author: McKAY, Justice.

text:
    EAGLE TRUCKING COMPANY et al., Appellants, v. TEXAS BITULITHIC COMPANY et al., Appellees, and Johnnie Wesley GUIN et al., Appellants, v. EAGLE TRUCKING COMPANY et al., Appellees.
    Nos. 1215, 1215-A.
    Court of Civil Appeals of Texas, Tyler.
    Nov. 1, 1979.
    Rehearing Denied Nov. 29, 1979.

      Blake C. Erskine, Kenley, Boyland, Cogh-lan & Erskine, Longview, Blake Bailey, Wellborn, Houston, Bailey & Perry, Henderson, for appellants.
    Melvin R. Wilcox, III, Otto A. Ritter, Roberts, Harbour, Smith, Harris, French & Ritter, Longview, Michael A. Hatchell, Ra-mey, Flock, Hutchins, Jeffus, McClendon & Crawford, Tyler, for appellees.
   McKAY, Justice.

These are two separate appeals from a single judgment of the district court in Gregg County. One appeal was taken to the Court of Civil Appeals for the Sixth Supreme Judicial District and one to this Court; they were consolidated in this Court by the Supreme Court.

The case arose from a collision between two trucks on Farm-to-Market Road 2011 south of Longview, Texas. A dump truck driven by Johnnie Wesley Guin, travelling north, rounded a curve and struck a winch truck which was standing on the highway surface a few yards south of a bridge. The winch truck was standing across the highway, perpendicular to the long axis of the road, and at least partially blocking both lanes of traffic. The winch truck was being used to pull a water pump from an area near the creek over which the bridge crossed, the pump having been used in the drilling of a nearby oil well. Guin and Robert G. Fitch, operator of the winch truck, suffered serious physical injuries and there was damage to both trucks.

In addition to Guin and Fitch the parties in the trial court were as follows: Billy Wayne Peden, who was the owner of the dump truck; Norman Gamel and Clyde Grantham, doing business as the partnership G & G Construction Company, who had engaged the services of Guin and of Peden’s truck for the purpose of hauling sand; Texas Bitulithic Company which owned and operated “hot mix” plants in Longview and Kilgore where the sand was being hauled; Eagle Trucking Company which was engaged in oil field operations and owned the winch truck; United Drilling Company which had been engaged in drilling the nearby oil well and owned the water pump which was being pulled from the creek bed by Eagle’s truck; and finally, Protective Insurance Company which was the worker’s compensation carrier for Eagle Trucking and had paid benefits to Fitch.

The facts of the case are basically simple. Texas Bitulithic contracted with G & G Construction to have sand hauled to the former by the latter. G & G Construction had two trucks of its own for such hauling and, on occasion, used trucks owned by others, such as Peden’s. Peden was an assistant manager for Texas Bitulithic and also operated his dump truck. Guin .drove the truck for Peden. Guin, on the morning of the accident, February 23,1976, picked up a load of sand at the Minor Sand Pit and began travelling north on FM 2011 toward the Texas Bitulithic plant in Longview. He drove around a righthand curve and came down a slight incline toward the Gamble Creek bridge where the winch truck was standing crosswise of the highway. There were four employees of United at the scene, one of which was stationed south of the bridge as a “flagman.” It was disputed exactly how far south of the bridge that he was located when Guin approached. The “flagman,” who had no flag or other warning device other than his gloves and perhaps his hard hat, attempted to stop the dump truck by waiving his arms. Guin, who claims he was distracted by the “flagman” and did not know what the man wanted, drove past him and collided with the winch truck. From Guin’s direction of travel, the bridge area and the winch truck would have been visible from at least 631 feet.

The dump truck, fully loaded, weighed approximately 20 tons. The winch truck, described as a “15-ton truck,” weighed approximately 11 tons, and had the 5-ton water pump sitting on its tailboard .when it was struck. It is disputed whether Guin applied his brakes prior to the collision and the speed at which he was travelling at the time of . the impact is also disputed. The force of the collision carried the winch truck a distance of 78 feet onto the bridge and threw Fitch from the truck, causing him to land below the bridge.

It had rained for several days prior, but the day of the accident was clear and dry. The rain, however, had softened the ground so that Fitch and his supervisor at the scene felt that they could not maneuver the truck off the road surface. The winch truck' was at first parked parallel to the road and its winch was used to pull the water pump part of the way to the truck. Fitch then maneuvered the truck into a position perpendicular to the road, having to back it up and go forward several times in order to position it on the narrow road. He then utilized the winch to pull the water pump up to the truck and onto its tailboard. It was shortly after he got the pump onto the tailboard that the collision occurred. There was testimony that he could not have continued to pull the pump up to the truck while the truck was positioned parallel to the road because of the angle of the incline up which it would have to have been pulled, which would probably have caused the pump to turn over.

Guin sued Eagle Trucking, Fitch, and United Drilling for personal injuries, loss of earnings and earning capacity, and hospital and medical expenses, alleging damages to-talling $75,000 and several acts or omissions of negligence by the defendants, i. e., blocking the highway, failing to keep a proper lookout, failing to have a flagman warn oncoming traffic, and failing to place flares or warning signs on both sides of the winch truck.

Fitch counterclaimed for his injuries against Guin, Peden, Gamel and Grantham d/b/a G & G Construction, Texas Bitulithic, and United Drilling, alleging negligence on the part of Guin in failing to keep a proper lookout, speeding, failing to yield right-of-way, and failing to timely apply his brakes; his damages were alleged to be $250,000. Fitch alleged that he notified employees of United Drilling that flagmen should be placed in both directions to warn traffic. Protective Insurance Company, as worker’s compensation insurance carrier, claimed subrogation rights to $18,111.30 of any recovery by Fitch.

Eagle Trucking filed its counterclaim against Guin, Peden, G & G, Texas Bitulithic and United Drilling for $9,500 in damages to its winch truck plus loss of use and total damages in the amount of “no less than $30,000.”

United Drilling brought a cross-action against Guin, Peden, G & G, and Texas Bitulithic for indemnity and contribution.

All counter-defendants filed answers to the respective counterclaims against them. The case came to trial before a jury, which made its findings in favor of the winch truck parties. The special issues and the jury’s responses thereto are set forth in the footnote.

The judgment of the trial court was that: (1) motions for instructed verdict by Texas Bitulithic, G & G Construction, and United Drilling be granted; thus (a) Fitch, Eagle Trucking, and Protective Insurance take nothing against said movants, (b) Guin and Peden take nothing against United Drilling, and (c) United Drilling take nothing on its cross-action for indemnity and contribution; (2) Guin and Peden take nothing against Fitch and Eagle Trucking; (3) Fitch recover from Guin and Peden, jointly and severally, $216,232.35 (and Protective Insurance recover $18,111.30 from that sum); and (4) Eagle Trucking recover from Guin and Peden, jointly and severally, $47,000.00.

Answer “yes” or “no” in the corresponding line of Column 2.

In No. 1215, Fitch, Eagle Trucking, and Protective Insurance appeal from the trial court’s granting of Texas Bitulithic’s and G & G Construction’s motions for instructed verdict. In No. Í215-A, Guin and Peden appeal from the adverse judgment making them liable for damages to Fitch and Eagle Trucking.

NO. 1215-A

In their first point of error, Guin and Peden urge that the trial court incorrectly overruled their motion for new trial because Fitch and Eagle Trucking were negligent as a matter of law. Guin and Peden contend that the evidence shows a violation of Article 6701d, sec. 93(a), by the positioning of the winch truck across the highway, leaving no unobstructed width of roadway for the passage of other vehicles. That statute provides:

“Sec. 93(a) Upon any highway outside of a business or residence district no person shall stop, park, or leave standing any vehicle, whether attended or unattended, upon the paved or main-traveled part of the highway when it is practicable to stop, park, or so leave such vehicle off such part of said highway, but in every event an unobstructed width of the highway opposite a standing vehicle shall be left for the free passage of other vehicles and a clear view of such stopped vehicle shall be available from a distance of two hundred (200) feet in each direction upon such highway.”

Fitch and Eagle Trucking assert that Guin and Peden failed to plead a violation of the quoted statute, the first mention thereof being made in the motion for new trial. In Guin’s first amended original petition, however, he alleged that as he approached the area at which the accident occurred, he saw Eagle’s truck “completely blocking FM 2011,” and that he was unable to halt his vehicle “in time to avoid a collision with [the winch] truck that had FM 2011 completely blocked.” He also asserted as an act of negligence the “stopping and/or parking [of] the [winch] truck completely across the paved or main-traveled part of FM 2011.” Peden, in his original counterclaim, alleged a violation of Article 6701d in that Eagle, United, and Fitch “created a dangerous and perilous situation on FM Road 2011,” and alleged that they “failed to comply with . . . Art. 6701d.” In their first supplemental answer to Peden’s counterclaim, Fitch and Eagle Trucking specially excepted to these allegations as being general, global, and vague and as constituting mere conclusions. Although there is no indication in the record of the trial court’s action on such special exceptions, Peden filed another counterclaim (not denominated as an “amended” counterclaim) in which he omitted the ref-érences to Article 6701d except that he alleged a violation of section 138 of that statute. Peden, in the later counterclaim, alleged factually that the winch truck was “completely blocking said road.” No special exceptions to Peden’s counterclaim were addressed to the failure to indicate statutory violations relied upon, and no special exceptions at all were- made to Guin’s petition. Thus, in the pleadings on which Guin and Peden went to trial, neither expressly named ■ section 93(a) of Article 6701d or alleged that the facts alleged constituted a statutory violation.

Pleadings are sufficient if they give fair and adequate notice to the pleader’s adversary. Stone v. Lawyers Title Insurance Corp., 554 S.W.2d 183, 186 (Tex. 1977); Rule 45, T.R.C.P. It has been further held that a pleading is sufficient if its language gives the adversary either notice as to what issues are on trial, McCane Sondock Detective Agency v. Penland Distributors, Inc., 523 S.W.2d 62, 65 (Tex.Civ.App.—Houston [14th Dist.] 1975, no writ), or notice of the proof which will be introduced against him at trial. Osteen v. Crumpton, 519 S.W.2d 263, 265 (Tex.Civ.App.—Dallas 1975, writ ref’d). “The test should be whether an opposing attorney of reasonable competence, with the pleadings before him, can ascertain the nature and the basic issues of the controversy and the testimony probably relevant.” 2 McDonald, Texas Civil Practice sec. 5.05 at pp. 15-16 (1970). We are of the opinion that the pleadings of Guin and Peden would put an opposing attorney of reasonable competence on notice that they intended to rely upon the blocking of the highway as a statutory violation.

Furthermore, the general rule is that although a pleading does not invoke the law that is deemed to be applicable to the case, the court will notice and apply the proper rule. 45 Tex.Jur.2d Pleading sec. 24 at pp. 403-4 (1963); see Ryan v. State, 32 Tex. 280, 281 (1869). Indeed, it has been held that a plaintiff’s pleading that his case fell within a particular subdivision of a statute was a mere conclusion, American Asphalt Co. v. O'Rear, 36 S.W.2d 779, 780 (Tex.Civ.App.—El Paso 1931, no writ); and where the statutes allegedly violated were named, but without indicating the facts comprising a violation thereof, the allegations were held to be mere conclusions. Thomason v. Ulmer, 274 S.W.2d 103, 104 (Tex.Civ.App.—Fort Worth 1954, no writ).

“It is usually sufficient in automobile cases to allege the particular conduct relied on as constituting a ground for recovery, without reference to statutory provisions claimed to have been violated by such conduct . ' .
“ . . . [I]t is ordinarily sufficient to set out the facts from which the court can see that a statutory duty has been violated, and allegations sufficiently showing negligent conduct may be deemed sufficient to allege the violation of a statute . . . .” 13 Blashfield, Automobile Law and Practice, sec. 457.19 at pp. 385, 389 (1969).

In 61 C.J.S. Motor Vehicles § 505(2) (1970), we find the following at pp. 323-5:

“The violation of a statute or ordinance may be charged by an express allegation thereof, by setting out the facts showing violation of the statute or ordinance under consideration, by alleging that the automobile was being operated unlawfully, or by making allegations of negligence broad enough to include a violation of a statute or ordinance . . . .” [Emphasis added.]

In O. K. Theater Corp. v. Rehmeyer, 115 S.W.2d 985 (Tex.Civ.App.—El Paso 1938, writ dism’d), the court held that an allegation by the plaintiff that “the said agents of the defendant turned their automobile suddenly to the’ left and across said highway without giving plaintiff any chance to avoid striking the said automobile . ” properly stated a cause of action for violation of the then Article 801, Texas Revised Penal Statutes, although the statute itself was not mentioned in the pleading and the acts alleged were not said to constitute a statutory violation. Id. at p. 987. See also Phoenix Refining Co., Inc. v. Walker, 108 S.W.2d 323, 325 (Tex.Civ.App.—Beaumont 1937, writ dism’d); Hines v. Foreman, 243 S.W. 479, 484 (Tex.Com.App. 1922, holding approved); Fender v. Farr, 262 S.W.2d 539, 543 (Tex.Civ.App.—Texarkana 1953, no writ); Dorman v. Cook, 262 S.W.2d 744, 747 (Tex.Civ.App.—Beaumont 1953, writ dism’d). In Belzung v. Owl Taxi, 70. S.W.2d 288, 290 (Tex.Civ.App.—Eastland 1934, writ dism’d), it was held that the plaintiff failed to plead the statute the violation of which he relied upon and thus failed to properly allege a case of negligence per se. The decision, however, is couched in terms of the plaintiff’s failure to plead “facts showing negligence per se” and failure “to allege the statutory prerequisites.” [Emphasis added.] The same situation obtained in Mercer v. Evans, 173 S.W.2d 206, 209 (Tex.Civ.App.—Fort Worth 1943, writ ref’d), and Wright v. McCoy, 110 S.W.2d 223, 227 (Tex.Civ.App.—Eastland 1937, no writ). Thus, the requirement is that one plead the facts constituting a statutory violation.

In the instant case, there is no dispute that, and judicial notice may be taken of the fact that, the location of the accident is “outside of a business or residence district.” Both Guin and Peden alleged that the winch truck “completely blocked” the highway. Accordingly, we are of the opinion, construing Guin’s and Peden’s pleadings liberally as we are required to do, Gulf, Colorado & Santa Fe Railway Co. v. Bliss, 368 S.W.2d 594, 599 (Tex.1963), that they have adequately pled the facts constituting a violation of Article 6701d, section 93(a).

In order to establish negligence per se, there must (1) be a violation of a legislative enactment, (2) which is unexcused. Missouri Pacific Railroad Co. v. American Statesman, 552 S.W.2d 99, 102 (Tex.1977). To discuss the second of these first, our Supreme Court has set forth rules for determining when an excuse exists in Impson v. Structural Metals, Inc., 487 S.W.2d 694 (Tex.1972), its progenitors, and its progeny. See also 5 St. Mary’s Law Journal 552 (1973). In that case, the court approved the general treatment of legally acceptable excuses for statutory violations contained in Section 288A of the Restatement (Second) of Torts (1965). That section provides, “ Unless the enactment or regulation is construed not to permit such excuse, its violation is excused when . . . ” [there follows a list of five categories of acceptable excuses]. [Emphasis added.] Here, Article 6701d, section 93(a), provides in part, “but in every event an unobstructed width of the highway opposite a standing vehicle shall be left for the free passage of other vehicles . . . .” [Emphasis added.] The plain language of the statute admits of no excuse for its violation. We therefore construe Article 6701d, section 93(a), not to permit excuses for its violation.

Now we come to the first of the requirements for negligence per se, i. e., a violation of a legislative enactment. It is generally true that, when either party in a case involving a traffic accident seeks to rely upon a statutory violation of the other as primary or contributory negligence per se, the party so relying has the burden to prove the statutory violation and get a finding thereof. Antee v. Sims, 494 S.W.2d 215, 217 (Tex.Civ.App.—Houston [14th Dist.] 1973, writ ref’d n. r. e.). This does not obtain, however, where it has been established that the conduct constituting negligence per se undisputedly occurred. It is unnecessary for the trial court to submit an issue on an undisputed fact. Sullivan v. Barnett, 471 S.W.2d 39, 44 (Tex.1971); James v. Haupt, 573 S.W.2d 285, 288 (Tex. Civ.App.— Tyler 1978, writ ref’d n. r. e.).

The testimony of all the witnesses who testified concerning the facts of the statutory violation was to the effect that either the witness did not know whether the winch truck blocked the highway so that there was not room for the free passage of traffic, or positively that the truck did so block the highway. Guin testified that the winch truck was “blocking both lanes of traffic.” Robert J. Pennington, an employee of Eagle Trucking and Fitch’s supervisor at the time of the accident, testified that he did not remember whether the winch truck “went all the way across the road,” but that “it did cross the center line.” Raymond Pugh, an employee of United Drilling and the “flagman” stationed to the north of the site of the accident, stated in his testimony that the winch truck occupied “pretty near [sic] all” of the paved portion of the highway. In response to the question, “There certainly wasn’t enough .room for a car to go in front of the truck without getting off the pavement, was there?” Pugh answered, “No, sir.” It was the testimony of James Young, Jr., another employee of United and the “flagman” to the south past whom Guin drove, that the truck was “partially blocking both lanes of traffic.” James Young, Sr., United’s driller and that company’s senior man present at the time of the accident, testified that there was “four or five feet clearance” between the truck and the edge of the road. The question was asked, “but he [Guin] couldn’t have got his truck in there, could he?” and Young’s answer was, “No way.” Even Fitch testified that his truck was blocking all of one lane and part of the other, that he did not know exactly how much of the other lane he was blocking, that it “could have been impossible” for a car to go by, and that he doubted that a truck could have gotten by but he did not know for sure. Finally, Paul Dowdy, a United employee present at the scene of the accident, testified that he “couldn’t say” whether the truck occupied the entire width of the paved roadway, but that it “probably” blocked “more than half.” Dowdy stated further in his testimony that there was not enough room for a vehicle to pass the truck and stay on the pavement, and that, “There wasn’t no [sic] way he [Guin] could get by.” This was all of the testimony on the issue. There was no testimony to the contrary.

The testimony is borne out by the physical facts. The winch truck was variously estimated as 20 to 25 feet in length. The paved portion of the highway was measured as 19 feet, 10 inches wide. There was no improved shoulder on either side of the highway, i. e., the grass was growing up to the edge of the pavement. There was a fairly steep embankment on both sides of the road at the place where the winch truck was parked, the ground dropping off steeply down to a creek bed. The winch truck was parked about twenty feet south of the ends of guard rails extending from a two-lane bridge over the creek.

When the above testimony is- considered together with the physical facts, it is indisputable that the winch truck was blocking the highway.to such a degree that there was insufficient space left for the free passage of traffic. That fact, and thus the statutory violation, was established as a matter of law. Therefore, no issue need have been submitted inquiring if such a fact existed.

Again, the general rule is that once negligence per se is established, a finding of proximate cause must be secured. Missouri Pacific Railroad Co. v. American Statesman, supra at 103. That case, however, is authority for the further proposition that proximate cause may be established as a matter of law and is sufficient to dispose of the proximate cause question in this case. In that case, a newspaper publishing company filed suit for damages resulting from the alleged negligence of the railroad company in running a boxcar into some steel scaffolding (referred to as the “tram”) extending from the newspaper company’s building over a spur track owned by the railroad company. Article 6559a provided that all structures built over railroad tracts must be not less than 22 feet above the rails. The scaffolding extended down to within 16 feet, 4 inches of the rails; thus, the American Statesman was found to be negligent per se. The Supreme Court held that proximate cause consists of two elements; (1) cause in fact, meaning that the negligent act or omission was a substantial factor in bringing about the injury and without which no harm would have been incurred, and (2) foreseeability, satisfied by showing that the actor as a person of ordinary intelligence should have anticipated the danger to others by his negligent act. The court stated:

“An act wanting in ordinary care which actively aids in producing an injury as a direct and existing cause need not be the sole 'cause; but it must be a concurring cause and such as might reasonably have been contemplated as contributing to the result under the attending circumstances. It matters not what the actor believed would happen, but whether he ought to have reasonably foreseen that the event in question, or some similar event, would occur. [Citations omitted.]
“As for causation, we conclude that but for the American Statesman’s erection of the tram in violation of the statute, the accident would not have occurred. Although Missouri Pacific was negligent in moving its car into the tram, such an incident was the kind of accident clearly contemplated by the Legislature when Article 6559a was enacted to provide sufficient clearance of structures built above or across railroad tracks.
“The majority of the Court is of the opinion that in this case proximate cause was established as a matter of law . .” [Emphasis in original.] Id. at 103-4.

The court thereupon quoted approvingly from Lewie Montgomery Trucking Co. v. Southern Pacific Co., 439 S.W.2d 691 (Tex. Civ.App. —Houston [14th Dist.] 1969, writ ref’d n. r. e.), and Missouri Pacific Railroad Co. v. Dean, 417 S.W.2d 357 (Tex.Civ.App.—Tyler 1967, writ ref’d n. r. e.), both of which hold that proximate cause exists as a matter of law where the circumstances are such that reasonable minds could not arrive at a different conclusion. Missouri Pacific Railroad Co. v. American Statesman, supra at 104-5.

The reasoning of the American Statesman case applies here. To paraphrase that case: as for causation in the instant case, we are of the opinion that but for Fitch’s parking of the winch truck across the highway without leaving an unobstructed width of road for the free passage of traffic, in violation of the statute, this accident would not have occurred. Although Guin may have been negligent in colliding with the winch truck, such an incident was the kind of accident clearly contemplated by the Legislature when Article 6701d, section 93(a), was enacted to provide for sufficient unobstructed width of highway for the free passage of traffic by vehicles stopped, parked, or left standing on the paved or main-traveled part of the highway.

Fitch and Eagle Trucking argue that Guin’s conduct constituted a “new and independent cause” of the accident, that term being defined in the court’s charge. We do not agree. The intervention of an unforeseen and unexpected cause is not sufficient to relieve a wrongdoer from the consequences of negligence if the negligence directly and proximately cooperates with the independent cause in the resulting injury. McAfee v. Travis Gas Corp., 137 Tex. 314, 153 S.W.2d 442, 447-8 (1941); Marshall v. Joske’s Inc., 581 S.W.2d 192, 194-5 (Tex.Civ.App.—San Antonio 1979, no writ).

We hold that proximate cause was established in the instant case as a matter of law. Missouri Pacific Railroad Co. v. American Statesman, supra; Parrot v. Garcia, 436 S.W.2d 897, 900 (Tex.1969).

Accordingly, the trial court erred in overruling Guin and Peden’s motion for new trial. Their first point of error is sustained.

Appellant’s tenth point of error complains that the jury’s answer to special issue no. 2 was contrary to the great weight and preponderance of the evidence. We sustain this point. The jury found that Guin suffered no damages for his injuries resulting from the collision between the dump truck he was driving and the winch truck. The trial court instructed the jury they could consider physical pain and mental anguish suffered in the past and which may be suffered in the future, and the loss of earnings in the past.

The undisputed evidence reveals that Guin had a severe laceration 4 inches in length on his forehead which required 22 stitches; that his bottom lip was “cut nearly off”; that upper gums were bruised and cut, and he had surgery on upper gums and lower lip and gum; that he suffered several cuts and bruises around the face, shoulders and neck; that he suffered a broken right knee which required a cast; and that he has bruises on his sides. The record further shows that Guin spent seven days in the hospital, and out patient treatment continued for four weeks thereafter. It was twelve weeks after the accident before he worked again as a welder’s helper. At the time of trial Guin testified he still had a problem with his knee with aches and throbs, and it bothered him when driving. There was medical testimony that he suffered much pain.

The evidence of Guin’s injuries, and the pain and suffering connected with them, was undisputed therefore, the jury’s answer “none” to issue no. 2 was contrary to the great weight and preponderance of the evidence. Since we now have comparative negligence in Texas, and since we have determined that Fitch and Eagle Trucking Company were negligent as a matter of law, we are of the view that Tumlinson v. San Antonio Brewing Assoc., 170 S.W.2d 620 (Tex.Civ.App.-San Antonio 1943, writ ref’d w. o. m.) and those cases which have followed it are distinguishable from the case at bar.

NO. 1215

We now address Fitch and Eagle Trucking Company’s limited appeal of the trial court’s granting of the motions for directed verdict of G & G Construction and Texas Bitulithic. No complaint is made regarding the trial court’s action in granting the motion for directed verdict of United Drilling, and that entity is not a party to this appeal. In the first point of error Fitch and Eagle complain of the granting of Texas Bitulithic’s motion for directed verdict, and in the second point they complain of the granting of G & G Construction’s motion. We shall discuss both points together. '

It is the basic contention of Fitch and Eagle Trucking that Guin was an employee of Peden and G & G Construction and Texas Bitulithic at the time of the accident. Is is undisputed that Guin was an employee, i. e., a servant, of Peden. It is also undisputed that if G & G and/or Texas Bitulithic are liable, their liability is vicarious and is to be derived from an employer-employee or master-servant relationship between them and Guin.

The supreme test in determining whether a master-servant relationship exists is the “right to control.” Newspapers, Inc. v. Love, 380 S.W.2d 582, 590 (Tex.1964). In that case the court further stated, at p. 589: The contract may be oral or written. It has also been said that in practically all cases the independent nature of an agreement of employment may be inferred when the party is engaged in a distinct and generally recognized employment and his stipulated remuneration is to be determined by some quantitative standard. Dave Lehr, Inc. v. Brown, 127 Tex. 236, 91 S.W.2d 693, 694 (Tex.Com.App.1936, opinion adopted); William Sommerville & Son, Inc. v. Carter, 571 S.W.2d 953, 956 (Tex.Civ.App.—Tyler 1978), affirmed, 584 S.W.2d 274 (Tex.1979).

“The doctrine which holds the master liable for the torts of his servant committed in the course of his employment is essentially a policy doctrine and except for acts personally directed by the principal, the liability of the master is founded upon the contractual arrangement with the servant, either expressed or implied which vests in him the right to control the details of the work. [Citations omitted.] Certainly if the right of control of details has a contractual basis, the circumstance that no actual control was exercised will not absolve the master of liability. [Citations omitted.] Conversely, an occasional assertion of control should not destroy a settled relationship agreed to by the parties.”

Generally, an employer is not liable for the acts of an independent contractor. T. J. Mansfield Construction Co. v. Gorsline, 292 S.W. 187, 188 (Tex.Com.App. 1927, judgment adopted); J. A. Robinson Sons, Inc. v. Ellis, 412 S.W.2d 728, 735 (Tex. Civ.App.—Amarillo 1967, writ ref’d n. r. e.). In William Sommerville & Son, Inc. v. Carter, supra, we said:

“An independent contractor has been defined as any person who, in the pursuit of an independent business, undertakes to do a specific piece of work for other-persons, using his own means and methods, without submitting himself to their control in respect to all its details. The recognized tests to determine when one is acting in the capacity of independent contractor are (1) the independent nature of his business; (2) his obligation to furnish necessary tools, supplies and materials to perform the job; (3) his right to control the progress of the work except as to final results; (4) the time for which he is employed; (5) the method of payment, whether by the time or by the job. Pitchford Land and Cattle Co. v. King, 162 Tex. 331, 346 S.W.2d 598, 603 (1961); Industrial Indemnity Exchange v. Southard, 138 Tex. 531, 160 S.W.2d 905, 907 (1942).”

Moreover, it was said in Shannon v. Western Indemnity Co., 257 S.W. 522 (Tex.Com. App.1924, judgment adopted), at p. 524:

“There are numerous evidential elements which go to determine the quality of a contract as affecting the question of whether one is an independent contractor or not. It is seldom or ever that any one of these elements is decisive of the question.”

Every person who is found performing the work of another is presumed to be in the employment of the person whose work is being done. Taylor, B. & H. Ry. Co. v. Warner, 88 Tex. 642, 32 S.W. 868, 870 (Tex.1895); Texas State Bank v. Elliott, 533 S.W.2d 404, 406 (Tex.Civ.App. — Beaumont 1976, no writ). The burden is upon one claiming an exemption from liability for the acts of a workman on the ground that he was an independent contractor to establish the independence of the contract of such workman. Taylor, B. & H. Ry. Co. v. Warner, supra; Roland Associates, Inc. v. Pierce, 476 S.W.2d 748, 761 (Tex.Civ.App.— Beaumont 1972, no writ). Where the presumption, which is not evidence, is rebutted by contrary evidence, the presumption of employment or of a master-servant relationship cannot stand, and the conflicting evidence on the status of the workman should be submitted to the jury. Hastey v. Humphries, 576 S.W.2d 159, 162 (Tex.Civ.App. — Amarillo 1978, writ ref’d n. r. e.). Where the facts are not disputed, however, and the evidence is reasonably susceptible of but a single inference, the question whether the relationship of employer and independent contractor exists is one of law for the court. Rodriquez v. Zavala, 279 S.W.2d 604, 606-7 (Tex.Civ.App. — San Antonio 1955, no writ).

We are of the opinion that the evidence in the record before us is reasonably susceptible of but a single inference, i. e., that there was no master-servant or employer-employee relationship at the time of the accident either between G & G Construction and Guin or between Texas Bitulithic and Guin. There was no written contract between Texas Bitulithic or G & G and Peden or Guin. The evidence shows that although Peden was an assistant manager for Texas Bitulithic, he owned and operated the dump truck as his own business, separate and distinct from his employment by Texas Bitulithic. He bought the truck with his own funds, paid the expenses of the truck himself, none of the money he earned with the truck went to Texas Bitulithic, and Texas Bitulithic did not direct Peden in the operation of his truck. Peden employed Guin as his driver, Guin receiving 30% of the gross earnings of the truck. Peden made no deductions for income tax withholding, social security tax, etc., from his payments to Guin. G & G contracted with Texas Bitu-lithic to deliver sand to the latter. Coincidentally, it was Peden, acting as an employee of Texas Bitulithic, who entered into the contract with G & G on behalf of Texas Bitulithic. G & G had at least two trucks of its own with which to make deliveries to Texas Bitulithic and its other customers, Texas Bitulithic not being G & G’s only customer. Under G & G’s contract with Texas Bitulithic, G & G was free to haul for other customers and was not required to haul for Texas Bitulithic at any certain time. G & G was paid $1.85 per ton of sand delivered to the hot mix plants. Texas Bitulithic made no deductions from the payments for income tax withholding, social security tax, or any other purpose. Texas Bitulithic did not share in G & G’s profits and neither did the latter share in those of the former. During periods when G & G would need more trucks than it had available itself, Gamel would normally call Peden and arrange for the use of Peden’s truck. G & G had in this manner used Peden’s truck on approximately nine occasions. Pe-den’s truck was used approximately 65% of the time for customers other than G & G. G & G had no superior claim to Peden’s truck or Guin’s services as driver, vis-a-vis Peden’s other customers. Gamel or Grant-ham would tell Peden or Guin where the sand was to be picked up and where it was to be delivered. G & G paid Peden $1.65 per ton of sand delivered, and it made no deduction from such payments for income tax withholding, social security tax, or other purpose. Neither Peden nor G & G shared in any way in the other’s profits. We think it is clear from the evidence that the relationship of Guin and Peden to G & G and Texas Bitulithic was that of an independent contractor.

Fitch and Eagle Trucking argue repeatedly that Guin’s and Peden’s actions in furthering the business of both G & G and Texas Bitulithic made the relationship that of master and servant. Manifestly, however, that is not the test; the test is right to control. The furtherance of one’s business by another is a matter addressed to the issue whether the act of a servant, once the relationship of master and servant has been established, was within the course and scope of his employment. The fact that G & G and Texas Bitulithic exercised some general control or supervision over Guin and Peden does not mean that they had the right to control the details of the work. It is the details of the work over which the employer must have the right to control before a master-servant relationship exists. Newspapers, Inc. v. Love, supra; Elder v. Aetna Casualty & Surety Co., 236 S.W.2d 611, 613 (Tex.1951). In Travelers Insurance Co. v. Ray, 262 S.W.2d 801, 803 (Tex.Civ.App. — Eastland 1953, writ ref’d), the court stated:

“The relation of master and servant exists where the master retains or exercises the power of control in directing not merely the end sought to be accomplished but as well the means and details of its accomplishment; not only what should be done but how it should be done.”

There is no evidence that G & G of Texas Bitulithic attempted to tell Guin how to perform the details of his work in driving the truck and loading and unloading the sand. The evidence showed that the control which G & G and Texas Bitulithic exercised over Peden and Guin was for the purpose of seeing that the work was done properly and expeditiously and that proper results were accomplished. This manner of general control over an independent contractor does not result in making him a servant. Dave Lehr, Inc. v. Brown, supra; Texas Employers Insurance Association v. Bewley, 560 S.W.2d 147, 150 (Tex.Civ.App. — Houston [1st Dist.] 1977, no writ). The fact that Guin and Peden worked for G & G until they were told they were no longer needed, and the fact that G & G had the power to “lay off” (the term used by Grantham in his testimony) Guin, do not alter our conclusion. Dave Lehr, Inc. v. Brown, supra. Fitch and Eagle also point out that Peden, G & G, and Texas. Bitulithic engaged the same law firm to represent them in this cause. This factor, we feel, is entirely irrelevant to any issue in this appeal.

A case strikingly similar to the one at bar is Dave Lehr, Inc. v. Brown, supra. In that case a third party (Brown) was struck by a truck driven by one Mariano Valderrano. Brown sued Dave Lehr, Inc., for damages, alleging that Valderrano was an employee of Dave Lehr, Inc. Valderrano owned his own truck arid hauled goods for others for hire. He paid his own expenses of upkeep and costs of operation. Dave Lehr, Inc. was in the business of buying and selling rock, gravel, sand, cement, and other materials, the delivery of which was made by owners and drivers of trucks such as Val-derrano. The drivers were paid by the load. When Valderrano began work for the corporation, there was no agreement that he was to continue hauling for any specific length of time. He was free to leave when he chose and return when he chose and could haul for others if he desired. He was given instructions as to the amount of material to load and where it was to be delivered. The drivers were also generally given instructions to use the most direct route and were instructed to observe traffic laws. The court concluded that the general control exercised by the corporation over Val-derrano for the purpose of seeing that the work was properly and expeditiously done and that proper results were accomplished did not result in making Valderrano its servant. The court further concluded that the fact that the corporation could refuse to give Valderrano further work if he disobeyed instructions was of no substantial evi-dentiary value in determining the question whether a master-servant relationship existed. In addition, it was held that the instructions given to Valderanno to observe traffic laws could not be regarded as an exercise of control in the manner and method of doing the work. Additional cases whose facts are similar to those of the instant case and in which the courts held the relationship to be that of employer-independent contractor rather than master-' servant, are Smith Brothers, Inc. v. O’Bryan, 127 Tex. 439, 94 S.W.2d 145 (Tex.Com.App.1936, opinion adopted); and Riggs v. Haden Co., 127 Tex. 314, 94 S.W.2d 152 (Tex.Com.App.1936, opinion adopted); moreover, identical holdings on similar facts have been made in workmen’s compensation cases: Industrial Indemnity Exchange v. Southard, 160 S.W.2d 905 (Tex.1942); Southern Surety Co. of New York v. Scheel, 125 Tex. 1, 78 S.W.2d 173 (Tex.Com.App.1935, opinion adopted); Security Union Insurance Co. v. McLeod, 36 S.W.2d 449 (Tex.Com.App.1931, judgment adopted); Southern Surety Co. v. Shoemake, 24 S.W.2d 7 (Tex.Com.App.1930, judgment adopted).

So also in this case Peden owned his own truck and paid its expenses; he was paid by the load; there was no agreement that his truck was to be used for any specific length of time; he was free to refuse employment by G & G and could and did haul for others; Guin operated the truck in his own way; and the control exercised by G & G Construction and Texas Bitulithic was, at most, general in nature. In Smith Brothers, Inc. v. O’Bryan, supra, the court stated 127 Tex. 439, 94 S.W.2d at p. 149:

“In practically every case of employment of truck drivers the employer has a right to designate the materials to be hauled, to direct to whom and where they are to be delivered, and to require a receipt showing delivery. He also has the right to require expeditious service to the end that the general results of the employment may be attained. Yet it has never been held that these elements of control were sufficient to negative the independence of the contract, when, as here, practically all of the predominant circumstances indicate that the relationship is one of employer and contractor.”

The trial court having instructed a verdict in favor of G & G Construction and Texas Bitulithic, there must be no evidence having probative force upon which a jury could have made a finding against them and in favor of Fitch and Eagle Trucking. Anderson v. Moore, 448 S.W.2d 105 (Tex.1969); Burnett v. First National Bank of Waco, 536 S.W.2d 600, 607 (Tex.Civ.App.— Eastland 1976, writ ref’d n. r. e.). The evidence and all reasonable inferences therefrom must be viewed in the light most favorable to the nonmoving party. Id.: Seideneck v. Cal Bayreuther Associates, 451 S.W.2d 752, 753 (Tex.1970). Having applied this test in the instant case, we overrule Fitch and Eagle Trucking’s points of error complaining of the granting of the motions for instructed verdict of G & G Construction and Texas Bitulithic.

Upon reviewing the statement of. facts, we have noticed that portions of the testimony have been bracketed in red ink by one of the parties. As we have stated previously, Moore v. Grantham, 580 S.W.2d 142, 152 (Tex.Civ.App. — Tyler 1979, writ pending), we strongly disapprove of such a practice.

In view of our holding that the jury’s answer to special issue no. 2 was contrary to the great weight and preponderance of the evidence, and in view of our conclusion that Fitch and Eagle Trucking Company were negligent as a matter of law which would cause the comparative negligence to arise, it becomes necessary to reverse the judgment of the trial court in part and remand that part for a new trial. Article 2212a; Rule 277.

Accordingly, that portion of the judgment of the trial court decreeing that Johnnie Wesley Guin and Billy Wayne Peden take nothing by their suit against Robert Fitch and Eagle Trucking Company is reversed and remanded; and that portion of the judgment of the trial court in favor of Robert Fitch and Eagle Trucking Company against Johnnie Wesley Guin and Billy Wayne Peden is also reversed and remanded; in all other respects the judgment is affirmed.

      . QUESTION NO. 1
      On the occasion in question was EAGLE TRUCKING CO. negligent: (a) in blocking the lane of traffic along which JOHNNIE GUINN [sic — Guin’s name is misspelled throughout] was traveling (b) in failing to keep a proper lookout (c) in failing to see that some individual with red flags was posted south of the bridge before he [sic] began loading the pump (d) in failing to post warning devices south of the bridge (e) in creating a hazardous condition.
      Answer “YES” or “NO” in each line of Column 1. If any of your answers in Column 1 are “YES”, was any such negligence a proximate cause of the occurrence in question? Answer “YES” or “NO” on the corresponding line of Column 2.
      COLUMN 1 COLUMN 2 Negligence Proximate Cause
      (a) In blocking lane of traffic “NO” _
      (b) Failing to keep proper lookout “NO" _
      (c) Failing to post individual with red flags “NO" _
      (d) Failing to post warning devices “NO” _
      (e) In creating a hazardous condition “NO" _
      QUESTION NO. 2
      What sum of money, if any, if paid now in cash, do you find from a preponderance of the evidence would fairly and reasonably compensate JOHNNIE GUINN for his injuries, if any, which you find from a preponderance of the evidence resulted from the occurrence in question?
      Do not include any amount for any condition not resulting from the injuries, if any, which resulted from the occurrence in question.
      You may consider th.e following elements of damage, if any, and none other:
      (a)Physical pain and mental anguish in the past.
      (b) Physical pain and mental anguish which, in reasonable probability, he will suffer in the future.
      (c) Loss of earnings in the past.
      Answer in dollars and cents, if any.
      ANSWER: “NONE”
      QUESTION NO. 3
      Find from a preponderance of the evidence the reasonable expenses, if any, for necessary medical and hospital care received by JOHNNIE GUINN in the past for treatment of his injuries resulting from the occurrence in question.
      Answer in dollars and cents, if any.
      ANSWER: “⅜ 1.640.25”
      “MARKET VALUE” means the amount which would be paid in cash by a willing buyer who desires to buy; [sic] but is not required to buy, to a willing seller who desires to sell, but is under no necessity of selling.
      QUESTION NO. 4
      Find from a preponderance of the evidence the market value in Gregg County, Texas, of the truck driven by JOHNNIE GUINN immediately before the occurrence in question.
      Answer in dollars and cents, if any:
      ANSWER: “$8.500.00
      QUESTION NO. 5
      Find from a preponderance of the evidence the market value in Gregg County, Texas, of such vehicle immediately after the occurrence in question.
      Answer in dollars and cents, if any.
      ANSWER: “$1.500.00”
      QUESTION NO. 6
      On the occasion' in question, was Johnnie Wesley Guinn negligent in failing to keep a proper look-out, failing to operate his vehicle at a rate of speed a person of ordinary prudence would have operated, failing to make timely and proper application of his brakes, or failing to turn his vehicle to the right?
      Answer “yes” or “no” in each line in Column
      1. If any of your answers in Column 1 are “yes”, was any such negligence a proximate cause of the collision in question? Answer

        COLUMN 2
      COLUMN 1 PROXIMATE
      NEGLIGENCE CAUSE
      A. Proper look-out “YES” “YES”
      B. Control of speed “YES" “YES”
      C. Brakes “YES"_“YES”
      D. Failure to turn “NO" _
      QUESTION NO 7
      What sum of money, if any, if paid now in cash, do you find from a preponderance of the evidence would fairly and reasonably compensate Robert Fitch for his injuries, if any, which resulted from the occurrence in question?
      Consider the following elements of damage, if any, and none other:
      A. Physical pain and mental anguish in the past.
      B. Physical pain and mental anguish which in reasonable probability he will suffer in the future.
      C. Loss of earnings in the past.
      D. Physical impairment in the past.
      E. Physical impairment in the future.
      Answer in dollars and cents, if any.
      ANSWER: “$200.000.00”
      QUESTION NO. 8
      What sum of money, if any, do you find from a preponderance of the evidence will fairly and reasonably compensate Robert Fitch for reasonable hospital and medical expenses incurred by him in the past in the necessary treatment of his injuries sustained in the accident in question?
      Answer in dollars and cents, if any.
      ANSWER: “$1.232.35”
      QUESTION NO. 9
      What sum of money, if any, do you find from a preponderance of the evidence would fairly and reasonably compensate Robert Fitch for reasonable medical and hospital expenses which you find he will in reasonable probability incur in the future in the necessary treatment of his injuries sustained in the accident in question?
      Answer in dollars and cents, if any.
      ANSWER: “$15.000.00”
      imaauuiN inu. iu
      What do you find from a preponderance of the evidence to be the reasonable market value in Gregg County, Texas, of the 1975 Intema-tional Tractor with equipment operated by Robert Fitch immediately before the occurrence in question?
      Answer in dollars and cents.
      ANSWER: “$43.000.00"
      “Market value” means the amount which would be paid in cash by a willing buyer who desires to buy, but is not required to buy, to a willing seller who desires to sell, but is under no necessity of selling.
      QUESTION NO. 11
      What do you find from a preponderance of the evidence to be the reasonable market value in Gregg County, Texas, of the 1975 International Tractor with equipment operated by Robert Fitch immediately after the occurrence in question?
      Answer in dollars and cents.
      ANSWER: “$10-000.00”
      QUESTION NO. 12
      What do you find from a preponderance of the evidence to be the reasonable value of the use of a truck and equipment of the same type as that operated by Robert Fitch on the occasion in question for a period of time reasonably required to replace said truck and equipment? Answer in dollars and cents.
      ANSWER: “$14.000.00”
      QUESTION NO. 13
      If any of your answers in Column 2 of Question 1 are “YES”, and if any of your answers in Column 2 of Question 6 are also “YES”, then answer this Question 13; otherwise, do not answer this question.
      What percentage of the negligence .that caused the occurrence do you find from a preponderance of the evidence to be attributable to each of the parties found by you to have been negligent?
      The percentage of negligence attributable to a party is not necessarily measured by the number of acts or omissions found.
      In answering this question, you should consider the negligence of EAGLE TRUCKING CO. and JOHNNIE GUINN which you have found to be a proximate cause of the occurrence; therefore, the percentages should add up to 100%.
      Answer by stating the percentage opposite each name.
      EAGLE TRUCKING CO. Tnot answered!
      JOHNNIE GUINN foot answeredl

      . All references are to Texas Revised Civil Statutes Annotated.


source: Caselaw Access Project

author: McDONALD, Chief Justice.

license: Public Domain

text:
    GRANDVIEW INDEPENDENT SCHOOL DISTRICT, Appellant, v. John W. STOREY et ux., Appellees.
    No. 6119.
    Court of Civil Appeals of Texas, Waco.
    Nov. 1, 1979.
    • Robert M. Huey, McCreary & Huey, Austin, for appellant.
    Kenneth W. Boyd, Cleburne, for appel-lees.
   OPINION

McDONALD, Chief Justice.

This is an appeal by Grandview ISD from judgment finding its 1971 through 1977 tax assessments on 197 acres owned by John W. Storey and wife, based on market value rather than agricultural value, void; and decreeing the Storeys pay taxes based on the agricultural value in the sum of $2,782.68.

Grandview ISD filed this suit against the Storeys for delinquent taxes on real and personal property owned by the Storeys for the years 1971 through 1977.

The Storeys filed suit against the School District to enjoin the District from assessing or collecting taxes on the real estate for the years 1971 through 1977 on a valuation other than a valuation for agricultural use; and answered the School District’s suit alleging land had been at all times used for agricultural purposes as a business for profit and was the primary occupation and source of income of the Storeys; that they each year filed or attempted to file with the Tax Assessor-Collector of the District a sworn statement describing the use to which the land is devoted and designating the land for agricultural use; that such statements were timely tendered and were refused for filing by the Tax Assessor-Collector, or the Tax Assessor-Collector represented the sworn statements should be filed at a later date and the Storeys in reliance on such representations did file the statements at the later date; that the Storeys had timely tendered their taxes based on the agricultural use designation and such tender was refused; that the District is estopped to collect the taxes and has waived the right to collect the same on any basis other than an assessment based on agricultural use.

The trial court consolidated the two suits.

Trial was to the court which found:

1) The School District’s assessments for 1971 through 1977 of the Storeys’ 197 acres “were based on market value rather than agricultural value under the provisions of Article VIII, Section Id of the Constitution of the State of Texas, and the court finds such assessments to be void as to the real property * * * and that John W. Sto-rey and wife should pay taxes based on the agricultural value in the sum of $2,782.69; 2) the School District entitled to judgment for the personal property taxes sued on in the sum of $356.25; and for $281.53 taxes on the land for January through August 1978 under Article 7326a VATS.

The trial court rendered judgment for the School District for the foregoing amounts.

The School District appeals on 5 points presenting 4 principal contentions.

Contentions 1, 2 and 3 assert the trial court erred in decreeing an agricultural valuation for the Storeys’ land; in voiding the assessment based on market value; and in not rendering judgment for the District on the taxes sued for based on market value.

The Texas Constitution, Article 8, Section 1-d as relevant here provides:

“(a) All land owned by natural persons which is designated for agricultural use in accordance with the provisions of this Section shall be assessed for all tax purposes on the consideration of only those factors relative to such agricultural use. ‘Agricultural use’ means the raising of livestock or growing of crops * * * under natural conditions as a business venture for profit, which business is the primary occupation and source of income of the owner.
“(b) For each assessment year the owner wishes to qualify his land under provisions of this Section as designated for agricultural use he shall file with the local tax assessor a sworn statement in writing describing the use to which the land is devoted.
“(c) Upon receipt of the sworn statement in writing the local tax assessor shall determine whether or not such land qualifies for the designation as to agricultural use as defined herein and in the event it so qualifies he shall designate such land as being for agricultural use and assess the land accordingly.”

Thus, to qualify under the above the lands must be owned 1) by natural persons; 2) who use the lands in raising livestock or growing of crops; 3) as a business venture for profit; and 4) which business is the primary occupation and source of income of the owner. Klitgaard v. Gaines, (Tex.Civ.App. Austin) NRE, 479 S.W.2d 765. The foregoing must be attested to by a sworn statement in writing filed with the local tax assessor. Such statement should be filed between January 1, and April 30. See: Article 7189 VATS.

Storey and wife have owned the 197 acres since 1953, and have lived on such property since 1967. The property has been exclusively used for agricultural purposes since 1953. Since 1968 Mr. and Mrs. Storey have been employed nowhere other than operating the farm, which has been their primary occupation and source of income.

In 1971 Mr. Storey desired to qualify his land for taxation under the agricultural use exemption with the Grandview ISD. He filed the requisite Sworn Declaration of Land for Agricultural Use on April 30,1971 and provided all information requested by the Tax Assessor, except his income tax return, but did furnish all income information as contained in his income tax return. The financial information furnished was for the prior year, which is proper. The agricultural use assessment was rejected for 1971. There is evidence it was rejected to prevent a “threatened lawsuit” by other parties. In 1972, 1973 and 1974 Mr. Storey attempted to file the Sworn Declaration of Land for Agricultural Use with the District’s Tax Assessor between January 1 and April 30, but such filing was rejected. The financial information furnished was from the prior year, which was proper. He furnished all information requested by the Tax Assessor including his income tax returns except for 1973 and 1974 when he did not have to file Income Tax returns. For those years all requisite financial information was furnished. The agricultural use exemption for these years, 1972, 1973 and 1974, was rejected. There is evidence from which the trial court could believe and conclude that such rejection was because the prior years’ figures were used (instead of the current years’ financial figures which could in no way be available before April 30, but which the Tax Assessor believed was required); and because the taxing authorities believed that all of the Storeys’ Social Security, Pension and interest income should be counted in determining the exemption.

In 1975 Mr. Storey went to the school tax office prior to April 30 to file for his Agricultural Use Declaration. The Tax Assessor told him he could not use “last years income” or financial figures”, and that he had to use “1975 figures”; that he would have to wait until his 1975 figures were in and then file the Agricultural Use Declaration at the end of the year or right after the end of the year. He filed the declaration for 1975 on January 15,1976 as per the Tax Assessor’s instructions.

The 1975 agricultural use exemption was rejected because the school’s attorney told the Tax Assessor the land “didn’t qualify”. The attorney’s advice was in response to a letter to him from the Tax Assessor which stated “The land is not being used for agriculture”.

The Agricultural Use Declaration for 1976 was filed by Mr. Storey after the first of the year 1977 on instruction of the Tax Assessor. The 1976 Agricultural Use Declaration was denied by the School District because it was filed "too late” * * * “this should have been filed back in April”.

Mr. Storey filed the Agricultural Use Declaration for 1977 after the first of the year 1978 and it was rejected as “not timely filed”.

It is interesting to note that Mr. Storey argued with the Tax Assessor about the requirement that the current year’s financial figures must be used and that the Declaration could be filed after the first of the year, correctly advising the Tax Assessor that “last year’s figures” should be used and the Declaration filed by April 30.

Mr. Storey has tendered his taxes as computed by him (utilizing his Agricultural Use Declaration and an agreement he had with the Tax Assessor that the “formula” used by the County Tax Assessor could be used) on several occasions, but the Tax Assessor had refused the payment or returned his check with the statement that they do not “accept a partial payment”.

The record is conclusive that the School District’s failure to grant the Sto-reys the agricultural use exemption for the years 1971 through 1977 was unreasonable, arbitrary, illegal, and in violation of the requirements of the law.

The trial court correctly voided the assessments for the years 1971 through 1977. City of Waco v. Conlee Seed Co., Inc., Tex., 449 S.W.2d 29; Whelan v. State, 155 Tex. 14, 282 S.W.2d 378; Gragg v. Cayuga Ind. Sch. Dist., Tex., 539 S.W.2d 861; Klitgaard v. Gaines, (Tex.Civ.App. Austin) NRE, 479 S.W.2d 765; San Marcos Con. Ind. Sch. Dist. v. Nance, (Tex.Civ.App. Austin) NRE, 495 S.W.2d 335.

Contentions 1, 2 and 3 are overruled.

Contention 4 asserts the trial court erred in granting judgment for a dollar amount of taxes due by the Storeys to the School District for the reason the court was without jurisdiction to determine value or to equalize taxes.

Article 7346 VATS gives the taxing agency the right to re-assess the property in question when an assessment has been held invalid by a court in a suit to enforce the collection of taxes. See: Electra Ind. Sch. Dist. v. W. T. Waggoner Estate, 140 Tex. 483, 168 S.W.2d 645; San Marcos Con. Ind. Sch. Dist. v. Nance, supra.

We reform the judgment to provide that the Grandview ISD is mandatorily enjoined to re-assess the 197 acres of the Storeys for all tax purposes for the years 1971 through 1977 on the consideration of only those factors relative to such agricultural use of the lands as provided and required by Article 8, Section 1-d (a) of the Constitution of Texas. In all other respects the judgment is affirmed.

Costs of appeal are taxed against the Storeys. City of Waco v. Owens, Tex., 442 S.W.2d 324.

REFORMED AND AFFIRMED.


author: SUMMERS, Chief Justice.

text:
    Edmundo CONTRERAS et al., Appellants, v. Gabina CONTRERAS et al., Appellees.
    No. 1255.
    Court of Civil Appeals of Texas, Tyler.
    Nov. 1, 1979.

      Jesse Carrillo, Carrillo & Hickok, Austin, for appellants.
    0. T. Moore, Jr., Blundell & Moore, Lock-hart, for appellees.
   SUMMERS, Chief Justice.

This is an appeal from a take nothing judgment rendered on February 24, 1978, against the appellants, heirs of Matías Contreras by a first marriage, in a partition suit filed against the appellees, Gabina Contreras and her children, who are heirs of Matías Contreras by his second marriage.

Matías Contreras was first married to Elvia Contreras, and of this marriage four children, the appellants herein, were bom. This marriage ended in divorce. Subsequently in 1963, Matías Contreras married appellee Gabina Contreras, and two children were born of this union. Matías Contreras died intestate on October 8, 1970, in Caldwell County, Texas.

The controversy in this case involves three tracts of land, one tract being the residence of appellee Gabina Contreras and the deceased, the other two concerning a tavern and adjacent lot. On May 13, 1977, a final hearing on the merits of the case was held before the court without a jury which resulted in a judgment dated February 24, 1978. The trial court ruled that all three tracts of land be awarded to appellee Gabina Contreras individually and as next friend of the two minor children born of the marriage of Matias Contreras and Gabina Contreras, and that the appellants take nothing. It is from this judgment that appellants have appealed. We affirm in part and reverse and render in part.

Appellants’ appeal is predicated upon two points of error alleging the trial court erred in holding the appellants take nothing because (1) the third tract of land known as 1004 N. Blanco Street, Lockhart, Caldwell County, Texas, was the community property of the deceased Matias Contreras and appellee Gabina Contreras, and that appel-lee failed .to show such property had been paid for with her separate funds, and (2) the first and second tracts of land (tavern and adjacent lot), deeded to Gabina Contreras from Pedro Partida on September 25, 1967, was a void conveyance because the deed was intended as a loan of collateral to assist in obtaining a mortgage loan, was not intended as a transfer of ownership, and therefore was not an effective conveyance to pass title.

We shall address appellants’ point of error No. 1 first. Under it, appellant claims the house located on 1004 N. Blanco is community property and not the separate property of appellee Gabina Contreras. Article XVI, Section 15 of the Texas Constitution, defines the wife’s separate property as that owned or claimed by her before marriage and that acquired afterward by gift, devise or descent. Thus, all property acquired during marriage belongs to the community, excepting property acquired by gift, devise or descent. Herring v. Blakeley, 385 S.W.2d 843 (Tex. 1965); Hilley v. Hilley, 161 Tex. 569, 342 S.W.2d 565 (1961). The property acquired takes its status as separate or community at the very time of its acquisition. Smith v. Buss, 135 Tex. 566, 144 S.W.2d 529 (1940); Dorfman v. Dorfman, 457 S.W.2d 91, 95 (Tex.Civ.App.— Waco 1970, no writ).

Gabina Contreras testified that she and her husband, Matias Contreras, moved into the house in 1966 and paid $30.00 per month toward the purchase of the house and lot to the Lockhart Savings & Loan Association. It is undisputed that the couple was married at the time they moved into the house in 1966. Mrs. Contreras further testified that after her husband died in 1970, she went to the savings and loan association and paid off the rest of the note. A deed in the record dated January 14, 1971, from W. D. Sipes, et ux., to appellee, Gabina Contreras, purports to convey such property to Mrs. Contreras, reciting as part of the consideration her assumption and agreement to pay the unpaid balance on the note held by Lockhart Savings & Loan Association described in Deed of Trust dated May 6,1966, from W. D. Sipes to W. P. Clark, Trustee. Mrs. Contreras claims the lot as her separate property under such deed. We disagree.

The facts that determine the status of the property may be proven as any other fact by any competent evidence, including parol evidence, surrounding circumstances and declarations of the parties. Orr v. Pope, 400 S.W.2d 614, 618 (Tex.Civ.App.— Amarillo 1966, no writ); Edsall v. Edsall, 240 S.W.2d 424, 426 (Tex.Civ.App. — Eastland 1951, no writ). By appellee’s own testimony, it was established at trial that Ga-bina and Matias Contreras were married when they moved onto the lot in question, they were buying and not renting the premises by paying $30.00 per month, and such payments were community in nature, coming from the income of both Matias and Gabina Contreras.

It is well established in Texas law that where a community obligation for the purchase of land is given to purchase such land and its status thereby fixed as community property, its status is not later changed into separate property by the fact that the community debt is later paid with separate funds. Gleich v. Bongio, 128 Tex. 606, 99 S.W.2d 881, 883 (1937); Bradley v. Bradley, 540 S.W.2d 504, 512 (Tex.Civ.App. — Fort Worth 1976, no writ). Thus, the presumption is that at the dissolution of marriage, all property on hand is community property, and such presumption can only be overcome by clear and convincing proof offered by the party claiming the property as separate, Tarver v. Tarver, 394 S.W.2d 780, 783 (Tex. 1965); In Matter of Marriage of Tandy, 532 S.W.2d 714, 717 (Tex.Civ.App.—Amarillo 1976, no writ); Duncan v. Duncan, 374 S.W.2d 800, 802 (Tex.Civ.App.—Eastland 1964, no writ), by tracing and identifying the property so claimed. Meshwert v. Meshwert, 543 S.W.2d 877, 879 (Tex.Civ.App.—Beaumont 1976) affirmed 549 S.W.2d 383 (Tex. 1977); Bilek v. Tupa, 549 S.W.2d 217, 220 (Tex.Civ.App.—Corpus Christi 1977, writ ref’d n.r.e.). Any doubt as to the character of the property must be resolved in favor of the community. Vickerstaff v. Vickerstaff, 392 S.W.2d 559, 563 (Tex.Civ.App.—El Paso 1965, no writ); 1 Speer’s Marital Rights in Texas, sec. 393 (4th Ed. 1961).

Appellee testified that she did not know how much of the purchase price of the lot she paid after her husband died. We are of the opinion that appellee Gabina Contreras did not satisfactorily rebut the community property presumption; thus such presumption prevails, and the lot located at 1004 N. Blanco in Lockhart, Caldwell County, Texas, is the community property of the deceased, Matías Contreras, and his widow appellee, Gabina Contreras.

Appellants, by their second point of error, complain the trial court erred in upholding a deed from Pedro Partida, a friend of the Contreras family, to Gabina Contreras because the deed was intended as a loan of collateral, not as a transfer of ownership. We disagree with appellants' contentions.

Where, as here, there is a suit to establish the fact that property, purchased during coverture, was of a character other than that recited or that consideration came from a source other than that stated, parol evidence will be allowed, and such evidence will not be required to have the support of a pleading alleging fraud or mistake. Hodge v. Ellis, 268 S.W.2d 275, 285 (Tex. Civ.App.—Fort Worth 1954), affirmed in part and reversed in part 154 Tex. 341, 277 S.W.2d 900 (1955). Parol evidence is also allowed when one of the parties is contending that the intention of the parties was to the effect that the deed, absolute on its face should nevertheless be construed as a mortgage. Wilbanks v. Wilbanks, 160 Tex. 317, 330 S.W.2d 607, 608 (1960); Barrera v. Gonzalez, 341 S.W.2d 703, 704 (Tex.Civ.App.— San Antonio 1960, writ ref’d n.r.e.).

The record reflects the fact that inconsistent testimony was given by appellee Gabina Contreras. From what can be ascertained from the record, the testimony is as follows: Gabina Contreras was called to testify by the appellants as an adverse witness. She testified the two tracts in question at one time were owned jointly by Pedro and Leandro Partida. Neither of said brothers had any children. Leandro was married one time, but his wife died prior to his death which occurred in 1967. Since Pedro did not have the money to bury his brother, he deeded the property to Gabi-na Contreras so she could use the deed as collateral to pay the funeral expenses for Leandro, which amounted to approximately $500.00. Mrs. Contreras further testified that the only reason she got the land was to use it as collateral to get the loan, and it was by Pedro’s request that Mrs. Contreras’ name be on the deed: Although Mrs. Contreras and Pedro never had any discussions about her buying the land or him selling the property, such discussions were had between Pedro and Matías Contreras, the deceased husband of Gabina.

On direct examination, Mrs. Contreras testified that when Leandro died he left his share in the property to Pedro. When asked why Pedro would deed the property to her, Mrs. Contreras answered that both brothers, at one time or another, had lived with the Contreras family, sharing their home and were taken care of while living there. Mrs. Contreras further stated that Pedro knew that Leandro’s burial was paid for, and that when he died, Mrs. Contreras would pay his burial expenses and any costs of last illness or any other debts he might have. In addition, O. T. Moore, Jr., counsel for Gabina Contreras, was allowed to testify as to the circumstances at the time the deed was drawn as he was the attorney who prepared the deed at Pedro Partida’s request. Mr. Moore testified that Pedro came into his office and asked him to draw up a deed of the two tracts of land to Mrs. Contreras as her separate property and estate. Mr. Moore further testified such was done, and that he had represented the Par-tida brothers for years. Pedro subsequently died in 1970.

It is our opinion that such testimony, along with the deed that has been admitted into evidence, supports the conclusion that the document in.question was in fact a valid deed, did transfer ownership, and was an effective conveyance to pass title.

Having concluded the instrument was in fact a deed, we note that the first rule of construction of a deed is that the intention of the parties be ascertained and given effect. This primary rule of construction must be modified with the restriction that it is not the intention which the parties may have had but failed to express in the instrument, but it is the intention which by said instrument they did express. Canter v. Lindsey, 575 S.W.2d 331, 334 (Tex.Civ.App. — El Paso 1978, writ ref’d n.r.e.); Davis v. Andrews, 361 S.W.2d 419, 423 (Tex.Civ.App. — Dallas 1962, writ ref’d n.r. e.). The evidence outlined above demonstrates the intentions of the parties, and such intentions were transcribed in unambiguous terms into the deed, and as such must be followed. We sustain appellee’s contention that the tracts of land described in the deed from Pedro Partida to Gabina Contreras were her separate property, and appellants’ second point of error is overruled.

As( far as Matías Contreras’ interest in the tracts of land conveyed in the deed is concerned, we feel that he, acting as the independent executor for Leandro Contreras, signing the deed that conveyed the tracts in question to his wife as her separate property and estate, had knowledge of such deed. Although it cannot be said Mr. Contreras was a true party to the transaction, such knowledge prevents the presumption in favor of the separate estate of the wife to be overcome, where the deed of acquisition recites either that the land was conveyed to her as her separate property, or that the consideration is from her separate estate. Hodge v. Ellis, supra at 904. As stated in 1 Speer’s Marital Rights in Texas, sec. 153 (4th Ed. 1961): “The act of the spouses in taking a conveyance of property in the name of the wife, limiting the title to her separate use, unmistakably evidences an intention that the same shall belong to her separate estate.” See also Messer v. Johnson, 422 S.W.2d 908, 912 (Tex. 1968).

If it could be shown that the other spouse, here Matías Contreras, or the community expended funds in repayment of the separate debt, those estates might be entitled to reimbursement for such funds expended, but appellant does not urge this in any point of error concerning these two tracts. Points of error constitute an indispensable part of a brief on appeal and an alleged error not contained in any point of error should not be considered. City of Sulphur Springs v. Steed, 562 S.W.2d 906, 909 (Tex.Civ.App. — Tyler 1978, no writ); Roper v. Jeoffroy Mfg., Inc., 535 S.W.2d 706, 708 (Tex.Civ.App. — Amarillo 1976, writ ref’d n.r.e.); Wagley v. Fambrough, 163 S.W.2d 1072, 1073-74 (Tex.Civ.App. — East-land 1942), affirmed 140 Tex. 577, 169 S.W.2d 478 (1943); Rule 418, Tex.R.Civ.P.

Furthermore, the deed from Pedro Parti-da to Gabina Contreras, even if declared void as contended by appellants, would not give rise to any property right in favor of the children of Matías Contreras, since there was no evidence in the record showing any ownership to said property in Matías Contreras by inheritance or otherwise from the Partida brothers.

In summary, we reverse that part of the judgment awarding appellee the tract of land located at 1004 N. Blanco Street, Lock-hart, Caldwell County, Texas, as her separate property and hold it was the community property of Matías and Gabina Contreras, and as such, each of the six (6) children surviving Matías Contreras has a ¼2 undivided interest in said tract, subject to Gabi-na Contreras’ homestead rights in the property. With regard to that part of the judgment concerning the other two tracts of land contained in the deed from Pedro Par-tida to Gabina Contreras, we affirm the judgment of the trial court.

Affirmed in part and reversed and rendered in part.


author: SPURLOCK, Justice.

text:
    John MILES, Jr., Appellant, v. Robert K. STARKS d/b/a Western Cattle Company and d/b/a Saginaw Cattle Company and Hartford Accident & Indemnity Company, Appellee.
    No. 18145.
    Court of Civil Appeals of Texas, Fort Worth.
    Nov. 8, 1979.
    Rehearing Denied Dec. 6, 1979.

      Hooper & Chappell and Douglas R. Hud-man, Fort Worth, for appellant.
    McMahon, Smart, Wilson, Surovik & Sut-tle and Michael S. Baskerville, Abilene, for appellee Robert K. Starks.
    Garrett, Settle & Callaway and Rufus S. Garrett, Jr., Fort Worth, for appellee Hartford Acc. & Indem. Co.
   OPINION

SPURLOCK, Justice.

This is an appeal from a portion of a judgment that the seller of cattle take nothing against the surety of the buyer on a livestock dealer’s bond. The primary question on appeal is whether the transaction in question constituted a purchase within the terms of the bond and federal law authorizing and requiring the bond.

We reverse and render.

John Miles, Jr., raises cattle on a ranch near Cresson, Texas. Robert Starks is a bonded livestock dealer who is an Illinois domiciliary. Hartford Accident & Indemnity Company is the surety on his livestock-dealer bond issued pursuant to the Packers & Stockyards Act, 7 U.S.C.A. § 204 (Supp. 1979). On April 20, 1976 Starks visited Miles at his ranch and entered into a written contract on a form supplied by Starks. The contract provided in pertinent part as follows:

“THIS CONTRACT of agreement made and entered into this the 20th day of April, 1976, by and between Miles Cattle Co. of Cresson, Texas, hereinafter called Seller, and Western Cattle Co. of Mendo-ta, Ill., hereinafter called Buyer.
“The Seller hereby sells and agrees to deliver to Buyer, or his order, the following described livestock: . . . (cattle described).
“Seller acknowledges receipt of $14,-300.00 at (sic) part payment by the Buyer — balance to be paid at time of delivery in current funds.
“Seller agrees to furnish State and Federal inspection that will pass all regulations, and delivery is to be made F.O.B. cars or trucks in good condition at Ranch.”

The agreement provided for delivery of the cattle in three lots during three designated delivery periods. The price agreed upon was $45.00 per hundred weight with cattle to be driven dry and weighed upon shipment. After the date of the contract but before the first delivery period the market price of cattle dropped below the contract price. By agreement of the parties the first delivery of cattle was postponed. The market, however, did not improve and before any shipment was made Starks informed Miles that he could not pay for the cattle and would not accept delivery.

Miles and Starks worked together to sell the cattle to other buyers. Each party approved the sales, which were all for a price lower than the contract price. Miles credited Starks with the proceeds from the sales and the $14,300.00 Starks had already paid leaving a deficiency of $25,580.23. On September 21, 1976 Miles made a claim on Starks’s livestock dealer’s bond which was denied. Miles then filed suit against Starks and Hartford for the deficiency.

After a trial to the court, judgment was rendered against Starks for the deficiency. The court also rendered judgment that Miles take nothing against Hartford. The portion of the judgment against Starks has not been appealed.

Miles .prosecutes this appeal on the take nothing portion of the judgment by five points of error. Miles’s basic contention in all points is that the trial court erred in concluding that the transaction in question did not constitute a purchase within the terms of the bond. The bond provides in pertinent part as follows:

“(2) If the said Principal (Starks) shall pay when due to the person or persons entitled thereto the purchase price of all livestock purchased by said Principal for his own account or for the accounts of others, .
“[T]hen this bond shall be null and void, otherwise to remain in full force and virtue, subject to the following terms, conditions, and limitations:
“(c) Any person damaged by failure of the Principal to comply with any condition clause of this bond, may maintain suit in his own name to recover on this bond . . . .” (Emphasis ours.)

The form and language of the bond are as prescribed by the federal regulations under the Packers and Stockyards Act found at 9 C.F.R. § 201.27 (1978).

In its findings of fact and conclusions of law the trial court found that the contract in this case was one for a future purchase, rather than of a contract of purchase. Thus, the court found that there was no purchase as the term is used in the bond and applicable federal and Texas law. The court also found that Miles retained title to the cattle at all material times and that Hartford is not liable on the bond. Further, Hartford is not liable because the bond only applies where one has parted with’ his cattle and the purchaser fails to pay the price agreed upon for them. Miles’s points of error and arguments dispute each of the pertinent findings and conclusions.

Neither the act nor the regulations thereunder define “purchase”. However, we decide that if the contract and transaction in question resulted in a sale it follows a fortiori that there was a purchase within the ambit of the bond and controlling law. After a thorough examination of the contract and record in this case, we conclude there was a sale of the cattle and a corresponding purchase.

Note that the contract states that the seller hereby sells and agrees to deliver. This mánifests the present intent to sell. In the context here, sell is the transfer of title to and property rights in the cattle for a price. Hartford correctly states that Tex. Bus. & Comm.Code Ann. § 2.401(b) (1968) dealing with the sale of goods provides title passes to goods at the time and place at which the seller completes his performance with reference to physical delivery of the goods. Where, as here, the delivery agreement did not require the seller to deliver the goods at destination, title passes to the buyer at the time and place of shipment. We note the contract provided for shipment F.O.B. seller’s ranch.

Hartford would have us apply this section of the U.C.C. and hold that there was no purchase or sale of the cattle because they weren’t shipped. However, § 2.401(b), which requires physical delivery, applies only where the parties have not otherwise explicitly agreed when title to goods shall pass. While it is true that the term title was not mentioned in the contract, we conclude that the provision that the “seller hereby sells” is sufficient to evidence a present sale and passage of title. Only the transfer of physical possession and payment of the balance of the purchase price were executory.

Hartford contends that the fact that the contract allowed Starks to reject crippled, lump-jawed, bad-eyed, or otherwise unmerchantable cattle and to cull 10 head or less for quality resulted in the goods being unidentified. Hartford correctly states that under the U.C.C., unidentified goods are future goods which cannot be the subject of a present sale until identification pursuant to Tex.Bus. & Comm.Code Ann. § 2.501 (1968) takes place. Hartford further notes that such identification would have taken place at shipment. The cattle would have been weighed then, thus determining the exact purchase price for. the first time.

We conclude that the cattle in question were sufficiently identified at the time the contract was signed. The evidence established that the cattle described in the contract constituted Miles’s whole herd. Tex. Bus. & Comm.Code Ann. § 2.501(a) (1968) provides that identification can be made even though .the goods so identified are non-conforming and the buyer has an option to return or reject the non-conforming goods. If this were not the law it might be impossible for a sale to take place until the goods were inspected and all rejections and returns were made. We cannot accept this as the intent of this section of the U.C.C. Thus we conclude that under the facts of this case and the provisions of the contract with which we are involved, the determination of exactly which head of cattle, exactly what weight, and shipment thereof F.O.B. seller’s ranch are immaterial to whether there was a sale.

Because we have held that there was a sale of the cattle at the time of the contract, we conclude that there was a purchase under the terms of the bond. We note, however, the possibility that the contract and transaction could also constitute a purchase as defined by Tex.Bus. & Comm. Code Ann. § 1.201(32) (1968). That section defines purchase as follows:

“(32) ‘Purchase’ includes taking by sale, discount, negotiation, mortgage, pledge, lien, issue or reissue, gift or any other voluntary transaction creating an interest in property.”

Tex.Bus. & Comm.Code Ann. § 2.106 (1968) defines sale as the passing of title from the seller to the buyer for a price. We note that purchase as defined by Tex. Bus. & Comm.Code Ann. § 1.201(32) (1968) speaks of a voluntary transaction creating an interest in property without any reference to title.

As discussed above, Tex.Bus. & Comm.Code Ann. § 2.501(a) (1968) provides that the buyer obtains a special property interest and an insurable interest in goods by identification of existing goods to which the contract refers even though the goods so identified are non-conforming and the buyer has an option to return or reject them. Since the cattle described in the contract consisted of Miles’ entire herd, identification took place at the time the contract was signed. Thus Starks acquired a special property interest and an insurable interest in the cattle even if we should hold that title had not also passed. We assume without deciding that this interest would be within the definition of “purchase”.

Our decision that there has been a purchase within the terms of the bond and applicable law is guided by the rule .that a liberal construction of the bond and controlling law is to be given to effect the purposes for both the bond and the Packers and Stockyards Act. The Act is remedial legislation and states that it is to be liberally construed in accord with its purpose to prevent economic harm to the producers and consumers of livestock. The purpose of the bond requirement is to safeguard the producers of livestock against losses suffered if they sell their livestock to insolvent or defaulting purchasers. The Act intended to stabilize and encourage the production of beef and other livestock by building confidence in the financial stability of the dealers. Travelers Indem. Co. v. Manley Cattle Co., 553 F.2d 943 (5th Cir. 1977).

By a counterpoint of error Hartford contends that the trial court was correct in rendering its take nothing judgment because Miles’ claim on the bond was not timely filed. The bond provided that all claims must be filed within 120 days of the date of the transaction upon which the claim is made. Hartford would have us construe transaction as used in the condition of limitation in the bond to mean the date of the contract. It notes that throughout this litigation Miles has contended that there was a purchase as of the date of the contract, April 20,1976. Hartford states in its brief that Miles filed his claim on September 21, 1976.

We decline to construe the date of the transaction in this case as the date of the contract. Neither the Packers and Stockyards Act nor the regulations thereunder define the term. However, we are convinced that the use of transaction is broader in scope than merely the date of the contract. Generally a transaction consists of an act, agreement, or several acts or agreements between or among parties whereby a cause of action or alteration of legal rights occur. Here we hold that the transaction includes the dates within which delivery and payment were supposed to have occurred but for Stark’s breach of the contract of sale.

Under the circumstances presented it is readily foreseeable that if the date of the transaction was held to be the date of the contract it is possible that no actionable breach could occur within 120 days and thus the time for filing a claim on the bond would expire before any claim arose. A construction making possible such a result does not conform with the purpose of the bond. We hold that the date of the transaction under the bond in this case includes the delivery periods within which the breach occurred and that the claim was timely filed. We overrule Hartford’s counterpoint.

We reverse the portion of the judgment providing that Miles take nothing against Hartford. We render judgment that Miles recover against Hartford on the bond the amount of the deficiency, $25,580.23, plus interest at 6% per annum from November 30, 1976, the date Hartford denied the claim, to October 3, 1978, the date of the trial court’s judgment. Judgment is also rendered that Miles recover interest on $25,580.23 at 9% per annum from October 3, 1978, until the judgment is paid.


author: SHANNON, Justice.

text:
    BELL STATIONS, INCORPORATED, Appellant, v. The STATE of Texas, Appellee.
    No. 12981.
    Court of Civil Appeals of Texas, Austin.
    Nov. 14, 1979.
    Rehearing Denied Dec. 12, 1979.

      Tom H. Whiteside, Griffis & Griffis, San Angelo, for appellant.
    Mark White, Atty. Gen., Jim Mathews, Asst. Atty. Gen., Austin, for appellee.
   SHANNON, Justice.

This appeal is from the order of the district court of Tom Green County striking the plea of privilege of appellant Bell Stations, Incorporated. The basis for the order was the court’s conclusion that Tex. Water Code Ann. § 26.125(a) (Supp. 1978-79) is jurisdictional in nature and requires the complaining party to file suit in the county in which the violation of the Code occurred or in the county of the defendant’s residence.

Appellee State of Texas filed suit in district court in Tom Green County alleging that appellant permitted gasoline to seep from its underground storage tanks into the waters of the Leona Aquifer, all in violation of the Texas Water Code. By its suit, appellee sought injunctive relief and recovery of statutory penalties.

Appellee’s authority for filing suit in Tom Green County is found in § 26.125(a) of the Code:

“A suit for injunctive relief or recovery of a civil penalty or for both injunctive relief and penalty may be brought either in the county in which the defendant resides or in the county in which the violation or threat of violation occurs.”

Appellant filed its plea of privilege to be sued in Wichita County, the county of its residence. In its controverting affidavit, appellee relied upon Tex.Rev.Civ.Stat.Ann. art. 1995, § 30 (1964). Section 30 provides:

“Whenever in any law authorizing or regulating any particular character of action, the venue is expressly prescribed, the suit shall be commenced in the county to which jurisdiction may be so expressly given.”

Appellee filed a motion to strike appellant’s plea of privilege claiming inasmuch as § 26.125 is jurisdictional in nature, a plea of privilege does not lie. The district court sustained the motion and recited in its order:

“1. That the venue provision pertinent to this action is found at Texas Water Code § 26.125(a) (Supp.1978), establishing venue either in the county of violation of the Texas Water Code or in the county of Defendant’s residence;
2. That this venue provision is jurisdictional in nature, being that venue provided by the legislature in a cause of action which is the sole creature and creation of statute;
3. That Plaintiff State has a recognized legal right to select one of the two forums provided in this statutory venue provision and that the State has elected to sue in the county of violation (being Tom Green County, Texas); and
4. That accordingly, a plea of privilege will not lie against Plaintiff’s choice of Tom Green County as the forum for litigation.”

Appellant argues in opposition to the district court’s conclusions that § 26.125(a) is a special venue statute contemplated by art. 1995, § 30. Accordingly, appellant maintains that because appellee did not offer proof of a cause of action existing in Tom Green County, the district court should have transferred the case to Wichita County.

Appellant states, correctly, that the only opinion that has been decided pursuant to § 26.125(a) is City of Friendswood v. Clear Creek Basin Authority, 545 S.W.2d 201 (Tex.Civ.App. Houston [1st Dist.] 1976, writ ref’d n. r. e.). Friendswood is authority for appellant’s thesis that § 26.125(a) of the Water Code is brought within the scope of § 30 of art. 1995, and that pleading and proof of a violation in the county of suit is required to sustain venue as against a plea of privilege.

This Court, however, holds that § 26.125 is jurisdictional in nature. The reasons for our holding are set forth below. Appellant filed suit pursuant to § 26.121 of the Code. Section 26.121 prohibits, in general, the unauthorized discharge of wastes into the waters of this state. Section 26.123 empowers the agency to invoke the injunctive powers of the court to prohibit the pollution of such waters. By specifically providing relief by injunction, the legislature recognized the necessity for dispatch in such cases to prevent further pollution. Delay attendant to the ordinary plea of privilege practice could well jeopardize, in a particular instance, the purity of the waters that the legislature by the enactment of the Code has endeavored to protect. Reason suggests therefore that the legislature was of the view that the usual plea of privilege practice would be inappropriate in such cases and that the legislature probably intended by the passage of § 26.125 to confer jurisdiction to hear such cases upon the courts in the county of the defendant’s residence or in the county in which the violation occurred or threatened to occur.

The opinion in Friendswood contains no analysis or discussion of the problem. The Houston Court of Civil Appeals assumed that § 30 of art. 1995 is applicable and that proof of a violation of the Code is necessary. There is no indication in the opinion that the parties joined issue concerning § 26.125(a) in presentation of the cause to the court.

With due respect, this Court declines to follow the implied holding of the court in Friendswood, and accordingly, we affirm the judgment of the district court. In view of our holding, this Court need not address appellant’s other points of error.