Jan. 5, 1978.
    Rehearing Denied Feb. 2, 1978.

      Karen Parker, Asst. City Atty., Sam L. Jones, Jr., Asst. Atty. Gen., Jack W. Latson, Flahive & Ogden, Austin, Tex., for appellants.
    Ronald D. Krist and Harvill E. Weller, Jr., Krist, Gunn & Weller, Houston, Tex., Clark, Thomas, Winters & Shapiro, Barry K. Bishop, Austin, Tex., for appellees.
   WALTER, Justice.

We grant appellees’ motion for rehearing and withdraw our opinion and judgment dated October 13, 1977 and the following opinion is rendered in lieu thereof.

This is a wrongful death case. Carol Marie Cooksey, Pamela Kay Cooksey, Kimberly Cooksey and Clara B. Cooksey, the widow, children and mother of Michael Co-oksey, recovered a judgment against Hensel Phelps, Inc., the City of Austin and the State of Texas.

The State and the City have appealed. Hensel Phelps joined the Cookseys in asking that the judgment be affirmed.

Michael Cooksey was employed by Udo Haufler Excavating Company as a bulldozer front-end loader operator.

Plaintiffs alleged Hensel Phelps was the general contractor with the State on Interstate freeway in the proximity of 51st Street at its intersection with Interstate Highway 35 in Austin; at the time of Mr. Cooksey’s death, he was working near a light pole that had been set by the City pursuant to plans and specifications proposed by the State or Hensel Phelps; the deceased was working in the vicinity of the pole and as it began to fall toward him, in his efforts to escape, he abandoned his bulldozer and it ran over him and killed him; the deceased was performing services pursuant to his employer’s contract with Hen-sel Phelps “on premises owned, controlled or occupied by Hensel Phelps, Inc. Michael Cooksey, deceased, on the time and occasion in question, was what is known in law as an invitee of Hensel Phelps, Inc.”

They allege thirteen specific acts of negligence against Hensel Phelps.

In addition to the same thirteen acts of negligence pleaded against Hensel Phelps, plaintiffs pleaded the City failed to operate its power company in accordance with the National Electric Safety Code.

In addition to the same thirteen acts of negligence pleaded against Hensel Phelps, plaintiffs pleaded the State was guilty of gross negligence. Plaintiffs also pleaded the State, in violation of Art. 6252-19, V.A. C.S., Sections 3 and 18(b), created and maintained a dangerous condition on its premises or right-of-way at the intersection of Interstate 35 and 53rd Street in Austin in the form of a power pole without proper supporting structure, near a proposed or developed excavation site. They alleged this was a dangerous condition on its premises and a special defect of which the State had an affirmative duty to warn the decedent. They alleged the State had actual knowledge of this condition and failed to remedy the danger.

Also, by pleading Section 3 of the Act, plaintiffs pleaded the death of Michael Co-oksey was proximately caused by the negligence of the State from some condition or some use of tangible property, real or personal.

The Texas Tort Claims Act waives sovereign immunity for all governmental units in three general areas: “use of publicly owned automobiles, premise defects, and injuries arising out of conditions or use of property”. Greenhill & Murto, Governmental Immunity, 49 Texas L.Rev. 462 (1971).

The jury found Hensel Phelps negligent (1) in failing to discover the dangerous condition, (2) in failing to give an “adequate warning” of the dangerous condition, and (3) in failing to correct the dangerous condition. The jury found each act of negligence to be a proximate cause.

The jury found the City negligent (1) in setting the pole in unstable terrain without adequate support, (2) in failing to discover the dangerous condition, (3) in failing to give an “adequate warning” of the dangerous condition, and (4) in failing to correct the dangerous condition. They found each act to be a proximate cause.

The jury found the State negligent (1) in setting the pole in unstable terrain without adequate support, (2) in failing to discover the dangerous condition, (3) in failing to give an “adequate warning” of the dangerous condition, and (4) in failing to correct the dangerous condition and each act of negligence was a proximate cause.

The jury found the deceased negligent in continuing his work in light of the circumstances and conditions known to him or the circumstances and conditions which should have been known to him in the exercise of ordinary care and this was a proximate cause of the occurrence in question.

The jury found the percentage of negligence attributable to Hensel Phelps 10%, the City 30%, the State 55% and the deceased 5%.

Article 6252-19, Section 3 of Texas Tort Claims Act, provides in part:

“Sec. 3. Each unit of government in the state shall be liable for money damages for property damage or personal injuries or death when proximately caused by the negligence or wrongful act or omission of any officer or employee acting within the scope of his employment or office arising from the operation or use of a motor-driven vehicle and motor-driven equipment, other than motor-driven equipment used in connection with the operation of floodgates or water release equipment by river authorities created under the laws of this state, under circumstances where such officer or employee would be personally liable to the claimant in accordance with the law of this state, or death or personal injuries so caused from some condition or some use of tangible property, real or personal, under circumstances where such unit of government, if a private person, would be liable to the claimant in accordance with the law of this state. Such liability is subject to the exceptions contained herein, and it shall not extend to punitive or exemplary damages.”

Article 6252-19, Section 18(b), V.A.C.S., provides:

“(b) As to premise defects, the unit of government shall owe to any claimant only the duty owed by private persons to a licensee on private property, unless payment has been made by the claimant for the use of the premises. Provided, however, that the limitation of duty contained in this subsection shall not apply to the duty to warn of special defects such as excavations or obstructions on highways, roads or streets, nor shall it apply to any such duty to warn of the absence, condition or malfunction of traffic signs, signals or warning devices as is required in Section 14(12) hereof.”

Article 6252-19, Section 18(b) deals with premise defects in the first sentence and with “special defects” in the last sentence. In State v. Tennison, 509 S.W.2d 560 (Tex.1974), the court decided a “premise defects” case as distinguished from a “special defects” case.

The plaintiffs pleaded the State was in violation of the Texas Tort Claims Act, Art. 6252-19, V.A.C.S., Sections 3 and 18(b) and created or maintained a dangerous condition on its right-of-way. The plaintiffs thereby sought recovery against the State under the “premise defects”, “special defects” and “some condition or some use of tangible property, real or personal” theory of recovery provided for in the Act.

In “premise defects” cases, the State owes the same duty owed by private persons to a licensee on private property. This limitation of duty does not apply to the duty to warn of “special defects”. Nor does it apply to a cause of action alleged to have been caused from some condition or some use of tangible property, real or personal.

The State contends the court erred in failing to grant its motions for an instructed verdict and for judgment non obstante veredicto. It also contends there is no evidence to support the jury’s answers to the special issues.

A temporary light pole was set on Interstate 35 near 53rd Street in Austin on November 14, 1974. It had been set for about 2½ months before the accident. The pole was set at the request of the State Highway Department. The location of the pole was selected and designated for the limited purpose of furnishing “some temporary service to energize the illumination system on Interstate Highway 35.”

Ronnie L. Choate, superintendent for Hensel Phelps Construction Company, testified substantially as follows:

I have been employed as superintendent for Hensel Phelps for the last eight years. My duties are basically the overall planning and supervision of the job. Our work in the vicinity of Highway 35 and 51st Street here in Austin involved the construction of a new 51st Street bridge plus three turnaround bridges and also some storm sewer and culvert work. I am familiar with the fact that Michael Cooksey was killed at this job site. My office is located within 100 feet of the pole and I saw the pole quite frequently and I was aware of the excavation that was going on every day.
I had a conversation with Michael Co-oksey prior to the accident. Mr. Cooksey worked for Udo Ha'ufler and Udo has been doing work for Hensel Phelps for the past two or three years.
The depth of the culvert we were excavating varied from six to seven feet. I was at the scene after the accident and it appeared the excavation for the culvert in the vicinity of the pole was between six and seven feet — very close to the same depth the pole was buried. When the pole fell it took with it the berm area which separated the pole from the excavated area.

He was asked the following questions and he gave the following answers:

“Q How — In point of time, how much earlier or how far prior to the falling of the pole did you make this observation?
A Sir, on the morning of the accident, the Monday morning prior of the accident, midmorning, there was still five to six feet berm area as you described it around the pole, between the pole and the excavation.
Q How deep was the excavation at that point?
A In the vicinity of six to seven feet.
Q Oh, I see.
A Sir, the excavation past the pole was completed on the previous Thursday or Friday.
Q I see. Well, what work was Mr. Cooksey involving himself in at the time of the fall?
A Sir, he was excavating further to the northwest from the pole.
Q Had you seen him excavating in the area you just described to the northwest of the pole shortly prior to the fall of the pole?
A How do you mean — What do you mean by shortly, sir?
Q Well, tell me how — if you did first see him, and then tell me when you saw him doing that work.
A Sir, immediately after lunch, that was the last time that I actually observed Cooksey digging there. He was digging to the northwest of the area where the pole was at.
Q And approximately what time of the day or night did this accident happen?
A Shortly after four o’clock, I believe, sir.
Q And how far to the northwest was Mr. Cooksey?
A I would say 50 to 75 feet.
Q In other words, the work that was to be done in the immediate vicinity of the pole had already been completed?
A Yes, sir, it had been completed the previous Friday.
And, therefore, there would be no reason for Mr. Cooksey to be doing any excavation work in the area? O'
That’s correct, sir. ¡>
And to your knowledge he was not doing any excavation work in that area? «o
At noon I knew he was not, sir. U»
Have you talked to any other employees of Hensel Phelps that claimed — who observed or witnessed him doing any work in the vicinity of the pole around four o’clock? ,©
No, sir. <!
Can you give us any explanation of what his machinery was doing in that area around four o’clock? O’
Sir, I don’t quite understand what you—
Well— O*
—what you are asking. <1
Did you go to the scene before Mr. Cooksey’s body had been removed? O*
Yes, sir. <1
Was his body and his equipment in the vicinity of the pole at that time? O*
Yes, sir. It was lying to the southeast of the pole.
What would be — Can you give us any explanation of what his machinery and he, for that matter, would have been doing in the vicinity of the pole at four o’clock if he had already completed the work? Would he be putting, for example, his machinery up? Would he be going back to a central storage depot? <©
No, sir. As Mr. Cooksey was completing the excavation on further to the northwest, he would go up and get a load of material back up in the vicinity of where the pole was and then drive up a ramp where he was hauling the spoilage from the trench.
I see. In other words, he would go and pick up a load of dirt to the northwest of the location of the pole because that’s where he was then doing his work? .©
Yes, sir.
Q He had already completed the work in the location of the pole?
A That is correct, sir.
Q And as he would get a load of that dirt, he would have to go back through or transverse the vicinity of the pole in order to take the material he just dug to the northwest of the pole to some dumping area?
A That is correct, sir.
Q Which meant that his tractor would probably be going back and forth in the area of the pole, across from the pole, the area where the pole was located, numerous times a day?
A That’s correct, sir.
Q As a matter of fact, every time he got a load?
A Yes, sir.”

Choate continued to testify substantially as follows:

I am familiar with the area on plaintiffs Exhibit 4 labeled, “Sand backfill from abandoned gas line removed same day”.
Mike Cooksey and Ed Laney, superintendent for Udo Haufler, removed the gas line either Thursday or Friday afternoon before the accident. The line was exposed the preceding Thursday. At that time, Mr. Cooksey, Mr. Laney, Doug Rummel and I stood on the bank in the vicinity of the spoilage pile and discussed the gas line. I know there was five foot of berm area between the pole and the excavation prior to the accident.

He was asked the following questions and he gave the following answers:

“Q It would be safe to say though that the berm area, assuming it was six feet in width, had been somewhat weakened by a sandy type substance as opposed to the natural hard earth?
A Yes, sir.
Q No question about that?
A Yes, sir. I am agreeing to the fact that naturally something will hold a lot better in hard earth than it will in a sandy type material.”

Choate continued to testify substantially as follows:

There was no sand backfill placed around the pole by Phelps or Udo. In my opinion, several years ago when the gas line was installed, the normal procedure was to dig the trench, lay some sand and put the line in and then put more sand back on top of it.
After the accident, we noticed the last two or three buckets of material dumped in the excavation spoil pile were sand. I concluded from the fact I found sand in the spoil pile that Mr. Cooksey must have been cutting around the original pole area or picking up the spoilage as it might have sloughed off.

In Chief Justice Greenhill’s concurring opinion in Lowe v. Texas Tech University, 540 S.W.2d 297 (Tex.1976), he expresses his views about the difficulty of understanding the language in Section 3 of the Texas Tort Claims Act. We are experiencing the same difficulty.

In Lowe, the court was called upon to construe that portion of the language contained in Section 3 paraphrased by the court as follows:

“Each unit of government in the state shall be liable for money damages for death or personal injuries so caused (i. e., when proximately caused by the negligence or wrongful act or omission of any officer or employee acting within the scope of his employment or office) from some condition or some use of tangible property under circumstances where there would be private liability.”

The court was called upon to construe (1) “whether the waiver of immunity is invoked by allegations that Texas Tech through its authorized personnel was negligent in affirmatively furnishing ‘equipment, uniforms and pads which were defective’ and (2) “whether the waiver is also invoked by the allegations of negligent acts of failure to furnish proper equipment and failure or refusal to permit the wearing of proper equipment.” The court held both allegations stated a case within the statute-ry waiver of immunity arising from some condition or some use of tangible property.

The court observed:

“We have heretofore considered this legislative language in Texas Dept. of Corrections v. Herring, 513 S.W.2d 6 (Tex.1974); McGuire v. Overton Memorial Hospital, 514 S.W.2d 79 (Tex.Civ.App.—Tyler), writ ref’d n. r. e. by per curiam, 518 S.W.2d 528 (Tex.1975); Mokry v. University of Texas Health Science Center at Dallas, 529 S.W.2d 802 (Tex.Civ.App.—Dallas 1975, writ ref’d n. r. e.); and Beggs v. Texas Dept. of Mental Health and Mental Retardation, 496 S.W.2d 252 (Tex.Civ.App.-San Antonio 1973, writ ref’d).”

In Harris County v. Dowlearn, 489 S.W.2d 140 (Tex.Civ.App.-Houston (14th Dist.) 1972, writ ref. n. r. e.), the court was called upon to decide whether the facts in that case constituted a claim based on “premise defects” or “special defects”. The court said:

“Further, we do not believe that the instant claim was based on a premises defect within the meaning of the statute. Appellee alleged and proved the negligence of employees of the appellant and the duty to warn appellee of special defects of which she was not aware after she entered the courthouse. There is no evidence that such condition was open and obvious. We hold that the defect was special, and that the premises defects exclusion contained in the Act does not here apply under section 18 thereof . . ”

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

“When a party asserts that there is no evidence to support jury findings, we must review the evidence in its most favorable light, considering only the evidence and inferences which support the findings, and rejecting the evidence and inferences contrary to the findings. Butler v. Hanson, 455 S.W.2d 942 (Tex.1970); Langlotz v. Citizens Fidelity Insurance Company, 505 S.W.2d 249 (Tex.1974). It would be our duty to affirm the judgment of the Court of Civil Appeals if the evidence offered to show negligence were proven to be no more than a scintilla of proof. Thus if the evidence created nothing more than a mere surmise or suspicion of the existence of negligence, such evidence would be, in legal effect, no evidence. Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059 (1898). But if negligence may be reasonably inferred from direct evidence, then there is more than a scintilla of evidence. Calvert, ‘No Evidence’ and ‘Insufficient Evidence’ Points of Error, 38 Texas Law Review 361, 363 (I960).”

Carl E. Anderson, an illumination inspector for the State, selected the location for the pole involved in the accident. No guy wires were placed on this pole. Anderson testified that failure to guy the pole was a direct violation of the National Electric Safety Code. He knew before the accident there was to be excavation in the vicinity of the pole. On the morning before the accident occurred, he discussed the location of the pole with Mr. Neiss, the State’s resident engineer. They discussed the condition of the soil where Anderson set the pole. The documentary evidence prepared by the State shows the construction planned in the area where the accident occurred. The testimony of Anderson, Choate and the documentary evidence of the State and other facts and circumstances in evidence constitute some evidence of probative value and support the verdict against the State.

The plaintiffs are entitled to recover against the State on their “special defects” and “some condition or some use of tangible property, real or personal” theory of recovery. These grounds of liability impose a common law duty of ordinary care upon the State.

The State has fifteen points of error complaining about the court’s charge and the court’s failure to give its requested special issues. It has grouped them for argument in its brief. The only authorities cited under these points are State v. Tennison, 509 S.W.2d 560 (Tex.1974); Lower Neches Valley Authority v. Murphy, 536 S.W.2d 561 (Tex.1976); and The Texas Tort Claims Act.

Special issue number one asked if the State created or allowed to persist a dangerous condition by locating a power pole without adequate support in unstable terrain in a construction area. Issue number four asked if the City created a dangerous condition by locating a power pole without adequate support in unstable terrain. Issue number six asked if Hensel Phelps created or allowed to persist a dangerous condition in the form of a power pole, as located, without adequate support, in unstable terrain in a construction area. ' The State contends by the submission of these issues, the court commented on the weight of the evidence.

In paragraph three of its objections to the court’s charge, the State objects to issue number one because its requested special issue number one should have been given and said issue was prejudicial to the rights of the State. We find no merit in the State’s contention the court erred in the submission of the issues and the court’s failure to submit the State’s requested issues and hold the court properly submitted the controlling issues. Rule 277, T.R.C.P.

We have considered the entire record and find the verdict against the State is not contrary to the overwhelming weight and preponderance of the evidence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

The City of Austin contends there was no evidence to support the jury’s affirmative answers to issues number four and five that the City created a dangerous condition by locating the power pole without adequate support in unstable terrain and that it knew of the dangerous condition. It also contends such answers are against the great weight and preponderance of the evidence. It contends there is no evidence and insufficient evidence of proximate cause.

Sam R. Jones, staff engineer for the City of Austin Electric Department, testified substantially as follows:

I arrived at the scene of the accident where Mr. Cooksey was injured about the time the ambulance left. I inspected the soil at the location where the pole had been set and did not notice “any substantial quantities of sand in that sloughed off material. I will say I did notice sand being in the area. By that, I mean that there was a little sand scattered here and there . . .” Sand will weaken the structural integrity of the foundation where the pole is set. However, at the time we set the pole, we had anticipated no excavation in that area. Hensel Phelps’ Exhibit No. 1 is a utilities relocation map prepared by the City signed by Blackwell and dated April 26, 1973. This exhibit shows “proposed concrete boxed culvert”. The City had knowledge there was going to be a concrete box culvert run in the area when I was requested to set this pole. The map was apparently prepared by the water and sewer department of the City. We know if there is going to be a box culvert, there is going to be excavation.

He was asked the following question and he gave the following answer:

“Q There’s no question that the City of Austin, who prepared this map, had notice of everything about the utilities and the location of that particular concrete box culvert because it’s on the map that they prepared?
A Each department would have an opportunity to have input into that map, yes, sir.”

Michael L. Erdmann, Assistant City Manager for the City, had actual notice of the facts and circumstances of Mr. Cooksey’s death within hours after the event occurred.

Richard C. Dreiss testified substantially as follows:

I am employed by the City of Austin in the Electric Department as supervisor of field engineering. I supervise all field engineering and approve work orders that are drawn up in the field before they are issued to construction. Plaintiffs’ Exhibit 5 is a work order our field crew drew up to furnish temporary highway lighting service. The pole involved in this lawsuit was a City-owned pole and was set by E. E. Steussey for the City. The highway department selected the location for the pole. The pole was not guyed. We were not aware of the fact that heavy equipment or construction work was to be conducted around the pole.

Fred Heath testified substantially as follows:

I am Distribution Coordinator with the City’s electric department. Anderson, with the highway department, showed me the place where he wanted the pole in controversy located and that is where it was staked. I had no knowledge about whether any excavation work would be done around the pole. I would not have placed the pole in this position if I had known there was going to be excavation work in the area adjacent to the pole because it would be dangerous.

The evidence establishes the City had knowledge of the construction and excavation work to be done in the area of the pole. It also had knowledge of the underground utilities that might affect the soil in the area of the pole and make the terrain unstable.

In Champlin Oil & Refining Company v. Chastain, 403 S.W.2d 376 (Tex.1965), the court said:

“It has been determined by Texas authority that imputed actual notice carries with it the same legal consequences as conscious knowledge. In Hexter v. Pratt, 10 S.W.2d 692 (Tex.Com.App.1928) it was said:
‘Notice in law is of two kinds — actual and constructive. * * * In common parlance ‘actual notice’ generally consists in express information of a fact, but in law the term is more comprehensive. In law whatever fairly puts a person on inquiry is sufficient notice, where the means of knowledge are at hand, which if pursued by the proper inquiry the full truth might have been ascertained. Means of knowledge with the duty of using them are in equity equivalent to knowledge itself. * * So that, in legal parlance, actual knowledge embraces those things of which the one sought to be charged has express information, and likewise those things which a reasonably diligent inquiry and exercise of the means of information at hand would have disclosed.’
The Hexter case was cited with approval by this Court in Woodward v. Ortiz, 150 Tex. 75, 237 S.W.2d 286 (1951), wherein it was said:
‘It may well be, however, that the tax attorney and the County were charged with actual notice of the judgment even though they had no express knowledge thereof. Actual notice ‘embraces those things of which the one sought to be charged has express information, and likewise those things which a reasonably diligent inquiry and exercise of the means of information at hand would have disclosed.’ ”

The City contends the duty it owed to the decedent Cooksey is the same as the duty of the utility companies in Pioneer Natural Gas Co. v. K & M Paving Co., 374 S.W.2d 214 (Tex.1963):

“We think it sound, in the light of the cases hereinafter discussed, to hold that at least where the activity is in an urban street or road, and where an unusual or extraordinary use of the surface is necessary to unearth the pipeline, and where there is no contract, statute, ordinance, or regulation governing the matter, the initial burden is upon the one who excavates or digs up the surface to avoid striking the line or to make reasonable inquiry as to the location of any lines which might be encountered. The duty of the pipeline operator under these circumstances arises, then, when it is requested to alter its lines or their use, when it is asked for information, or when it is otherwise put on such notice that it is required to take particular action to protect the lives or property of others.” (Emphasis added) We agree with appellees’ contention that: . . Under the Pioneer rule, the City was put on notice of the condition, requiring action, such as re-locating the pole or securing it, so that the energized pole in an excavation area would not be dangerous.”

Art. 1436a, T.R.C.S., requires those engaged in the generation, transmission or distribution of electric energy to operate in accordance with the National Electric Safety Code.

We hold there is some evidence to support the answers to issues 4 and 5.

We have considered the entire record and find the answers to issues 4 and 5 are not against the great weight and preponderance of the evidence. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

We hold there is some evidence to support the jury’s answers to the proximate cause issues.

The judgment provides Hensel Phelps shall have judgment against the City by way of contribution in proportion to the degree of negligence attributable to each defendant, arising from the damages awarded to Carol Marie Cooksey. The City contends it had a defense to the adult plaintiff’s cause of action because she did not give the City notice provided for under the City Charter.

The City contends the court erred in awarding Hensel Phelps judgment against it by way of contribution for damages awarded to Carol Marie Cooksey.

Art. 2212 was repealed by the Comparative Negligence Act, Article 2212a. The contribution provisions are as follows:

“Contribution among joint tort-feasors Sec. 2. (a) In this section:
(1) ‘Claimant’ means any party seeking relief, whether he is a plaintiff, counter-claimant, or cross-claimant.
(2) ‘Defendant’ includes any party from whom a claimant seeks relief.
(b) In a case in which there is more than one defendant, and the claimant’s negligence does not exceed the total negligence of all defendants, contribution to the damages awarded to the claimant shall be in proportion to the percentage of negligence attributable to each defendant.
(c) Each defendant is jointly and severally liable for the entire amount of the judgment awarded the claimant, except that a defendant whose negligence is less than that of the claimant is liable to the claimant only for that portion of the judgment which represents the percentage of negligence attributable to him.”

The court rendered judgment in favor of Carol Marie Cooksey against Hensel Phelps and the State. Because Mrs. Cooksey did not give notice to the City as required by the City Charter, no judgment was rendered against the City for her damages.

Appellees contend the comparative negligence statute eliminates the limitation that the contribution right existed only against a party who was liable to the plaintiff. They contend Hensel Phelps, the State and the City were all claimants seeking contribution and the court awarded contribution “in proportion to the percentage of negligence attributable to each defendant”. The appellees contend the act creates a statutory right of contribution which is independent of the plaintiffs’ claim, instead of a derivative claim arising from joint liability and payment by one joint tort-fea-sor.

The comparative negligence statute allows contribution only among joint tort-fea-sors. We hold the City was not a joint tort-feasor insofar as Mrs. Cooksey’s damages were concerned.

St. Paul Insurance Company’s Appeal

St. Paul Insurance Company has appealed from that part of the judgment awarding attorney’s fees of 25% of the company’s subrogated recovery to the attorney for ap-pellees under Section 6a of Article 8307 of V.A.C.S.

At the outset, we are confronted with appellees’ contention St. Paul has failed to preserve a majority of its points of error by failing.to assert them in its amended motion for a new trial.

Rule 320, T.R.C.P., provides that the motion for new trial shall specify each ground on which it is founded, and no ground not specified shall be considered.

Subdivision (b) of Rule 418, T.R.C.P., provides in part:

“(b) A statement of the points upon which the appeal is predicated, separately numbered in short form and without argument, and germane to one. or more assignments of error when assignments are required . . ”

There is no indication in St. Paul’s points of error that any of them are germane to any of its assignments of error in its amended motion for new trial. For example, its first point of error asserts the court erred in refusing to prepare and file findings of fact and conclusions of law in support of its judgment awarding an attorney’s fee of 25% of the carrier’s subrogated recovery to the attorney for appellees as prescribed by Rule 296 T.R.C.P. This alleged error it not asserted as an assignment of error in St. Paul’s amended motion for a new trial.

Judgment in this case was rendered upon the verdict of a jury. Rule 296 applies to cases tried before the court without a jury. Findings and conclusions are neither necessary nor proper in a jury trial. See Ditto v. Ditto Investment Company, 158 Tex. 104, 309 S.W.2d 219 (1958); Fancher v. Cad well, 159 Tex. 8, 314 S.W.2d 820 (1958); Cox v. Rhodes, 233 S.W.2d 924 (Tex.Civ.App.-El Paso 1950, no writ).

St. Paul’s amended motion for a new trial does have an assignment of error which is germane to its point of error the trial court erred in awarding an attorney’s fee to the attorney for appellees out of the carrier’s subrogated recovery because said attorney did not establish his compliance with the disclosure requirements of V.A.C.S., Art. 8307, Section 6a. The pertinent portions are as follows:

“. . . If compensation be claimed under this law by the injured employee or his legal beneficiaries, then the association shall be subrogated to the rights of the injured employee, and may enforce in the name of the injured employee or of his legal beneficiaries the liability of said other person, and in case the recovery is for a sum greater than that paid or assumed by the association to the employee or his legal beneficiaries, then out of the sum so recovered the association shall reimburse itself and pay said costs and the excess so recovered shall be paid to the injured employee or his beneficiaries. However, when the claimant is represented by an attorney, and the association’s interest is not actively represented by an attorney, the association shall pay such fee to the claimant’s attorney not to exceed one-third (⅛) of said subrogation recovery or as may have been agreed upon between the claimant’s attorney and the association or in the absence of such agreement the court shall allow a reasonable attorney’s fee to the claimant’s attorney for recovery of the association’s interest which in no case shall exceed thirty-three and one-third per cent (33⅛%) payable out of the association’s part of the recovery. In any case where the claimant’s attorney is also representing the subrogated association, a full written disclosure must be made to the claimant, prior to actual employment by the association as an attorney, and acknowledged by the claimant, and a signed copy of the same furnished to all concerned parties and made a part of the file in the Industrial Accident Board. A copy of the disclosure with authorization and consent, shall also be filed with the claimant’s pleadings prior to any judgment entered and approved by the court. Unless the claimant’s attorney complies with all of the requirements as prescribed in this section, the attorney shall not be entitled to receive any of the fees prescribed in this section to which he would be entitled pursuant to an agreement with the association.”

Final judgment was rendered in this case on June 21,1976. Ronald D. Krist, attorney for plaintiffs, filed an application for attorney’s fees pursuant to Article 8307, Section 6a of V.A.C.S., which shows to have been filed June 18, 1976. This application for attorney’s fees was also signed by Carol Marie Cooksey, individually and as next friend for her minor children.

The court ordered:

“It is further ordered, adjudged and decreed that out of the sum awarded St. Paul Insurance Company and above set forth, that Ronald D. Krist, Attorney at Law, be granted $1,172.50 as attorneys’ fees pursuant to Article 8307, Section 6(a) of the Texas Revised Civil Statutes, together with 25% of all sums paid prior to final recovery in this cause.”

St. Paul's point the court erred in awarding Krist attorney’s fees because he had not complied with the disclosure requirements cannot be sustained. We hold filing application for attorney’s fees by the attorney which was signed by the plaintiffs before the judgment was rendered constitutes substantial compliance with the statute.

We have considered all of St. Paul’s points of error and find no merit in them. They are overruled.

We have considered all of the State’s points of error and find no merit in them. The are overruled.

The judgment is reformed by deleting that portion of the judgment awarding Hensel Phelps, Inc. judgment against the City of Austin by way of contribution for damages awarded to Carol Marie Cooksey.

The City’s other points are overruled.

The judgment is reformed and as reformed is affirmed.