author: WARD, Justice.

text:
    CITY OF EL PASO, Appellant-Appellee, v. R. E. KNAPP et al., Appellees-Appellants.
    No. 6590.
    Court of Civil Appeals of Texas, El Paso.
    Feb. 23, 1978.

      Diamond, Rash, Leslie & Smith, Tom M. Diamond, Jr., Richard E. Buck, El Paso, for appellant-appellee.
    Merkin, Gibson & Hines, William L. Mer-kin, Sidney K. Gibson, Stephen A. Hines, El Paso, Meserve, Mumper & Hughes, Hodge L. Dolle, Jr., Ralph C. Navarro, Los Ange-les, Cal., for appellees-appellants.
   OPINION

WARD, Justice.

This is a condemnation suit brought by the City of El Paso against the Appellees, R. E. Knapp and R. A. Knapp, for the taking on September 4, 1973, of six parcels of land containing a total of some 63.5 acres out of a larger tract of 1,230 acres of rural land owned by the Defendants. The purpose of the taking was to construct water and flood control dams, flood control channels, and flowage easements on the side of Mount Franklin, the mountain being located within the City of El Paso. Trial was to the Court without a jury and judgment was entered which awarded the landowners $625,260.00, $395,260.00 being for the value of the land taken, and $230,000.00 being the amount the remainder had diminished in value as a result of the taking. Findings of fact and conclusions of law were requested and filed. The City appeals complaining of the damages to the remainder and of the award of prejudgment interest to the landowners. The landowners likewise appeal and complain of the alleged inadequacy of the' damage award to the remainder. We affirm.

The City first presents points complaining of the legal and factual insufficiency of the evidence to support the trial Court’s finding that there was a diminution in market value of the remainder. In connection therewith, the City also presents a point complaining that the trial Court erred in overruling its motion to strike the testimony of the landowners relating to remainder damages as being based on improper and noncompensable methods of valuation. The City’s position is that all of the testimony adduced by the witnesses for the landowners with regard to the severance damages presented specific items of damage without relating such items to diminution of market value.

The landowners’ tract consisted of two sections of land containing 1,230 acres and lying on the eastern slope of Mount Franklin. The property is rugged and badly cut up by many arroyos running in an easterly direction off the side of the mountain. The highest and best use of the land was for a residential subdivision and shopping center. As found by the trial Court, the property contained 525 acres of developable land, and 705 acres of support land. The City, on the six parcels of land taken, constructed the different flood control facilities by agreement with the U.S. Army Corps of Engineers.

The trial Court, in its findings of fact, determined that the remainder had been damaged for the following reasons: grading would be restricted between ownership lines by the requirement that certain elevations would have to be preserved to maintain the integrity of the contemplated development; the shapes of the parts taken were irregular, and this produced odd-shaped parcels in the remainder which would be difficult to use; the remainder between and below the dams would produce less attractive homesites; since two existing roads were blocked by the project, new roads would have to be built to develop the property; and, finally, should the developer desire to level any property for roads or homesites, the approval of the Corps of Engineers would have to be obtained. Damages to the remainder were determined as follows: thirty acres of the remainder had a market value immediately before the taking of $8,500.00 per acre, which market value was $3,500.00 per acre immediately after the taking; another thirty-four acres of the remainder had a market value immediately before the taking of $4,000.00 per acre, and this market value was $2,000.00 per acre immediately after the taking; a third tract of three acres had a market value immediately before the taking of $6,000.00 per acre, and the market value for this was $2,000.00 per acre immediately after the taking. The Court concluded that the Defendants were entitled to severance damages of: (a) $5,000.00 per acre as to the thirty acres, or the sum of $150,000.00; (b) $2,000.00 per acre as to the thirty-four acres, or $68,000.00; and (c) $4,000.00 per acre as to the three acres, or $12,000.00, all for a total damage of $230,000.00.

The City’s witnesses all acknowledged that the landowners suffered damage to their remainder, but testified that special benefits conferred by the project benefited the remainder to the extent that its market value improved or was at least the same. On the other hand, the landowners’ witnesses expressed the opinion that there were no project benefits. Each then adopted a partial approach to the remainder whereby they divided it into homogeneous units containing similar characteristics for development and attributed market valuations to each separate unit. They then gave various reasons why the project would damage the use of the various units, gave their opinion as to the amount of the lessened market value of each parcel, added these and arrived at their opinion figures of the lessened market value of the remainder after the taking. In this connection, we note that their breakdown into parcels for valuation purposes was not challenged. The City’s complaint that each of these experts considered the cost of relocation of roads, the cost of the construction of a contemplated bridge because of the flood control construction, and other items, is without merit as each expert related the cost of the various expenses to a reduction of market value of each particular tract.

The rule and the supporting authorities are set out in City of Texarkana v. Kitty Wells, Inc., 539 S.W.2d 205 (Tex.Civ.App. —Texarkana 1976, no writ). There it was stated:

“ * * * The cost of relocating or reconstructing improvements cannot be recovered as separate and independent items of damages, but where by taking part of a tract a relocation or reconstruction of improvements is rendered necessary to the reasonable use and enjoyment of the remainder, and the burden of moving and reconstructing such improvements is cast upon the owner, then that burden, insofar as it depreciates the value of the land, is a proper element to be considered in estimating the damages. The land is depreciated in proportion to the expense, and the allowance is for diminution in the market value of the land in consequence of the burden thus cast upon it. * * * ”

Since all items of expense and loss were properly related to market value, the City’s first three points are without merit. In reviewing the legal sufficiency point, we have considered only the evidence and inferences therefrom which support the award, and in reviewing the factual sufficiency point, we have considered all of the evidence, and the two points are overruled. Since the motion to strike was without merit, that point likewise is overruled.

The City’s last point is to the effect that the trial Court erred in entering judgment that the City pay prejudgment interest from the date of the deposit of the amount of the award of the Special Commissioners to the date of the judgment. The trial Court allowed the statutory interest on that amount by which the judgment exceeded the award of the Special Commissioners, and the complaint by the City is that the landowners failed to plead for the interest. Here, the landowners, in their objections and exceptions to the award, prayed that they be awarded their just and full compensation, and for other and further relief, both general and special, at law and in equity, to which they may be justly entitled. That prayer was sufficient to support the trial Court’s judgment of interest in the absence of a special exception. That rule in a condemnation ease was settled in Trinity River Authority of Texas v. Sealy & Smith Foundation, 435 S.W.2d 864 (Tex.Civ.App.—Beaumont 1968, writ ref’d). The point is overruled.

The landowners’ single point in their appeal is that the severance damage award is erroneous as being contrary to and against the overwhelming weight and preponderance of the evidence. The landowners argue that the trial Court, in its findings of remainder damage, tracked the identical testimony offered by the landowners’ appraiser, Mr. Berry, in his testimony as to a thirty-acre tract, a thirty-four-acre tract, and a three-acre tract in arriving at the remainder damages of $230,000.00; that Mr. Berry also testified that the road replacement cost would be an additional $630,000.00; that the trial Court ignored this expense, yet all witnesses, City and landowners alike, testified that there would be landowner expense for rebuilding the r'oads, and all of their figures were in substantial amounts.

As previously pointed out, the various witnesses in their remainder damage testimony valued different parcels at different valuations. The witnesses also differed in the number of parcels upon which they placed separate valuations, some numbering the parcels from four to five, and others as high as fifteen. This brings us to the defect in the landowners’ present complaint. While in its findings the trial Court did determine that new roads would have to be built, there is no finding as to which road it was considering and how much in road construction it allocated as lessened market value in the three tracts that it did consider. We have no way of knowing that the trial Court was considering each of the three tracts that Mr. Berry described. While admittedly the trial Court was probably referring to those three tracts, it is evident then that the Court did not adopt the Berry testimony on reduced valuation but valued them on its own conclusion from all of the other testimony in the case, and allocated to those tracts what it considered as reasonable road construction cost. We have read the record, and the Court’s findings are well within the ranges of the valuation and road construction testimony, and are not grossly inadequate. Since no additional findings were requested by the landowners, the very general and rather ambiguous findings made by the trial Court compel this decision. After considering all of the testimony, the landowners’ point is overruled.

The judgment of the trial Court is affirmed.


source: Caselaw Access Project

author: JAMES, Justice. HALL, Justice,

license: Public Domain

text:
    The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, et al., Appellants, v. Robert E. SMITH, Appellee.
    No. 5764.
    Court of Civil Appeals of Texas, Waco.
    Feb. 27, 1978.
    Rehearing Denied April 6, 1978.

      Joe Bruce Cunningham, Hudson, Keltner, Smith, Cunningham & Payne, M. Hendricks Brown, Brown, Crowley, Simon & Peebles, Fort Worth, for appellants.
    David H. Burrow, Helm, Pletcher, Hogan & Burrow, Houston, for appellee.
   OPINION

JAMES, Justice.

This is a suit by a railroad employee against his employer under the Federal Employers Liability Act, which suit also involves other defendants.

Plaintiff-Appellee Robert E. Smith, a brakeman and sometimes conductor, sued his employer, The Atchison, Topeka and Santa Fe Railway Company (hereinafter called “the Santa Fe”), the Erath Fertilizer Company, Inc. (hereinafter called “Erath Fertilizer”) and Farmers Milling Company, Inc. (hereinafter called “Farmers Milling”) for personal injuries sustained by Smith in the course and scope of his employment as an employee of the Santa Fe on or about October 7,1974. The Santa Fe filed a third party cross-action against Defendant-Appellants Borden, Inc., Erath Fertilizer and Farmers Milling for contractual indemnity growing out of the breach of certain lease agreements more particularly hereinafter discussed, as well as for common law indemnity resulting from the negligence of said Appellants.

Trial was had to a jury which found:

(1) Erath Fertilizer was guilty of negligence in the following three particulars, each of which was a proximate cause of Plaintiff-Appellee Smith’s injuries, to wit:

(A) In permitting fertilizer to accumulate on the ground near the railroad track;

(B) In failing to pick up the fertilizer from the ground after completing the unloading operation; and

(C) In failing to make an inspection of the area after unloading fertilizer.

(1A) Farmers Milling was likewise found to be negligent upon the same three grounds hereinabove attributed to Erath Fertilizer, each of which was a proximate cause of Smith’s injuries.

(2) The jury failed to find that Plaintiff Smith failed to keep a proper lookout; in other words, by doing so, the jury acquitted Smith of any contributory negligence.

(3) This was a proximate cause issue conditionally submitted upon an affirmative answer to (2), which was not necessary to be answered, and was not answered.

(4) The Santa Fe failed to provide a safe place to work for its employees,

(5) Which was a proximate cause of the occurrence in question.

(6) The jury failed to find that Smith’s injuries were solely due to the Santa Fe’s failure to furnish Smith a safe place to work.

(7) The jury failed to find that Smith’s injuries were caused solely by the acts and omissions of Erath Fertilizer in permitting fertilizer to accumulate and remain on the ground near the railroad track.

(8) Farmers Milling failed to keep a space of six feet from the nearest rail of the railroad track entirely clear of material.

(9) Erath Fertilizer failed to keep a space of six feet from the nearest rail of the railroad track entirely clear of material.

(10) In answer to the damage issue, to compensate Smith for his past and future physical pain and mental anguish, his past lost earnings, and his future loss of earning capacity, the jury answered $150,000.00.

(11) In answer to the comparative negligence issue, the jury found Erath Fertilizer to be 37V2% to blame, Farmers Milling to be 37V2% to blame, and the Santa Fe to be 25% to blame.

After the jury verdict the trial court entered judgment in favor of Plaintiff Smith allowing him recovery in the amount of $150,000.00 against the Santa Fe, Erath Fertilizer, and Farmers Milling, jointly and severally; then the Santa Fe was allowed recovery of judgment over against Borden, Erath Fertilizer, and Farmers Milling, jointly and severally, in the amount of $150,000.00. Costs were assessed jointly and severally against Smith, the Santa Fe, Borden, Erath Fertilizer, and Farmers Milling.

In this appeal the Santa Fe is both an Appellant and an Appellee, being an Appellant insofar as the judgment against it (the Santa Fe) is concerned, and being an Appel-lee insofar as it (the Santa Fe) was awarded judgment over against the three cross-defendants hereinabove named.

Appellants Borden, Erath Fertilizer, and Farmers Milling appeal from the trial court’s judgment. After careful consideration of all of the Appellants’ points of error and contentions, we overrule same and affirm the trial court’s judgment.

In a sole point of error as an Appellant, the Santa Fe asserts there is no evidence to support the jury’s findings in answer to special issues 4, 5 and 11, wherein the jury found (4) that the Santa Fe failed to provide a safe place to work for its employees, (5) which was a proximate cause of the occurrence in question, and (11) that the Santa Fe was 25% to blame for the accident. We overrule these contentions.

Appellants Borden, Erath Fertilizer, and Farmers Milling assail the trial court’s judgment upon twenty-two points of error which assert in effect the following contentions:

(1) The evidence is legally and factually insufficient to support the jury’s findings of negligence upon the part of Erath Fertilizer and Farmers Milling in permitting fertilizer to accumulate on the ground near the railroad track, in failing to pick up the fertilizer after completing the unloading operations, and in failing to make inspections of the area after unloading operations.

(2) The trial court erred in its submission of the above-stated issues inquiring into the negligence of Erath Fertilizer and Farmers Milling and should have disregarded such issues for the asserted reason that such issues assumed that the occurrence took place on property under the control of Er-ath Fertilizer or Farmers Milling, and assumed that Erath Fertilizer was responsible for the fertilizer being on the west side of the track.

(3) That neither Erath nor Farmers owed any duty to Smith because he was a mere licensee and was not performing any service for either Erath or Farmers on the occasion in question; the trial court erred in assuming that Smith was an invitee when it was Plaintiff Smith’s burden to secure a jury finding that he was an invitee; the trial court erred in refusing to submit Appellants’ requested issues inquiring whether Smith was walking on any property under the control of Appellants at the time of the accident, or was performing any service beneficial to Erath, Farmers, or Borden.

(4) The trial court erred in entering any judgment against Borden, there having been no findings of negligence on Borden’s part or testimony concerning Borden’s operations.

(5) The trial court erred in awarding the Santa Fe indemnity against Erath, Farmers, and Borden because the “side track” agreements respectively applicable to such Appellants are ambiguous and unenforceable as a matter of law; and alternatively, if indemnity is allowed then under the terms of such side track agreements the Santa Fe would be entitled to only 50% indemnity in view of the fact that the Santa Fe was also found to be negligent.

(6) The side track agreements for indemnity are unenforceable because the Santa Fe thereby unlawfully attempted by indemnity contract to exempt itself from the Federal Employers’ Liability Act, in violation of Section 55 of Title 45, U.S.C.A., the Federal Employers’ Liability Act.

(7) The trial court erred in refusing to submit certain special issues requested by Appellants concerning a drainage ditch near the area where Smith fell, inquiring whether the Santa Fe was negligent in permitting such drainage ditch to be open, and whether such negligence was the sole cause of Smith’s injuries.

We are of the opinion that all - of Appellants’ points and contentions are without merit, and are respectfully overruled.

On October 7, 1974, at about 10 P.M. Plaintiff-Appellee Smith was injured when he slipped on fertilizer and fell on a rail. The injury occurred on railroad tracks leading to Erath Fertilizer and Farmers Milling premises located near the Santa Fe railroad depot at Stephenville, Texas, in Erath County. At the time of the accident, Smith was working as a brakeman for the Santa Fe.

The track upon which the injury occurred runs in a general north-south direction, and is a spur track (or side track) used for loading and unloading railway cars as opposed to a track used for through traffic.

At the time of the accident in question, Farmers Milling was in possession of premises consisting of 10,710 square feet located on the east side of the track upon which the accident occurred, pursuant to a lease from the Santa Fe. Said lease contained indemnity and other provisions more particularly hereinafter discussed.

On April 18, 1967, the Santa Fe leased a tract to The Borden Co. consisting of 26,-828.2 square feet which adjoined the Farmers Milling track on the north, and which Borden premises were also located on the east side of the track where Smith was injured. Paragraph 11 of the lease from the Santa Fe to Borden provided in effect that lessee (Borden) was not permitted to sublet, assign, or transfer the lease or any interest therein without the written consent and approval in each instance by Lessor (Santa Fe). Nevertheless, in violation of this covenant with Santa Fe, Borden subleased or assigned the said premises to Er-ath Fertilizer for a ten-year period by instrument dated August 9,1971, without the knowledge or consent of Santa Fe, and Santa Fe had no knowledge of such assignment until a considerable period of time after Smith’s accident. At all times material to this controversy, Erath Fertilizer was in possession of the premises leased to Borden. Erath paid its rent to Borden, and Borden continued to pay its rent to the Santa Fe. Paragraph 19 of the lease from Santa Fe to Borden provided: “All the covenants and agreements of Lessee herein contained shall be binding upon the_successors and assigns of Lessee, and shall inure to the benefit of the successors and assigns of Lessor.”

Shortly before the accident in question, Plaintiff-Appellee Smith was directed by a switch list to take a railroad car, destined for Farmers Milling, out of the train and “spot” that ear on the side track located near Farmers Milling. Smith noticed a car which was not identified on his switch list on this side track located nearby Farmers Milling and Erath Fertilizer, whereupon he walked toward this unidentified car in order to see whether or not it was completely unloaded. If it had been completely unloaded, then he intended to move it out of the way so that he could spot the railroad car as per his switch list instructions. Smith walked toward the unidentified car on the west side of the track, because an auger, used for unloading fertilizer, was on the east side of said track. When he reached the area where Erath Fertilizer and Farmers Milling unload fertilizer, he slipped and fell, his buttocks striking the west rail of the track. At the time of this accident, Smith was thirty-six years of age, and was substantially and permanently injured as a result thereof. The amount of damages awarded by the jury to Smith is not in controversy herein.

Smith’s fall took place in an area where only Erath Fertilizer and Farmers Milling unload fertilizer. Erath Fertilizer and Farmers Milling are closely related corporations. James E. Gryder, manager for both Erath and Farmers, testified that some of the same people are officers and directors of both corporations, and that all of the employees working under him (Mr. Gryder), except one, worked for both Erath Fertilizer and Farmers Milling. His testimony was that “our men” are responsible for cleaning up the fertilizer after unloading.

Prior to Smith’s accident, the evidence showed that several complaints concerning the dangerous condition of the fertilizer unloading area were made to a safety supervisor for the Santa Fe and to the Santa Fe station agent at Stephenville. At least one prior complaint was forwarded to James Gryder (manager of Erath and Farmers) by the railroad.

Since it was ten o’clock at night at the time of the accident, and dark, Smith testified he was using his lantern which was supplied to him by the Santa Fe, but he could not see the fertilizer because it blended with the surrounding ground.

Erath and Farmers complain about the legal and factual sufficiency of the evidence to support the jury’s findings that Erath and Farmers negligently permitted the accumulation of fertilizer near the railroad track, negligently failed to clean up the fertilizer after the unloading operation, and negligently failed to make an inspection of the area after the unloading operations. Particularly Erath and Farmers say that there is no evidence that any fertilizer was spilled on the west side of the track. Since their unloading operations were on the east side of the track, they say that any fertilizer spilled would be on the east side of the track only. Actually, there was ample evidence that Erath and Farmers spilled fertilizer on the west side of the track. Mr. Kirby Humphries, a train conductor for the Santa Fe, testified that he was familiar with Erath’s and Farmers’ unloading operation, and that the auger being used to unload the railway cars spilled fertilizer on both sides of the track. Likewise, George Bankhead, the station agent for the Santa Fe at Stephenville, stated he was familiar with the operations of Erath and Farmers, and he testified that fertilizer fell on both sides of the track during the unloading operations. Moreover, Smith himself testified that immediately before the accident he was walking on the west side of the track, and after falling on the west side, he had fertilizer all over him. This was corroborated by Jimmy Glen Crawford, a brakeman for the Santa Fe, who was working with Smith on the evening of the accident. Crawford testified that Smith fell on the west side of the track and that he fell on and in fertilizer. Pictures taken by Mr. D. L. Reynolds, trainmaster for the Santa Fe on the next day after the accident showed fertilizer on the west side of the track. Mr. Gryder, manager of both Erath and Farmers, testified that Erath and Farmers were the only corporations unloading in the area. Smith testified that it was the fertilizer, and nothing else, that caused him to fall. He said that when the fertilizer gets moisture with it, that it becomes slick; that a crust often forms on the top, but underneath the crust it is slippery when you step on it; when it crusts over, the sun bleaches it and “it looks just like the rest of the ground.” These facts were corroborated by James Gryder and Kirby Humphries. Gry-der testified that both Erath and Farmers unload fertilizer in the area in question. The evidence showed that the crew of Er-ath and Farmers customarily moved railway cars up and down the track for their own convenience.

In our opinion the evidence is ample to support the jury findings that the Santa Fe failed to furnish Smith a safe place to work, which was a proximate cause of the accident, and that the Santa Fe was 25% to blame as compared to Erath and Farmers.

Without further detailing the evidence, it is undisputed that prior to Smith’s accident the Santa Fe had knowledge of the dangerous condition caused by the fertilizer being spilled on the ground by Erath and Farmers, had made some effort to get Erath and Farmers to clean it up, but did not get the situation remedied.

Under the Federal Employers Liability Act, a railroad has the non-delegable duty to provide its employees a safe place to work even when they are required to go onto premises of a third party over which the railroad has no control. Shenker v. The Baltimore and Ohio Railroad Co. (1963) 374 U.S. 1, 83 S.Ct. 1667, 10 L.Ed.2d 709; Nivens v. St. Louis Southwestern Railway Co. (5th Cir. 1970) 425 F.2d 114. In the case at bar, the Santa Fe breached its non-delega-ble duty to Smith in failure to furnish him a safe place to work, proximately causing his injuries. The Santa Fe’s sole point of error as Appellant herein is overruled.

The next problem we are called upon to determine is what duty, if any, did Erath Fertilizer and Farmers Milling owe to Plaintiff Smith as an employee of the Santa Fe Railroad. Before we can answer this question we must first ascertain whether Smith was a licensee or an invitee. Appellants Erath and Farmers lay a great deal of stress or importance upon the question of whether Smith’s accident took place on property under the control of Erath and Farmers by lease or otherwise. Appellants say Plaintiff-Appellee Smith failed to request submission of a special issue to the jury inquiring whether Smith was a licensee or an invitee.

The property description portion of the leases in question refer in each instance to a plat attached, and this is how we determine the property descriptions of the leased premises. Both plats show that the leased premises in question are about ten feet from the side track. In one place the Borden tract is shown to be 8½ feet from the side track. Since Smith slipped and fell upon the west rail of the railroad track, it seems clear that he actually slipped and fell upon property which was not included in the leased premises. However, we do not consider this important, because the leases clearly contemplated that the lessees had the right to load and unload goods to and from the railway cars on the side track, and did customarily and regularly do so. Their auger and other unloading equipment was positioned upon and near the Santa Fe track so as to connect with the railway cars for unloading of fertilizer. Therefore there is no question but that Erath and Farmers had control over the area where Smith was injured, as well as the Santa Fe. Here, the Santa Fe on the one hand, and Erath and Farmers on the other, had a purpose in common or mutuality of interest, since the Santa Fe was in the business of transporting fertilizer, feed, and other goods to the unloading area; and Farmers and Erath were interested in unloading the goods from the railway cars. At the time Smith was injured, he was in the process of checking an unidentified railway car which was destined for and being unloaded by Farmers Milling, in order that he might “spot” or position another ear out of the train for unloading by the Erath and Farmers crew. This being so, in our opinion, the evidence conclusively shows and establishes that Smith was on the premises at the implied invitation of Erath and Farmers, and was an invitee of said parties, and whether he slipped and fell upon leased ground or not is immaterial.

An “invitee” is defined as a person who goes on the premises of another in answer to the express or implied invitation of the owner or occupant or the business of the owner or occupant or for their mutual advantage.

An implied invitation is one which is held to be extended by reason of the owner or occupant doing something or permitting something to be done which fairly indicates to the person entering that his entry and use of the property are consistent with the intentions and purposes of the owner or occupant, and leads him to believe that the use is in accordance with the design for which the place is adapted and allowed to be used in mutuality of interests. 65 C.J.S. Negligence, par. 63, p. 720 (1969).

A servant or employee of another person who enters the premises on the business of his master, in which business the master and the owner or occupant have a mutual interest occupies the status of an invitee. Texas Power & Light Co. v. Holder (Tyler CA 1964) 385 S.W.2d 873, 885, 886, writ refused, NRE, by the Supreme Court in 393 S.W.2d 821.

In view of our holding that Smith was an invitee of Erath and Farmers at the time of his injury, we come to the well-settled rule of law that an occupier owes a duty of ordinary care to make and keep the premises safe for the use of his invitees, which includes the duty to inspect the premises to discover dangerous conditions. Smith v. Heneger (Tex.1950) 148 Tex. 456, 226 S.W.2d 425, 431, 20 A.L.R.2d 853; Ha-lepeska v. Callihan Interests, Inc. (Tex.1963) 371 S.W.2d 368, 378; Scott v. Liebman (Tex.1966) 404 S.W.2d 288, 293. This duty of an occupier has been held to apply to persons using an abutting highway to the occupier’s premises and to persons on adjoining premises. See Atchison v. Texas and Pacific Ry. Co. (Tex.1945) 143 Tex. 466, 186 S.W.2d 228, opinion adopted; Hernandez v. Heldenfels (Tex.1963) 374 S.W.2d 196, 199; Chapman v. Parking, Inc. (San Antonio CA 1959) 329 S.W.2d 439, NRE; Christian v. Dishongh (Houston 14th CA 1969) 449 S.W.2d 823, no writ.

Under the record before us and the foregoing authorities, we are of the opinion and hold that Smith was an invitee as a matter of law; that Erath and Farmers owed him the occupier’s duty of ordinary care to make and keep the premises safe for the use of such invitee; that by the jury’s findings of negligence and proximate cause on the part of Erath and Farmers, said Appellants breached that duty, owed to Smith, and therefore Smith’s judgment against Erath and Farmers is proper.

Our next problem concerns the propriety of the trial court’s judgment in favor of the Santa Fe over against Cross-Defendant-Appellants Borden, Erath Fertilizer, and Farmers Milling. We are of the opinion and hold that the Santa Fe is entitled to a judgment over against all three Cross-Defendants by way of the contractual indemnity provisions contained in the leases in question; and in addition thereto, Santa Fe is entitled to common law indemnity against Erath and Farmers.

Let us first consider the pertinent indemnity provisions of the leases in question. First, the lease from the Santa Fe to Borden (later assigned to Erath Fertilizer without the Santa Fe’s knowledge or consent as hereinabove pointed out), contained the following language:

“9. Lessee agrees to indemnify and save harmless Lessor against all loss, damage or expense which Lessor may sustain, incur, or become liable for, including loss of or damage to property or injury to or death of persons and fines or penalties imposed upon or assessed against Lessor, arising in any manner out of (a) the use of the Premises or Improvements by Lessee, (b) any breach by Lessee of the terms, covenants or conditions in this instrument contained, or (c) the sole or contributing acts or omissions of Lessee or the employees, agents, patrons or invitees of Lessee in, on or about the Premises or Improvements, except that if Lessor shall participate in any such contributing acts or omissions, then the loss, damage or expense arising therefrom shall be borne by the parties hereto equally.
“10. Lessee shall at all times keep a space of six (6) feet from the nearest rail of any railroad track entirely clear of structures, material and obstructions of every sort and shall observe an overhead clearance of not less than twenty-five (25) feet above the top of rail; provided, however, if by statute or order of competent public authority different clearances shall be required, then Lessee shall strictly comply with such statute or order. Irrespective of anything in Section 9 hereof contained, in case of a breach of the obligations contained in this Section 10, or of any of them, Lessee assumes and agrees to indemnify Lessor against all liability for loss, damage, injury and death resulting therefrom, and to reimburse Lessor for any sums which Lessor may have been required to pay in the way of damages, fines, penalties or other expense resulting, in whole or in part, from the failure of Lessee to comply with any of the provisions hereinabove in this Section 10 contained.” (emphasis supplied).

In paragraph 19, as stated before, Erath Fertilizer as assignee of Borden became bound concerning the covenants and agreements contained in the Borden lease.

The evidence clearly shows, and the jury found, that Erath Fertilizer violated the terms of paragraph 10 of the Borden lease by failing to keep a space of six feet from the nearest rail of the railroad track entirely clear of material. This jury finding is not challenged by Appellants, and the record is replete with evidence showing the spilling of fertilizer in the middle of, and on both sides of the track.

In the case at bar, Santa Fe as indemni-tee was also found by the jury to be negligent and 25% to blame for the accident.

Our Supreme Court has held that the general rule is that a contract of indemnity will not afford protection to the indem-nitee against the consequences of his own negligence unless the contract clearly expresses such an obligation in unequivocal terms; that broad general statements of the indemnity obligation are not sufficient to protect an indemnitee against his own negligence. Fireman’s Fund Ins. Co. v. Commercial Standard Ins. Co. (Tex.1972) 490 S.W.2d 818 at page 822. However, Fireman’s Fund further points out three exceptions to this general rule, the first of which is applicable to the case at bar. This exception is, to wit, “agreements in which one person clearly undertakes to indemnify another against liability for injuries or damages caused by defects in certain premises or resulting from the maintenance or operation of a specified instrumentality, as in Mitchell’s Inc. v. Friedman” (Tex.1957) 157 Tex. 424, 303 S.W.2d 775, at page 779. Also see Houston & T.C. Ry. Co. v. Diamond Press Brick Co. (Comm.App.1920) 111 Tex. 18, 222 S.W. 204, opinion approved, on rehearing at 226 S.W. 140.

In the case at bar, Borden as original lessee remained liable on the lease, 36 Tex.Jur.2d, “Landlord and Tenant,” par. 239, p. 83, as was Erath Fertilizer as assign-ee of the lease by the express terms of said original lease.

In our opinion the indemnity provisions in the Borden lease are clear and unequivocal to indemnify the Santa Fe against its own negligence; however, in any event the Santa Fe was properly indemnified by Borden and Erath Fertilizer under the exception to the general rule enunciated by Fireman’s Fund, Mitchell’s Inc. v. Friedman, and Houston & T.C. Ry. Co. hereinabove cited. We therefore hold that Bordens and Erath Fertilizer were liable to the Santa Fe on contractual indemnity-

Santa Fe’s lease to Farmers Milling contains this pertinent language:

“9. Lessee shall at all times keep a space of six (6) feet from the nearest rail of any railroad track entirely clear of structures, material and obstructions of every sort and shall observe an overhead clearance of not less than twenty-five (25) feet above the top of the rail; _
“10. Lessee agrees to indemnify and save harmless Lessor against all loss, damage or expense which Lessor may sustain, incur or become liable for, including loss of or damage to property or injury to or death of persons and fines or penalties imposed upon or assessed against Lessor, arising in any manner out of (a) the use of the Premises or Improvements by Lessee, (b) any breach by Lessee of the terms, covenants, or conditions in this instrument contained, or (c) the sole or contributing acts or omissions of Lessee or the employees, agents, patrons or invitees of Lessee in, on or about the Premises or Improvements, except that if Lessor shall participate in any such contributing acts or omissions, then the loss, damage or expense arising therefrom shall be borne by the parties hereto equally; provided, however, that Lessee hereby assumes the risk of, and agrees to indemnify Lessor against liability for, loss of or damage to the property of Lessee or of others upon the premises (except any rolling stock or shipments in the course of transportation and except any property of Lessor or others placed or kept on the Premises pursuant to paragraph 2 hereof) due to fire communicated from locomotives while being operated by Lessor upon any tracks within or in the vicinity of the Premises, regardless of Lessor’s negligence, if any.” (emphasis supplied).

Appellants assert that the language in the Farmers Milling lease is ambiguous and unenforceable. We do not agree. Subpara-graph (b) of paragraph 10 hereinabove quoted specifically indemnifies Lessor (the Santa Fe) against “any breach by Lessee of the terms, covenants, or conditions in this instrument contained.”

The jury found, and this finding is not challenged by Appellants, that Farmers Milling breached a covenant of the lease by failing to keep a space of six feet from the nearest rail of the railroad track entirely clear of material. Therefore we are of the opinion and hold that Farmers Milling is liable to the Santa Fe under the doctrine of contractual indemnity under the rule here-inabove cited from Fireman’s Fund, Mitchell’s Inc. v. Friedman, and Houston & T.C. Ry. Co. v. Diamond Press Brick Co., supra.

Additionally, Erath Fertilizer and Farmers Milling are each liable to the Santa Fe under the well-settled doctrine of common law indemnity among joint tort-feasors enunciated by our Supreme Court, which rule is stated as follows: “Where the injury forming the basis for the judgment against the joint tort-feasors results from a violation of a duty which one of the tort-feasors owes to the other, the latter, at common law, is entitled to contribution or indemnity from the former.” (emphasis supplied). Renfro Drug Co. v. Lewis (Tex.1950) 149 Tex. 507, 235 S.W.2d 609 at page 623; Austin Road Co. v. Pope (Tex.1949) 147 Tex. 430, 216 S.W.2d 563, at page 565; Wheeler v. Glazer (Tex.1941) 137 Tex. 341, 153 S.W.2d 449, at page 451; City of Amarillo v. Stockton (Tex.1958) 158 Tex. 275, 310 S.W.2d 737, at page 739. Also see Houston Belt & Terminal Ry. Co. v. Weingarten (Houston 1st CA 1967) 421 S.W.2d 431, at page 437, NRE.

In the instant case, Erath Fertilizer and Farmers Milling were joint tort-feasors along with the Santa Fe insofar as Plaintiff-Appellee Smith was concerned. However, in addition to this, at the same time Erath Fertilizer and Farmers Milling also breached a duty which they owed to the Santa Fe, by failing to keep a space of six feet from the nearest rail of the railroad track entirely clear of material, in clear violation of the express terms of their respective leases. Therefore, the trial court properly awarded the Santa Fe judgment over against Erath and Farmers under this doctrine of common law indemnity.

Appellants have other points and contentions, all of which we have carefully considered, and all of which we overrule as being without merit.

Judgment of the trial court is accordingly affirmed.

AFFIRMED.

HALL, Justice,

concurring.

I do not agree with the majority’s holding that the record shows as a matter of law that the area where Smith was injured was equally controlled by Santa Fe and its lessees, or that the record otherwise shows without dispute that Smith was the invitee of the lessees. However, it is my view that those questions are immaterial. The record does show without contradiction that Smith was on land controlled by Santa Fe when he was injured, and that the premises under lease by the lessee-defendants adjoined the property upon which Smith was injured. Under those circumstances and the jury’s findings the lessees are liable for Smith’s damages without regard to the relationship between them and Smith. This is so because of the rule that a possessor of land is under the duty to exercise ordinary care in the use of his property to avoid injuring others on adjoining property. See Texas-Louisiana Power Co. v. Webster, 127 Tex. 126, 91 S.W.2d 302 (1936); Atchison v. Texas & P. Ry. Co., 143 Tex. 466, 186 S.W.2d 228 (1945); Restatement, Law of Torts (2d ed. 1965) §§ 371, 386; Prosser, Handbook of the Law of Torts (1941), § 76.

With the exception stated, I concur with the majority’s opinion and order overruling motion for rehearing. I also concur in the affirmance of the trial court’s judgment.


author: NYE, Chief Justice.

text:
    VAHLSING, INC., Appellant, v. MISSOURI PACIFIC RAILROAD COMPANY, Appellee.
    No. 1248.
    Court of Civil Appeals of Texas, Corpus Christi.
    Feb. 28, 1978.
    Rehearing Denied March 31, 1978.

      Ted R. Cackowski, Austin, for appellant.
    Harry L. Hall, McAllen, for appellee.
   OPINION

NYE, Chief Justice.

This is a plea of privilege case. Plaintiff, Missouri Pacific Railroad Company, filed suit against defendants, Vahlsing, Inc., and Xonu Intercontinental Industries, Inc., to recover on a $20,000 note executed by Vahlsing and on a security agreement executed by Xonu. Only Vahlsing filed a plea of privilege which was overruled by the trial court. Vahlsing has perfected its appeal to this Court.

Plaintiff Railroad Company alleged that the note and the security agreement were executed and delivered to plaintiff in partial settlement of a certain case then pending in the 139th Judicial District Court of Hidalgo County, Texas, styled Missouri Pacific v. Vahlsing, Inc. (Cause No. C-11494). In order to secure the payment on the note, the security agreement gave to the Railroad Company a security interest in crops Xonu promised to grow on land it owned in Cameron County. Copies of the note, the security agreement, financing statement and a resolution of Xonu’s Board of Directors authorizing its President to execute and deliver the security agreement to plaintiff were attached to plaintiff’s petition. Plaintiff alleged that Vahlsing had defaulted on its obligation under the note; that there was no collateral upon which to foreclose because Xonu had breached its promise (to plant certain crops) under the security agreement; and that in any event Xonu had rendered compliance with the security agreement impossible because it had sold its land to a third party. Plaintiff prayed for the court to enter judgment against both defendants, to determine any subrogation rights of Xonu and to issue execution against Xonu.

Defendant Xonu answered but did not file a plea of privilege to be sued in San Patricio County, the county of its registered office. Defendant Vahlsing filed a general denial subject to a plea of privilege which alleged venue to be in Dallas County, the county of its registered office. Plaintiff Railroad Company controverted Vahlsing’s plea of privilege and alleged that venue was proper against Xonu under either Subdivision 5 or 23, and since Vahlsing was a necessary party, venue was in turn proper as to Vahlsing under Subdivision 29a of Article 1995. Although Xonu received notice of the venue hearing, Xonu did not attend. The trial court overruled Vahls-ing’s plea of privilege without filing findings of fact or conclusions of law.

Prior to the institution of this suit in Cameron County, Texas, Vahlsing, Inc., on July 14,1974, had filed its Original Chapter XI proceeding in the United States District Court for the Southern District of Texas. Accordingly, all proceedings in State Court against Vahlsing, Inc., were automatically stayed during the pendency of the bankruptcy. On December 29, 1976, plaintiff Railroad Company received leave of the Bankruptcy Court to proceed against Vahls-ing, Inc., in this suit “but with the provision that no execution could be issued on any Judgment rendered against Vahlsing, Inc.” Regardless of the outcome of this suit, the liability of Vahlsing, Inc., to Missouri Pacific Railroad Company, appellee herein, will be discharged in accordance with the plan of arrangement of Vahlsing, Inc., in the Bankruptcy Court which has been accepted by the requisite number of creditors.

Vahlsing in three points of error, complains that the trial court erred: (1) in admitting into evidence the security agreement of defendant Xonu, (2) in overruling its plea of privilege because there was no evidence that the plaintiff Railroad Company had a cause of action or part thereof arising in Cameron County against defendant Xonu (Subdivision 23), and, (3) there was no evidence that Vahlsing was a necessary party to any cause of action asserted against defendant Xonu (Subdivision 29a).

At the hearing on Vahlsing’s plea of privilege, the security agreement of Xonu was admitted into evidence without proof of execution. Vahlsing objected to the introduction of the security documents on the ground that Xonu’s interests were not in issue at the plea of privilege hearing. The plaintiff Railroad Company introduced into evidence Xonu’s first amended answer which did not deny that Xonu had executed the security agreement. Even if it had denied execution of the agreement, Xonu would have had to deny it under oath.

A denial of the execution of a written instrument must be verified or the written instrument shall be received in evidence as though fully proved, Rule 93 T.R.C.P. We recognized the general rule that a private writing must be proved to be genuine and executed by the party to be charged with its execution before it can be admitted into evidence. Borak v. Bridge, 524 S.W.2d 773, 777 (Tex.Civ.App.—Corpus Christi 1975, writ ref’d n. r. e.); Morris v. Ratliff, 291 S.W.2d 418, 422 (Tex.Civ.App.—Dallas 1956, writ ref’d n. r. e.); Bliss v. City of Fort Worth, 288 S.W.2d 558 (Tex.Civ.App.—Fort Worth 1956, writ ref’d n. r. e.). This general rule has particular force when the written instrument is offered against a person not a party to the writing.

However, where a venue fact is one which can be put in issue only by a verified pleading and the defendant does not interpose such a plea, the plaintiff is not required to prove the same. Ladner v. Reliance Corp., 156 Tex. 158, 293 S.W.2d 758, 763 (1956); Wallace v. Income Properties/Equity Trust of Santa Ana, California, 538 S.W.2d 17, 19 (Tex.Civ.App.—Austin 1976, writ dism’d); International Shelters v. Pinehurst Inc., 474 S.W.2d 497, 500 (Tex.Civ.App.—Corpus Christi 1971, writ dism’d). Vahlsing argues here that since the security agreement was not “charged to have been executed by” Vahlsing, Vahlsing was not required to deny its execution under Rule 93(h) and, therefore, it was error for the trial court to admit the document without proof of execution. We do not agree. The purpose of introducing the security agreement was to show proper venue in Cameron County against Xonu. Subdivision 29a of Article 1995, supra, provides:

“29a. Two or more defendants.— Whenever there are two or more defendants in any suit brought in any county in this State and such suit is lawfully maintainable therein under the provisions of Article 1995 as to any such defendants, then such suit may be maintained in any such county against any and all necessary parties thereto.”

Exception 29a must always be considered in conjunction with some other subdivision of Article 1995. Under Subdivision 29a plaintiffs had the burden to prove venue facts that show venue was maintainable against Xonu under another exception to the venue statute, in this case Subdivision 5 and/or Subdivision 23.

In order to maintain venue under Subdivision 5 of Article 1995, Tex.Rev.Civ.Stat. Ann., the plaintiff must prove: (1) an obligation in writing; (2) the execution by the defendant; and (3) that it is performable in the county of the suit. Macpet v. Oil Field Maintenance Co., 538 S.W.2d 240 (Tex.Civ.App.—Corpus Christi 1976, no writ); Public Service Life Insurance Company v. Copus, 494 S.W.2d 200 (Tex.Civ.App.—Tyler 1973, no writ); Pitt Grill, Inc. v. Albert, 432 S.W.2d 160 (Tex.Civ.App.—Dallas 1968, no writ); Hess v. Young, 160 S.W.2d 574 (Tex.Civ.App. —Waco 1942, no writ). Plaintiff only indirectly, if at all, introduced the security instrument into evidence against defendant Vahlsing. The security agreement showed that the plaintiff Railroad Company had a cause of action against Xonu in Cameron County. Therefore, absent .a verified denial of the execution of the security agreement by Xonu, its execution was not in issue at the plea of privilege even though Xonu did not file a plea of privilege. Wallace v. Income Properties/Equity Trust of Santa Ana, California, supra 538 S.W.2d at 19; cf. Key v. Mineral Wells Inc. Co., 96 S.W.2d 804, 805 (Tex.Civ.App.—Eastland 1936, no writ); Radford v. Hutto, 113 S.W.2d 563, 564-65 (Tex.Civ.App.—Amarillo 1938, no writ). Defendant’s point of error one is overruled.

To invoke the provisions of Subdivision 23 in this case, plaintiff had to prove (1) that defendant was a corporation; (2) that plaintiff has a cause of action against defendant; and (3) that cause of action, or part thereof, arose in Cameron County. See Kunz Construction Co. v. Debus, 459 S.W.2d 661 (Tex.Civ.App. —Corpus Christi 1970, no writ); Appell Petroleum Corp. v. Townsend Lease Serv., 375 S.W.2d 547 (Tex.Civ.App.—Corpus Christi 1964, no writ). A “cause of action” is established by facts which show plaintiff’s primary right and defendant’s act or omission which violates that right. Socony Mobil Co., Inc. v. Southwestern Bell Tel. Co., 518 S.W.2d 257, 267 (Tex.Civ.App. —Corpus Christi 1974, no writ); 1 McDonald, Texas Civil Practice, § 4.30.2 (1965).

In point of error two, defendant contends there is no evidence in the record of a cause of action, or part thereof, arising in Cameron ' County against Xonu, and, therefore, venue under Subdivision 23 must fail.

Having determined that the security agreement was properly admitted into evidence, we find that such agreement granted plaintiff a security interest in the following collateral:

“all grain to be grown during 1974, 1975 and 1976 on Tract Z, containing 640 acres, out of La Feria Grant (Balli unsub-divided), and Lot 10, containing 29.73 acres, all out of the La Feria Grant in Cameron County, Texas, and more fully described in . . . ”

The security agreement also contained the following:

“Debtor (Xonu) warrants, covenants, represents and agrees as follows:
(6) Approximately 400 acres of grain will be planted and raised on the above described property during 1974, and approximately the same amount will be planted during each of the years 1975 and 1976, provided, that if the note hereby secured is liquidated prior to June 1,1976, this obligation on the part of Debtor for 1976 will not be applicable or required.”

In its second amended original petition and in its controverting affidavit, the plaintiff Railroad Company alleged that on February 18, 1975, Xonu sold and conveyed the land on which the grain was to be raised in 1975 and 1976 which rendered impossible Xonu’s compliance with the above provisions.

Vahlsing, on the other hand, argues that there is “no evidence one way or another whether or not any grain was grown or not grown”, and, therefore, plaintiff failed to prove that the “cause of action or a part thereof”, arose in Cameron County. The record shows that the plaintiff Railroad Company introduced certified copies of three deeds. The third deed is a general warranty deed from Xonu, conveying the land in the La Feria Grant in Cameron County, Texas, to The Northern Trust Co., as trustee. The other two deeds were offered for the purpose of demonstrating that the land conveyed and sold by Xonu was the same land described in the security agreement..

Although there was no direct evidence that Xonu failed to grow the grain as required in the agreement during the years 1975 and 1976, such fact may be fairly and reasonably inferred from the fact that Xonu conveyed away its interest in the land that was subject to the security agreement. Any ultimate issue, including venue facts, may be established by circumstantial as well as direct evidence. Pundt v. McNeill, 500 S.W.2d 559 (Tex.Civ.App.—Corpus Christi 1973, no writ); Southern Pacific Transport Co. v. State Farm Mutual Ins., 480 S.W.2d 59 (Tex.Civ.App.—Corpus Christi 1972, no writ); Carter v. Walton, 469 S.W.2d 462 (Tex.Civ.App.—Corpus Christi 1971, no writ). A fact is established by circumstantial evidence when the fact may be fairly and reasonably inferred from other facts proved in the case. Larson v. Ellison, 147 Tex. 465, 217 S.W.2d 420, 421 (1949). Vahlsing brings forward no further complaints concerning the trial court’s implied findings concerning Subdivision 23. Vahlsing’s second point of error is overruled.

In its third point Vahlsing contends there is no evidence that Vahlsing is a necessary party within the meaning of Subdivision 29a. We hold that Vahlsing has waived the right to complain of any error the trial court might have made by the implied finding that Vahlsing is a necessary party.

At the plea of privilege hearing, the attorneys for the various parties were questioned by the trial Judge. At that hearing the attorney for plaintiff Railroad Company reminded the trial court that Xonu had filed a motion to dismiss the case because Vahlsing was not a party to the suit and it was a necessary party. At that pretrial hearing, the trial court required plaintiffs to make Vahlsing a party defendant. Vahlsing’s president, Mr. P. H. Vahlsing, filed an affidavit with the court in support of the motion to dismiss because it, too, believed it was a necessary party. Not only does the record demonstrate that there was ample evidence that Vahlsing was a necessary party, but it also shows that Vahlsing conceded that it was a necessary party when the attorney for Vahlsing told the trial court:

“Now, this Court, as I understand from reviewing the briefs on file, has previously ruled that Vahlsing, Inc., is a necessary party. I have read some cases, and I wouldn’t expect to argue it at this point . But I think the Court has to rule consistently, because of your rule they are now not a necessary party, then you send off to another county and you have the other party here again moving to dismiss on the ground of indispensable party. But that certainly, in the event of appeal, would have to be considered.”

It is axiomatic that a party is not required to prove facts that a trial court judicially knows. A trial judge judicially knows what has previously taken place in the case on trial. Gardner v. Martin, 162 Tex. 156, 345 S.W.2d 274, 276 (1961); Traders & General Ins. Co. v. Rhodabarger, 109 S.W.2d 1119 (Tex.Civ.App.—El Paso 1937, writ dism’d); Andrews v. Hedrick Sav. Bank of Hedrick, Iowa, 103 S.W.2d 838 (Tex.Civ.App.— Galveston 1937, no writ); Universal Credit Co. v. Vance, 117 S.W.2d 508 (Tex.Civ.App.—El Paso 1938, writ dism’d); Hobbs v. Boyd, 292 S.W. 947 (Tex.Civ.App.—San Antonio 1927, no writ); Bickle v. City of Panhandle, 43 S.W.2d 640 (Tex.Civ.App. —Amarillo 1931, writ ref’d); Cochran County v. Boyd, 26 S.W.2d 364 (Tex.Civ.App.—Amarillo 1930, writ ref’d); Doppke v. American Bank and Trust Company, 402 S.W.2d 317 (Tex.Civ.App.—Houston 1966, ref’d n. r. e.); Montgomery Ward & Co. v. Peaster, 178 S.W.2d 302 (Tex.Civ.App.—Eastland 1944, no writ).

This appellate court can presume that the trial court, in support of its judgment, took judicial notice of the matters mentioned above. This is true even though the trial court was not asked to do so and did not formally announce that it had done so. Texas Securities Corporation v. Peters, 463 S.W.2d 263 (Tex.Civ.App.— Amarillo 1971, no writ); Buckaloo Trucking Company v. Johnson, 409 S.W.2d 911 (Tex.Civ.App.—Corpus Christi 1966, no writ).

In cases such as this where there were no findings of fact or conclusions of law requested or filed, the trial court’s judgment must be affirmed if it can be upheld on any legal theory that is supported by the evidence. Seaman v. Seaman, 425 S.W.2d 339 (Tex.Sup.1968); Warren v. Davis, 539 S.W.2d 907 (Tex.Civ.App.—Corpus Christi 1976, no writ); Haas v. Gulf Coast Natural Gas Co., 484 S.W.2d 127 (Tex.Civ.App.—Corpus Christi 1972, no writ); City of Corpus Christi v. Gilley, 458 S.W.2d 124 (Tex.Civ.App.—Corpus Christi 1970, writ ref’d n. r. e.). Vahlsing’s point of error number three is overruled.

We hold that venue was maintainable under Subdivisions 5 and 23 and that Vahlsing was a necessary party as provided by Subdivision 29a of Art. 1995. The judgment is AFFIRMED.

      . Rule 93 provides in part: “(A) pleading setting up any of the following matters, unless the truth of such matters appear of record, shall be verified by affidavit . (h) Denial of the execution by himself or by his authority of any instrument in writing, upon which any pleading is founded, in whole or in part, and charged to have been executed by him or his authority, and not alleged to be lost or destroyed.”


author: McKAY, Justice.

text:
    Norman N. CAMPBELL, Appellant, v. R. O. DAVIS, Appellee.
    No. 1085.
    Court of Civil Appeals of Texas, Tyler.
    March 3, 1978.
    Rehearing Denied March 30, 1978.

      J. Gordon Shanklin, Johnson, Guthrie, Billings, Nash & Shanklin, William F. Billings, Dallas, for appellant.
    James P. Finstrom, Dallas, for appellee.
   McKAY, Justice.

Appellee Roland Davis sued Harold Col-lum and appellant Norman Campbell for damages for breach of an oral agreement concerning the purchase of a tract of land. The case was tried to a jury, and based on the jury’s answers to special issues, the trial court entered judgment that Davis take nothing from Collum and recover $20,624.38 from Campbell. It is from this judgment that Campbell has perfected his appeal.

A summary judgment opinion by the Dallas Court of Civil Appeals on a previous appeal of this case is found in 524 S.W.2d 790.

Appellee alleged in his pleadings that on or about August 15, 1971, Campbell entered into an oral contract with him whereby Campbell agreed to lend him $55,000 to purchase a piece of property known as El Rancho-Tel located at 6131 Harry Hines Boulevard in Dallas, Texas. Campbell was to receive a commission of $6,500 and ten per cent interest per annum from the date of sale for lending Davis the money. Appellant was to hold a mortgage on the property until appellee repaid the debt out of the proceeds of a subsequent sale of the property.

Plaintiff further alleged that on or about August 28,1971, appellant requested a modification in the original agreement. Title was to be held in the name of Harold Col-lum and appellee would pay Collum $2,000 for his services, such fee to be paid out of the subsequent sale of the property. Ap-pellee alleged that he had an oral option to purchase the land from the C. D. Wyche estate which terminated on September 1, 1971, and, therefore, was under duress in agreeing to the modification. Davis further alleged that appellant agreed that if Davis produced a purchaser for the property, or if a purchaser was obtained through any efforts of Davis, Collum and appellant would receive the amounts previously agreed upon by the parties, and Davis would receive the balance of the profits of the sale. As consideration for his agreement, appellee agreed to pay all costs of transferring the title to the property.

Appellee alleged that Collum and appellant breached this modified agreement by conspiring to defraud Davis and retaining all profits from their sale of the land on July 20, 1972. Appellee asked for actual damages of $90,000 and punitive damages of $50,000.

Appellant Norman Campbell answered by general denial, specifically denying that any contract existed; that if a contract existed, such failed for lack of consideration; that Davis had no interest in the property; that any alleged agreement was not in writing in violation of Tex.Bus. & Comm.Code sec. 26.01(a) and (b)(4) or Tex.Rev.Civ.Stat.Ann. art. 7425b-7, and, therefore, unenforceable and claiming as offsets, rent due under a lease agreement between the parties in the amount of $13,500 and judgments and tax liens against appellee in the amount of $8,491.03; and that appellee was to receive any compensation from the sale only if he sold the property which he did not do.

Four special issues were submitted to the jury. The jury found that Campbell “orally agreed to loan R. 0. Davis $55,000.00 to purchase the property in question from the Wyche estate on the terms of ten percent interest and payments of fees of $6,500.00 and $2,000.00.” The jury then found that Davis would have received $20,624.38 from the proceeds of the sale on July 20, 1972, if Campbell had performed such agreement. The jury failed to find that Campbell had acted with intent to commit a fraud upon Davis. Based on this negative answer, the jury did not answer the issue on exemplary damages.

Appellee Davis originally purchased and began operation of El Rancho-Tel in 1953. After a period of time, however, he failed to make the loan payments and Exchange Savings and Loan, the first lien holder, foreclosed. C. D. Wyche then took over the property subject to the first lien. Davis purchased the property from Wyche, giving a second lien note. Wyche died in 1969, and in October 1970, the Wyche estate foreclosed on its lien and bought the property at the foreclosure sale. Davis and his corporation, El Rancho-Tel, Inc., then signed a one-year lease with the estate to begin on March 10, 1971.

Davis testified that he had a written six-month option to sell or repurchase the property which expired August 15, 1971. He further testified that after August 15, he had a similar oral agreement with a Mr. Martin, trustee for the Wyche estate, which was to expire on September 1, 1971.

On May 20, 1971, Davis agreed to sell the property to John Wesley Jones, representative of a group of doctors, for $242,000.00. The contract was signed by Davis and Jones. Peter Bell was designated as Davis’ agent. Davis also testified that at the time the contract was signed he was the only party to the transaction who knew he did not have title to the property. The purchasers discovered Davis’ lack of ownership and refused to consummate the sale. The estate was never contacted concerning this potential sale.

Davis then sought to borrow enough money to repurchase the property from the Wyche estate. On or about August 15, 1971, Davis contacted Campbell for this purpose. He explained to Campbell his understanding with the Wyche estate, asked for a loan of $55,000 and proposed that he purchase the property from the Wyche estate, and take title in his own name. The loan was to be repaid when Davis sold the property, together with ten per cent interest and a “bonus” of $5,000.00. Campbell was interested, but desired to have the property appraised by Collum, a real estate broker.

At trial, Davis testified that on August 22 or 23, 1971, he offered Campbell $6,500 plus ten per cent interest and $2,000 to Collum, and that Campbell agreed to lend the money with those modifications.

Davis further testified that two days before the closing Campbell proposed that the property be placed in Collum’s name, that Davis ‘ receive sixty-five to eighty per cent of the profit, rather than pay the “bonus,” and that he agreed to these changes only because his option was to expire in two days and he could not raise the needed capital in such a short period of time. The closing occurred on August 31, 1971, and title to the property was in Collum’s name. Davis then entered into a lease agreement with Collum in order to continue the motel operation. The agreement called for rental of $1,600.00 per month.

In July, 1972, Campbell and Collum sold the property for $210,000.00 to the same group of doctors with whom Davis had negotiated in May 1971, retaining all proceeds of the sale for themselves. It is undisputed that appellant applied a portion of the proceeds to payment of liens existing against the property, including the first and second liens, two judgment liens and a tax lien delinquent and presently due. All taxes were also paid at the time of the sale.

We agree with appellee that appellant’s points of error are multifarious under Rule 418, Tex.R.Civ.P. A point of error which embraces more than one specific ground of error or which attempts to attack several distinct and separate rulings of the trial court will be considered multifarious, in violation of Rule 418, and not entitled to review. Pine v. Gibraltar Savings Assn., 519 S.W.2d 238, 244 (Tex.Civ.App.—Houston [1st Dist.] 1974, writ ref’d n. r. e.); Blackmon & Associates, Inc. v. Palmer Building Supplies & Specialties, Inc., 463 S.W.2d 228, 231 (Tex.Civ.App. —Corpus Christi 1971, writ ref’d n. r. e.); International Security Life Ins. Co. v. Howard, 456 S.W.2d 765, 766 (Tex.Civ.App.— Waco 1970, writ ref’d n. r. e.). Appellate courts have given a liberal interpretation of the rules in favor of the sufficiency of an appellant’s brief and frequently consider general and multifarious points of error where, from the statements and arguments under the point, the nature of appellant’s complaint can be determined. Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478, 482 (1943); Airport Coach Service, Inc. v. City of Fort Worth, 518 S.W.2d 566, 573 (Tex.Civ.App.—Tyler 1974, writ ref’d n. r. e.). Therefore, giving appellant’s points of error a liberal interpretation, we will consider them.

In his point one, appellant contends that the trial court failed to submit the special issues controlling the case as raised by the pleadings and evidence.

When the court submits a cause of action upon special issues, it shall submit the cause upon special issues controlling the disposition of the case that are raised by the written pleadings and the evidence in the case. Tex.R.Civ.P. 277, 279. Nevertheless, a party objecting to a charge must point out distinctly the matter to which he objects and the grounds of his objection, and any complaint as to an instruction, issue, definition or explanatory instruction, on account of any defect, omission or fault in pleading, shall be deemed waived unless specifically included in the objections. Tex.R.Civ.P. 274. Where one objects in his brief on appeal to the court’s charge on a ground which he did not assert in the trial court, that objection is waived. See Crutcher-Rolfs-Cummings, Inc. v. Ballard, 540 S.W.2d 380, 388-389 (Tex.Civ.App.—Corpus Christi 1976, writ ref’d n. r. e.), cert. denied 433 U.S. 910, 97 S.Ct. 2978, 53 L.Ed.2d 1095; Northshore Bank v. Palmer, 525 S.W.2d 718 (Tex.Civ.App.— Houston [14th Dist.] 1975, writ ref’d n. r. e.). In his objections to the court’s charge, appellant contends:

“[T]here is no competent evidence to support such issues .... Furthermore, that there is insufficient evidence. Furthermore, and in the alternative, there is insufficient evidence to submit Special Issue No. 1 . . . . Furthermore, an affirmative answer to . Special Issue No. 1 would be so against the overwhelming weight and preponderance of the evidence as to be manifestly unjust.”

Appellant now asserts that the court failed to submit the controlling issues of the case. The appellant has thus failed to point out distinctly in his objections to the charge of the court the grounds which he asserts here. The objection is, therefore, waived. Appellant’s first point of error is overruled.

In his second point of error, appellant contends that the judgment was excessive and he is entitled to a remittitur. From his argument, we interpret this point to mean that appellant was entitled to certain offsets as a matter of law.

According to Rule 85, Tex.R.Civ.P., an original answer may present, among other things, a cross-action which to that extent will place a defendant in the attitude of a plaintiff. Once in that attitude, a defendant has the burden of proof on his claim by way of setoff, counterclaim or cross-action. Edwards v. Blissard, 440 S.W.2d 427, 431 (Tex.Civ.App.—Texarkana 1969, writ ref’d n. r. e.). Upon appeal all independent grounds of recovery or of defense not conclusively established under the evidence and upon which no issue is given or requested shall be deemed as waived. Tex.R.Civ.P. 279. But it is not necessary for the trial court to submit an issue on an undisputed fact. Tex.R.Civ.P. 272, 279; Sullivan v. Barnett, 471 S.W.2d 39, 44 (Tex.1971); Marburger v. Jackson, 513 S.W.2d 652 (Tex.Civ.App.—Corpus Christi 1974, writ ref’d n. r. e.).

The trial court did not submit any special issues as to any of appellants claimed offsets. However, it is undisputed that appellee owed appellant $13,500.00 for rent due under their lease agreement. Therefore, it was not necessary for the trial court to submit an issue on that fact. Accordingly, we find appellant is entitled to an offset of $13,500.00 for rent due and unpaid, as a matter of law. Appellant’s point two is sustained.

In point of error three appellant complains of the trial court’s admission of appellee’s oral testimony as to the alleged agreement. Appellant contends such action violated the parol evidence rule, Tex.Rev.Civ.Stat.Ann. art. 7425b-7 (Texas Trust Act) and the Tex.Bus. & Comm.Code Ann. art. 26.01(b)(4) (Statute of Frauds).

In our opinion, it is sufficient to say that the parol evidence rule and art. 7425b-7, Tex.Rev.Civ.Stat.Ann., are inapplicable to the facts we have before us.

Likewise, the alleged agreement between the parties does not come within the Statute of Frauds. Tex.Bus. & Comm. Code art. 26.01(b)(4). Although the agreement concerned a tract of land, it was not “a contract for the sale of real estate.” Appellant’s point three is overruled.

Appellant complains in point of error four that there was no evidence that appel-lee found a buyer for the property, and the alleged oral agreement was unenforceable as contrary to the Statute of Frauds. We have covered this point in our discussion of points of error one and three. In light of our discussion of appellant’s first and third points of error, we find point of error four to be without merit, and it is overruled.

Appellee also asserts that a ten per cent penalty should be assessed by this court under Rule 438 because the appeal was taken for delay only, and there was no sufficient cause for taking this appeal. Such contention is overruled.

Lastly, appellee contends the trial court erred in refusing to grant judgment with interest thereon at the rate of six per cent per annum from July 20, 1972, until the date of judgment. We are of the opinion that this was a suit to recover an unliq-uidated demand, rather than a liquidated demand as claimed by appellee. Even though in some instances one might be entitled to interest as damages on an unliqui-dated demand, appellee is not so entitled in this case. Appellee’s counterpoint six is overruled.

The judgment of the trial court is reformed to provide recovery for appellee, Roland Davis, in the amount of $7,124.38 from appellant, Norman Campbell, with interest at the rate of nine per cent (9%) per annum from date of judgment, and, as reformed, is affirmed.


author: JAMES, Justice.

text:
    CITY OF HOUSTON, Appellant, v. Wesley WEST et ux., Appellees.
    No. 5800.
    Court of Civil Appeals of Texas, Waco.
    March 9, 1978.
    Rehearing Denied March 30, 1978.

      Otis H. King, City Atty., Fred Spence, Senior Asst. City Atty., Houston, for appellant.
    Andrew J. Lannie, Baytown, William E. Watson, Jr., Houston, for appellees.
   OPINION

JAMES, Justice.

This is an eminent domain case. Plaintiff-Appellant the City of Houston instituted condemnation proceedings against Defendant-Appellees Mr. and Mrs. Wesley West to acquire a 20.699 acre tract of land owned by the Wests located within the security fence of William P. Hobby Airport. The City’s right to condemn was stipulated and the only contested issue pertained to the value of the property interest taken from the Wests.

Originally, the Wests objected to the award of the special commissioners and the case was for the first time tried in a County Court at Law of Harris County. This first trial was appealed, and the case was reversed and remanded by the Supreme Court of Texas for retrial in a district court because of the necessity for adjudication of issues concerning the title to the subject property. The City of Houston v. Wesley West (Tex.1975), 520 S.W.2d 752.

Since then, the cause has been tried in a District Court of Harris County, from which the instant appeal is taken. In this last trial, the trial court submitted two special issues to the jury, to wit:

Special Issue No. 1: What do you find from a preponderance of the evidence to be the market value as that term has been defined for you on December 27, 1972, of the 901,647 square feet, or the 20.699 acres of land in question, assuming no right to taxiway access from said property to the runways of Hobby Airport existed?
Answer: $724,465.00.
Special Issue No. 2\ What do you find from a preponderance of the evidence to be the market value as that term has been defined for you on December 27, 1972, of the 901,647 square feet, or the 20.699 acres of land in question, assuming that the right to taxiway access from said property to the runways of Hobby Airport existed?
Answer: $791,465.00.

After jury verdict, the trial court entered judgment in favor of the City for title and possession of the subject property, and awarded judgment in favor of the Wests based upon the jury’s answer to Special Issue No. 2, that is, for $791,465.00, less $435,600.00 theretofore awarded by the Special Commissioners and withdrawn by the Wests. From this judgment the City appeals upon 21 points of error. We overrule all of the City’s points and contentions and affirm the trial court’s judgment.

In 1966 John Mecom and the Wests jointly owned a tract of 51.398 acres that included the 20.699 acres here in question. In that year they conveyed to the City for a consideration of $66,000.00 a ten acre tract out of their jointly owned tract of 51.398 acres identified as “Tract One.” In this contract the City agreed to construct and permit the non-exclusive use by Mecom-West of a public taxiway from the Mecom-West property to the runway system of Hobby Airport, subject to these provisions, among others:

“Mecom-West agrees to contribute to the City the total payment received by Mecom-West from the City for Tract One, and in consideration of such contribution, the City agrees to construct a taxiway located as hereinafter stated and meeting the general standard specifications established by the Department of Public Works & Engineering for taxiways at the Houston International Airport. The City is not required to commence construction of said taxiway until it receives written notice from Mecom-West, addressed to the City’s Director of Aviation and Director of the Department of Public Works & Engineering advising the City that, either or both, Mecom-West are ready to commence and will commence within sixty (60) days after construction of said taxiway, and will proceed with diligence to complete the construction of facilities on land herein described as Tract Two and/or Tract Four, which facilities will utilize said taxiway, and upon receipt of such notice, together with the contribution by Mecom-West of the net consideration received from the City for payment of Tract One, the City of Houston shall within ninety days subsequent to such receipt of such notice commence the construction of such taxiway and diligently prosecute the same to completion. Said taxiway shall be not less than fifty (50) feet in width and shall connect the present taxiway designated as ‘J.’ on the William P. Hobby (Houston International) Airport, with the aforesaid property of Mecom-West at a location approximately fifty-five (55) feet west of the northeast corner of Lot 3, of Orange Dale Subdivision.
“Upon the completion of said taxiway, said taxiway may then be used for ingress and egress to the said airports for aircraft patronizing businesses and business establishments and receiving services located on Tract Two and/or Tract Four, herein described, and for no other purpose, and to serve no other land not owned by the City, except with the written consent of City Council.”

Subsequently, the remaining 41.338 acres were partitioned by Mecom and the Wests, after which Mecom sold his tract of 20.699 acres to the City. The 20.699 acre tract partitioned to the Wests is the subject of this proceeding.

The requirements of the foregoing contractual provisions of the 1966 contract have not been performed by either Mecom or the Wests or by the City. Neither Me-com nor the Wests have contributed to the City the $66,000 payment or given written notice to the City of their readiness to commence the construction of the requisite facilities. Construction of the taxiway by the City which could be used by the Wests for ingress and egress to the Airport has not proceeded. Accordingly, the specific provisions of the contract upon which the access right of the Wests to the runway system of the Airport necessarily rests have not been activated.

The contract further provided:

“For so long as taxiway access is permitted and used under the terms of this agreement from TRACTS TWO and FOUR to the Airport and as a covenant running with said land, MECOM-WEST hereby agree with respect to the use of TRACTS TWO and FOUR and any other properties now or hereafter owned by MECOM-WEST (or their successors in interest to TRACTS TWO and FOUR) within the property constituting the William P. Hobby (Houston International) Airport, as follows: . . ” Among the items listed were provisions that a) all rules, regulations and orders of the Federal Aviation Agency applicable to use of the airport shall be applicable to the lands of Mecom-West, b) Mecom-West will pay to the City all fees and taxes due on their property and applicable generally to users of the airport and c) certain types of business shall not be conducted on their property.

Article VII of the contract provided that the City had the option to suspend the right of use of the taxi way by Mecom-West or by any of their tenants, lessees or users of the land in question in the event of a continuing breach of the provisions of the contract after notice.

Article VIII provided:

“MECOM and WEST shall have the right to use said taxiway for a period of thirty (30) years from the date that said taxiway is completed and accepted by the CITY as having been completed in accordance with the plans and specifications for the construction thereof, subject to suspension as above provided in Article VII. The CITY shall maintain said taxiway as any other taxiway on said airport. Such taxiway shall not be used by MECOM or WEST, or any assignee, sublessee, licensee or permitee of MECOM or WEST for any purpose or use prohibited either expressly or impliedly under the provisions hereof.”

It was established that prior to the institution of these condemnation proceedings the parties had executed conveyances and had substantially performed their obligations under the contract. The only provisions which had not been performed were those pertaining to the construction and use of the taxiway.

Appellant City’s points one through four assert that the Wests never met the conditions precedent contained in the option by paying the City the required $66,000.00 for construction of the taxiway, and therefore have no property right, contractual or otherwise, which would afford them the right to have the property valued on the assumption that it had access to the taxiways of Hobby Airport. We do not agree.

As can be seen by a recitation of the foregoing facts, this 1966 contract between Mecom-West and the City was one calling for performance on both sides of several matters. Here, the parties had executed conveyances and had substantially performed their obligations under the contract, and the only provisions which had not been performed were those pertaining to the construction and use of the taxiway. It was not shown that any steps had been taken to have the contract terminated or rescinded by either agreement or court action.

We are of the opinion and hold that on December 27, 1972, the time of the taking of the subject property, the Wests owned a present, vested, unilateral option by virtue of the 1966 contract to have the City construct a taxi way from the subject property to the airport runways.

The Wests’ statement of readiness to develop their land and the payment of $66,000.00 to the City are conditions precedent to the City’s obligation to construct a taxiway, but are not conditions precedent to the existence of a valid contract. The 1966 agreement is a substantially performed existing, valid contract. Under said contract, the Wests acquired the right of access to the runways of Hobby Airport.

The City did not undertake to repudiate this portion of the 1966 agreement until November 12, 1973, nearly a year after the taking of the subject property. Since the Wests at that time had no title to the land at the time of such attempted repudiation, they could not state that they were ready to develop their land within 60 days after the taxiway was built, or tender the $66,000.00 to the City.

A condition precedent in the law of contracts may be either a condition which must be performed before the agreement of the parties shall become a binding contract, or it may be a condition which must be fulfilled before the duty to perform an existing contract arises. So, such conditions may relate either to the formation of contracts or to liability under them. Perry v. Little (Tyler CA 1964), 377 S.W.2d 765, 769, NRE; Vol. 17A C.J.S. Contracts § 338, pp. 318, 319.

In the case at bar, the conditions precedent, that is, the property owners’ notice to the City and payment of the $66,000.00 did not relate to the formation or validity of the contract, but instead related to the City’s liability or obligation to construct the runway. The “right to taxiway access” inquired about in Special Issues Nos. 1 and 2 was owned by the Wests from the time the 1966 contract was executed and was owned by them at the time the City took the property on December 27, 1972.

The City contends that the 1966 contract was erroneously admitted into evidence, and should have been excluded from the jury’s consideration. We do not agree, because such contract spells out the Wests’ right of access which is a valuable property right and has a definite bearing on market value of the subject property. See City of Austin v. Cannizzo (Tex.1954), 153 Tex. 324, 267 S.W.2d 808; State v. Reece (Houston 1st CA 1964), 374 S.W.2d 686, 689, no writ.

Appellant City’s points of error six through eight contends that Wests’ unilateral option is void as a matter of law because it violates the rule against perpetuiti-es, in that there is no time limit for the Wests to exercise their option for construction of the taxiway.

We overrule this contention, because in our opinion the rule against perpetuities does not apply. At the time of the taking of the subject property, the Wests were possessed of a fully vested, alienable, contractual right which in no way suspends the alienability of the City’s land burdened by this right. All titles have vested, and all that remained was the time when the contractual right of enjoyment of the vested estate should commence. When a right is presently vested, the rule against perpetu-ities has no application.

The rule against perpetuities is that no interest within its scope is good unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest, to which is added the period of gestation. Clarke v. Clarke (Comm.App.1932), 121 Tex. 165, 46 S.W.2d 658, 661, opinion adopted; Mattern v. Herzog (Tex.1963), 367 S.W.2d 312.

The word “vest” means to give an immediate, fixed right of present or future enjoyment, and is an interest clothed with a present, legal, and existing right of alienation. 45 Tex.Jur.2d “Perpetuities and Restraints,” par. 4, page 101.

In the case at bar, the Wests’ right of access was fully vested at the time the 1966 contract was executed; therefore the rule against perpetuities does not apply. Also see Phillips Petroleum Co. v. Lovell (Amarillo CA 1965), 392 S.W.2d 748, NRE; Williams v. Humble Pipe Line Co. (Houston 1st CA 1967), 417 S.W.2d 453, no writ.

Appellant’s points nine through twelve assert that the option provision in the 1966 contract is void as being in violation of Article 11, Section 5, Texas Constitution, citing Brodhead v. City of Forney (Waco CA 1976), 538 S.W.2d 873, NRE. We overrule this contention, and hold that Brod-head is not applicable to the case at bar.

Article 11, Section 5 of the Texas Constitution provides that no debt for any purpose shall ever be incurred in any manner by a city unless, at the same time, provision is made for levying and collecting a sufficient tax annually to pay the interest on the debt and provide a sinking fund of at least two per cent for payment of the debt.

The term “debt” within the meaning of this constitutional prohibition has been defined by our Supreme Court in McNeill v. City of Waco (Tex.1895) 89 Tex. 83, 33 S.W. 322 at page 324 as follows:

“We conclude that the word ‘debt’ as used in the constitutional provisions above quoted, means any pecuniary obligation imposed by contract, except such as were, at the date of the contract, within the lawful and reasonable contemplation of the parties, to be satisfied out of the current revenues for the year, or out of some fund then within the immediate control of the corporation.” (emphasis supplied). Also see City of Cleburne v. Cleburne Water, Ice, and Lighting Co. (1896), 14 Tex.Civ.App. 229, 37 S.W. 655, writ denied.

As stated before, the Wests were obligated to pay the City $66,000.00 before the City had any duty to construct the taxiway. Mr. E. B. Cape, Director of Public Works and Engineering for the City of Houston, testified that he had prepared a cost estimate as to how much it would cost the City to build the taxiway in April 1966, and such estimated cost at that time was $67,000.00. He further testified that as of December 27, 1972, the date of the City’s taking of Wests’ property, the cost of building such taxiway was $107,070.00.

Applying the rule enunciated in McNeill to the case at bar, the “debt” in question was one which at the date of the contract (in 1966) was, within the lawful and reasonable contemplation of the parties, to be satisfied out of the current revenues for the year, or out of a fund then within the immediate control of the City. In 1966, at the time the contract was made, the cost to the City to build the taxiway was $67,000.00. The City had no obligation to commence construction thereof until $66,000.00 had been paid to them. The fact that the cost of the runway might go up or down in the future would not in our opinion cause the contract to run afoul of Article 11, Section 5 of the Constitution. Certainly the parties had made a reasonable provision for a fund to defray the cost of the taxiway, acting in the light of their knowledge available to them at the time the contract was made. In Brodhead, the City of For-ney had made no provision for any funds to meet its contractual obligations, although the City had passed an ordinance in which it recited that provision had been made for such funds. We there held that the contract in question violated Article 11, Section 5 and was therefore void. The facts in Brodhead are distinguishable from the facts of the case at bar, where a fund was specifically provided for. We therefore hold that the option provision in question does not violate Article 11, Section 5 of the Texas Constitution.

Appellant City has other points and contentions, all of which we have carefully considered, and overrule same as being without merit.

Judgment of the trial court is accordingly affirmed.