author: DODSON, Justice.

text:
    LUBBOCK POSTER COMPANY, Appellant-Appellee, v. The CITY OF LUBBOCK, Texas, et al., Appellants-Appellees.
    No. 8875.
    Court of Civil Appeals of Texas, Amarillo.
    July 24, 1978.
    Appellant Lubbock Poster Co.’s Motion and Amended Motion for Rehearing Denied Aug. 21, 1978.

      Phillip Tocker, Brownsville, Key, Carr, Evans & Fouts, Donald M. Hunt, Lubbock, for appellant-appellee.
    Fred 0. Senter, Jr., City Atty., James P. Brewster, Lubbock, for appellants-appel-lees.
   DODSON, Justice.

Lubbock Poster Company, a co-partnership composed of Iva Edington and Homer L. Hensley, brought this action against the City of Lubbock, its director of the planning division, and its administrator of environmental control, challenging the constitutional validity of certain provisions of the City’s comprehensive zoning ordinance. The ordinance regulates, inter alia, the location, proximity, size, separation and height of off-premise billboards. The ordinance requires all existing billboards to either conform to the regulations or be removed at the end of a six and one-half year amortization period. Lubbock Poster Company also sought an injunction against the City and its officials to prohibit enforcement of these contested provisions of the ordinance. John L. Hill, the Attorney General of the State of Texas, is joined in the action under Section 11 of Article 2524-1 of the Revised Civil Statutes of Texas to represent the interest of the State against alleged violations of the Federal Highway Beautification Act. The non-jury trial resulted in the court declaring void only the nonconform-mg use and amortization provisions, enjoining the enforcement of these provisions and denying all other requested relief. From this judgment both parties appeal. Affirmed in part; reversed and rendered in part.

The City enacted the zoning ordinance to “promote and protect the health, safety, comfort, convenience, prosperity and general welfare of the citizens of Lubbock by assuring quality development, to allow for proper economic growth which conforms to a comprehensive plan of the city.” Under the ordinance the City is divided into nineteen “zones or districts, restricting and regulating therein the location, erection, construction, reconstruction, alteration and use of buildings, structures and land for trade, industry, residence and other specified uses” and further “providing for the gradual elimination of nonconforming uses of land, buildings and structures.”

The ordinance also provides that all signs or billboards which did not conform to the requirements of the ordinance on July 19, 1975 (the effective date of the ordinance), are nonconforming uses and “shall be brought into compliance or removed by January 1,1982.” Although other nonconforming uses of land may be continued within certain limitations and restrictions, signs and billboards are specifically excluded from the continuing use provisions of the ordinance.

Lubbock Poster Company asserts that the trial court erred in not declaring the entire billboard section of the ordinance void. The company contends the ordinance takes its property without compensation in violation of both the federal and state constitutions, and also asserts that the ordinance is an unreasonable exercise of municipal police powers. The City of Lubbock challenges the trial court’s failure to uphold the amortization and nonconforming use provision and asserts the constitutionality of these provisions as a valid exercise of municipal police powers.

The validity of the ordinance is a question of law for the court and there are basic principles which we must consider in determining the issues presented by the parties. It has been long recognized that governing bodies of the cities have constitutional authority to promote the health, safety and general welfare by implementing comprehensive zoning ordinances. Village of Euclid v. Ambler Realty Company, 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926). Billboards and outdoor advertising are a proper subject for regulation under the state police power. Suffolk Outdoor Advertising Co. v. Hulse, 43 N.Y.2d 483, 402 N.Y.S.2d 368, 373 N.E.2d 263 (1977); National Advertising Company v. County of Monterey, 1 Cal.3d 875, 83 Cal.Rptr. 577, 464 P.2d 33 (1970), cert, denied, 398 U.S. 946, 90 S.Ct. 1869, 26 L.Ed.2d 286.

■[1] In City of University Park v. Ben-ners, 485 S.W.2d 773 (Tex.1972), the Texas Supreme Court joined the prevailing view of outside jurisdictions by recognizing the “amortization” technique as a valid exercise of municipal police power to terminate nonconforming property uses. The Benners Court said “that such an enactment is subject to the same test of validity as other legislative acts, i. e., whether it is reasonable and bears a fair relationship to the object sought to be obtained.” If the ordinance passes constitutional muster as reasonable and bears a fair relationship to the object sought to be obtained, it does not constitute a “taking” of property in the eminent domain sense. Instead, it is a valid exercise of municipal police power. 485 S.W.2d at 777-78.

Lubbock Poster Company maintains that the sections of the ordinance regulating the location, proximity, size, separation, setback and height of billboards bear no substantial relationship to the health, safety, morals and general welfare of the community and constitute an unreasonable exercise of municipal authority. More specifically, they say the mere existence of billboards neither promotes nor destroys morals; that there is no evidence that billboards cause traffic accidents; and that there is no evidence that billboards adversely affect the value of adjacent property.

The City counters that the ordinance is entitled to the presumption of validity which is applicable to other municipal legislation. The City further contends that Lubbock Poster, attacking the ordinance, has the burden of showing that no conclusive, debatable or issuable facts or conditions exist which would authorize the City to exercise the discretion confided in it by enacting these sections of the ordinance.

Because the ordinance is an exercise of the legislative power of the governing body of the City of Lubbock, the ordinance must be presumed to be valid, and the court cannot interfere unless it appears that these sections of the ordinance represent a clear abuse of municipal discretion. City of Waxahachie v. Watkins, 154 Tex. 206, 275 S.W.2d 477, 480 (1955); City of University Park v. Benners, supra at 779. Lubbock Poster has the “ ‘extraordinary burden’ ... ‘to show that no conclusive, or even controversial or issuable, facts or conditions existed which would authorize the governing board of the municipality to exercise the discretion confided to it’ ” by enacting these sections. City of Waxaha-chie v. Watkins, supra at 480-81; see also City of University Park v. Benners, supra at 779.

“If reasonable minds may differ as to whether or not a particular zoning restriction has a substantial relationship to the public health, safety, morals or general welfare, no clear abuse of discretion is shown and the restriction must stand as a valid exercise of the city’s police power.” City of Waxahachie v. Watkins, supra at 481. As stated by the court in Watkins, “if the issue of validity is fairly debatable courts will not interfere.” Id. at 481. The United States Supreme Court employed the same standard in Village of Euclid v. Ambler Realty Company, supra, stating, “If the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment must be allowed to control.” 272 U.S. at 388, 47 S.Ct. at 118. See also Zahn v. Board of Public Works, 274 U.S. 325, 328, 71 L.Ed. 1074, 47 S.Ct. 594 (1927); accord, Moore v. City of East Cleveland, 431 U.S. 494, 514 n.l, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977) (concurring opinions stating that the standard remains viable).

After hearing disputed evidence the trial court found that the location, proximity, size, separation, setback and height provisions of the ordinance had a reasonable relationship to the public health, safety or general welfare. We are persuaded that each of these provisions presents “fairly debatable” issues concerning the relationship they bear to the public health, safety or the general welfare of the community.

The challenged provisions are reasonably calculated to aid in accomplishing the intended purposes of the ordinance.

We conclude that Lubbock Poster Company failed to meet the extraordinary burden of showing that no controversial or issuable facts or conditions existed which would have authorized the City of Lubbock’s governing body to exercise the discretion confided in it. In the absence of such a showing, these challenged provisions of the ordinance must stand as a valid exercise of the City’s police power.

The City asserts the constitutional validity of the nonconforming use and amortization provisions of the ordinance. Lubbock Poster Company contends these provisions constitute a taking of its property without compensation and that the net effect of the ordinance is the total destruction of its business. It also maintains the provisions violate the due process and equal protection clauses of the federal constitution.

Lubbock Poster Company owns 285 billboards located on 162 sites in the City of Lubbock. The trial court found that on the effective date of the ordinance, Lubbock Poster’s billboards had an average remaining useful, income-producing life in excess of 25 years, subject to normal attrition from the loss of ground site leases.

Lubbock Poster states that only two of the existing billboards conform to the location, proximity, size, separation, setback and height requirements of the ordinance. It also claims that only 36 of the remaining billboards can be altered to conform to the requirements of the ordinance. The company states that on July 19,1975, the reasonable market value of all billboards owned by Lubbock Poster Company in the City of Lubbock which do not conform and cannot be made to conform to the provisions of the ordinance was $710,000. It alleges that the reasonable cost of altering those billboards which can be made to conform to the provisions of the ordinance is $70,000 and that the reasonable cost of demolishing or removing the billboards which do not conform and cannot be made to conform is $132,000. It says there are only seven to fifteen new billboard locations available under the ordinance. The City challenges these assertions and the trial court’s findings in this regard.

Lubbock Poster Company contends that the trial court properly balanced the public’s benefit under the ordinance against Lubbock Poster Company’s loss and correctly held the nonconforming provisions of the ordinance to be constitutionally void. In support of its position, Lubbock Poster Company relies on City of Corpus Christi v. Alien, 152 Tex. 137, 254 S.W.2d 759 (1953) and other cases antedating Benners.

In Allen, the City of Corpus Christi attempted to abate an automobile wrecking yard as a nonconforming land use under a three year amortization period. The Supreme Court held the ordinance unconstitutional as applied to the particular facts in the case and emphasized that the nonconforming use was not a nuisance per se and did not appear harmful in any respect to public health, safety, morals or welfare. The Court further held that the exercise of municipal power was unreasonable because of the small benefit to the City. However, the Court specifically stated in Allen:

Our conclusion is not to be construed as a holding that the ordinance in question may not, under other circumstances, be invoked to terminate a non-conforming use, not a nuisance nor injurious to the public health, morals, safety or welfare.

254 S.W.2d at 761. In Benners (decided 19 years later) the Supreme Court specifically reiterated “that the conclusion there reached [in Allen ] was not to be construed as a holding that the ordinance could not be constitutionally invoked to terminate a nonconforming use under other circumstances.”

The Benners Court also emphasized that:

We are in accord with the principle that municipal zoning ordinances requiring the termination of nonconforming uses under reasonable conditions are within the scope of municipal police power; and that property owners do not acquire a constitutionally protected vested right in property uses once commenced or in zoning classifications once made. Otherwise, a lawful exercise of the police power by the governing body of the City would be precluded. (citations omitted)

City of University Park v. Benners, supra at 778.

The balancing of public benefit against private loss test advocated by Lubbock Poster results in unequal treatment to property owners and users similarly affected by the operation of an abatement ordinance. The public benefit, private loss and abating period factors are not conducive to definitive and quantitative balancing by the courts. The actual result under the test is that a property use with a small value and a so-called nominal loss is abated, if not accomplished too quickly, and the use with a large value or so-called substantial loss is virtually immune from abatement. In effect, a substantial loss is usually only equated with a large value. We are persuaded that Ben-ners and other authorities dictate a different approach in resolving the question concerning the reasonableness of the abating period.

The underlying principle of amortization is stated in City of University Park v. Ben-ners, as follows:

The usual approach rests on the principle that there is not a legally significant difference between existing and prospective uses in land; and that the required termination of a pre-existing land use, with allowance for recoupment, is no different in kind from restrictions upon future land use alternatives. So it is concluded that termination does not constitute a “taking” in the eminent domain sense but an exercise of the police power in the public interest .

485 S.W.2d at 777-78. Also, the Supreme Court viewed “recoupment of investment” as the major consideration in determining reasonableness by stating:

[TJhere is no difference in kind between terminating a land use which pre-dates a zoning change, with allowance for re-coupment, and restricting future land uses not presently utilized. The former requires no more than that the property owner be placed in the equivalent position of the latter, i. e., that he be afforded an opportunity to recover his investment in the structures theretofore placed on the property.

Id. at 779. Under Benners, the property owners are placed in an equivalent position by affording them a reasonable opportunity to recoup their investment only in any structures theretofore placed on the property-

We are persuaded by Benners and other authorities that the pertinent factors in determining the reasonableness of the opportunity afforded Lubbock Poster Company to recoup or recover its “investment in the structures theretofore placed on the property” are the amount of its initial capital investment in the structures, investment realization at the effective date of the ordinance, life expectancy of the investment, and the existence or nonexistence of lease obligations, as well as any contingency clauses therein permitting termination of such leases. Modjeska Sign Studios, Inc. v. Berle, 43 N.Y.2d 468, 402 N.Y.S.2d 359, 373 N.E.2d 255 (1977); National Advertising Co. v. County of Monterey, supra; and Grant v. Mayor and City Council of Baltimore, supra, (dealing directly with abatement of nonconforming billboard uses by amortization). In addition, we believe that removal cost should be considered by determining if the amortization period reasonably affords Lubbock Poster Company an opportunity to recoup or recover any removal cost which is directly attributable to the regulatory effects of the ordinance. However, we conclude that Benners necessarily precludes recoupment or recovery of the market value or any conformity cost of the structures as essential considerations in determining the question of reasonableness by requiring only that the owner be afforded a reasonable opportunity to recoup or recover his investment in the structures.

The evidence showing the amount of initial capital investment in the structures, the amount of such investment realized to the effective date of the ordinance and the amount remaining, if any, to be recouped during the amortization period, are matters necessarily within the knowledge of Lubbock Poster Company. Lubbock Poster does not point us to such evidence nor contend that the amortization period is too short to recoup its capital investment in the structures. However, in this connection, the trial court found from the evidence:

1. that the depreciation period customarily followed by Lubbock Poster Company for billboards for tax purposes ranged from 5 to 10 years;

2. that of 456 of the billboards listed on the depreciation schedules submitted with Lubbock Poster Company’s 1975 United States Income Tax Return, all but 51 had been fully depreciated before the date of such return;

3. that of the 51 billboards for which the cost or basis had not been fully depreciated, 37 were acquired as of an effective report date of July 1, 1970, were being depreciated at a straight line of 20 percent rate (5 years) and were fully depreciated with the 1975 return;

4.and that the remaining 14 were acquired as of an effective report date of July 1, 1975, were being depreciated at a straight line 14 percent (7.14 years) and should be fully depreciated by January 1, 1982.

In Grant v. Mayor and City Council of Baltimore, supra, the party challenging the constitutional validity of an ordinance, which abated nonconforming billboard uses at the end of a five year amortization period, had claimed a five year useful life when depreciating its billboards for federal income tax purposes. The court concluded:

A corporation that has regularly, year by year, acted in its financial affairs, under the oath of its authorized officers (and penalty of perjury), on the premise that the full useful life of its billboards is five years is handicapped seriously in arguing persuasively that legislative reliance on that same premise has done it a constitutional wrong — has taken from it substantial property without compensation — by banning the further use of those billboards.

129 A.2d at 372. To the same effect is National Advertising Co. v. County of Mon-terey, supra. We agree with the Maryland court and the California court. Lubbock Poster has or will have fully depreciated its billboards by the end of the amortization period afforded by the ordinance.

It is undisputed that the ordinance does not preclude Lubbock Poster from continuing to operate its billboards, in place, and derive revenue therefrom during the amortization period, since immediate conformity or removal is not required under the ordinance. In fact, during the amortization period, Lubbock Poster can operate its billboards in its existing non-competitive posture.

The evidence shows that Lubbock Poster normally must relocate approximately 20 percent of its billboards each year for various reasons other than the regulatory effects of the ordinance. The practical effect of the annual attrition rate would be to cause Lubbock Poster to relocate, at its own expense, and for its own reasons, a majority, if not all of its billboards, during the amortization period. In fact, Lubbock’s mayor was aware of the 20 percent attrition rate and testified that he thought the six and one-half year amortization period would provide Lubbock Poster with ample time to relocate its billboards.

The evidence presented by Lubbock Poster shows there are 595 possible billboard site locations under the ordinance in zones C-4, M-l and M-2. The evidence further shows that of this number there are 267 site locations on which conforming billboards could be placed within the City. However, Lubbock Poster says it probably could not lease 31 of the sites, that 63 would not give 350 feet of viewer visibility, that 85 do not presently have enough viewer traffic, and that 11 are located away from the main traveled right of way. It further says that of the remaining 328 of the 595 possible permitted locations under the ordinance, there is no place to build billboards on 210 site locations and 118 sites are excluded for various reasons. However, under the City’s rezoning process other properties are included from time to time in the C-4 zone which enhances the availability of new locations of billboards. In essence, the evidence shows that off-premise billboards are not precluded or excluded from the City of Lubbock, even though the number of economically feasible locations may well depend on a number of factors such as future traffic patterns, development trends within the City and the willingness of Lubbock Poster to obtain leased sites by favorable economic inducements to prospective landlords.

The trial court found that Lubbock Poster owned, in fee simple, only five billboard site locations and that all other sites “were under a standard lease form, providing for a primary term of three years and thereafter unilaterally terminable by either lessee or lessor upon required notice.” In this connection Lubbock Poster does not show or contend that it has or will incur any lease expenses as a result of long term non-can-cellable site lease obligations, which will extend beyond the end of the amortization period. However, Lubbock Poster points out that it has billboards located on lease property under the so-called three year standard lease form which have continued over a number of years dating back to the 1940’s and 1950’s in some instances. Lubbock Poster argues that the life span and the possibility of renewal of the lease has a compensable value, which is taken by the operative effects of the ordinance in violation of the due process clause of the federal constitution.

In support of this position Lubbock Poster relies on Almota Farmers Elevator and Warehouse Go. v. United States, 409 U.S. 470, 93 S.Ct. 791, 35 L.Ed.2d 1 (1973). In that eminent domain condemnation proceeding by the federal government to acquire a leasehold interest, the Court concluded that the possibility the lease might or might not be renewed was a necessary and proper consideration in determining the market value of the leasehold interest and the improvements permanently attached to the realty thereunder. However, as previously discussed, the reasonableness of the amortization period is premised on recoupment of investment in the structures rather than the recoupment of their market value. Termination of the land use by the amortization technique does not constitute a taking in the eminent domain sense.

Under the ordinance, the use of the fee title property, leasehold property and the structures are regulated, but such properties are not taken in the eminent domain sense. As we pointed out above from Ben-ners, “property owners do not acquire a constitutionally protected vested right in property uses once commenced.” City of University Park v. Benners, supra, 485 S.W.2d at 778. The Almota eminent domain case is not controlling in the case before us.

Under the circumstances we must conclude that the ordinance reasonably affords Lubbock Poster Company an opportunity to recoup or recover its investment in the billboard structures “theretofore placed on the property,” any removal cost directly attrib-' utable to the regulatory effects of the ordinance, and that Lubbock Poster Company has failed to meet its extraordinary burden of showing that no conclusive, or even fairly issuable facts or conditions exist in support of the exercise of the City’s police power.

We also reject Lubbock Poster’s contention that the challenged provisions of the ordinance are retroactive enactments as to billboards, and therefore are constitutionally void. Lubbock Poster does not have a constitutionally vested right in either the billboards, or their use, which precludes regulation under a valid exercise of the City’s police power.

Lubbock Poster Company further contends that the ordinance is void under both the due process and equal protection clauses of the United States Constitution because the ordinance fails to grant any nonconforming use status to billboards, while granting such a status to all other property and classes. We do not agree.

Both the federal and Texas courts have two standards of analysis in determining an equal protection challenge to state legislative enactment. If the state action invades a fundamental right or discriminates against a suspect class, courts apply the strict scrutiny test. Otherwise, the legislation is tested under the rational relation test.

Under the rational relation test the classification is constitutionally permissible if it is reasonable, not arbitrary and rests “upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.” Reed v. Reed, 404 U.S. 71, 76, 92 S.Ct. 251, 254, 30 L.Ed.2d 225 (1971); Texas Woman’s University v. Chayklintaste, 530 S.W.2d 927 (Tex.1975). When, as here, no suspect categories are involved, any rational basis may justify the classification. See Johnson v. Robison, 415 U.S. 361, 375 n.14, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974).

We have concluded above that the challenged provisions of the ordinance are reasonable. The chief objectives of the nonconforming use requirements are:

[T]o prevent additions to and alterations or remodeling of existing buildings or structures in such a way as to avoid the restrictions and limitations lawfully imposed hereunder, providing for the gradual elimination of nonconforming uses of land, buildings and structures.

The nonconforming use provisions of the ordinance bear a fair and substantial relation to the objective of the ordinance. Also, all signs or billboards must conform to the ordinance or be removed by January 1, 1982. In each instance, all sign and billboard users are treated alike. We conclude that the classification does not violate the equal protection or due process clauses of the Constitution.

Lubbock Poster also attacks the billboard sections of the ordinance on the basis of the first amendment. The company asserts that freedom of speech is abridged because the ordinance destroys billboards as a medium of communication in Lubbock. Four points of error complain of the sufficiency of the evidence supporting the trial court’s finding that the billboard section does not interfere with free speech.

Although commercial speech is accorded first amendment safeguards, the manner in which commercial advertising is disseminated is subject to regulation. Bige-low v. Virginia, 421 U.S. 809, 826, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1975); Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 760, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976). The Court in Virginia Pharmacy made clear that mere regulation of time, place and manner of advertising is acceptable if for a valid purpose and if alternative channels of communication are left open. 425 U.S. at 770-71, 96 S.Ct. 1817. It is significant to note that unlike the regulation in Virginia Pharmacy which prohibited all advertising of prescription drugs, the Lubbock ordinance does not prohibit billboard advertising altogether. Instead, the Lubbock ordinance specifies where and in what manner this medium of advertising may be conducted.

A city’s right to regulate the manner and content of speech was further clarified in Young v. American Mini Theatres, Inc., 427 U.S. 50,96 S.Ct. 2440, 49 L.Ed.2d 310 (1976). In Mini Theatres the Court reiterated that a city’s general zoning laws may require theaters to satisfy locational and other requirements by conforming to specified commercial zones. Asserting that the content of sexually explicit theaters may be used as a basis for zoning them differently from other theaters, the Court noted that a state may also regulate the content of billboards by only allowing them to advertise a nearby business. 427 U.S. at 68, n.30, 96 S.Ct. 2440 citing Markham Advertising Co. v. State, 73 Wash.2d 405, 439 P.2d 248 (1968), appeal dismissed, 393 U.S. 316, 89 S.Ct. 553, 21 L.Ed.2d 512 (1969).

Lubbock Poster argues that the Supreme Court’s decision in Linmark Associates Inc. v. Willingboro, 431 U.S. 85, 97 S.Ct. 1614, 52 L.Ed.2d 155 (1977) controls the present case. We disagree. In Willing-boro the Court voided a local ordinance prohibiting residential “for sale” signs in order to impede the flight of white homeowners from the racially integrated community. The unanimous Court found that the ordinance violated the first amendment because it prohibited certain signs based on their content. 431 U.S. at 94, 97 S.Ct. 1614. By contrast, the Lubbock ordinance only seeks to regulate the time, place and manner of outdoor advertising rather than the content. Willingboro made clear that it was not condemning regulations of this type. As a matter of law, the billboard section of the ordinance does not abridge the first amendment guarantee of freedom of speech.

Lubbock Poster’s remaining cross points contend that the ordinance jeopardizes federal highway funds.and denies the company equal protection by not compensating for signs taken as required by federal and state highway beautification acts. Congress enacted 23 U.S.C. § 131 to control outdoor advertising along the interstate highway system in order to promote the safety and recreational value of public travel. The act seeks to affect its goal by requiring states to control the erection and maintenance of signs along the system under penalty of a reduction in federal highway funds. 23 U.S.C. § 131(b). Section 131(g) requires that just compensation be paid for the removal of any nonconforming signs. Texas enacted Tex.Rev.Civ.Stat. Ann. art. 6674v-l (1969) to comply with the federal act.

Unlike the Texas act, it is apparent that the Lubbock zoning ordinance was not passed to accommodate the federal highway beautification act. Rather than controlling signs along the interstate highway system, the Lubbock ordinance was part of a comprehensive zoning plan for the City of Lubbock. We have found no case holding that such a municipal ordinance jeopardizes federal highway funds or denies equal protection by not compensating sign owners. Moreover, numerous cases have summarily rejected such contentions. See, e. g., Modjeska Sign Studios, Inc. v. Berle, supra; Markham Advertising Co. v. State, supra. It has been specifically held that federal and state highway beautification acts do not restrict a city’s use of police power to terminate nonconforming signs. Art Neon, Inc. v. City and County of Denver, supra. See also E. B. Elliott Advertising Co. v. Metropolitan Dade County, 425 F.2d 1141 (5th Cir. 1970), cert, denied, 400 U.S. 805, 91 S.Ct. 12, 27 L.Ed.2d 35.

In summary, we conclude that the challenged provisions of the ordinance constitute a constitutionally valid exercise of the City of Lubbock’s police power. Lubbock Poster Company’s cross points one through twelve are overruled and the City of Lubbock’s cross points one through six, eight and ten are sustained.

Accordingly, that portion of the trial court’s judgment declaring void, and enjoining the enforcement of, the nonconforming use and amortization provisions of the ordinance is reversed, and judgment is here rendered declaring that these provisions are valid and dissolving the injunction against their enforcement; in all other respects the judgment of the trial court is affirmed.

Costs are adjudged against Lubbock Poster Company.

      . The ordinance defines billboards as “[a]ny structure or portion thereof upon which are outdoor advertising signs which advertise goods, products or services not related to goods, products or services sold on the premises on which the sign is located.” Also, a “structure” is defined as “[a]nything constructed or erected which requires location on the ground or attached to something having a location on the ground.”

      . Billboards are permitted uses and may be located in three districts, which are the commercial “C-4”, the light manufacturing “M-l” and the heavy manufacturing “M-2” zones. These three zoning districts are numerous and the same are geographically disbursed throughout the City of Lubbock.
      Billboards located in the “C-4” districts must be “a minimum of eighty (80) feet from any residentially zoned property line” and may have a maximum area of “three hundred (300) square feet.”
      Billboards located in each of the three districts are required to conform to separation, setback and height requirements. A two hundred feet minimum separation between all billboards on the same side of a street is required, but this separation requirement increases to five hundred feet on expressways. The setback requirement is “forty-three (43) feet or the same distance of an adjacent building.” If the billboard is located between two buildings, then it must set back “the same as that of the building which has the greatest setback from the property line.” The maximum height of all billboards is limited to thirty-five feet.

      . Under the ordinance the zoning districts were intended “To promote the stability of existing land uses that conform with a comprehensive plan and to protect them from inharmonious influences and harmful intrusions; To promote a harmonious, convenient, workable relationship among land uses; * To encourage quality development through effective planning which utilizes modern innovations of urban design; To promote and protect the aesthetic quality of the city, by conserving and enhancing the taxable values of land and buildings throughout the city; To protect and enhance areas of scenic, historic or cultural importance; To provide adequate light and air; To encourage proper population densities and prevent the overcrowding of structures; To provide adequate protection for community investments in water, sewerage, streets, schools, parks, and other community facilities; To promote a safe, effective traffic circulation system; To provide safety from fire and other dangers.”

      . Although the Texas appellate courts have not directly dealt with the matter of a reasonable amortization period to abate nonconforming billboard uses, the courts in a number of other jurisdictions have passed favorably upon various legislative pronouncements requiring removal of nonconforming billboards within amortization periods varying in length from one to five years. See Murphy, Inc. v. Board of Zoning Appeals of Wilton, 147 Conn. 358, 161 A.2d 185 (1960) (2 years); National Advertising Co. v. County of Monterey, supra, (1 year); Grant v. Mayor and City Council of Baltimore, 212 Md. 301, 129 A.2d 363 (1957) (5 years); Webster Outdoor Advertising Co. v. City of Miami, 256 So.2d 556 (Fla.App.1972) (5 years); Art Neon Co. v. City and County of Denver, 488 F.2d 118 (10th Cir. 1973), cert, denied, 417 U.S. 932, 94 S.Ct. 2644, 41 L.Ed.2d 236 (1974) (2 to 5 years). In general, the courts concluded that ordinances and similar police power regulations requiring the conformity or removal of billboards and providing a reasonable amortization period should pass constitutional muster.


source: Caselaw Access Project

author: CORNELIUS, Chief Justice.

license: Public Domain

text:
    Robert J. LLEWELLYN, Appellant, v. S. R. BORIN, Appellee.
    No. 8582.
    Court of Civil Appeals of Texas, Texarkana.
    July 25, 1978.

      Horace G. Goodrich, Dallas, for appellant.
    Paul L. Smith, David W. Townend, Gard-ere, Porter & DeHay, Dallas, for appellee.
   CORNELIUS, Chief Justice.

Robert Llewellyn appeals from a take nothing judgment rendered against him in his breach of contract suit against S. R. Borin.

Llewellyn was the owner of a business known as TV Host Magazine of Tarrant County. The sole asset of the business was a “Distributorship Agreement” executed between Llewellyn and the publisher of TV Host Magazine, Omni Industries, Inc., of Dallas, Texas. On August 10,1973, Llewellyn sold his rights under the distributorship agreement to Borin. The contract of sale obligated Borin to pay Llewellyn $5,000.00 down and an additional $15,000.00 in installments. He made the down payment and several installments, reducing the amount owing on the contract to $9,375.00, but then ceased payments. Llewellyn thereupon brought suit to recover the balance due, plus interest and attorney’s fees. Borin defended on the ground, among others, that the distributorship agreement was void because it was in violation of the Texas AntiTrust Statutes. He contended that, as the agreement was the only consideration for the contract of sale and it was void and unenforceable, there was a failure of consideration and his obligations under the contract could not be enforced. The case was tried to the court on a stipulation of facts. The stipulation provided that if the distributorship agreement was in violation of the anti-trust statutes Llewellyn could not recover; otherwise, he was entitled to recover the sum of $9,375.00 plus interest and 10% attorney’s fees. The district court ruled that the distributorship agreement did contravene the anti-trust statutes, and rendered judgment accordingly.

The distributorship agreement provided in part as follows:

“IN CONSIDERATION of the mutual promises of the parties herein contained, and for other good and valuable consideration, the Publisher and the Distributor do hereby agree upon the following terms and conditions to govern the manufacture, purchase and sale of the ‘TV HOST’ publication, hereinafter referred to as the ‘Publication’.
1. The Publisher agrees to produce in a good and workmanlike manner the Publication, and to ship the same for the account of the Distributor as herein provided. . . Distributor agrees to purchase not less than 5,000 copies per week of the Publication . . . and to pay the Publisher in accordance with the rate schedule .
2. Distributor agrees to furnish all information or materials reasonably required by Publisher in order to insure timely completion of the Publication.
3. Publisher shall insert advertising copy sent in by Distributor on pages made available by the Publisher for advertising, in accordance with Distributor’s instructions .
5. Distributor will use his best efforts to sell advertising in the following ‘Designated Area’: Tarrant County, Texas. Publisher agrees not to establish any other distributors within the Designated Area during the period of this Agreement.
Receipts from advertising revenues shall be distributed as follows:
(a) Distributor shall receive all the gross revenues derived from his sales of local advertising in the Publication published for Distributor’s Designated Area. . . Publisher shall
receive an amount equal to ten percent (10%) of advertising space based on Distributor’s prevailing rate schedule, .
(b) When advertising is sold by the Publisher or another distributor, Distributor shall receive forty percent (40%) of the gross revenue received by Publisher from advertising in the Publication published for Distributor’s Designated Area.
(c) Distributor shall be entitled to receive forty percent (40%) of the gross revenue derived from his sales of advertising in Publications published for designated areas other than that of Distributor. .
6. Distributor shall submit to Publisher an advertising rate schedule . Distributor agrees to be bound by his prevailing rate schedule on advertising sold by other distributors.
9. Publisher shall hold a two-day advertising. sales and editorial seminar in Dallas, Texas, for the purpose of training and educating the Distributor in general editorial practices and advertising sales. .
12. . It is agreed that Publisher may distribute the Publication and take all acts necessary during any default of Distributor to insure its timely distribution. .
15. It is understood and agreed that this Agreement does not create the relationship of agency or joint venture. It is further understood that Distributor has no authority to act or purport to act for Publisher for any purpose whatsoever.
16. Distributor agrees that he will not engage in a similar business or one competitive to Publisher within the Designated Area during the term of this Agreement or within two (2) years after termination of this Agreement.

Apparently the district court concluded that the agreement violated the anti-trust statutes in that it granted an exclusive sales territory and contained an illegal noncom-petition covenant on the part of the distributor.

Tex.Bus. & Comm.Code Ann. Secs. 15.02, 15.03 and 15.04 provide in part as follows: “§ 15.02. . . .

(b) A ‘trust’ is a combination of capital, skill, or acts by two or more persons to
(1) restrict, or tend to restrict, trade, commerce, aids to commerce, the preparation' of tangible personal property for market or transportation, or the free pursuit of a lawful business; . . ”
“§ 15.03. . . . (a) It is a conspiracy in restraint of trade for
(1) two or more persons engaged in buying or selling tangible personal property to agree not to buy from or sell to another person tangible personal property;
“§ 15.04. . . .
(a) Every monopoly, trust, and conspiracy in restraint of trade, as defined in Sections 15.01, 15.02, and 15.03 of this code, respectively, is illegal and prohibited. . .
(b) An agreement violating the prohibition against a monopoly, trust, or conspiracy in restraint of trade contained in Subsection (a) of this section is void and unenforceable in law or equity.”

We cannot agree that the agreement in question here violates our antitrust statutes. The type of agreement condemned by those statutes is that whereby one party sells products to another party and they agree to prohibit or restrict the purchase or resale of those products by or to other parties, or limit such sales to a territory which tends to restrict trade and commerce. Sherrard v. After Hours, Inc., 464 S.W.2d 87 (Tex.1971); Climatic Air Distributors of South Texas v. Climatic Air Sales, Inc.,- 162 Tex. 237, 345 S.W.2d 702 (1961); Ford Motor Co. v. State, 142 Tex. 5, 175 S.W.2d 230 (1943); Grand Prize Distributing Co. v. Gulf Brewing Co., 267 S.W.2d 906 (Tex.Civ.App. San Antonio 1954, writ ref’d); National Automatic Mach. Co. v. Smith, 32 S.W.2d 678 (Tex.Civ.App. Austin 1930, no writ). The statutes do not apply to arrangements where one party merely represents another party for the purpose of selling his products, or where goods are delivered under circumstances where title does not pass, as in a consignment. McDan-iels v. Schmalstieg, 36 S.W.2d 278 (Tex.Civ. App. San Antonio 1931, writ dism’d); Orms-by v. Ratcliff, 22 S.W.2d 504 (Tex.Civ.App. Waco 1929), affm’d, 36 S.W.2d 1005 (Tex. Com.App.1931, jdgmt adopted); McConnon & Co. v. Ralston, 275 S.W. 165 (Tex.Civ. App. Texarkana 1925, no writ); Brenard Mfg. Co. v. Crowley Mercantile Co., 260 S.W. 246 (Tex.Civ.App. San Antonio 1924, no writ); McConnon & Co. v. Powell, 248 S.W. 428 (Tex.Civ.App. Texarkana 1923, no writ); Barr v. Southwest Wholesale Furniture & Appliance Co., 331 S.W.2d 343 (Tex. Civ.App. Fort Worth 1960, no writ); Lem-mon v. Furst & Thomas, 166 S.W.2d 755 (Tex.Civ.App. Dallas 1942, writ ref’d w. o. m.); 38 Tex.Jur.2d, Monopolies, Combinations, Etc., Sec. 15, p. 791; Sec. 16, p. 793. The reasons for the distinctions are easily understood. An individual acting alone, either personally or through a representative, may sell his product or services wherever and to whomever he pleases, and there is no violation of the anti-trust statutes. Cunningham v. Frito Co., 198 S.W.2d 772 (Tex. Civ.App. San Antonio 1946, no writ); La-Fon v. Falls Rubber Co., 242 S.W. 346 (Tex. Civ.App. Austin 1922), rev’d on other grounds, 256 S.W. 577 (Tex.Civ.App.1923, judgmt adopted); 38 Tex.Jur.2d, Monopolies, Combinations, Etc., Sec. 16, p. 794. It is only where there is an arrangement between two or more principals, involving absolute sales between them, to prohibit or restrict other sales of the same product, that an illegal conspiracy in restraint of trade is accomplished. Welch v. Phelps & Bigelow Windmill Co., 89 Tex. 653, 36 S.W. 71 (1896); Padgitt v. Lone Star Gas Co., 213 S.W.2d 133 (Tex.Civ.App. Dallas 1948, no writ); Cunningham v. Frito Co., supra.

A careful review of the agreement here reveals that it is not one for the sale and resale of magazines, but is rather an agreement whereby the distributor sells advertising for the publisher for inclusion in the publisher’s magazine. The distributor receives a portion of the advertising charges as his commission. The advertising which he sells is placed in the magazine by the publisher. The distributor then purchases a quantity of the magazines which he distributes free to motels and hotels in order that the advertisements may have maximum exposure to the traveling public. Although the agreement contemplates a sale of certain of the magazines to the distributor, they are not for resale. They are sold to him as materials for his use in stimulating his sales of advertising for the publisher. Furthermore, there is no prohibition or restriction upon his right to dispose of the magazines as he sees fit. The agreement in question is, in reality, nothing more than a representative arrangement for the sale of advertising by the publisher through the efforts of the so-called distributor.

Neither does the agreement grant the distributor an exclusive territory or restrict his right to sell advertising anywhere he pleases, although such an arrangement would not be illegal if the agreement is considered a representative or agency contract. Stewart v. Davis, 417 S.W.2d 595 (Tex.Civ.App. San Antonio 1967, writ ref’d n. r. e.); Cunningham v. Frito Co., supra; 38 Tex.Jur.2d, Monopolies, Combinations, Etc., Sec. 16, p. 793; 58 C.J.S. Monopolies Sec. 85, p. 1101. The agreement, in paragraphs 5(b) and (c), specifically recognizes the right of the publisher’s distributors in other areas to sell advertising in Llewellyn’s territory, as well as the right of the publisher to sell directly to advertisers in Llewellyn’s territory, and the right of Llewellyn to sell in areas other than his designated area. It does provide that Llewellyn’s “designated area” shall be Tarrant County, Texas, and that the publisher agrees not to establish any other distributors within the designated area during the existence of the contract. But that is not an illegal restraint of trade, particularly when the representative’s territory is neither exclusive nor restricted as to his sales. A manufacturer or producer may choose to have only one sales representative in a given territory if it desires.

Nor does the noncompetition covenant render the agreement illegal. Such agreements, if ancillary to an employment or agency contract, are valid unless they are unreasonable as to territory or duration. Weatherford Oil Tool Company v. Campbell, 161 Tex. 310, 340 S.W.2d 950 (1960); Houston Credit Sales Co. v. English, 139 S.W.2d 163 (Tex.Civ.App. Waco 1940, no writ); Restatement of Contracts Sec. 516 (1932); 13 Tex.Jur.2d, Contracts, Sec. 189, p. 398; 54 Am.Jur.2d, Monopolies, Etc., Sec. 543, p. 982. In the state of the record here, we cannot say that the restriction imposed upon Llewellyn is not reasonable and necessary for the protection of the publisher’s good will and business. See for example Vaughan v. Kizer, 400 S.W.2d 586 (Tex.Civ. App. Waco 1966, writ ref’d n. r. e.); Houston Credit Sales Co. v. English, supra; Mansfield v. B & W Gas, Inc., 222 Ga. 259, 149 S.E.2d 482 (1966); Lakeside Oil Co. v. Slutsky, 8 Wis.2d 157, 98 N.W.2d 415 (1959); 54 Am.Jur.2d, Monopolies, Etc., Sec. 557, p. 991; Annotations 9 A.L.R. 1456; 20 A.L.R 861; 29 A.L.R. 1331; 52 A.L.R. 1362; 67 A.L.R. 1002; 98 A.L.R. 963.

We recognize that the agreement in question provides that it does not create the relation of principal and agent between the publisher and the distributor, but we think it is clear that such provision refers to the relation of principal and agent as contemplated by the doctrine of respondeat superior, and was intended to protect the publisher from liability, under that doctrine, for the acts of the distributor. One can be a representative without being an agent in that sense, and regardless of what the instrument provides, it obviously creates a representative arrangement in which the distributor does not resell products purchased from the publisher, but rather sells advertising for the publisher to be included in its magazine.

It follows that the distributorship agreement between Omni Industries, Inc. and Llewellyn was not void as violative of the anti-trust statutes. Consequently, upon the stipulated facts Llewellyn was entitled to judgment for the unpaid balance of the sales price, together with interest and attorney’s fees.

The judgment of the trial court is reversed and judgment is here rendered that Robert J. Llewellyn recover from S. R. Bo-rin the sum of $9,875.00, plus interest thereon at the rate of 10% from August 10,1975, to August 23,1977, together with 10% additional thereon as attorney’s fees.

      . Formerly Articles 7426, 7428, 7429, .7437.


author: MOORE,-Justice. McKAY, Justice,

text:
    PAN AMERICAN LIFE INSURANCE COMPANY et al., Appellants, v. Mrs. E. R. YOUNGBLOOD et al., Appellees.
    No. 1129.
    Court of Civil Appeals of Texas, Tyler.
    July 27, 1978.
    Rehearing Denied Aug. 31, 1978.

      A. D. Dyess, Jr., Jesse R. Pierce, Foreman, Dyess, Prewett, Rosenberg & Henderson, Houston, for appellants.
    Dan Matthews, Fulbright & Jaworski, Houston, for appellees.
   MOORE,-Justice.

This is a suit by the beneficiaries to recover accidental death benefits under two insurance policies. Mrs. E. R. Youngblood, Mrs. H. M. Lindsey, Estey R. Youngblood, Lindsey S. Youngblood, Mrs. Joan Smith, and Newton C. Youngblood, plaintiffs, instituted suit against defendants, Pan American Life Insurance Company and Banker’s Life & Casualty Company, to recover benefits under the accidental death coverage provisions under the respective policies issued by defendants on the life of Benjamin Lindsey. The defendants denied that the deceased died as a result of accidental bodily injury and alleged that the deceased died from natural causes brought about by arte-riosclerotic cardiovascular disease. Trial was to a jury, after which the jury found that the death of deceased was caused by accidental bodily injury directly and independently of all other causes and effected solely through an accidental bodily injury. Judgment was rendered against Pan American Life Insurance Company in the face amount of the policy for the sum of $10,-000.00, together with the statutory penalty and attorney’s fees. Judgment was rendered against Banker’s Life & Casualty Company in the face amount of the policy for the sum of $100,000.00, together with the statutory penalty and attorney’s fees. Both defendants have appealed.

We affirm.

It was stipulated that the group policy issued by Pan American Life Insurance Company provided for payment in the event death was “the direct result of bodily injury through accidental means independently of all other causes, as evidenced by a visible contusion or wound on the exterior of the body,” and that the group policy issued by Banker’s Life & Casualty Company provided for payment in the event death was caused by “bodily injury directly and independently of all other causes and effected solely through an accidental bodily injury.” The question of liability on both policies was submitted to the jury by Special Issue No. 1 which reads as follows: “Do you find from a preponderance of the evidence that the death of Benjamin Lindsey was caused by accidental bodily injury directly and independently of all other causes and effected solely through an accidental bodily injury?” The jury answered: “We do.”

The basic facts out of which the case arises are not in dispute. On December 8, 1972, the body of Benjamin Lindsey, age 69, was found by a friend, Mrs. Florine Brown, a waitress at a Houston restaurant known as the Hickory Stick. She testified Mr. Lindsey came by the restaurant often; she had known him for 4 or 5 years and they were friends. The evidence shows that on December 8, 1972, Mr. Lindsey, who was a chemical engineer by profession, failed to report for work and his secretary called Mrs. Brown to see if she knew of his whereabouts. After the secretary had called a second time, Mrs. Brown testified that she drove to Mr. Lindsey’s home. Receiving no answer to her knock at the door, she went around to the patio door. Looking through the patio door, she saw Mr. Lindsey, clad only in his underwear, lying on the floor with his head near the track of the sliding glass door in a pool of blood. She then went next door and contacted Mrs. Hopper, a neighbor, who had a key to Mr. Lindsey’s house. Both entered the house and subsequently Mrs. Hopper went across the street and contacted Mrs. Giessel, a registered nurse. Mrs. Giessel testified that when she entered the house everything seemed to be in order. She testified she checked the deceased for pulse and breathing and, finding none, concluded that he was dead. Mrs. Giessel testified that Mr. Lindsey was lying on his stomach perpendicular to the patio door with his head against the back frame of the patio door. She testified that she saw a 2 to 2½-⅛⅛ laceration above his left eye. She estimated the blood around his head on the floor to have been between a cup and a cup-and-a-half.

While Mrs. Brown, Mrs. Hopper and Mrs. Giessel were at the Lindsey home, they were joined by Mrs. Hopper’s husband, Dr. John J. Hopper, who was a medical doctor employed by the Veteran’s Administration Hospital. He had been Mr. Lindsey’s neighbor for nine years and had known him as a neighbor and a friend. Dr. Hopper testified that the deceased was lying on his left side with his head close to the patio door. Observing that Mr. Lindsey was apparently dead, Dr. Hopper testified he touched him on the neck and found him cold, pulseless and stiff, and concluded that he had been dead for several hours. He made no examination of the body. He testified that his initial impression was that Mr. Lindsey had stumbled, hit his head and fractured his skull, but admitted that this was only an assumption. He stated that Mr. Lindsey could have died of natural causes as a result of a stroke or a heart attack and then fallen, and that the only way to determine the cause of death was by a complete examination. He stated that a post-mortem examination would be required to erase his initial assumption about cause of death. While he had not seen Mr. Lindsey as an attending physician, he testified that he had known him as a friend and knew that Mr. Lindsey was a heavy drinker, a fact which was also confirmed by his niece, Mrs. Joan Smith and Mrs. Brown. Mrs. Smith testified that Mr. Lindsey used alcohol nearly every day during the last few years of his life.

On the night before his death, Mr. Lindsey had visited the Hickory Stick restaurant with his secretary and her husband. According to Mrs. Brown, the waitress, Mr. Lindsey had two drinks that night and did not eat his dinner. She testified that she wrapped his dinner for him to take home and she found it on the sink the next day when she entered his house.

Dr. Joseph Jachimczyk, Chief Medical Examiner of Harris County, Texas, was called as a witness by the defendants. Dr. Ja-chimczyk did not view or examine Mr. Lindsey’s body, but in his capacity as Chief Medical Examiner he reviewed the photographs of the body taken by the police at the Lindsey home and the post-mortem examination report which was prepared by his assistant, Dr. Sheldon Green. He testified that, based on the report prepared by Dr. Green, he was of the opinion that Mr. Lindsey’s death was caused by arteriosclerotic cardiovascular heart disease, resulting in a heart attack. The post-mortem report relied on by Dr. Jachimczyk reads in part as follows:

“Case 72-4694, December 9, 1972, postmortem examination on the body of Benjamin Slayden Lindsey, 4839 Rockwood, Houston, Texas. History: This 68-year-old white man was found dead on the floor of the den at his home at the above address at approximately 4:30 p. m. on December 8, 1972. He was a known heavy drinker. View: The view was performed by Assistant Medical Examiner G. Sheldon Green, M.D., assisted by Dr. Paul G. Stimson, at the request of Chief Medical Examiner Joseph A. Jachimczyk, M.D., J.D., beginning at 9:00 a. m. on December 9, 1972, in the Harris County Morgue. External appearance: The body was that of a well-developed, well-nourished white man, appearing the stated age of 68 years, measuring 71 inches in length and weighing 118 pounds. There was fixed rigor mortis in the extremities. The hair was gray-brown, receding at the crown, measuring up to three inches in length posteriorly. The eyes were grey. The pupils were round and equal. The sclerae were slightly injected. The nose was somewhat enlarged, but the nasal bones were intact. There was a slight blood tinged fluid exuding from the nose. * * * The superficial neck veins were prominent. * * * There was one to two-plus pretibial and ankle pitting edema. The fingernail beds were cyanotic. There was nicotine staining on the thumb, index and middle finger of the left hand. * * * The cerebrospinal fluid was clear. A Vim-Silverman needle biopsy of the liver was performed.”

At the time of trial Dr. Green was Chief Medical Examiner in Las Vegas, Nevada and did not testify. Dr. Jachimczyk admitted that his opinion as to the cause of death was based solely on the facts set out in the post-mortem examination report prepared by Dr. Green. He explained that arteriosclerosis is a condition marked by hardening, thickening and loss of elasticity of the arteries, which occurs over a period of time. He testified that many of the findings set forth in the post-mortem report convinced him that the deceased suffered a heart attack, but admitted that his opinion was only as good as the post-mortem report on which his opinion was based. He further testified that an autopsy was the only absolute certain way to determine cause of death, but that no autopsy was performed because in his opinion it was not necessary in this instance.

He testified that the finding that the pupils of the eyes were round and equal was of significance to him in reaching his opinion, because if there had been an impact to the head and a subdural hematoma had formed, one would expect to find one pupil to be larger than the other; that it is not necessary for a person who dies of trauma to have a subdural hematoma, but that the absence of a hematoma goes to rule out that there was any traumatic injury to the head to cause subdural hemorrhage and death; and that death can result from a fall without a subdural hematoma if there are cerebral contusions and lacerations. He testified that the findings of prominent superficial neck veins, edema, cyanotic fingernail beds and the absence of blood in the cerebrospinal fluid were all consistent with his conclusion that the deceased suffered from arteriosclerotic cardiovascular heart disease and died as a result of a heart attack.

He testified that although the post-mor-tem report failed to show the lacerations on the deceased’s forehead, he could see the wound in the photographs showing a laceration on the forehead with leakage of blood coming from approximately above the nose and between the eyeballs over the grabella area of the skull. Laboratory analysis of the blood indicated that the deceased had no alcohol in his system at the time of death. He was of the opinion that the amount of blood under the head would not account for any significant stroke or death. He testified that the existence of a laceration and the amount of blood shown in the photograph would not cause him to change his opinion as to the cause of death; however, he admitted a person can die of trauma with this amount of blood. Further, he testified that, based on the circumstances alone, a logical conclusion would be that the deceased had met his death as a result of an accident.

It is significant to note that the post-mor-tem report relied on by Dr. Jachimczyk did not mention the laceration on the decedent’s forehead, nor did the report specifically rule out the possibility of a fractured skull or a broken neck.

Mrs. Smith, a niece of the deceased, testified that she was fairly close to her uncle and that she had seen him every two or three weeks during the period prior to his death and that he was in good health at the time of his death. She testified that he had never complained to her of having any sort of health problem and that she had no knowledge from any other source that he was suffering from any health problem.

Under their first point of error, defendants contend that the court erred in overruling their motion for judgment non ob-stante veredicto, because there was no evidence to support the jury’s finding that the death of the decedent was caused by accidental bodily injury directly and independently of all other causes. They argue that in order for the jury to answer Special Issue No. 1 in the affirmative, the jury was required to draw two inferences from the evidence showing the circumstances under which the body was found. They argue that, after drawing an initial inference that the decedent did in fact suffer accidental injury, the jury then had to draw the additional inference that the accidental injury was the sole cause of death. Defendants contend that in the absence of any direct or expert testimony from plaintiffs as to the cause of death, there is no evidentiary basis to support the jury’s finding.

Under the coverage clauses of the policies, the burden was on the plaintiffs to prove that the death of the decedent was caused by accidental bodily injury directly and independently of all other causes and was effected solely through an accidental bodily injury. Such burden of proof, however, may be discharged by direct or circumstantial evidence as in all other civil cases. Commonwealth Casualty & Ins. Co. v. Laurence, 223 S.W.2d 337 (Tex.Civ.App.—Fort Worth 1949, no writ history); Universal Life & Accident Insurance Co. v. Beaty, 177 S.W.2d 244 (Tex.Civ.App. — Waco 1944, no writ history).

Passing for the moment the question of whether the injuries caused the death, we will first consider whether the evidence is sufficient to support the jury’s finding that the injury sustained by the deceased was accidental.

It is generally held that where death by unexplained, violent and external means is established, a presumption is thereby created or prima facie proof is thereby made of the fact that the injuries were accidental, without direct and positive testimony on that point, since the law will not presume that the injuries were inflicted intentionally by the deceased or by some other person. Republic Nat. Life Ins. Co. v. Heyward, 536 S.W.2d 549, 558-59 (Tex.1976); Broyles v. Order of United Commercial Travelers, 155 Kan. 74, 122 P.2d 763 (1942); 142 A.L.R. 742, 745 (1943); 12 A.L.R.2d 1264 (1950); 44 Am.Jur.2d Insurance sec. 1965, p. 905. Applying the foregoing rule of law to the facts presented here, it seems clear that the circumstantial evidence was sufficient to make out a prima facie case showing that the injuries received by the decedent were accidental.

The next question to be determined is whether the accidental injuries caused the decedent’s death.

The policies in question require that the accident be the independent cause of death. Coverage clauses of this nature have been construed to require a showing that the accidental injury was the sole proximate cause of death. Mutual Benefit Health & Accident Ass’n v. Hudman, 398 S.W.2d 110, 112 (Tex.1965); National Life & Accident Insurance Co. v. Franklin, 506 S.W.2d 765, 767 (Tex.Civ.App.—Houston [14th Dist.] 1974, writ ref’d n. r. e.). Nevertheless, recovery is not defeated by a preexisting condition or disorder which is so remote in the chain of causation that it does not materially contribute to death. Stroburg v. Insurance Company of North America, 464. S.W.2d 827, 829 (Tex.1971); Mutual Benefit Health & Accident Ass'n v. Hudman, supra; Western Indemnity Co. v. MacKechnie, 214 S.W. 456 (Tex.Civ.App.—Dallas 1919, n. w. h.).

The language of the policies in question to the effect that accidental bodily injury must have operated “independently of all other causes” to produce death does not change the general rule of law that the proximate and not a remote cause is the one to which the law looks. Stroburg v. Insurance Company of North America, supra; Bohaker v. Travelers Ins. Co., 215 Mass. 32, 102 N.E. 342, 46 L.R.A.,N.S., 543 (1913). In the present case the jury found from a preponderance of the evidence that the death of the insured was caused by accidental bodily injury directly and independently of all other causes. This finding leads to the obvious conclusion that the bodily injury was the sole, only and independent cause of the insured’s death.

It is true no medical doctor testified that the injuries sustained by the insured caused his death. However, there need not necessarily be direct proof or evidence of the cause. The cause may be found by the jury from facts and circumstances. The question of proximate cause or sole proximate cause is generally held to be one for the trier of the fact. Metropolitan Casualty Ins. Co. v. Edwards, 210 S.W. 856 (Tex.Civ. App. — Amarillo 1919, writ dism’d); North American Acc. Ass’n v. Adams, 32 S.W.2d 525 (Tex.Civ.App. — San Antonio 1930, n. w. h.); 18 Couch on Insurance 2d sec. 74:697, 698, 699.

In view of the evidence showing that the deceased was apparently in good health; that he suffered a rather severe injury to his head; and that after the injury his heart apparently was able to continue functioning long enough to cause a cup or a cup-and-a-half of blood to flow from the wound on his forehead, and considering the fact that no autopsy was performed, we cannot say that there was no evidence to support the jury’s finding that the death of the insured was caused by accidental bodily injury directly and independently of all other causes. See Order of United Commercial Travelers of America v. Roth, 159 S.W. 176 (Tex.Civ.App. — Fort Worth 1913, writ ref’d); Order of United Commercial Travelers v. Simpson, 177 S.W. 169 (Tex.Civ.App. —Dallas 1915, writ ref’d); Metropolitan Life Ins. Co. v. Funderburk, 81 S.W.2d 132 (Tex.Civ.App. — Beaumont 1935, writ dism’d); American Casualty Co. v. Jones, 146 S.W.2d 423 (Tex.Civ.App. — Amarillo 1940, no writ history); .Universal Life & Accident Ins. Co. v. Beaty, 177 S.W.2d 244 (Tex.Civ.App. — Waco 1944, no writ history); Commonwealth Casualty & Insurance Co. v. Laurence, 223 S.W.2d 337 (Tex.Civ.App.— Fort Worth 1949, no writ history); Royal Indemnity Company v. Hume, 477 S.W.2d 683 (Tex.Civ.App. — San Antonio 1972, no writ history); Broyles v. Order of United Commercial Travelers, supra; Maryland Casualty Co. v. Burns, 149 Ky. 550,149 S.W. 867 (1912); 10 Couch on Insurance 2d sec. 41:45; 18 Couch on Insurance 2d sec. 74:699. In our view the record is such that the jury could have reasonably concluded that even though the insured may have had an arteriosclerotic condition, it was so insubstantial in the scale of causation that it did not, in legal contemplation, contribute to cause death.

Contrary to defendants’ contention we do not believe the jury’s verdict is based on a pyramiding of inferences. The only inference necessary to establish defendants’ liability is that the injury was accidentally received. The finding that the injury was the sole cause of death rests on the proven fact, established by direct and circumstantial evidence, that deceased received a rather severe injury to his head, and not on the inferred fact of accident.

Defendants insist that the testimony of Dr. Jachimczyk shows conclusively that the sole cause of the deceased’s death was arteriosclerotic cardiovascular heart disease resulting in a heart attack, which caused him to fall and sustain the injury to his head. Since such testimony is without contradiction, defendants argue that the record conclusively establishes, as a matter of law, that the death of the deceased was caused solely by disease or bodily infirmity. We find no merit in this contention. Such testimony was not in the nature of fact testimony but was peculiarly of the “opinion” or “expert” type. While the opinions of trained pathologists and physicians as to cause of death are admissible in evidence as expert testimony in the medical field, such opinions are not conclusive. Metropolitan Life Ins. Co. v. Funderburk, supra; Travelers’ Ins. Co. v. Culpepper, 82 S.W.2d 1054, 1057 (Tex.Civ.App. — Beaumont 1935, writ dism’d). Even when uncontradicted, that character of testimony is but evidentiary and not binding on the jury unless the subject is one in which the jury cannot be assumed to have any knowledge on the subject matter of the inquiry. Coxson v. Atlanta Life Ins. Co., 142 Tex. 544, 179 S.W.2d 943 (1944). As we view the record that situation does not exist here.

In determining whether there is any evidence of probative force to support the jury’s finding, we are required to view the evidence in its most favorable light in support of the finding, considering only the evidence and inferences which support the finding and rejecting the evidence and inferences which are contrary thereto. Miller v. Riata Cadillac Co., 517 S.W.2d 773 (Tex. 1974). Applying the foregoing rule to the facts of the present case, it is our view that there was some evidence of probative force to support the verdict and therefore the trial court did not err in overruling defendants’ motion for judgment non obstante veredicto. Defendants’ first point is overruled.

By the second point defendants seek a reversal and remand on the ground that the evidence is factually insufficient to support the jury’s finding to Special Issue No. 1.

After a review of the entire record and after weighing and balancing all of the evidence, both that in favor of the verdict and that against it, we do not believe we would be justified in concluding that the evidence is factually insufficient to support the jury’s finding and the judgment based thereon. The second point is overruled.

Defendants’ third point of error complains of the action of the trial court in excluding that portion of the deceased’s death certificate wherein it was stated that “arteriosclerotic cardiovascular disease” was the immediate cause of death. The record shows that the death certificate was signed by Dr. Sheldon Green and was properly authenticated by the State Registrar.

In pertinent part, Rule 54a of Article 4477, Tex.Rev.Civ.Stat.Ann., reads with regard to death certificates as follows:

“And any such copy of a record, when properly certified by the State Registrar, shall be prima facie evidence in all courts and places of the facts therein stated.”

Counsel for the plaintiffs objected on the ground that the death certificate amounted to an opinion on the part of the doctor as to the cause of death and was hearsay. After the cause of death portion of the certificate had been deleted, the court admitted the remainder of the certificate in evidence. Defendants maintain that under the above quoted statute the entire instrument was admissible and that the court erred in refusing to admit it in toto.

Even if the exclusion were improper, we do not believe it resulted in any harm to defendants. The post-mortem report on which Dr. Green based his opinion as to the cause of death was admitted into evidence. While his opinion as to the cause of death was deleted from the report, Dr. Jachimc-zyk, using the report as the basis of his testimony, testified that the report showed that the deceased died of arteriosclerotic cardiovascular heart disease, the identical cause of death given by Dr. Green in the death certificate. The cause of death shown on the death certificate would have been merely cumulative of the opinion expressed by Dr. Jachimczyk. For this reason we do not believe it can be said that the exclusion was calculated to cause and probably did cause the rendition of an improper judgment. Rule 434, Tex.R.Civ.P.; Burk v. Mata, 529 S.W.2d 591, 596 (Tex.Civ.App.— San Antonio 1975, writ ref’d n. r. e.). Accordingly, defendants’ third point is overruled.

The judgment of the trial court is affirmed.

Dissenting opinion by McKAY, J.

McKAY, Justice,

dissenting.

I respectfully dissent.

The majority opinion does not rule on the question of the admissibility of the entire death certificate — including the statement of the cause of death, but, instead holds that if it was improper to exclude the cause of death statement on the certificate it was harmless error. Article 4477, Rule 54a, Tex.Rev.Civ.Stat.Ann., provides that when a death certificate is properly certified “it shall be prima facie evidence in all courts and places of the facts therein stated.” The death certificate in this case was properly certified by the Bureau of Vital Statistics, and was signed by Dr. Sheldon Green, M.D., Assistant Medical Examiner.

This court said in Reserve Life Ins. Co. v. Estate of Shacklett, 412 S.W.2d 920, 922 (Tex.Civ.App. — Tyler 1967, writ ref’d n. r. e.):

“The death certificate complies fully with the provisions of Vernon’s Ann. Civ.St. Article 4477, Rule 54a, and the certificate of the State Registrar was in all things proper. We find the law in this State to be that such certificates are not only admissible in evidence, but are prima facie evidence of the facts therein stated. In this certificate, the statement is made that the death of the insured was an accident. American Nat. Ins. Co. v. Valencia, Tex.Civ.App., 91 S.W.2d 832; Southland Life Insurance Co. v. Brown, supra [Tex.Civ.App., 121 S.W.2d 653]; Universal Life & Accident Ins. Co. v. Barron, Tex.Civ.App., 269 S.W.2d 467.”

It was held in Buchanan v. American National Ins. Co., 446 S.W.2d 384, 387 (Tex. Civ.App. — El Paso 1969, writ ref’d n. r. e.), that when all the requirements of Art. 4477, Rule 54a, are met a death certificate “is not only admissible in evidence but is prima facie proof of the information therein contained.”

Burrous v. Knotts, 482 S.W.2d 358, 362 (Tex.Civ.App. — Tyler 1972, no writ), followed Shacklett and Valencia. See Texas State Highway Department v. Butler, 158 S.W.2d 878, 881 (Tex.Civ.App. — Texarkana 1942, writ ref’d want of merit) and authorities therein cited.

Here we have a duly authenticated death certificate prepared and signed by a medical doctor who was the Assistant Medical Examiner. Under the statute and the authorities the death certificate was admissible in its entirety (including the statement as to the cause of death). If it had been admitted the jury was not bound to accept it as conclusive proof, but it should have been admitted for the jury’s consideration.

Judge Alexander wrote in Southland Life Ins. Co. v. Brown, 121 S.W.2d 653, 654 (Tex. Civ.App. — Waco 1938, writ dism’d):

“. . . The Death certificate shows that the insured committed suicide, and the statute, R.S. 4477, rule 54a, sec. 21, makes properly certified copies of such certificates prima facie evidence of the facts therein stated. However, the presumption in favor of the truth of the facts therein recited can be no stronger than the evidence authorizing the making of such statement in the original certificate. The jury was not required to accept the recitations contained in such certificate as conclusive proof of the fact that the insured committed suicide.”

Although Dr. Jachimczyk may have read Dr. Green’s notes or report, and then testified that his opinion was that the cause of death was the same as Dr. Green had stated in the death certificate, the jury was denied the opportunity to see and consider the cause of death statement by Dr. Green on the death certificate. The majority opinion says that the information on the certificate was cumulative. If the entire death certificate should have been admitted, and was not, it seems there should be no presumption as to the effect it may have had on the jury; nor is that conclusive of whether the error was calculated to cause and probably did cause the rendition of an improper judgment.

The one basic issue in this case was the question of the immediate cause of death— whether death was “the direct result of bodily injury through accidental means independently of all other causes, as evidenced by a visible contusion or wound on the exterior of the body.” In my view the jury should have been permitted to have before it the admissible evidence on the cause of death in the death certificate.

In my opinion it was reversible error for the trial court to exclude the portion of the deceased’s death certificate wherein it was stated that “arteriosclerotic cardiovascular disease” was the immediate cause of death. I would reverse the judgment of the trial court and remand the cause to that court.

      . Plaintiffs originally instituted separate suits against each company which were subsequently consolidated for trial.