author: McGEE, Justice. SAM D. JOHNSON, Justice,

text:
    Martin Coker LASSITER, Petitioner, v. Elmer BLISS et ux., Respondents.
    No. B-6622.
    Supreme Court of Texas.
    Nov. 30, 1977.
    Rehearing Denied Jan. 4, 1978.

      John R. Lee, Kermit, for petitioner.
    Trenchard, Davis & Hardwick, Robert Trenchard, Jr., Odessa, for respondents.
   McGEE, Justice.

This is a suit for a permanent injunction, brought by Martin Coker Lassiter, to enjoin Elmer Bliss from maintaining a mobile home on a lot in the Memorial Park Addition of Kermit, Texas due to the restrictive covenants of the addition. The trial court, without a jury, granted the permanent injunction. The court of civil appeals reversed and rendered the judgment of the trial court and denied Lassiter any relief being sought. 545 S.W.2d 571. We reverse the judgment of the court of civil appeals and affirm the judgment of the trial court.

Bliss purchased lot 13, block 7, in the Memorial Park Addition on May 24, 1975 from Jimmy K. Stroud. Stroud told Bliss at the time of sale that the restrictive covenants of the Addition prohibited trailers and “that the mobile home could not be put on that property.” Bliss lived across the street from the mobile home’s location and intended to either rent it or let his mother-in-law live in it. Stroud showed Bliss a copy of the restrictions at the time of sale, which provides in pertinent part:

No trailer, basement, tent, garage or temporary quarters shall at any time be used as a residence on any portion of said Memorial Park Addition.

Lassiter resides on the lot adjacent to where Bliss seeks to put the mobile home. Lassiter’s attorney told Bliss about the restrictive covenants and Lassiter’s intention to enforce the covenants on the day Bliss put the mobile home on the lot. Bliss testified that when he talked to Lassiter’s attorney the wheels were off of the mobile home and he was in the process of blocking it up. The record discloses that the mobile home is 12 feet wide, 65 feet long, and is connected to water, but has not been connected to a sewerage system; it is unclear whether or not the electricity has been hooked up. The record also discloses that a mobile home park is located within viewing distance of the lot in question but outside of Memorial Park Addition.

We hold that the restrictive covenant in this ease prohibited Bliss from putting the mobile home on the lot. In Bullock v. Kattner, 502 S.W.2d 828 (Tex.Civ.App.—Austin 1973, writ ref’d n. r. e.), a party moved a mobile home into a subdivision and thereafter removed the wheels, connected water pipes, electric lines, and put blocks under it as a foundation. The restrictive covenant sought to be enforced provided:

No trailer, basement, tent, shack, garage, barn or other outbuildings erected in this subdivision shall at any time be used as a residence temporarily or permanently, nor shall any structure of a temporary character be used as a residence.

The court in Bullock held that the restriction proscribed trailers used as residences temporarily or permanently and held as a matter of law that a mobile home with the wheels removed, placed on blocks and hooked to lights and water is still a trailer.

In Phillips v. Zmotony, 525 S.W.2d 736 (Tex.Civ.App.—Houston [14th Dist.]), rev’d per curiam, 529 S.W.2d 760 (Tex.1975), the court of civil appeals construed the following restrictive covenant to preclude mobile homes or trailer houses. The restrictive covenant stated in pertinent part:

3. Except as herein provided, no part of said tract shall be used for anything other than residential purposes .
6. No trailer, . . placed on any part of said tract, shall at anytime be used as a residence, nor shall any residence of a temporary character be permitted.

Zmotony, the party seeking to maintain the mobile home, received notice of the restrictions at the time the mobile home was being pulled by a truck to the lot. Subsequent to the notice the mobile home was moved onto the lot. The mobile home, which was 14 feet wide and 80 feet long, was connected to a private water supply, the wheels and the trailer tongue were removed, a metal skirt was installed around the bottom of the mobile home, the mobile home was put on concrete blocks and anchored to the ground with “tie downs.” Zmotony had contracted for electric power and installation of a septic tank. Phillips sought a temporary injunction prohibiting the mobile home, which was denied by the trial court. The court of civil appeals reversed and remanded the cause, stating:

[T]he intent of the restrictions are clear. The 67.61 acres of land is to be used only for residential purposes. No trailer is to be used as a residence. The mobile home is a trailer and is excluded by the restrictions.

525 S.W.2d 736, 739. This court, pursuant to Texas Rules of Civil Procedure 483, granted the writ and without hearing oral argument reversed the court of civil appeals because the evidence raised the question of whether the covenant had been waived. 529 S.W.2d 760, 762. The present case is distinguishable because here the trial judge granted the injunction and waiver of the covenant is not asserted.

We hold that the intention of the restrictive covenant in the present case was to prohibit trailers from being used as residences “at any time,” whether as a temporary or permanent residence. Under the Bullock and Zmotony cases, we hold that the mobile home in this case was a “trailer” and was prohibited by the restrictive covenant. The term “trailer” is to be understood in its usual meaning regardless of whether it is referred to or described as a house trailer or mobile home. See Jones v. Beiber, 251 Iowa 969, 103 N.W.2d 364 (1960); Mouille v. Henry, 321 So.2d 377 (La.App.1975); Timmerman v. Gabriel, 155 Mont. 294, 470 P.2d 528 (1970); Van Poole v. Messer, 19 N.C.App. 70, 198 S.W.2d 106 (1973); cf. Village of Harriman v. Kabinoff, 243 N.Y.S.2d 210 (Sup.Ct.1963); Astoria v. Notwang, 221 Or. 452, 351 P.2d 688 (1960).

Bliss relies on Crawford v. Boyd, 453 S.W.2d 232 (Tex.Civ.App.—Port Worth 1960, writ ref’d n. r. e.), and contends that his mobile home should be allowed to remain on the lot. Crawford sued Boyd to enforce restrictive covenants of a subdivision in Denton County, Texas. The restrictive covenants there provided:

2. No shacks or tents shall be permitted on this property . . . . Trailer homes are permitted on lots approved for trailers, being 33 through 54, both inclusive, and trailers may not be older than 1955 models.
6. All lots shall be residence lots and shall not be used for business, except lots No. 1, 55, 56, 57, 58, 59, 60, 61, 95, 96, 124 and 123, which each may be used for a bona-fide business. All other lots shall be residence lots only and no trailer homes shall be permitted thereon, except as provided in restriction two hereinabove, except that lots 33 through 54, inclusive, may be permitted for trailers, not older than 1955 models as set out in restriction No. Two hereinabove. .

Boyd owned several lots in the subdivision including lots 56, 57, 58, 59, 89 and 90. Boyd and his family lived in a house on lots 89 and 90 which burned in August 1967. Boyd then contracted with a mobile home manufacturer to build a building 12 feet wide and 65 feet long. Boyd built a concrete foundation for the building consisting of four slabs of reinforced concrete about 12 feet long. Boyd also built and installed a large septic tank to be used in connection with the building. It is important to note that the building was built to Boyd’s specifications and was fabricated without axles or wheels. The structure was delivered by placing wheels and axles under the building and pulling it with a special truck that had a fifth wheel. The wheels and axles were taken out from under the building, and it was placed on the concrete foundation. The company then took the wheels and axles back with them. Subsequent to delivery, Boyd built a 12 foot by 16 foot room onto the building and poured a 12 foot by 20 foot foundation in front of the structure which Boyd hoped to use as a rumpus room. The buildings were tied down with cables and could not be moved without damaging them materially. The trial court rendered judgment for Boyd and filed no findings of fact and conclusions of law. The court of civil appeals affirmed the trial court, stating:

It is settled in Texas that in a non jury trial where findings of fact and conclusions of law are not requested and none are filed, the judgment of the trial court must be affirmed if it can be upheld on any legal theory that finds support in the evidence. Seaman v. Seaman, 425 S.W.2d 339 (Tex.Sup., 1968). . . .
In such a case the trial court’s judgment implies that all necessary fact findings were made by that court in support of the judgment. In determining whether there is any evidence to support the judgment and the implied findings of fact incident thereto the appellate court can consider only that evidence that is most favorable to the issue and must disregard entirely that which is opposed to it. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609 (1950).

453 S.W.2d at 233. The court of civil appeals also noted that the physical design of the structure did not include axles or wheels. The court stated:

The structure complained of was built by a mobile home company and from its description it looked a lot like a mobile home in that it was 12 feet wide and 64 feet long, with a wooden frame and with the exterior siding of aluminum. But it did not have axles or wheels. The owner never intended to use it as a trailer or as a vehicle. He bought it for the purpose of putting it on his lots, affixing it to his realty, and he says his intentions are to use it from now on as a home for himself and family at the location where it has been placed. It is tied to the ground with cables and connected to the septic tank and has become a part of the real estate.

The physical structure of the building involved in the Crawford case is substantially different from the structure of the trailer house in our case. The additions Boyd made to the building also serve to distinguish the Crawford case from the present case. In addition, the court of civil appeals was required to indulge in every presumption that the facts supported the findings of the trial court. We do not think that the Crawford case is authority for the proposition that a mobile home is not a trailer.

Bliss also relies on the case of Hussey v. Ray, 462 S.W.2d 45 (Tex.Civ.App.—Tyler 1970, no writ). Hussey sought to enforce a restrictive covenant and enjoin Ray from maintaining a mobile home on a lot in the subdivision where Hussey lived. The restrictive covenant provided:

No trailer, tent, shack, stable or barn shall be placed, erected or be permitted to remain on any lot, nor shall any structure of a temporary character be used at any

time as a residence. [Emphasis added]. Ray put the trailer on the lot, removed the wheels and placed it upon a concrete block foundation. Ray obtained connections to city water lines, electric power lines, telephone lines and installed a permanent type sewerage system. The trial court entered a summary judgment in favor of Ray, thus denying Hussey any injunctive relief. The court of civil appeals affirmed the trial court and held “that the primary purpose of the restriction, insofar as it relates to human habitation, was to prevent the property owner from using any temporary structure for a residence. . . . The use of a ‘trailer’ as a place of residence would likewise be prohibited if the same was temporary in nature.” The language in the restriction of the Hussey case differs substantially from the language in the present case. The restriction before us at this time precludes trailers from being used as a residence “at any time” while the court of civil appeals construed the restriction in Hussey to preclude only those trailers used as a temporary residence. We do not believe that the Hussey case is dispositive of our question and specifically disapprove the case if it conflicts in any way with our holding that Bliss’ trailer house or mobile home is a trailer.

The restrictive covenant in the present case had the specific intent of prohibiting trailers from being used at any time as residences in the Memorial Park Addition. We hold that Bliss’ mobile home was a trailer within the meaning of the restrictive covenant and Bliss is precluded from maintaining it in the Memorial Park Addition.

Bliss asserts by cross-point that the trial court erred in failing to file findings of fact and conclusions of law pursuant to Texas Rules of Civil Procedure 296 and 297. The record reveals the judgment was announced in open court on February 16, 1976. Bliss filed his motion for new trial on February 25, 1976. On April 8, 1976, the trial court signed and entered the judgment in this cause. Under Rule 306a the date of rendition of the judgment in determining the time to file a motion for new trial ran from the date the judgment was signed. The motion for new trial was filed prior to the signing of the judgment. Under Rule 306c the motion was not invalid but was deemed to have been filed on the date of the rendition of judgment, April 8, 1976. Pursuant to Rule 329b(3) the motion for new trial was overruled by operation of law 45 days later, on May 24, 1976. On May 24, 1976, Bliss filed his first request for findings of fact and conclusions of law, which was within the ten-day filing period of Rule 296. The trial judge failed to file findings of fact and conclusions of law within the time period provided by Rule 297. Bliss timely filed his complaint of the failure of the trial judge to file findings of fact and conclusions of law on June 25, 1976. No findings of fact or conclusions of law have been filed in the record of this case.

Bliss’ assertion of error because of the failure to file findings of fact and conclusions of law cannot be sustained because there is nothing in the record to indicate that the requests for findings of fact were ever presented to the judge. The request for findings of fact and conclusions of law, as well as the subsequent complaint for failure to file under Rule 297, must be presented to the judge. Merely filing the request and complaint with the clerk is insufficient. Deweese v. Crawford, 520 S.W.2d 522, 527 (Tex.Civ.App.—Houston [14th Dist.] 1975, writ ref’d n.r.e.); LaPlace v. LaPlace, 390 S.W.2d 381, 382 (Tex.Civ.App.—Texarkana 1965, no writ); Spradlin v. Rosebud Feed & Grain Co., 294 S.W.2d 301, 302 (Tex.Civ.App.—Waco 1956, writ ref’d n.r.e.); Birdwell v. Pacific Finance Corp., 259 S.W.2d 957, 958 (Tex.Civ.App.—Dallas 1953, no writ); 4 McDonald, Texas Civil Practice, § 16.06, at 15-16 (rev.ed. 1971). There being nothing in the record to show that the request or complaint was ever presented to the trial judge, there is no reversible error in failing to file the findings of fact and conclusions of law.

The judgment of the trial court must be affirmed if questions of fact exist as to the applicability of the covenant to Bliss’ mobile home. Since Bliss did not properly present his requests for findings of fact to the trial judge, all questions of fact are presumed found in support of the judgment. Buchanan v. Byrd, 519 S.W.2d 841, 842 (Tex.1975); Morris v. Texas Elks Crippled Children’s Hosp., Inc., 525 S.W.2d 874, 881 (Tex.Civ.App.—El Paso 1975, writ ref’d n.r.e.); Harcrow v. Reed, 425 S.W.2d 59, 61 (Tex.Civ.App.—Waco 1968, writ ref’d n.r. e.). Where findings of fact and conclusions of law are not properly requested and none are filed, the judgment of the trial court must be affirmed if it can be upheld on any legal theory that finds support in the evidence. Seaman v. Seaman, 425 S.W.2d 339, 341 (Tex.1968); City of Dallas v. Furrh, 541 S.W.2d 271, 273 (Tex.Civ.App.—Texarkana 1976, writ ref’d n.r.e.); Durr v. Newman, 537 S.W.2d 323, 325 (Tex.Civ.App.—El Paso 1976, writ ref’d n.r.e.). We have held that the restrictive covenant in this case precluded mobile homes from being used as residences in Memorial Park Addition, but even if a mobile home could become so affixed to the realty as to lose its status as a trailer, it must be presumed that the trial judge found that the mobile home in this case was still a trailer at the time of the suit.

Bliss asserts that the trial court erred in proceeding to judgment on the basis of the hearing of February 16,1976, because proper notice was not given that the hearing was to decide the merits of the case. The record indicates that on January 5,1976, all parties were present in open court for a hearing on a temporary injunction. Bliss sought a continuance which was granted subject to there being no more work done on the property. The court stated: “The court will set the day certain, not later than the month of February, in which a full blown hearing shall be had, and I can’t do that until after the docket call of January 12th.” Court was recessed for a few minutes while the calendar was checked. Then the following was stated in open court: “The defendants are restrained from any further activity on the property in question until we have a full hearing on February the 16th, 1976, at 10:00 A.M. This court is in recess.” The judge recorded on his docket: “Case called. Continuance granted subject to the Def’s [sic] being restrained from any further action on property. Case set for 2/16/76 at 10 A.M.” On February 16, 1976, Bliss announced ready for a hearing on a temporary injunction. The court stated that it had been announced in open court and agreed to by the parties on January 5, 1976, that the next hearing was to be a full hearing. The court stated that the hearing of February 16, 1976, was to be a full hearing on the merits. Bliss argues that under Rule 680 there was no notice or inadequate notice that the hearing was to be on the merits of the case.

The parties agreed at the January 5, 1976, hearing that Bliss was to be temporarily restrained until the full hearing on February 16, 1976. The judge announced in open court that a full hearing was to be held on February 16,1976, and noted on his docket “case set.” We hold that this was adequate notification that the subsequent hearing was to be a full hearing on the merits of the case. Bliss has failed to allege harm due to the notice given by the trial court and the record reveals that Bliss was represented by counsel and called witnesses on his behalf. The record does not reveal that Bliss was prejudiced in any way.

The judgment of the court of civil appeals is reversed and the judgment of the trial court is affirmed. Bliss is therefore enjoined from maintaining his mobile home in the Memorial Park Addition.

Dissenting Opinion by SAM D. JOHNSON, J., in which STEAKLEY and POPE, JJ., join.

SAM D. JOHNSON, Justice,

dissenting.

This dissent is respectfully submitted.

The restrictive covenant being construed provides:

“No trailer, basement, tent, garage or temporary quarters shall at any time be used as a residence on any portion of said Memorial Park Addition.”

In the instant case there is no contention that there has been a violation of the restriction against temporary quarters, nor are there allegations involving tents, basements or garages. The only contention presented is that the “mobile home” is a “trailer” within the purview of the restrictive covenant.

The majority opinion holds that a mobile home is a trailer. The majority bases its reasoning on those cases which deal with whether a mobile home is a permanent or a temporary structure that complies with restrictive covenants. By such an analysis, the majority has failed to apply the basic principles governing construction of restrictive covenants. Construction of a restrictive covenant, as with any other contract, is governed by the intent of the parties at the time the covenant is made and will not be extended by implication. Couch v. Southern Methodist University, 10 S.W.2d 973 (Tex.Com.App.1928, holding approved); Settegast v. Foley Bros. Dry Goods Co., 114 Tex. 452, 270 S.W. 1014 (1925, opinion adopted). This court has made it quite clear that where the language of a restrictive covenant is ambiguous the covenant shall be strictly construed, favoring the free use of property and the best interest of the public. Baker v. Henderson, 137 Tex. 266, 153 S.W.2d 465 (1941). Under application of these principles, the issue here presented is not whether the mobile home is a temporary or a permanent structure, but whether the mobile home in its present state of development, sophistication, and utilization was within the intention of the parties to the restrictive covenant, which did no more than prohibit trailers.

Elmer Bliss and his wife have allegedly violated a restrictive covenant created by a dedication of the Memorial Park Addition to the City of Kermit, Texas, executed October 18, 1948. In 1948 the term “mobile home,” as well as the structure with its residential amenities, did not exist. The mobile home is a structure physically, functionally, and socially distinct from the trailer of the 1940’s as well as from the trailer of the 1970’s.

TRAILERS

The prototype of the trailer had its advent in the mid-1920’s. The 1920 trailer was a small, recreational vehicle which was easily transportable and simple in design; this vehicle was no wider than eight feet and varied in length from ten to twelve feet. By the 1940’s the trailer was more widely used; these trailers remained relatively compact, retaining the eight-foot width and slightly extending its overall length. The trailers of this era provided makeshift accommodations primarily designed for ease of movement and travel. These trailers were in no way designed to be permanently located at one campsite; therefore, they were not provided with utility connections or plumbing facilities. A negative stigma became associated with trailers during this period due to the transient, gypsy image that was the stereotype of the poorly maintained communal campsites. These gathering areas created special health and sanitation problems which predictably resulted from the densely populated campsites with inadequate water supply and waste disposal. For the most part, trailer users tended to be migrant and transitory workers from lower socio-eco-nomic groups. Communities regarded such transients as undesirables who were not interested in the well-being of the community; therefore, many municipalities adopted a “thirty-day rule” restricting the period in which a trailer could park within the community to no longer than thirty days. Consequently, as a result of social pressure, as well as structure and design, the trailer of the 1940’s strictly provided highly mobile and temporary accommodations. In the 1940 census the United States Bureau of Census grouped trailers along with railroad cars, tents, and shacks rather than with single-unit family housing.

The modern trailer has developed substantially in design and social acceptance. Trailers now encompass a large category of vehicles, including hauling trailers, camping trailers, tent-trailers, and other recreational vehicles. However, each of these vehicles retains the characteristics of the 1940 trailer. Mobility remains the central feature that controls the trailer’s design and utilization. The trailers of the 1970’s continue to be designed in size and weight so that they can be easily drawn by an average or ordinary automobile without requiring special trucks or highway permits. These trailers are not designed for affixation to the ground or permanent connection to utilities or sewerage. They are widely utilized for recreation, travel, and camping. This court noted the seasonal use of trailers in County of Cameron v. Wilson, 160 Tex. 25, 326 S.W.2d 162, 167 (1959), wherein the court allowed the issuance of revenue bonds to fund the addition of trailer park facilities to an existing recreational park. The court noted that the trailer park would not create a residential area within the park but would constitute “ . . .a place where parking space, sanitary facilities and electricity are supplied to those who make use of house trailers while traveling about the country for recreational or business purposes.” [Emphasis added.] Therefore, in terms of function, mobility, size, and costs the trailer has attained a particular and distinct status.

MOBILE HOMES

Since its advent in 1954 and 1955, the mobile home has evolved in a manner significantly different from trailers. The term “mobile home” was first utilized by Elmer Frey in labeling the ten-foot wide structure which provided the additional area necessary to accommodate residential facilities and amenities. By the 1960’s and the 1970’s, mobile homes were available in twelve-foot widths, fourteen-foot widths, and expandable units. The lengths of these homes averaged sixty to sixty-four feet with some units exceeding eighty feet. In area the mobile home equals small single-unit dwellings with 700 to 1,400 square feet.

From the outset these mobile homes were designed for permanent, residential use. The interiors are divided into various rooms, including living rooms, family rooms, dining rooms, kitchens, multiple bedrooms, and one or more bathrooms. Ample storage space is provided by utility rooms, closets, cupboards, and pantries. The mobile home is equipped with electrical wiring, plumbing, ventilators, gas or electric cooking systems, refrigerators, hot water heaters, and totally equipped kitchens. Just as with other forms of comfortable housing, various options are available, which include garbage disposals, dishwashers, washers and dryers, central heating and air conditioning, sunken baths and saunas. In addition, the mobile home is fully furnished with carpeting, draperies, and free-standing furniture. These residential amenities are available at prices comparable to the cost of moderate income homes, with costs ranging from $5,000 to prices which exceed those of other forms of permanent housing. In the 1970 census the United States Bureau of Census recognized mobile homes as a significant element in the housing supply, comprising over thirty percent of the available single-family housing.

The major distinction between the mobile home and other forms of permanent housing is that the mobile home is at least initially equipped with an undercarriage and wheels. These allow the mobile homes to be moved from the dealer to the lot where they will be permanently located. Once transported to the homesite, the mobile home is designed to be permanently affixed to the ground and connected, as a traditional home, to all utilities with the appropriate meters. Movement of the mobile home may not be accomplished with an ordinary automobile. Movement of the mobile home requires special transport permits, a powerful hauling truck, and is relatively expensive. Therefore, the mobile home is mobile only in a very limited sense. Statistics compiled by the Housing Division of the Texas Department of Community Affairs reflect that the majority of mobile homes are moved only once, that being from the dealer to its present, permanent location.

The mobile home and the trailer are distinct and quite different structures. In terms of size, cost, and utilization, the mobile home constitutes a vital form of permanent housing. The trailer, on the other hand, constitutes a popular travel or recreational vehicle. Both the United States Congress and the Texas Legislature have recognized the distinct status of the mobile home. In the National Mobile Homes Construction and Safety Standards Act of 1974, 42 U.S.C. § 5401, et seq., Congress determined that “ . . . it is necessary to establish Federal construction and safety standards for mobile homes and to authorize mobile home safety research and development.” 42 U.S.C. § 5401. In so doing, Congress defined “mobile home” as:

“ . . .a structure, transportable in one or more sections, which is eight body feet or more in width and is thirty-two body feet or more in length, and which is built on a permanent chassis and designed to be used as a dwelling with or without a permanent foundation when connected to the required utilities, and includes the plumbing, heating, air-conditioning, and electrical systems contained therein; . . . ” 42 U.S.C. § 5402(6).

Similarly, in the Mobile Homes Standards Act, Texas Revised Civil Statutes Annotated, Article 5221f, the Texas Legislature stated:

“It is the legislature’s intent to improve the general welfare and safety of the citizens of this state. The legislature finds that mobile homes have become a 'primary housing resource of many of the citizens of the state; that a growing awareness exists that many consumers are injured by unprincipled and dishonest members of the mobile home industry, that current warranties are deficient, that existing means of remedying these injustices are inadequate and do not provide a viable means for protecting the consumer, and that it is the responsibility of the state to provide for the protection of its citizens through the imposition of certain regulations on the mobile home industry. In recognition of these findings, the legislature deems it necessary to expand various regulatory powers to deal with these problems. The legislature finds this to be the most economical and efficient means of dealing with this problem and serving the public interest. Accordingly, this Act shall be liberally construed and applied to promote its underlying policies and purposes.” [Emphasis added.]

In establishing these standards the Texas Legislature utilized the identical definition of “mobile home” as enunciated in the National Mobile Homes Construction and Safety Standards Act, supra. With the legislative bodies affording unique status to mobile homes, the courts should and must recognize the distinct nature of mobile homes and not allow covenants designed to control a use of one kind to apply to a use of quite a different character.

Therefore, as the restrictive covenant in the instant case was imposed in 1948, before the advent of the mobile home, such homes could not have been and were not within the contemplation of the parties to the restrictive covenant. Furthermore, as the average housing in Memorial Park is valued at $8,000 or $8,500, there can be no contention that the mobile home does not compare in size, cost, and quality to the average homes in the surrounding subdivision. This court may not enlarge by implication the intentions of the parties; the restrictive covenant should be limited precisely to prohibit what is encompassed by its language, to wit, trailers.

Even should the proper inquiry be whether the mobile home is a temporary or a permanent structure, as the majority opinion implies, the mobile home should not be restricted by the covenant. The court of civil appeals in considering the instant case held that Hussey v. Ray, 462 S.W.2d 45, at 45 (Tex.Civ.App.—Tyler 1970, no writ), was persuasive, as the court construed a covenant with similar wording and intent. The majority of this court disagrees with the court of civil appeals and holds that the covenant construed in Hussey is distinguishable. The restriction in Hussey stated:

“No trailer, tent, shack, stable or barn shall be placed, erected or be permitted to remain on any lot, nor shall any structure of a temporary character be used at any time as a residence.”

This writer does not recognize this language as significantly distinguishable from the restriction in the instant case, which reads:

“No trailer, basement, tent, garage or temporary quarters shall at any time be used as a residence on any portion of said Memorial Park Addition.”

The court in Hussey gave consideration to the fact that the term “trailer” was contained within the same clause as the statement concerning temporary structures. The court noted that this syntax was indicative of the intent of the maker of the restriction and held that the primary purpose of the restriction was to prevent the owner of the property from using any temporary structure for a residence. The covenant in the instant case also utilizes the term “trailer” and “temporary quarters” in the same clause, reflecting the intent of the maker to prohibit the use of the land from temporary habitation or makeshift dwellings. The mobile home cannot be said to be a makeshift or a temporary structure; it is a permanent structure with great utility and service to a substantial segment of society. As noted previously, its mobility is marginal; the vast majority of mobile homes are moved from the dealer’s lot to a particular purchased site where they remain permanently affixed to the ground and connected to all utilities.

The mobile home constitutes a significant form of permanent housing as noted by the Texas Legislature in its declaration of purpose in the Mobile Homes Standards Act, supra. The majority of mobile home dwellers see the mobile home as their permanent residence. The mobile home has become a major form of housing in Texas with one out of every three homes purchased in 1972 being a mobile home. In cost and size, it is comparable to a moderate income home. The public has accepted the mobile home as a permanent form of residence; accordingly, the courts must recognize the stature of the mobile home in the housing industry and its fulfillment of the public need for economical housing as did the court in Yeager v. Cassidy, 20 Ohio Misc. 251, 253 N.E.2d 320, 323-24 (1969), in which the court held:

“The court is of the opinion that the issue evoked by these proceedings is of broad import and will probably become critical as the use of pre-fabrieated and pre-built structures becomes more prevalent.
“It should be pointed out that in most situations, the restrictive covenants were imposed before the advent of the modern mobile home, and therefore, were not within the contemplation of the imposer of the restrictions. The courts must acknowledge that pre-built homes, mobile or otherwise, which in a given case may be more attractive in appearance and design than many conventional homes built completely on the site, are a part of our changing society, and give recognition to the fact that the law must be responsive to the best interests of those whom it is designed to serve. Unless such dwellings are expressly and explicitly excluded by the terms of a protective covenant, their use should not be enjoined, provided that in each case, the dwelling otherwise conforms to the spirit of the restriction.”

The mobile home does not warrant categorization as a trailer or as a temporary or a makeshift structure; therefore, it cannot be said to be prohibited by the restrictive covenant.

This writer would hold that the restrictive covenant should be enforced to prohibit the utilization of trailers as residences on the lots in the Memorial Park subdivision; however, the restriction should not be enlarged to prohibit the occupation of mobile homes as residences in the subdivision. It is apparent that it could not have been and was not the intention of the parties to the 1948 restrictive covenant to prohibit mobile homes. Furthermore, under a strict reading of the covenant, the language does not encompass the permanent residential dwellings offered by mobile homes. Therefore, as neither the intention of the parties nor a strict reading of the covenant supports a finding that mobile homes are encompassed by the restriction, this writer would affirm the opinion of the court of civil appeals.

STEAKLEY and POPE, JJ., join in this dissent.

      . All references to Rules will be Texas Rules of Civil Procedure.

      . Historical and statistical data on the trailer and the mobile home were compiled herein from: B. Hodes and G. Roberson, The Law of Mobile Homes (3rd ed. 1974); F. Bair, “Mobile Homes — A New Challenge,” 32 Law & Contemp. Prob. 288 (1967); 2 R. Anderson, American Law of Zoning §§ 11.49-11.58 (1968); Shephard’s Mobile Homes and Mobile Home Parks (1975); and 2 N. Williams, American Planning Law Land Use and the Police Power §§ 57.01-57.42 (1974).

      . Shephard’s Mobile Homes and Mobile Home Parks at 3 (1975), citing Mobile Homes in Idaho — A Status Report, Boise State College, Center for Business and Economic Research (1973).

      . Practising Law Institute, Mobile Homes — Legal and Business Problems at 14 (2d ed. 1971).

      . Texas Department of Community Affairs, Division of Housing, Texas Mobile Home Survey, at 19 (Sept. 1974).

      . Statistics and conclusions are the result of a statewide survey of mobile home occupants. Texas Department of Community Affairs, Division of Housing, Texas Mobile Home Survey (Sept. 1974).


source: Caselaw Access Project

author: BROWN, Commissioner. ROBERTS, Judge,

license: Public Domain

text:
    David Winston LOVING, Appellant, v. The STATE of Texas, Appellee.
    No. 53165.
    Court of Criminal Appeals of Texas.
    May 3, 1977.
    Dissenting on Appellant’s Motion for Rehearing Dec. 21, 1977.

      Donald W. Rogers, Jr., Houston, for appellant.
    Carol S. Vance, Dist. Atty., Robert A. Shults and Sam Adamo, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

BROWN, Commissioner.

This is an appeal from a conviction for murder. Appellant was tried before a jury which assessed his punishment at sixty (60) years in the Texas Department of Corrections.

Although the sufficiency of the evidence is not challenged, a brief summary of the facts will be necessary in order to dispose of appellant’s three grounds of error.

Joseph Fagan testified that he and the deceased, Freddie Melancon, went to the Country Inn during the evening hours of August 22, 1974. Fagan said they drank one or two beers and sat at the bar talking. He said Melancon left the bar for a few minutes and danced with a woman in the next room then returned to the bar and continued drinking. Fagan said appellant and Ernest Tress then walked up to them at the bar and “the trouble started.” He said he exchanged words with Tress and appellant hit Melancon over the head with a beer can and a pool cue and then the fight began. Fagan said that during the fight he saw appellant with a pair of pool cues in one hand and a large kitchen butcher knife in the other hand. He further stated that all four men were fighting with each other and that Tress and Melancon fought with each other while he and appellant fought around the pool table. He said the fight broke up when appellant’s wife came in and dragged him out of the bar. He said he and Melancon sat down at the bar again and talked for a few minutes and Melancon said he was not hurt. Melancon then slumped over the bar and an ambulance was summoned. Fagan said that he did not see anyone stab the deceased nor did he see anyone other than appellant holding a knife.

The doctor who performed the autopsy on the deceased stated that he discovered three stab wounds across the chest and abdomen of the deceased, each wound penetrating up to four inches. It was the doctor’s opinion that these stab wounds were the cause of death.

Irene Draper testified that she was the barmaid at the Country Inn on the night in question. She said that she was behind the bar when appellant hit the deceased with a beer can. It was her impression of the scuffle that the deceased did not want to fight with appellant and Tress because he did not know them. She said appellant then pulled a large knife out of his pants and the fight started. She also said that all four men were fighting with each other and that Tress had a pool cue in his hand at some point during the fight. She stated that she did not see appellant stab the deceased, but she also stated that appellant was the only one she saw with a knife.

Ernest Tress testified for the defense and admitted killing Melancon. He stated that he had pled guilty to the charge and had been convicted and sentenced to ten years in the Texas Department of Corrections. He stated that during the fight he hit the deceased several times and knocked him down and when the deceased grabbed a bottle from the bar he grabbed his arm and stabbed him two or three times with a Case XX single-blade knife having a blade approximately five inches in length. He stated that the appellant did not know he had the knife or that he also had a pistol.

Officer D. R. Smith of the Harris County Sheriff’s Department testified that he went to the Country Inn shortly after 9:00 p. m. on the night in question. He said he found the deceased slumped over in a chair and he could detect no vital signs. He learned from talking with persons in the lounge that appellant and Tress were involved in the fight and stabbing and that they left with appellant’s wife in a maroon or red Thunderbird. He stated he knew appellant, his wife and Tress and also knew appellant’s red Thunderbird when he saw it. The officer said he finished his investigation at the Country Inn and drove downtown to file a report. He put out a bulletin on his police radio to pick up appellant and Tress and warned that the suspects were dangerous.

Shortly after 2:00 a. m. the officer returned to patrol and observed appellant’s vehicle driving east on Fourth Street. He saw the car turn in front of him and recognized appellant driving and his wife sitting in the passenger seat. He radioed for assistance and then stopped the vehicle. He stated that he stopped the vehicle because he believed “this vehicle to be the one we wanted in connection with the murder.” He said he asked all three occupants to get out of the car. After searching them he “put them under restraint” and seated them in the back of his patrol car. Officer Smith stated that a fellow officer then arrived and conducted a' search of appellant’s vehicle and found a large kitchen butcher knife under the front seat of the car. This knife was later introduced into evidence, although Fagan and Miss Draper both testified that it was not exactly like the knife they saw in appellant’s hand.

In his first ground of error appellant contends that the trial court erred in refusing to charge the jury on the law of circumstantial evidence. Appellant timely presented requested instructions and written objections to the charge which the trial court overruled.

The jury was instructed on the law of murder, criminal responsibility and reasonable doubt. The court then instructed the jury to convict appellant only if they found beyond a reasonable doubt that appellant, “acting alone or together with another,” intentionally or knowingly caused the death of Melancon by cutting him with a knife.

Appellant relies on Gamboa v. State, 528 S.W.2d 247 (Tex.Cr.App.1975) and Farris v. State, 496 S.W.2d 55 (Tex.Cr.App.1973) for the proposition that it was error to refuse the requested charge on circumstantial evidence. Neither case is in point because neither involved a theory of criminal responsibility for the acts of another as does the instant case.

The cases of Dickson v. State, 492 S.W.2d 267 (Tex.Cr.App.1973) and Morr v. State, 507 S.W.2d 551 (Tex.Cr.App.1974) are more closely in point. In Dickson, a robbery case, there was direct evidence of the defendant’s association with the robbers and there was direct evidence that he was present at the scene of the crime. Although the complaining witness could not state which of the five men who entered his store actually shot and robbed him, he testified that the defendant entered the store with the men and left with them after the money had been taken. We held there was no error in refusing the requested instruction on circumstantial evidence where the court charged the jury on the law of principals.

In Morr v. State, supra, there was direct evidence that a burglary had been committed by a “blonde-haired individual” who escaped. The defendant’s connection with the burglary consisted of his presence at the scene and furtive gestures. The court charged the jury on the law of principals and instructed them that mere presence is not sufficient to constitute one as a principal. We held that even if the refusal to charge on circumstantial evidence could be construed as error, no harm was shown.

In Ransonette v. State, 550 S.W.2d 86 (Tex.Cr.App.1976), a kidnapping case, the victim could not identify the accused as one of her abductors. However, there was direct evidence that the accused aided his brother, whom the victim could identify, by driving him around to telephone booths to make ransom calls and acting as a lookout while the calls were made. There was evidence that he stood within a foot of his brother during one of the ransom calls to FBI agents. We held that this constituted direct evidence of his participation as a principal in the commission of the offense, and therefore it was not error to refuse the charge on circumstantial evidence where the court properly instructed the jury on the law of principals.

These three cases and the instant case are all distinguishable from McBride v. State, 486 S.W.2d 318 (Tex.Cr.App.1972), in which we reversed a conviction for possession of marihuana. We held that the court’s instruction on the law of principals was not sufficient because the evidence that the accused was a principal was circumstantial and not direct evidence. The converse of that holding is the rule established in Dickson v. State, supra; Morr v. State, supra; and Ransonette v. State, supra; where there is direct evidence that the accused participated as a principal in the commission of an offense, a charge on circumstantial evidence is not necessary if the jury is properly instructed on the law of principals.

Dickson, Morr and Ransonette were all decided under the provisions of the former penal code concerning principals, accessories and accomplices. See Article 65, et seq., Vernon’s Ann.P.C., V.T.C.A. Penal Code, Sec. 7.01, dispenses with the distinctions between principals and accessories and accomplices and is couched simply in terms of “criminal responsibility.” However, the rules established in the cases discussed above remain the same.

In the instant case there is direct evidence of the appellant’s participation in the offense. Tress and appellant initiated the fight with the deceased and Fagan. Two witnesses testified that appellant struck the deceased with a beer can. Those witnesses also testified that they saw appellant with a large knife in his hand. One of those witnesses' saw appellant strike the deceased with a pool cue. In light of such direct evidence of appellant’s participation as a criminally responsible party to the offense, it was not error to refuse the charge on circumstantial evidence where the trial court properly instructed the jury on law of criminal responsibility.

Appellant’s first ground of error is overruled.

In his second ground of error appellant contends that the trial court erred in overruling his motion to suppress and admitting into evidence items seized from appellant’s automobile because appellant’s warrantless arrest was illegal. In his third ground of error appellant contends that even if his arrest was lawful the search of his automobile was unreasonable.

Officer Smith testified at the hearing on appellant’s motion to suppress and gave testimony similar to his testimony at the trial on the merits, which is summarized above. He stated that appellant, his wife and Tress were all under custody in the back of his patrol car before the search of appellant’s car was conducted. The items which appellant sought to suppress included the butcher knife found under the seat and items of clothing seized from appellant, his wife and Tress. Smith testified that Mrs. Loving and Tress both had blood stains on their clothing. A Houston Police Department Chemist testified that appellant’s trousers had only traces of blood.

The evidence shows that Officer Smith had received information from witnesses to the stabbing that appellant and Tress were involved and that they left the scene in appellant’s red Thunderbird. Smith stated he knew both suspects and also recognized appellant’s car. Under these facts we find that the officer had probable cause to arrest appellant when he observed him driving the red Thunderbird only a few hours after the commission of the offense. Article 14.04, Vernon’s Ann.C. C.P.; Johnson v. State, 436 S.W.2d 906 (Tex.Cr.App.1968); O’Neal v. State, 416 S.W.2d 433 (Tex.Cr.App.1967); Edmond v. State, 169 Tex.Cr.R. 637, 336 S.W.2d 946 (1960).

The search of the car subsequent to the arrest was not unreasonable. A similar contention was raised and overruled in Scott v. State, 531 S.W.2d 825 (Tex.Cr.App.1976).

Appellant’s second and third grounds of error are overruled.

The judgment is affirmed.

Opinion approved by the Court.

ON APPELLANT’S MOTION FOR REHEARING

ROBERTS, Judge,

dissenting.

The majority denies the appellant’s motion for rehearing without written opinion. I would grant the motion and reverse the judgment because of the trial judge’s refusal to give a charge on circumstantial evidence.

On original submission, this Court held that there was direct evidence of the appellant’s participation as a criminally responsible party to the offense, and that in light of this direct evidence it was not error to refuse the charge on circumstantial evidence where the trial judge properly instructed the jury on the law of criminal responsibility. In my opinion, this Court’s opinion in Ransonette v. State, 550 S.W.2d 36, 42 (Tex.Cr.App.1976) (Opinion on the Appellant’s Motion for Rehearing), is in direct conflict with our disposition of this cause on original submission.

It is well established that direct evidence is that evidence which directly demonstrates the main fact to be proved. Circumstantial evidence, on the other hand, is that evidence which directly proves a secondary fact which, by logical inference, demonstrates the main fact. Crawford v. State, 502 S.W.2d 768 (Tex.Cr.App.1973). In Ransonette v. State, 550 S.W.2d 36, 43 (Tex.Cr.App.1976) (Opinion on the Appellant’s Motion for Rehearing), this Court stated that:

“A charge on circumstantial evidence is required only where the evidence of the main fact essential to guilt is purely and entirely circumstantial. See e. g. Wilson v. State, 154 Tex.Cr.R. 59, 225 S.W.2d 173 (1949). A charge on circumstantial evidence is necessary only when the State’s case depends entirely upon circumstances for conviction. See e. g.Nailing v. State, 152 Tex.Cr.R. 161, 211 S.W.2d 757 (1948); Wells v. State, 134 Tex.Cr.R. 412, 115 S.W.2d 658 (1938). An instruction as to circumstantial evidence need not be given where the State relies only in part on circumstantial evidence, Lawler v. State, 110 Tex.Cr.R. 460, 9 S.W.2d 259 (1927); Coleman v. State, 90 Tex.Cr.R. 297, 235 S.W. 898 (1921), even though the State relies on a chain of circumstances that may be considered the major part of the evidence on which the State relies for conviction. Dodd v. State, 149 Tex.Cr.R. 156, 192 S.W.2d 263 (1946). See 31 Tex. Jur.2d 682-683, Instructions, Sec. 123; Morris v. State, 402 S.W.2d 161 (Tex.Cr.App.1966); Russell v. State, 396 S.W.2d 117 (Tex.Cr.App.1965). ”

In the present case, the main fact to be proved was that the appellant was a principal offender. There was direct evidence that: (1) the appellant hit the deceased with a beer can and a pool cue; (2) the appellant pulled a knife out of his pocket; (3) the appellant brandished a kitchen butcher knife in one hand and two pool cues in the other during the fight; (4) the appellant fought with Fagan while Tress fought with the deceased; (5) the appellant was the only person seen with a knife in his hand; (6) the appellant was not aware that Tress had a knife or a pistol; (7) Tress killed the deceased; (8) no one saw who stabbed the deceased; (9) a knife was found approximately five hours after the homicide in the car the appellant was driving; and (10) the deceased died of stab wounds.

The direct evidence is not direct evidence that the appellant stabbed the deceased or that he knew Tress would stab the deceased. The direct evidence is likewise not direct evidence that the appellant encouraged, aided, directed or attempted to aid or direct the stabbing. Rather, the direct evidence is direct evidence that the appellant and Tress were both actively engaged in a fight with the deceased and Fagan. The fight, therefore, was a secondary fact from which an inference could be drawn. This inference, which is also supported by direct evidence in the form of Tress’ testimony, is that the fatal wounds were inflicted during the fight.

Thus, the appellant’s guilt could have been proven in either one of two ways. First, if the jury chose to disbelieve Tress’ testimony, then the direct evidence yielded only an inference that the fatal wounds were inflicted during the fight. The jury would then have had to infer from this inference that the appellant was party to the offense. Second, if the jury believed that Tress inflicted the fatal wounds, then there was direct evidence that the fatal wounds were inflicted during the fight. However, the jury would have still had to infer from this fact that the appellant was a party to the offense. In either case, the only manner in which the State could have proven that the appellant was criminally responsible for the deceased’s death was by an inference. There was a total absence of direct evidence that the appellant either stabbed the deceased, that he knew Tress would stab the deceased, or that he encouraged, aided, directed or attempted to aid or direct the stabbing. None of the facts, either separately or taken together, directly prove that the appellant was guilty as a party to the offense.

Moreover, although an instruction on the law of principals was given, the necessity for an instruction on circumstantial evidence was not eliminated. Ransonette v. State, supra; McBride v. State, 486 S.W.2d 318 (Tex.Cr.App.1972). Therefore, a circumstantial evidence charge should have been given. The failure to do so was reversible error.

For the foregoing reasons, I would grant the appellant’s motion for rehearing, reverse the judgment and remand the cause for a new trial.

      . See Binyon v. State, 545 S.W.2d 448 (Tex.Cr.App.1976) for a discussion of sufficiency of the evidence in another case involving a barroom brawl and stabbing. The decision also involves the application of criminal responsibility under V.T.C.A. Penal Code, Section 7.01.


author: SHANNON, Justice.

text:
    Lily LUCE, Appellant, v. Minn Shipp LUCE, Appellee.
    No. 15715.
    Court of Civil Appeals of Texas, Austin.
    Dec. 21, 1977.
    Jim M. Cross, Marble Falls, for appellant.
    Everett H. Smith, Smith, Smith & Mealy, Kingsland, for appellee.
   SHANNON, Justice.

Appellant, Lily Luce, tendered the Clerk of this Court a transcript and statement of facts which the Clerk refused to file because the transcript showed that appellant did not file a cost bond. Appellant has filed a motion requesting this Court to order the record filed. We will overrule the motion.

Appellant appeals from the order of the county court of Burnet County which removed her as the administratrix of the estate of Howard Douglas Luce. Appellant did not file a cost bond. If a cost bond is required, the Clerk correctly refused to file the record since this Court would not have jurisdiction of the appeal.

Appellant claims that Tex.Prob.Code Ann. § 29 (1956) excuses her from filing a cost bond. Section 29 provides:

“When an appeal is taken by an executor, administrator, or guardian, no bond shall be required, unless such appeal personally concerns him, in which case he must give the bond.”

The genesis of § 29 is found in the second paragraph of Tex.Rev.Civ.Stat.Ann. art. 2276 (1971) which provides:

“Executors, administrators and guardians appointed by the courts of this State shall not be required to give bond on any appeal or writ of error taken by them in their fiduciary capacity.” (Emphasis added)

The emphasized'language in art. 2276 has been construed to mean that if the appeal concerns a matter personal to the executor, administrator, or guardian, such as an order removing him from one of those capacities, then such party is not taking the appeal in his fiduciary capacity, and, as a result, a cost bond is required. Powell’s Estate v. Mackey, 219 S.W.2d 156 (Tex.Civ.App.1949, writ ref’d); Wedgworth v. Roberson, 45 S.W.2d 427 (Tex.Civ.App.1931, writ ref’d).

The holdings in Powell’s Estate v. Mackey, supra, and Wedgworth v. Roberson, supra, are now codified in § 29. Because appellant appeals from an order personal to her, her removal as administratrix, she was required to file a cost bond.

Appellant’s motion is overruled.


author: AKIN, Justice.

text:
    Marie E. LOWE, Appellant, v. PACIFIC EMPLOYERS INDEMNITY COMPANY, now Ina of Texas, Appellee.
    No. 19254.
    Court of Civil Appeals of Texas, Dallas.
    Oct. 5, 1977.
    Rehearing Denied Nov. 3, 1977.
    Robert Bean, Bean, Francis, Ford & Willis, Dallas, for appellant.
    Thornton Hardie, III, Thompson, Knight, Simmons & Bullion, Dallas, for appellee.
   AKIN, Justice.

This is an appeal from a summary judgment granted by the trial court to the compensation carrier. The issue presented is whether failure of the employer to give notice of an injury to the Industrial Accident Board prevents the commencement of the six-month period in which she must file her claim as required by article 8307, section 4a, Tex.Rev.Civ.Stat.Ann. (Vernon 1967). If this be true, her claim would not be barred. We hold, however, that her employer had no duty under section 7 to file a report and that section 7a, Tex.Rev. Civ.Stat.Ann. (Vernon Supp.1977) applies only when a report is required to be filed under section 7. Accordingly, we affirm.

Appellant Marie Lowe filed suit against appellee Pacific Employers Indemnity Company, her employer’s compensation carrier, seeking to recover workmen’s compensation benefits. In March of 1974 appellant, while on the job, slipped on some ice, fell, and hurt herself. She informed the assistant manager on that same day that she had fallen and hurt her back, but missed no work until some five months later. Her employer did not file a report of the accident with -the Industrial Accident Board. Several months after the fall, she began experiencing lower back pain and in October of 1974 sought medical advice. In November of that year she underwent back surgery. Appellant filed her first notice of injury and claim for compensation with the Industrial Accident Board on February 11, 1976, which was beyond the six-month period set forth in section 4a. The claim was denied by the Board on June 1, 1976, and appellant brought this action. Appellee then filed a motion for summary judgment alleging that the pleadings, deposition, and other documents on file established as a matter of law that appellant’s claim for compensation was not timely filed with the Industrial Accident Board and that good cause for failure to file was not present. Summary judgment was granted.

Appellant argues that since she gave notice to her employer of her injury immediately after it occurred as required by section 4a and since the employer failed to file a notice of injury as required by section 7, the six-month limitation period set forth in section 4a never commenced to run because of the tolling provision of section 7a. Thus, she asserts that her claim is not barred by late filing with the Industrial Accident Board. She concedes that good cause for late filing under section 4a is not an issue and, indeed, the record negates, as a matter of law, a finding of good cause.

Appellee concedes in oral argument that the notice given her employer was sufficient to comply with the notice requirement of section 4a, but, nevertheless, contends appellant’s claim is barred because she failed to file her claim for compensation within the six-month period required by section 4a. In this respect, appellee contends that the employer was not required to file a first report of the injury under section 7 because appellant missed no time from work, and, thus, section 7a is inapplicable because it pertains only to when an employer is required to file a report under section 7. We agree with appellee.

Article 8307, section 4a, provides:
Unless the Association or subscriber have notice of the injury, no proceeding for compensation for injury under this law shall be maintained unless a notice of the injury shall have been given to the Association or subscriber within thirty (30) days after the happening of an injury or the first distinct manifestation of an occupational disease, and unless a claim for compensation with respect to such injury shall have been made within six (6) months after the occurrence of the injury . . [Emphasis added].

As we read this section, it requires a claimant to do two things as a predicate for pursuing a claim: (1) give notice of the injury within thirty days following the injury; and (2) file a claim for compensation on such injury within six months after the injury occurred. As noted, supra, appellee concedes compliance with the first requirement. Our question, then, is whether the employer was required to give written notice to the Industrial Accident Board under section 7.

Section 7, entitled “Record of injuries; reports,” states:

Every subscriber shall hereafter keep a record of all injuries, fatal or otherwise, sustained by his employees in the course of their employment. Within eight (8) days after the occurrence of an accident resulting in an injury to an employee, causing his absence from work for more than one (1) day, or within eight (8) days after the employee notifies the employer of a definite manifestation of an occupational disease, a written report thereof shall be made to the Board on blanks to be procured from the Board for that purpose. .

We conclude that under section 7 an employer is not required to file a report with the Board unless the employee has been absent from work for more than one day out of the first eight days after the accident. Under this section, in the case of an accidental injury, as distinguished from an occupational disease, the time for filing the report runs from the date of the injury rather than from receipt of notice. The employer is required to file such a report “within eight days after the occurrence of an accident resulting in an injury to an employee,” but before such a report is required, the injury must be one “causing his absence from work for more than one day.” No provision is made for a report if the employee is not absent from work until after the expiration of the eight-day period. Apparently the legislative intent was to limit the required reports to accidents which appear from the beginning to be sufficiently serious that a claim may be anticipated. Consequently, this section by this requirement contemplates a report only when the injury is such that there is a reasonably potential compensable injury.

Since the employer is not required to file a report unless the employee has been absent from work within eight days after the accident under section 7, does the lack of such a report toll the six-month period allowed by section 4a for filing the claim? We conclude that it does not. Section 7a, entitled “Failure to file report; limitation on filing of claim,” provides:

Where the association or subscriber has been given notice or the association or subscriber has knowledge of an injury or death of an employee and fails, neglects, or refuses to file a report thereof as required by the provisions of Section 7 of this Article, the limitation in Section 4a of this Article in respect to the filing of a claim for compensation shall not begin to run against the claim of the injured employee or his dependents entitled to compensation, or in favor of either the association or subscriber until such report shall have been furnished as required by Section 7 of this Article. [Emphasis added]

Appellant argues that since her employer had received notice of her injury and had not filed a report of the injury under section 7, the six-month limitation period in section 4a never commenced running. Thus, she asserts that her claim filed on February 11,1976, would be timely and that the question of whether good cause existed for failure to file timely is immaterial. We cannot agree. We hold that section 7a applies only when the employer “fails, neglects, or refuses to file a report thereof, as required by the provisions of Section 7.” An employer cannot be said to have failed, neglected, or refused to file such a report if he had no duty under section 7 to do so. Since, in this case, it is undisputed that appellant lost no time from work until several months after her injury, her employer had no duty to file a report under section 7. It follows, therefore, that the provision in section 7a tolling the six-month period is inapplicable. Consequently, appellant’s claim is barred by the six-month limitation period set forth in section 4a.

The six months limitation provided by section 4a serves the same function of all statutes of limitations, that is, to prevent litigation of stale claims and to provide for investigation when all matters surrounding the accident and the accident itself are fresh in the minds of all parties. The harshness of the short limitation period is alleviated by the good-cause proviso for late filing. Thus, when an employee does not believe himself to be seriously injured or the injury is one that does not manifest itself until much later, the injured employee is not barred from filing his claim if he can establish good cause for late filing. He can gain no additional time, however, from his employer’s failure to report the injury to the Board if the employer had no duty under section 7 to file such a report.

Affirmed.

      . All references are to article 8307, Tex.Rev.Civ.Stat.Ann. (Vernon 1967) unless otherwise noted.


text:
    DELTA LLOYDS INSURANCE COMPANY, Appellant, v. SOUTHWEST SAVINGS ASSOCIATION, Appellee.
    No. 19232.
    Court of Civil Appeals of Texas, Dallas.
    Oct. 12, 1977.
    Rehearing Denied Dec. 8, 1977.

      Robert M. Greenberg, Greenberg & Bach, Dallas, for appellant.
    R. L. McSpedden, Collie, McSpedden & Roberts, Dallas, for appellee.
   AKIN, Justice.

This is an appeal by Delta Lloyds Insurance Company from an adverse judgment in favor of Southwest Savings Association concerning a coverage question. Delta Lloyds issued to Joe Hambrick a fire insurance policy with a vandalism endorsement covering certain apartments located in Dallas. In April 1974, the property suffered hail damage for which a claim under this policy was paid. On October 1,1974, Southwest Savings Association, the mortgagee, purchased the property at a foreclosure sale for $68,875.14, the amount of its unpaid mortgage. Later in October, still during the policy period, a vandalism loss occurred. Delta denied liability for the vandalism loss, and Southwest sued. Trial was to a jury which found that the reasonable cost of repairing the apartments as a result of the vandalism was $60,000, but which also found that Southwest’s failure to protect the property after the hail loss caused the vandalism loss. The trial court disregarded the last finding and rendered judgment in favor of Southwest for $60,000.

Delta asserts that Southwest may not recover under the policy because its mortgage interest had been extinguished at the time of the loss and it failed to protect the property after the prior hail loss as required by the policy. Southwest responds that its foreclosure prior to the loss should not affect its right of recovery as a mortgagee and that the mortgagee had no duty to protect the property against loss. We hold that if Southwest was covered after foreclosure, its coverage was as an owner rather than as a mortgagee and, consequently, it had a duty to protect the property from further loss following the hail loss. Accordingly, we reverse the judgment of the trial court and render judgment that Southwest take nothing.

The first question presented is whether the policy afforded coverage to Southwest after foreclosure. The policy contains a standard union mortgage clause, which provides:

This policy, as to the interest of the mortgagee only therein, shall not be invalidated by any act or neglect of the mortgagor or owner of the within described property, nor by any foreclosure or other proceedings or notice of sale relating to the property, nor by any change in the title or ownership of the property, nor by the occupation of the premises for purposes more hazardous than are permitted by this policy; PROVIDED that the mortgagee shall notify this Company of any change of ownership or increase of hazard which shall come to the knowledge of said mortgagee, and unless permitted by this policy, it shall be noted hereon; and PROVIDED further that upon failure of the insured to render proof of loss, such mortgagee, upon notice, shall render proof of loss in the form herein specified within ninety-one days thereafter and shall be subject to the provisions hereof relating to appraisal and time of payment and of bringing suit.
Failure upon the part of the mortgagee to comply with any of the foregoing obligations shall render the insurance under this policy null and void as to the interest of the mortgagee.
This policy may be cancelled as to the interest of any mortgagee named hereon by giving such mortgagee ten days written notice.
If this Company shall claim that no liability existed as to the mortgagor or owner, it shall, to the extent of payment of loss to the mortgagee, be subrogated to all the mortgagee’s rights of recovery, but without impairing mortgagee’s right to sue; or it may pay off the mortgage debt and require an assignment thereof and of the mortgage.
The word “mortgagee” shall be construed to mean mortgagee or trustee. [Emphasis added]

The effect of this clause is to create two separate insurance contracts: one between the insurer and the owner, and one between the insurer and the mortgagee. St. Paul Fire & Marine Ins. Co. v. Crutchfield, 162 Tex. 586, 350 S.W.2d 534, 537 (1961); Rio Grande Nat’l Life Ins. Co. v. Hardware Dealers Mutual Fire Ins. Co., 209 S.W.2d 654, 656 (Tex.Civ.App.—Amarillo 1948, writ ref’d n. r. e.).

Delta contends that Southwest’s recovery is limited to the loss suffered in its capacity as mortgagee. Since Southwest’s interest as mortgagee at the time of the loss — the amount of the indebtedness outstanding— was zero, Delta contends that Southwest is not entitled to recover under the policy. Delta reasons that because Southwest foreclosed its mortgage and purchased the property for the outstanding indebtedness, it had no interest as mortgagee since the debt was extinguished. In support of this proposition, it cites Campagna v. Underwriters at Lloyds London, 549 S.W.2d 17, 19 (Tex.Civ.App.—Dallas 1977, writ ref’d n. r. e.). Campagna is, however, not controlling. There, the mortgagee foreclosed after the loss. We held that the mortgagee’s interest was fixed at the time of loss, and since it had been compensated for that interest when it accepted the property in full satisfaction of the debt, it was not entitled to double recovery. Here, Southwest’s interest at the time of the loss was its ownership of the property, not a lien, and it has not been compensated for its loss. See Nationwide Mutual Fire Ins. Co. v. Wilborn, 291 Ala. 193, 279 So.2d 460, 462 (1973).

Southwest contends that the policy only required the named insured as owner to protect the property and that it, as mortgagee, had no such duty. We cannot agree that the standard union mortgage clause can reasonably be construed as giving the mortgagee the rights of an owner after foreclosure and purchase without imposing on it the obligations of an owner. The contrary construction would leave the property after foreclosure with no one having both an obligation and an interest in protecting the property against loss, thus materially increasing the risk to the insurer. Accordingly, we hold that if the mortgagee, after foreclosure, claims coverage of losses occurring when it was the owner of the property at the time of the loss, it also has the owner’s obligations under the policy, including the obligation to protect the property from and after the time it became the owner. To hold otherwise would increase the risk of the insurer in contravention of the policy terms.

Southwest also argues that under the union mortgage clause a mortgagee’s insurable interest is not extinguished when its lien is foreclosed and it buys the property at a foreclosure sale, but rather is increased to that of an owner. In support of this contention, it cites such cases as First State Savings Bank v. National Fire Ins. Co., 244 Mich. 668, 222 N.W. 116, 117 (1928); Prudential Ins. Co. v. German Mutual Fire Ins. Ass’n, 231 Mo.App. 699, 105 S.W.2d 1001, 1004-05 (1937); and Nationwide Mutual Fire Ins. Co. v. Wilborn, 291 Ala. 193, 279 So.2d 460, 463 (1973). No Texas cases following this rule have been cited to us. We need not decide this question because we conclude that even if the mortgagee’s interest is increased to that of an owner, its rights under the policy are then governed by the provisions of the policy applicable to an owner and its recovery is barred by its failure to protect the property from further damage after the hail loss, as found by the jury.

Delta contends that the trial court erred in sustaining Southwest’s motion to disregard the jury’s answer to issue number twelve (pertaining to Southwest’s failure to protect the property) on the ground that Southwest was under no legal duty to save and preserve the property. The policy required the insured to “give immediate notice to this Company of any loss [and] protect the property from further damage. . ” Special issue number twelve was submitted in the following form:

Do you find from a preponderance of the evidence that the loss in question was caused, directly or indirectly, by the neglect of Plaintiff to use all reasonable means to save and preserve the property at and after a loss that the property may have sustained prior to the loss in question and subsequent to December 15, 1973?
ANSWER: “We Do” or “We Do Not”
ANSWER: We do.

We hold that this finding establishes a breach of the policy by Southwest and, therefore, precludes its recovery. Southwest contends, however, that the answer to special issue number twelve cannot constitute a defense because the issue inquires about neglect occurring before Southwest became the owner and before it had any duty to protect the property from loss. We cannot agree. The issue inquires whether the vandalism loss was caused by Southwest’s neglect in failing to protect the property after the prior loss in April 1974. According to the evidence, no loss occurred after the April 1974 hail loss until the vandalism loss in question, which the jury found occurred between mid-October and October 29 of 1974, when Southwest was owner. Indeed, Southwest’s witness testified that no vandalism loss had occurred when he inspected the property on October 14, 1974. Since the only evidence of a vandalism loss was with respect to a loss between October 14, 1974, and October 29, 1974, the jury’s answer to issue number twelve cannot be taken as a finding of a loss resulting from Southwest’s failure to protect the property before October 14. Although the issue included a greater period of time than was properly applicable, the evidence was limited to the applicable period, and we cannot assume that the jury disobeyed the court’s instruction to base their answer on the evidence. Perhaps, on proper objection, the court would have been required to confine the issue to the period between October 14 and October 29, but no such objection was made. Consequently, we hold that this finding under the evidence was equivalent to a finding that the loss resulted from failure of Southwest to protect the property during that period. Since we have held Southwest had a duty to protect the property during that period, it follows that the finding establishes a breach of the policy which bars its recovery.

Reversed and rendered.


text:
    HAMILTON INVESTMENT TRUST, a trust, Appellant, v. HI FASHION WIGS PROFIT SHARING TRUST et al., Appellees.
    No. 19279.
    Court of Civil Appeals of Texas, Dallas.
    Oct. 13, 1977.

      Louis B. Paine, Jr., Butler, Binion, Rice, Cook & Knapp, Houston, for appellant.
    Lawrence Fischman, Weil, Craig & Fisch-man, Dallas, for appellees.
   AKIN, Justice.

This is a venue appeal by Hamilton Investment Trust from an order overruling its plea of privilege. Plaintiffs sued in Dallas County to recover for alleged usurious interest charges with respect to a financing agreement with the defendant. Neither party is a resident of Texas. Defendant asserts venue in Lubbock County under Tex.Rev.Civ.Stat.Ann. art. 5069-1.06(3) (Vernon 1971), which establishes venue in a usury action. Article 5069-1.06(3) provides:

(3) All such actions brought under this Article shall be brought in any court of this State having jurisdiction thereof within four years from the date when the usurious charge was received or collected in the county of the defendant’s residence, or in the county where the interest in excess of the amount authorized by this Subtitle has been received or collected, or where such transaction had been entered into or where the parties who paid the interest in excess of the amount authorized by this Subtitle resided when such transaction occurred, or where he resides.

Appellant argues that venue lies in Lubbock County because that county was the situs of the real estate securing the loans upon which the appellees have sued and is the only county in Texas having any connection with the transaction. Although appellant admits that this fact does not bring the case within any of the five potential venue provisions under article 5069-1.06(3), it argues, nevertheless, that since Lubbock County is the only nexus connecting the transaction sued upon to Texas, we should look to the facts most nearly applicable to the mandatory provisions of article 5069-1.-06(3) and hold that venue should be only in Lubbock County. We cannot agree. Accordingly, we must affirm the trial court’s order overruling appellant’s plea of privilege.

Appellant argues that once it filed its plea of privilege the burden was on the plaintiffs to prove that Dallas County fell within one of the five subdivisions of article 5069-1.06(3). In this respect, appellant asserts that since the venue provisions of the venue statute are mandatory, and, since Tex.R.Civ.P. 86 provides that a party may assert venue in a county other than the county of one’s residence, it follows that when it filed its plea of privilege the plaintiffs had to plead and prove that its action fell within one of the provisions of article 5069 so as to establish venue in Dallas County. We cannot agree because we hold that a defendant who asserts a plea of privilege to be sued in a county, other than the forum, must allege facts within the statute, showing prima facie venue in another county. Tex.R.Civ.P. 86; e. g., Mims v. East Texas Production Credit Ass’n, 496 S.W.2d 682 (Tex.Civ.App.—Tyler 1973, writ dism’d). Rule 86 provides, in part:

A plea of privilege to be sued in a county other than the county of one’s residence shall be in writing and sworn to and shall state that the party filing the plea is asserting venue under and by virtue of one or more specific statutory provisions which shall be clearly designated or indicated.
When a plea of privilege is filed in accordance with this rule, it shall be pri-ma facie proof of the defendant’s right to change of venue; . . .. [Emphasis added]

As we read rule 86, the plea must on its face allege facts showing prima facie that venue lies in a particular county. It is not enough to allege that venue is controlled by article 5069-1.06(3); appellant must also allege which of the five potential provisions under article 5069-1.06(3) will place venue in Lubbock in order to have a proper plea of privilege. Here, appellant alleged no facts bringing it within any specific provision of article 5069-1.06(3). Indeed, the stipulated facts conclusively show that none of the provisions of the statute is applicable. Consequently, even if the usury venue statute is mandatory, appellant, by asserting its nexus theory, does not fall within the ambit of any provision of the statute. Only where a plea of privilege meets the prescribed form of rule 86 will it be prima facie proof of appellant’s right to have the case transferred, thus casting the burden on plaintiffs to plead and prove that venue is proper in Dallas. See Mims v. East Texas Production Credit Ass’n, 496 S.W.2d 682 (Tex.Civ.App.—Tyler 1973, writ dism’d); McCall v. Sadler, 467 S.W.2d 216, 217 (Tex.Civ.App.—Eastland 1971, no writ); Geary, Hamilton, Brice and Lewis v. Coastal Transport Co., 399 S.W.2d 878 (Tex.Civ.App.—Dallas 1966, no writ).

We need not pass upon whether the provisions of article 5069-1.06 are mandatory or whether a nonresident defendant has standing to assert the venue statute because assuming both of these contentions in the affirmative, appellant failed to bring itself within one of the provisions of the statute, as it was required to do.

Affirmed.


author: GUITTARD, Chief Justice.

text:
    Herbert BOZARTH, Petitioner, v. CITY OF DENISON, Respondent.
    No. 19441.
    Court of Civil Appeals of Texas, Dallas.
    Oct. 13, 1977.

      Eric Weisberg, Denison, for petitioner.
    H. Louis Nichols, Dallas, for respondent.
   GUITTARD, Chief Justice.

Petitioner filed this original application for writ of mandamus and injunction against the City of Denison, the members of its city council, and its city secretary, to require defendants to submit to the voters of the city at an election to be held on November 8, 1977, a charter amendment concerning the election of council members by districts. Petitioner also seeks to restrain the city officials from submitting a different amendment concerning the same subject. The application was filed with us on October 5, 1977, and on the next day, with the extraordinary cooperation of counsel for all parties, we heard argument and announced our decision denying the relief sought. We now state our reasons for that decision.

Our jurisdiction depends on Texas Revised Civil Statutes Annotated, article 1735a (Vernon Supp.1976), which grants us authority to issue writs of mandamus and other compulsory process “against any public officer ... to compel the performance, in accordance with the laws of this state, of any duty imposed on them, respectively, by law, in connection with the holding of any general, special, or primary election . . . .” Under this statute we have no fact-finding power; consequently, we have no authority to grant relief unless the facts are established without dispute. Donald v. Carr, 407 S.W.2d 288, 292 (Tex.Civ.App.—Dallas 1966, no writ). Moreover, before we can proceed under article 1735a to compel performance of any duty by a public officer, that duty must be clearly fixed and required by law. Oney v. Ammerman, 458 S.W.2d 54 (Tex.1970).

Petitioner alleges that the duty in this instance is fixed by the statute governing the procedure for amending the charter of a home rule city, Texas Revised Civil Statutes Annotated, article 1170 (Vernon Supp.1976), which provides, in part, as follows:

When the governing body desires to submit amendments to any existing charter, said body may on its own motion, in the absence of a petition, and shall, upon receiving a petition signed by qualified voters in such city, town or political subdivision in number not less than five per cent (5%) thereof or 20,000 signatures, whichever is less, submit any proposed amendment or amendments to such charter. The ordinance providing for the submission of such amendment or amendments shall require the submission thereof at an election to be held not less than thirty (30) days nor more than ninety (90) days after the passage of said ordinance. If the next regular municipal election is to be held during said period, the submission of said amendment or amendments shall be at such election. Otherwise, a special election shall be called for the purpose.

The application for mandamus alleges that, in compliance with this statute, petitioner and other citizens of the City of Denison presented to the city council on September 19, 1977, a petition signed by more than five percent of the qualified voters of the city requesting that their proposed charter amendment be submitted to the voters. This petition contained over nine hundred signatures, of which six hundred seventy were certified by a deputy county clerk as being registered voters residing in Denison and qualified to sign the petition. Accompanying the petition was a certificate of the county tax officer that the registered voters residing in the city numbered ten thousand three hundred sixty and that five percent of that number was five hundred eighteen. The application for mandamus alleges that the council refused to call an election on the proposed amendment, but, at the same meeting, enacted instead an ordinance providing for submission to the voters of a different amendment to the same provision of the charter at an election on November 8, 1977. Petitioner alleges that such action was arbitrary and capricious and was done with the intent to deprive petitioner of his rights under article 1170.

An affidavit by petitioner’s counsel in support of the application for mandamus varies in some respects from the allegations of the application. Rather than averring refusal to call the election, this affidavit states that the petition for the charter amendment was accepted by the council and referred to the city secretary for verification, that the petition had not been verified by October 5, 1977, and that the city secretary had testified in a proceeding in the district court of Grayson County that she did not know when she would be able to complete the verification, that she had not marked all the signatures she had found to be valid, and that she had no way of knowing how many she had verified.

Respondents filed an answer to the application, sworn to by the city attorney, stating that when the petition in question was presented to the city council on September 19, it was referred by the council to the city secretary for verification of the signatures and for determination of the number of qualified voters in the city, that the city secretary was in the process of carrying out such duties and was instructed to report back to the council at its next meeting, that the secretary had not yet completed her duties in connection with verification of the petition, but was in the process of doing so, and would report to the council as soon as she completed these duties. The answer denies that any action of respondents was done in an arbitrary or capricious manner or with intent to deprive petitioner of his rights under article 1170. It alleges that respondents’ discretionary duties in connection with verification of the petition would require some time to complete, and it asserts that upon completing such duties the city would perform its statutory duty to call an election if the signers of the petition should be entitled to have such election called under the provisions of article 1170.

In this state of the record we must hold that petitioner has failed to establish by undisputed evidence a clear statutory duty to call an election. Notwithstanding the previous verification of the signatures and number of signers required by the deputy county clerk and the county tax officer, the city council had the responsibility to make its own verification of these matters, and we cannot say as a matter of law that the period from September 19 to October 5 was an unreasonably long time. Neither can we say as a matter of law that the council’s action was arbitrary and capricious or that it was done with intent to deprive petitioner of his right to an election in view of respondents’ express denial of this charge.

Petitioner’s principal contention is that the council’s action is shown to be arbitrary as a matter of law because it may have the practical effect of denying petitioner’s right to an election under article 1170. In this connection petitioner points out that Texas Revised Civil Statutes Annotated, article 1165 (Vernon 1963), forbids amendment of the charter more often than once in every two years. In view of this prohibition, petitioner insists that if the alternative proposal submitted by the council is approved by the voters at the election on November 8, the council will have disabled itself from submitting petitioner’s proposal at an election not less than thirty days nor more than ninety days after the call of such election by the council, as provided by article 1170. Petitioner argues that the burden on petitioner to defeat the alternative proposal on November 8 in order to obtain an election on petitioner’s proposal within the time required by article 1170 is an unreasonable and unlawful burden on his rights under article 1170. Consequently, petitioner asserts that the only procedure now open that would preserve his rights under article 1170 is for the council to enact an ordinance not later than October 9, 1977 calling an election on the amendment proposed in his petition on or before November 8,1977. To respondents’ argument that the council still has not verified the signatures on the petition or determined the number of signatures required, petitioner responds that if the council fails to complete this process in time to enact such an ordinance, the sufficiency of the signatures must be presumed.

Although this argument has considerable appeal under principles of equity, we are not convinced that the council has a clear legal duty to call an election on petitioner’s proposed amendment for November 8. Petitioner’s rights under article 1170 are limited by the prohibition in article 1165 of charter amendments more often than once in two years. The action of the council in calling the election on the alternative proposal for November 8 was an exercise of legislative authority under article 1170, and if that action has the effect of preventing a vote on petitioner’s proposal within the time prescribed by article 1170, then that effect is the result of the application of articles 1165 and 1170 to the facts of this case. We do not decide whether petitioner has a remedy if he can establish that the alternative proposal was submitted arbitrarily and in bad faith for the purpose of defeating his rights. We conclude that the present record does not establish such arbitrary action as a matter of law. The application for mandamus itself shows that the alternative proposal was recommended to the council by an appointed commission which had studied the matter of council districts at the council’s request over a period of several months. The advocates of each proposal were naturally concerned to have their proposal submitted rather than the other. Conceivably, both could have been submitted at the same election, but confusion from inconsistent propositions on the same ballot may have been foreseen. The choice made by the council was one it had statutory power to make as the elected representatives of the people of the city. We cannot say that the record before us shows conclusively that it made that choice arbitrarily and in bad faith.

Writs of mandamus and injunction denied.


text:
    CITIZENS LAW INSTITUTE et al., Appellants, v. The STATE of Texas, Appellee.
    No. 19378.
    Court of Civil Appeals of Texas, Dallas.
    Oct. 13, 1977.

      Howell C. Willis, Dallas, William R. Pabst, Houston, for appellants.
    David W. Pace, Asst. Atty. Gen., Austin, for appellee.
   GUITTARD, Chief Justice.

This appeal from an order granting a temporary injunction is before us without a statement of facts. Instead, the record contains a “bystanders’ bill” in the form of an affidavit signed by three persons. We hold that this affidavit provides no basis for review of the trial court’s rulings because it does not comply with the requirements of a bystanders’ bill in rule 372, Texas Rules of Civil Procedure. We also hold that the trial judge was not shown to be disqualified by the filing of an unsworn motion alleging that he had been named a defendant in another lawsuit brought against him by one of the parties to this suit.

Ordinarily we must presume in the absence of a complete statement of facts that the evidence supports the judgment. The Englander Co. v. Kennedy, 428 S.W.2d 806 (Tex.1968). Moreover, we cannot consider whether an appellant has been prejudiced by an error committed in the course of the trial unless the entire record is before us. Dennis v. Hulse, 362 S.W.2d 308, 310 (Tex.1962); Gordon v. Aetna Cas. & Sur. Co., 351 S.W.2d 602, 604 (Tex.Civ.App.—Eastland 1961, writ ref’d). Appellants contend that these rules should not apply because of the following averments in the “bystanders’ bill”:

2. Defendant William R. Pabst made a motion to have a private court reporter who was present to take the testimony in the hearing, but Spencer Carver refused and overruled said motion.
3. Spencer Carver insisted that his court reporter be used, a certain Floyd Dixson, who took down the testimony in a faulty and dishonest manner and in many instances did not truely [sic] report the testimony and objections that were given.

In view of these averments, appellants argue that they were not afforded an opportunity to obtain an accurate statement of facts, or even to make an adequate record of their own as a basis to seek corrections in the statement of facts. Therefore, they insist that they should be able to obtain review on the basis of their bill without a statement of facts. In this connection, their first point of error is that the court erred in denying their motion to use their own private court reporter at the trial.

We must overrule this point and all others based on the “bystanders’ bill” because the affidavit does not comply with the requirements of rule 372, Texas Rules of Civil Procedure. This rule does not authorize the losing party to dispense with a statement of facts by the simple device of filing an affidavit of three bystanders averring that the official reporter did not do his duty. Before filing a bystanders’ bill, the complainant must first present his bill of exception to the judge, who may sign it, make corrections, or return it to the complainant with an endorsement of his refusal. Only then may the complainant obtain an affidavit of three bystanders, and only if this procedure is followed is it appropriate for the other party to file affidavits controverting the averments of the bystanders’ bill. Unless this procedure is followed, the appellate court is not in a position to determine the truth of the bystanders’ affidavit. Consequently, the affidavit in the present record can provide no basis for review of the trial court’s rulings. G. & H. Equipment Co. v. Alexander, 533 S.W.2d 872, 878 (Tex.Civ.App.—Fort Worth 1976, no writ).

Moreover, the present record fails to show that appellants have attempted to obtain an accurate statement of facts in the manner provided by rule 377(d), Texas Rules of Civil Procedure, as follows:

If any difference arises as to whether the record truly discloses what occurred in the trial court, or if the opposing party fails to agree or to disagree within ten days after being furnished with a copy of the proposed statement of facts, the matter shall be submitted to and settled by the trial court or judge thereof and the statement of facts be by him made to conform to the truth.

The complaining party, if dissatisfied with a statement of facts after the judge has undertaken to settle any differences, may then prepare a bill of exceptions under the procedure prescribed by rule 372. He cannot, however, ignore the requirements of both rule 372 and rule 377 and obtain review on the basis of an ex parte affidavit, as appellants seek to do here.

We need not consider appellants’ remaining points, since they are all based on their “bystanders’ bill.” We note, however, that their third point asserts error in the trial court’s overruling the unsworn motion of appellant Willis to disqualify the judge because Willis had named the judge as defendant in a suit in the United States District Court. We cannot accept this motion as proof of its allegations, but even if we could, we would hold that a judge is not disqualified by the mere pendency of another lawsuit brought against him by one of the parties. To hold otherwise would permit a party to disqualify the judge by filing a suit against him, whether well-founded or not.

Affirmed.

      . The pertinent provisions of this rule are the following:
      (f) Bills of exceptions not in the statement of facts shall be presented to the judge for his allowance and signature.
      (g) The judge shall submit such bill to the adverse party or his counsel, if in attendance on the court, and if found to be correct, the judge shall sign it without delay and file it with the clerk.
      (h) If the judge finds such bill incorrect, he shall suggest to the party or his counsel such corrections as he deems necessary therein, and if they are agreed to, he shall make such corrections, sign the bill and file it with the clerk.
      (i) Should the party not agree to such corrections, the judge shall return the bill to him with his refusal indorsed thereon, and shall prepare, sign and file with the clerk such bill of exception as will, in his opinion, present the ruling of the court as it actually occurred.
      (j)Should the party be dissatisfied with said bill filed by the judge, he may, upon procuring the signatures of three respectable bystanders, citizens of this State, attesting to the correctness of the bill as presented by him, have the same filed as part of the record of the cause; and the truth of the matter in reference thereto may be controverted and maintained by affidavits, not exceeding five in number on each side, to be filed with the papers of the cause, within ten days after the filing of said bill and to be considered as a part of the record relating thereto. The truth of such bill of exceptions shall be determined on appeal from such affidavits.