text:
    Frederick G. CURREY et al., Appellants, v. Louis T. KIMPLE et al., Appellees.
    No. 8599.
    Court of Civil Appeals of Texas, Texarkana.
    Dec. 28, 1978.
    Rehearing Denied Feb. 27, 1979.

      Morris I. Jaffe, Hubert A. Crouch III, Wynne & Jaffe, Dallas, for appellants.
    Joseph H. Staley, Jr., Thomas W. Hughes, Locke, Purnell, Boren, Laney & Neely, Dallas, for the Kimples.
    Lee Holt, City Atty., Robert J. Young, Asst. City Atty., Dallas, for City of Dallas & Board of Adjustment.
   RAY, Justice.

This is a suit seeking relief from two variances granted by the Board of Adjustment of the City of Dallas (Board). The variances were granted so that Mr. and Mrs. Louis T. Kimple (Kimple), appellees (defendants), could build a tennis court on their residential lot. The order of the Board was appealed to the district court as provided by Article lOllg, Tex.Rev.Civ. Stat.Ann. (Supp.1978). Mr. and Mrs. Frederick G. Currey, Dr. and Mrs. Heinz F. Eichenwald, and Mr. and Mrs. Edgar C. Hughes, appellants (plaintiffs), instituted suit against Mr. and Mrs. Louis T. Kimple, the City of Dallas (City), and the Board of Adjustment of the City of Dallas, appellees (defendants), seeking prohibitory and mandatory injunctive relief and the setting aside of the order of the Board granting the variances. Trial was to the court without a jury and judgment was entered that appellants take nothing. Appellants have perfected their appeal and submit two points of error for our consideration.

In their first point of error, appellants contend that the trial court erred in sustaining the order of the Board because the Himples had not shown that they had suffered any unnecessary hardship by a literal enforcement of the governing zoning ordinance and that if the Himples had suffered a hardship, it was a hardship which they had created and further that the existing zoning ordinance permits a reasonable use of the Himples’ property, thus negating any grounds for granting a variance. Also, appellants contend that the Himple property does not differ from other tracts of land in the surrounding area such that its development could not be the same as the other tracts.

Appellants’ second point of error contends that the order of the Board permits a use of Himples’ property not authorized by the zoning ordinance and that the Board has usurped the authority of the City in granting the variance.

The Himples own a pie-shaped lot located in an area zoned “resident-1 acre.” The majority of the lots in the zoning district are quadri-sided.

The Himples purchased their lot in 1974 and employed an architect to plan alterations and additions on the land. The architect’s plans showed how a tennis court would fit into the improvements, but the architect advised the Himples that it would be necessary to get a variance from the Board of Adjustment before the tennis court could be constructed in view of the existing zoning ordinance. The architect prepared a site plan showing location of the improvements, including the tennis court. The Himples sought the variances and were granted same by the Board of Adjustment in 1974. The granted variances consisted of ten feet from the front yard and nineteen feet six inches from the side yard as same related to the tennis court. In 1974, the existing garage was converted into a playroom and a carport fifty-two feet by twenty-eight and nine-tenths feet was built and a cabana was constructed. The tennis court was omitted and the 1974 building permit expired.

In 1977 the Himples again appealed to the Board of Adjustment for a variance for the purpose of erecting a tennis court. The variance granted on this occasion was twenty-four feet from the front yard and twenty feet from the side yard.

The Himples had been occupying their property as their home for a period of two and one-half years prior to the time of trial.

Appellants have sought no relief from the Board for the building inspector’s having issued the building permit on July 29, 1977, allowing tennis court use upon the property. On August 9, 1977, the trial court denied appellants’ request for a temporary injunction and dissolved the temporary restraining order. Trial on the merits was had on August 18,1977, and the trial court entered a take nothing judgment against appellants. Thereafter, construction of the tennis court was begun.

No findings of fact or conclusions of law have been filed in this case. Under these circumstances, all questions of fact are presumed found in support of the judgment of the trial court and the trial court’s judgment must be affirmed if it can be upheld on any legal theory that finds support in the evidence.

In the present case, an appeal from the Board of Adjustment to the district court requires the application of the substantial evidence rule as the standard for review. Our review of the trial court’s judgment concerning the action of the Board of Adjustment, is to determine whether or not the trial court abused its discretion. That same standard is to be applied in reviewing the action of the trial court relative to denying the temporary injunction. The trial court and this Court are not at liberty to substitute our opinions for that of the Board. As was stated in Zoning Board of Adjustment v. Marshall, 887 S.W.2d 714 (Tex.Civ.App. San Antonio 1965, writ ref’d n.r.e.), the following principles govern this appeal:

“(1) A legal presumption exists in favor of the Board’s order, and the burden of proof to establish its illegality rests upon Marshall;
“(2) The Court, when considering the legality of the Board’s order must not put itself in the position of the Board and substitute its findings for that of the Board, even though the Court concludes that the overwhelming preponderance of the evidence is against the Board’s decision;
“(3) The question on appeal from the Board’s order is whether or not there is any substantial evidence affording reasonable support for the findings and order entered by the Board, such being a question of law and not of fact. If the evidence before the Court, as a whole, is such that reasonable minds could have reached the conclusion that the Board must have reached in order to justify its action, the Board’s action must be sustained. City of San Angelo v. Boehme Bakery, 144 Tex. 281, 190 S.W.2d 67 (1945); ...”

The Board of Adjustment is a quasi-judicial body and the district court sits only as a court of review by writ of certiorari pursuant to Article 1011g(k), Tex. Rev.Civ.Stat.Ann. (Supp.1978). The complaining party has the burden of proof to show that the decision of the Board is illegal and in order to establish illegality of an order, the complaining party must present a very clear showing of abuse of discretion. If the trial court finds there is substantial evidence to support the Board’s determination, the legality of the Board’s order is established. The substantial evidence rule is fulfilled if the evidence before the court, as a whole, is such that reasonable minds could have reached the conclusion that the Board must have reached in order to justify its action. Jacobson v. Preston Forest Shopping Center, Inc., 359 S.W.2d 156, 159 (Tex.Civ.App. Dallas 1962, writ ref’d n.r.e.); Zoning Board of Adjustment v. Marshall, supra.

The burden was upon appellants in the trial court to show that the Board of Adjustment’s order was illegal because there was no evidence or a lack of substantial evidence supporting the findings and order entered by the Board and that the Board acted arbitrarily because reasonable minds could not have reached the conclusion that the Board reached in order to justify its action. The trial court must determine as a matter of law that the Board acted arbitrarily and without justification. The test on appeal to this Court is whether the trial court acted arbitrarily in reaching its decision and thus abused its discretion.

Article 1011g(a), Tex.Rev.Civ.Stat.Ann. (Supp.1978), empowers local city councils to create Boards of Adjustment for their communities. The City of Dallas has exercised this power and created the Board of Adjustment of the City of Dallas by Division 29-100 of the City Zoning Ordinance. Article 1011g(g), Tex.Rev.Civ.Stat.Ann. (Supp. 1978), defines the powers of the Board which authorizes the Board to grant variances. Division 29-700(j) of the City Zoning Ordinance empowers the Board to grant variances.

The evidence before the Board and before the trial court shows that the Kimples sought relief by the variance procedure from the literal application of the front yard and side yard set-back requirements of the city zoning ordinance due to the pie-shaped configuration of their lot. The Board found that the set-back requirements, when applied to the lot configuration, constituted an unnecessary hardship to the Kimple property and thus granted the small variances from rigid enforcement of the front yard and side yard set-back requirements. The Board had made an on-site investigation and was well aware of the problem involved. Unnecessary hardship must be determined with regard to the facts and circumstances of the particular case. It is the duty of the Board to determine whether literal application of the zoning ordinance to the particular piece of property would be unreasonable in light of the general statutory purpose to secure reasonable zoning. The reasonableness test is viewed in light of the practical difficulty of applying the zoning ordinance to the property in question. The issue before the trial court was not whether there was an unnecessary hardship, but whether the trial court, after examination of all the evidence, could conclude as a matter of law that the Board failed to have substantial evidence before it upon which it could have concluded that the rigid enforcement of the zoning ordinance would work an unnecessary hardship upon the Kimple property. The trial court had before it evidence that the tennis court could not be constructed in 1977 in compliance with the front yard and side yard set-back requirements of the City without encroaching upon structures on the property which were present at the time Kimple acquired the property in 1974. Further, the fact that the lot was rather triangular in shape would make it difficult on which to arrange various recreational facilities in conjunction with the pre-existing structures. The Board could see that the development of the Kimple property would require variances different from the surrounding rectangular or near rectangular lots.

The fact that appellees wanted to build a tennis court on their irregularly shaped property would not constitute a self-created or personál hardship. The configuration of the lot created the hardship. The evidence does not reveal that the Kimples wanted the variance for personal reasons not connected with the configuration of the lot and neither does the evidence reveal that the hardship was self-created. An example of a personal or self-created hardship might be a situation in which the owner of a square lot divides it into two triangles and then tries to secure a variance in order to sell the property at a high price. In such an instance, the hardship would be self-created and if the owner could not sell the triangular pieces of property without the variance, then the hardship would be personal.

Appellants’ argument that since the existing zoning ordinance permits a reasonable use of the Kimples’ property as a residence, then the grounds for granting a variance are thus negated, is not persuasive. The Kimples are entitled to use their property to the fullest as it relates to a family dwelling and place for family recreation, limited only by the provisions of valid statutes and ordinances. In this case, Article 1011g(g) specifically authorizes the variance procedure utilized by the Board and the City Council has authorized the Board under Division 29-700(j) to grant unnecessary hardship variances from set-back requirements due to a parcel’s irregular shape.

Appellants’ further argument that the Kimple property does not differ from other parcels of land in the same zoning district does not comport with the evidence. Most tracts in the zoning district are rectangular while the Kimple tract is pie-shaped.

It is the conclusion of this Court that the trial court did not abuse its discretion in sustaining the order of the Board of Adjustment. Appellants did not show a clear abuse of discretion by the Board and we are convinced that substantial evidence was before the Board and the trial court which would support the legality of the order entered by the Board. Appellants’ first point of error is overruled.

Appellants’ second point of error asserting that the Board permitted a use of Kimples’ property not authorized by the Zoning Ordinance such that the Board had usurped the zoning authority of the city council is without merit. That issue was not before the Board on July 26,1977. The building inspector issued the building permit for the tennis court on the Kimple property on July 29, 1977, and the building inspector’s decision has gone unchallenged. The city zoning ordinance grants an appeal from the building inspector’s decision to the Board by aggrieved parties. Since appellants have not challenged the issuance of the building permit by the building inspector, they have not exhausted their administrative remedy and redress to the courts is thus not available to them at this time. City of Dallas v. Gaechter, 524 S.W.2d 400, 404-405 (Tex.Civ.App. Dallas 1975, writ dism’d).

In addition to appellants’ inability to raise the issue that tennis courts are not a permitted use in the Kimples’ zoning district, for failure to exhaust their administrative remedy, we have concluded that appellants’ argument is not persuasive. This Court decided in Hardy v. Calhoun, 383 S.W.2d 652 (Tex.Civ.App. Texarkana 1964, no writ), that a tennis court is an accessory use customarily incident to a single family dwelling which is permitted so long as it does not involve public or business activities. We construe Section 10-202 and Section 33-175 of the Dallas City Zoning Ordinance to permit private tennis courts as an accessory use in a single-family residential district. We further hold that private tennis courts are a recreational use within the primary use of property as a residential dwelling. Thomas v. Zoning Board of Adjustment of City of University Park, 241 S.W.2d 955 (Tex.Civ.App. Eastland 1951, no writ).

Appellants’ second point of error is overruled.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: CORNELIUS, Chief Justice.

license: Public Domain

text:
    AMERICAN MOTORISTS INSURANCE COMPANY, Appellant, v. Jackie E. EVANS, Appellee.
    No. 8623.
    Court of Civil Appeals of Texas, Texarkana.
    Jan. 16, 1979.
    Rehearing Denied Feb. 27, 1979.

      G. David Westfall, Bailey, Williams, Westfall, Lee & Fowler, Dallas, for appellant.
    Kenneth L. Ross, Sharp, Ward, Ross & McDaniel, Longview, for appellee.
   CORNELIUS, Chief Justice.

In a jury trial Jackie E. Evans recovered judgment against American Motorists Insurance Company awarding him worker’s compensation benefits for total and permanent disability incurred as a result of an accident he suffered while employed by Ax-elson, Inc.

The questions on appeal are whether the trial court erred by refusing to permit American Motorists to prove that Evans had been convicted of a misdemeanor, and if so, was the error of such gravity as to require a reversal of the judgment.

Evans claimed that he suffered an injury to his back on the night of April 28, 1976, only a few days after he had gone to work for Axelson. No one witnessed the accident, but Evans told his foreman about it who suggested that he go to the hospital. He then drove himself to the hospital where he saw a paramedic. On the following day he was seen by the company doctor who prescribed muscle relaxants and some medicine for pain. After three or four days the doctor released Evans to return to work and he did so, but was terminated on May 13, 1976. He immediately sought and obtained unemployment compensation while continuing to apply for work at various places of employment. He ultimately sought treatment from other doctors and filed a claim for worker’s compensation benefits for total and permanent disability due to the back injury.

In one of the answers to interrogatories which were introduced into evidence, Evans stated that he had never been charged with a criminal offense other than a traffic violation. To impeach Evans, American Motorists attempted to introduce the record of his misdemeanor conviction on January 30, 1975, in the County Court of Gregg County, Texas, for a violation of the Texas Unemployment Compensation Act. The specific offense was that, for the purpose of obtaining unemployment benefits, he knowingly made a statement that he had not worked or received wages for the period for which he was seeking unemployment compensation, when in truth he had worked and received wages for that period. The trial court refused to admit the proffered evidence.

Evidence of the conviction was competent and relevant and should have been admitted for impeachment purposes. A witness’s prior criminal conviction is admissible as impeachment of his credibility if the offense was a felony or a misdemeanor involving moral turpitude, and the conviction is not too remote. Landry v. Travelers Insurance Company, 458 S.W.2d 649 (Tex. 1970); 1 McCormick & Ray, Texas Law of Evidence, Sec. 660 (Supp.1978); 62 Tex. Jur.2d, Witnesses, Sec. 279, p. 260. Criminal acts which involve intentional dishonesty for the purpose of personal gain are acts involving moral turpitude. See Words and Phrases, Moral Turpitude. Swindling, cheating and theft, including misdemeanor theft, are such offenses. See Ka-Hugh Enterprises, Inc. v. Ft. Worth Pipe & Sup. Co., 524 S.W.2d 418 (Tex.Civ.App. Ft. Worth 1975, writ ref’d n. r. e.); Patterson v. State, 338 S.W.2d 469 (Tex.Crim.App.1960); Lutz v. State, 146 Tex.Cr.R. 503, 176 S.W.2d 317 (1943); Arambula v. State, 133 Tex.Cr.R. 474, 112 S.W.2d 737 (1938); Sweat v. State, 132 Tex.Cr.R. 122, 102 S.W.2d 226 (1937); Sherman v. State, 124 Tex Cr.R. 273, 62 S.W.2d 146 (1933); White v. State, 61 Tex. Cr.R. 498, 135 S.W. 562 (1911); 62 Tex. Jur.2d, Witnesses, Sec. 271, p. 243. The making of a false affidavit for the purpose of securing monetary benefits to which the claimant is not entitled is likewise an offense involving moral turpitude.

The conviction was not too remote. The test for determining remoteness is whether the conviction was sufficiently recent in time to have some bearing upon the witness’s present credibility. 1 McCormick & Ray, Texas Law of Evidence, Sec. 660 (Supp.1978). The conviction was on January 30, 1975; the injury for which Evans sought compensation allegedly occurred on April 28, 1976; and this cause was tried in the district court on December 19, 1977. Thus, only 15 months elapsed between the conviction and the alleged injury, and less than three years between the conviction and the civil trial. Such a conviction is not too remote. Compare: Landry v. Travelers Insurance Company, supra; Porter v. State, 163 Tex.Cr.R. 485, 293 S.W.2d 667 (1956). See also: Elliott, “Evidence, Annual Survey of Texas Law,” 25 S.W.L.J. 135 (1971). In deed, Evans has not contended and does not now contend that the conviction was too remote. Rather, he asserts that the evidence constitutes impeachment on a collateral matter.

Conviction of a crime involving moral turpitude is not a collateral matter. 1 McCormick & Ray, Texas Law of Evidence, Sec. 685, p. 529, Sec. 691, p. 536 (2d ed. 1956). And proof of such a conviction may be made either by introducing the record as original evidence without laying a foundation therefor (1 McCormick & Ray, Texas Law of Evidence, Sec. 662, p. 509 [2d ed. 1956]) or by proving the fact of such conviction in contradiction of the witness’s assertion to the contrary. 62 Tex.Jur.2d, Witnesses, Sec. 274, p. 251, Sec. 276, p. 256.

Evans earnestly argues that the exclusion of the evidence was, at worst, harmless error. It is true that the insurance carrier was successful to some degree in attacking Evans’ credibility by showing that he had made untrue statements concerning other matters. But those discrepancies were not clear cut and were, for the most part, explained by Evans. There was no impeachment evidence as clear or potentially damaging to his credibility as that which was excluded. And as the fact of injury was a principal contested issue in the case, and the only testimony of Evans’ alleged injury was his own, anything bearing upon his credibility was vital to American Motorists’ defense. Texas Employers’ Insurance Association v. Curry, 290 S.W.2d 767 (Tex.Civ. App. El Paso 1956, writ ref’d n. r. e.). Consequently, the exclusion of such evidence amounted to such a denial of American Motorists’ rights as was calculated to cause and probably did cause the rendition of an improper judgment. Tex.R.Civ.P. 434.

For the reasons stated, the judgment is reversed and the cause is remanded for a new trial.


author: RAY, Justice.

text:
    Jeff D. ASTON et al., Appellants, v. Golda Aston LYONS, Appellee.
    No. 8637.
    Court of Civil Appeals of Texas, Texarkana.
    Jan. 16, 1979.

      Mike D. Gibbs, Elliott, Churchill, Hansen, Dyess & Maxfield, Dallas, for appellants.
    Robert F. Bartlett, Stanford & Bartlett, Canton, for appellee.
   RAY, Justice.

This is a summary judgment case. Jeff D. Aston and Angus W. Aston, appellants (plaintiffs), brought suit against their sister, Golda Aston Lyons, appellee (defendant), to set aside and cancel the alleged last will and testament of their father, S. W. Aston, deceased. The handwritten will of S. W. Aston had been admitted to probate on March 18, 1965. On December 10, 1973, appellants filed suit to set aside the will on the basis that it was a forged instrument. Appellee Lyons filed her motion for summary judgment contending that appellants’ cause of action was barred by limitations. The trial court granted Appellee Lyons’ motion for summary judgment and appellants have perfected their appeal.

The judgment of the trial court will be reversed and the cause remanded.

Appellants’ single point of error is as follows:

“The trial court erred in granting the motion for summary judgment filed by the Defendant, Golda Aston Lyons, since she failed to establish, as a matter of law, that Appellants’ action was barred by limitation.”

Section 93 of the Texas Probate Code provides the period for contesting probate and that portion of the Code applicable to this case is as follows:

“After a will has been admitted to probate, any interested person may institute suit in the proper court to contest the validity thereof, within two years after such will shall have been admitted to probate, and not afterward, except that any interested person may institute suit in the proper court to cancel a will for forgery or other fraud within two years after the discovery of such forgery or fraud, and not afterward. . . . ”

A suit to set aside or cancel a will that has been probated is a direct attack upon the judgment admitting the will to probate. In order to avoid limitations at the trial on the merits, the burden was upon appellants to plead and prove that the S. W. Aston will was a forgery, that appellants had used diligence in discovering the forgery, and that suit was instituted within two years after the discovery of such forgery. Appellants’ pleadings assert that the S. W. Aston will is a forgery; that they did not know of the existence of the will until shortly prior to filing suit; and that upon learning of the existence of the will, they had the instrument examined and discovered it to be a forgery. Shortly thereafter, suit was brought to cancel the will. Appellants did not allege that they had used reasonable diligence in discovering the forgery. However, no exceptions have been filed by appellee questioning the pleadings of appellants. Appellee contends that it was incumbent upon appellants not only to exercise reasonable diligence in discovering the alleged forgery or fraud, but to plead facts showing why they were unable to timely discover the alleged forgery. Appel-lee further asserts that because appellants failed to plead facts as to why they could not have sooner discovered the alleged forgery, no material fact issue was raised which would preclude the trial court from granting appellee’s motion for summary judgment based on a plea of limitations.

The granting of a summary judgment in this case on the pleadings alone would have been reversible error since no special exceptions had been filed complaining of appellants’ petition. Appellants are entitled to an opportunity to amend their petition to state a cause of action. Texas Department of Corrections v. Herring, 513 S.W.2d 6 (Tex.1974).

Appellee Lyons, as the moving party seeking a summary judgment, had the burden to plead and prove by summary judgment proof that no genuine issue of material fact exists and that she was entitled to judgment as a matter of law. Lyons, in order to prevail in her position as movant, had to establish that appellants had discovered the will to be a forgery more than two years prior to bringing suit; or, establish as a matter of law that appellants did not use reasonable diligence in discovering the will to be a forgery; or, establishing as a matter of law that the will was not a forgery. In the absence of special exceptions having been filed by Lyons, it must be presumed for summary judgment purposes, that had exceptions been filed, then the Aston brothers would have amended their petition to allege a proper cause of action. Since the record itself does not show that Lyons’ limitation defense was established as a matter of law, then Lyons had to conclusively establish by summary judgment proof the elements of her defense prescribed by Section 93 of the Texas Probate Code. This she did not do. Her proof showed that the will was admitted to probate more than two years preceding the suit brought by appellants, but appellee’s proof did not show that the will was discovered to be a forgery more than two years prior to bringing suit or that if appellants had used reasonable diligence, they could have discovered the forgery within two years following the will’s probate. If Appellee Lyons’ (defendant’s) summary judgment proof had overcome appellants’ allegations of the recent discovery that the will was a forgery, then appellants (plaintiffs) could not stand on their pleadings alone, but would have been required to produce sufficient proof to raise a genuine issue of material fact in order to avoid the granting of a summary judgment against them. Torres v. Western Casualty and Surety Company, 457 S.W.2d 50 (Tex.1970).

The two year statute of limitations did not begin to run in this case from the date the will was offered for probate or the date that the will was probated. The statute of limitations began to run from the date that appellants discovered that the will was a forgery or from the date that appellants, in the exercise of reasonable care and diligence, should have learned that the will was a forgery. So far as we are able to determine, this is a case of first impression in the application of the discovery rule to the statute of limitations concerning forgery under Section 93, Texas Probate Code. Many cases have applied the discovery rule to limitation of actions for fraud. Whatley v. National Bank of Commerce, 555 S.W.2d 500, 505 (Tex.Civ.App. Dallas 1977, no writ).

The discovery rule in this case may be stated to be the legal principle that a statute of limitations barring an action to cancel a will for forgery, runs not from the date of offering the will for probate or the actual date of probate, but runs from the date the forgery was discovered or should have been discovered by the exercise of ordinary care and diligence. See Hays v. Hall, 488 S.W.2d 412 (Tex.1972); Weaver v. Witt, 561 S.W.2d 792 (Tex.1977); and Whatley v. National Bank of Commerce, supra.

We have reviewed the authorities and have concluded that the discovery rule should be made applicable to the statute of limitations in forgery cases. We thus hold that the statute of limitations in a civil action based upon forgery does not begin to run until the forgery is discovered, or until the plaintiff acquires such knowledge as would lead to its discovery by the exercise of reasonable diligence. See Weaver v. Witt, supra; Kelley v. Rinkle, 532 S.W.2d 947, 948 (Tex.1976); Gaddis v. Smith, 417 S.W.2d 577, 579-581 (Tex.1967).

Since appellants’ petition does not affirmatively disclose when the forgery was or should have been discovered, we cannot determine when the statute of limitations began to run. Summary judgment on the pleadings on the ground that the action is barred by limitations is improper where the petition does not disclose when the cause of action accrued. Whatley v. National Bank of Commerce, supra. When the statute of limitations began to run is a fact question to be determined by the trier of fact.

The judgment of the trial court is reversed and the cause is remanded for further proceedings.


text:
    Ex parte Ivan Carroll DILLARD.
    No. 8670.
    Court of Civil Appeals of Texas, Texarkana.
    Jan. 19, 1979.

      Frank L. Supercinski, Longview, for relator.
    R. L. Whitehead, Jr., Longview, as attorney of record.
   RAY, Justice.

This is an original habeas corpus proceeding. Relator, Ivan Carroll Dillard, filed his motion with this Court for leave to file his original application for writ of habeas corpus and the motion was granted. Without granting a conditional writ of habeas corpus and admitting relator to bail, we proceeded to hear the matter on its merits and have concluded that the application should be refused.

The only available procedure for review of contempt orders and judgments is an original application for a writ of habeas corpus. Wagner v. Warnasch, 156 Tex. 334, 295 S.W.2d 890 (1956). There is no provision for the appeal of a conviction for contempt in Texas. Relief by habeas corpus may be had only from a void order or judgment. Ex Parte Dustman, 538 S.W.2d 409 (Tex.1976); Ex Parte Cardwell, 416 S.W.2d 382 (Tex.1967); 6 Texas Practice, Secs. 591 and 592, pp. 434-437 (1973). Since an original habeas corpus proceeding is a collateral attack upon the contempt order, the relator may be relieved of that order’s impositions only if the order is void. An order of contempt imposing a coercive restraint is void if the condition for purging the contempt is impossible of performance. Ex Parte Dustman, supra.

The divorce decree entered on August 30, 1973, required relator Dillard to pay child support in the sum of $125.00 per week until the youngest child reached the age of 18 years. That decree was modified on November 14, 1973, to provide that relator would be required to pay the sum of $80.00 per week, representing the sum of $60.00 per week as child support and $20.00 per week to apply on the arrearages in the amount of $1,200.00, until the arrearages were paid in full and then the payments would be reduced to the sum of $60.00 per week until the youngest child reached the age of 18 years.

On July 13,1978, relator was found to be in contempt for failure to pay the child support as ordered and was committed to the custody of the sheriff of Gregg County for confinement in the local jail. No written order was entered at that time and on July 17, 1978, the Court of Civil Appeals at Tyler ordered relator’s release following a hearing on his writ of habeas corpus. On July 19, 1978, the trial court entered its written order of commitment, without further notice or hearing, commanding the sheriff of Gregg County to confine relator for a term of six months as punitive punishment and to confine relator until he paid the arrearages, costs and attorney’s fees as coercive punishment.

Relator again sought a writ of habeas corpus in the Court of Civil Appeals at Tyler, but that Court denied relator’s motion for leave to file the application for writ of habeas corpus on August 22, 1978.

Previously, on August 3,1978, relator had sought his release by filing an application for writ of habeas corpus in the Texas Supreme Court. The Supreme Court entered the following order:

“Relator’s application for writ of habeas corpus filed herein on August 3, 1978, in the above numbered and entitled cause having been duly considered, it is ordered that said application for writ of habeas corpus be, and hereby is, denied.
“It is further ordered that relator, Ivan Carroll Dillard, pay all costs expended and incurred in this case in this Court.”

On October 24, 1978, this Court granted relator’s motion for leave to file his application for writ of habeas corpus and set the case for hearing on its merits on November 28, 1978.

The Texas Supreme Court has jurisdiction to issue writs of habeas corpus in civil matters pursuant to Tex.Rev.Civ.Stat. Ann. art. 1737. The Courts of Civil Appeals have jurisdiction to issue such writs only in cases related to divorce, wife or child support, or child custody as prescribed by Tex. Rev.Civ.Stat.Ann. art. 1824a (Supp.1978). Thus, it can be seen that the Texas Supreme Court and the Courts of Civil Appeals in Texas have concurrent jurisdiction to issue writs of habeas corpus in divorce cases and family-related matters. Courts of Civil Appeals were given habeas corpus jurisdiction in 1969 in order to relieve the Supreme Court of the vast workload associated with writs of habeas corpus arising out of divorce and family matters. Ordinarily, the Supreme Court will refuse to entertain writs of habeas corpus in family code matters unless the Court of Civil Appeals’ concurrent jurisdiction has been unsuccessfully sought. See Sales & Cliff, Jurisdiction in the Texas Supreme Court and Courts of Civil Appeals, 26 Baylor L.Rev. 501, at 536 (1974); and, Chadick, Original Habeas Corpus Proceedings in the Courts of Civil Appeals, 33 Tex.B.J. 183 (1970).

The record does not reflect upon what grounds the writ of habeas corpus was sought in the Texas Supreme Court, but the Court could have granted the writ only if it found the trial court’s order to be void. The logical conclusion to be drawn is, that on the grounds presented, the Court determined that the order was not void. The grounds urged for granting the writ in this Court were grounds which existed at the time the writ was sought in the Supreme Court and which could and should have been urged at that time. Relator asserts in this Court that once he was discharged by the writ of habeas corpus issued by the Tyler Court of Civil Appeals, that he could not thereafter be committed to jail for contempt without the issuance of new notice and a new hearing, because to do so would be a denial of due process of law. It is further asserted by relator that the November 14, 1973, order is ambiguous and unenforceable; that the contempt order is void because relator was unable to pay child support and the arrearages at the time he was held in contempt; that relator’s second confinement constituted double jeopardy. All of those matters were available to be urged to the Supreme Court, including the assertion that the relator was unable to obey the coercive portion of the judgment of contempt. We do not know what was urged by relator nor do we know the reasons the Supreme Court denied the writ.

The punitive punishment of six months’ confinement has now elapsed and only the coercive portion of the contempt order remains.

If the Texas Supreme Court had refused to grant leave to file the application for writ of habeas corpus, this Court would likely feel obligated to consider the matter upon the grounds urged by relator. However, in this case the Texas Supreme Court, a court of concurrent jurisdiction, filed relator’s application, duly considered it, and then denied relief. Since the Supreme Court is the court of final jurisdiction, its orders will be treated by this Court as the final disposition of the matter. To do otherwise, would put this Court in the position of reconsidering the final orders of the Texas Supreme Court which we decline to do for obvious reasons. See Ex Parte Cvengros, 384 S.W.2d 881 (Tex.Cr.App.1964); Ex Parte Mussett, 72 Tex.Cr.R. 487, 162 S.W. 846 (1913).

We have found no case directly in point and believe this to be a case of first impression. Most contemners will probably seek relief in a Court of Civil Appeals in family code matters rather than going to the Supreme Court first. However, if relief is first sought in the Texas Supreme Court, then it would be helpful to the Courts of Civil Appeals if the attorneys for the parties would provide the Court of Civil Appeals with information concerning the action taken by the Supreme Court such as what grounds were urged to that Court and whether that Court considered the application on its merits or deferred consideration to the Court of Civil Appeals.

Since Gregg County is located in both the Twelfth Supreme Judicial District and the Sixth Supreme Judicial District as an “overlap” county, it is possible to do some forum shopping which should be discouraged if one Court of Civil Appeals has already had the opportunity to consider granting leave to file an application for writ of habeas corpus.

We have concluded that relator’s application for writ of habeas corpus should be denied because the Supreme Court has already considered the matter and denied relief.

Relator may now seek a modification of the contempt order in the trial court or file an application for writ of habeas corpus in the district court seeking his release on the basis that it is impossible for him to purge himself from the coercive portion of the contempt order.


text:
    Kenneth SMITH, Appellant, v. Kenneth WILKINS, d/b/a Wilkins Investment Company, Appellee.
    No. 8604.
    Court of Civil Appeals of Texas, Texarkana.
    Jan. 23, 1979.
    Rehearing Denied Feb. 27, 1979.

      C. Mike Blalack, Mitchell & Blalack, Dallas, for appellant.
    Neil A. Bickley, Touchstone, Bernays & Johnston, Dallas, R. Brent Cooper, Cowles, Sorrels, Patterson & Thompson, Dallas, for appellee.
   CORNELIUS, Chief Justice.

Kenneth Smith has appealed from a judgment rendered against him as a sanction for failure to answer interrogatories propounded pursuant to Tex.R.Civ.P. 168.

The suit was filed by Kenneth Wilkins against Smith, Worldco International and Kurt Zeisel for damages arising from a breach of contract. On March 4, 1977, Worldco and Smith, who was Worldco’s president, filed a joint answer to the suit through their common attorney. On April 29 the attorney was allowed to withdraw, and apparently Smith and Worldco were thereafter temporarily without counsel or were represented by different counsel. On May 3 Wilkins served a set of interrogatories on Worldco, and on May 18 he served a separate set of interrogatories on Smith. Neither Worldco nor Smith answered the interrogatories within the 30 days allowed for answers. On June 10 Wilkins filed a motion asking the district court to compel Worldco to answer the interrogatories, and on June 23 he filed a motion to compel Smith’s answers. A hearing on the motion regarding Worldco was set for June 29, and a hearing on the motion regarding Smith was set for July 8. The hearing set for July 8 was not held, but on June 29 the district court entered an order compelling both Worldco and Smith to answer their respective interrogatories by July 9. On July 11, the answers not having been filed, Wilkins applied for an order imposing sanctions, and on the same day the district court granted the motion by rendering an interlocutory default judgment against both Worldco and Smith. Four days after entry of the judgment, Smith filed a set of answers to his interrogatories. On August 24 the case against the other defendant, Zeisel, was disposed of and the judgment against Worldco and Smith was made final.

Smith contends, among other things, that the judgment rendered against him was improper because he was denied an opportunity to be heard on the order, the violation of which formed the basis of the judgment. We agree. Penalties for failure to obey the discovery rules may be imposed only where all parties have been given notice of the motion to compel production, and have had an opportunity to be heard thereon. Sears, Roebuck & Company v. Hollingsworth, 156 Tex. 176, 293 S.W.2d 639 (1956). Smith was given notice of the filing of the motion to compel, but he was not afforded an opportunity to be heard prior to the entry of the order.

It might be argued that Smith, being president of Worldco, was aware of the June 29 hearing on the motion to compel Worldco’s answers, and that he could have availed himself of the opportunity at that time to be heard on the motion concerning his answers. Such an argument might have some merit if no separate hearing had been set for a consideration of the motion against Smith. But as such a separate hearing was set for July 8 and was pending, Smith had a right to rely upon that setting for an opportunity to be heard on the motion. The denial of that opportunity rendered the imposition of sanctions improper. Sears, Roebuck & Company v. Hollings-worth, supra.

In addition, as noted earlier, only four days after the entry of the interlocutory judgment and more than a month before that judgment was made final, Smith filed his answers to the interrogatories. The main object of sanctions is not to punish an erring party but to secure compliance with the discovery rules. Young Companies, Inc. v. Bayou Corp., 545 S.W.2d 901 (Tex.Civ. App. Beaumont 1977, no writ); Ebeling v. Gawlik, 487 S.W.2d 187 (Tex.Civ.App. Houston-1st Dist. 1972, no writ). It affirmatively appears that Wilkins would have suf fered no injury had the interlocutory judgment been set aside. In those circumstances, the court should have granted the motion for new trial. Compare Gordon v. Williams, 164 S.W.2d 867 (Tex.Civ.App. Beaumont 1942, no writ); Young Companies, Inc. v. Bayou Corp., supra.

Wilkins urges that Smith has waived his right to complain because he failed to set forth his complaint in his motion for new trial. Rule 325, which was repealed effective January 1, 1978, was in effect at the time the judgment in question here was rendered, and it provided that:

“In cases of motions for continuance, or for change of venue, or other preliminary motions made and filed in the progress of the cause, the rulings of the court thereon shall be considered as acquiesced in, unless complained of in the motion for new trial; . . . . Nothing in Rule 324 shall render a motion for new trial unnecessary in the instances mentioned in this Rule nor in instances of newly discovered evidence, misconduct, fraud or the like.”

In his motion for new trial, Smith did not assign as error the action of the court in entering the order compelling answers. Nevertheless, the gist of his complaints on appeal, in points of error 6 and 7, is that the court erred in rendering judgment against him because he was denied an opportunity to be heard on the underlying order which resulted in the entry of that judgment. Such a complaint is not one complaining of the “ruling of the court” on a preliminary motion, as contemplated by the former Rule 325, and Smith is not precluded from urging it here because of his failure to assign it as error in his motion for new trial. See Young Companies, Inc. v. Bayou Corp., supra; Ebeling v. Gawlik, supra; Williams v. Whitten, 451 S.W.2d 535 (Tex.Civ.App. Tyler 1970, no writ); and City of Roma v. Starr County, 428 S.W.2d 851 (Tex.Civ.App. San Antonio 1968, writ ref’d n. r. e.).

It is not necessary that we consider the other points of error. The judgment is reversed and the cause is remanded to the district court.

      . The judgment, strictly speaking was not a default judgment because Smith had an answer on file. See Hall v. C-F Emp. Credit U., 536 S.W.2d 266 (Tex.Civ.App. Texarkana 1976, no writ). It was a punitive judgment authorized by Tex.R.Civ.P. 168 and 215a. The judgment was interlocutory at this stage of the proceeding because the cause of action against Zeisel had not been disposed of or severed.

      . The same ruling applies to sanctions imposed under Fed.R.Civ.P. 33 and 37, after which the Texas rules were patterned. See Edgar v. Slaughter, 548 F.2d 770 (8th Cir. 1977).


author: OSBORN, Justice.

text:
    Betty CORONADO, Appellant, v. EMPLOYEES NATIONAL INSURANCE COMPANY et al., Appellees.
    No. 6761.
    Court of Civil Appeals of Texas, El Paso.
    Jan. 24, 1979.
    Rehearing Denied Feb. 28, 1979.

      Law Offices of Warren Heagy, Warren Heagy, Odessa, Law Offices of Alex Gonzalez, Alex Gonzalez, Fort Stockton, for appellant.
    Cotton, Bledsoe, Tighe, Morrow & Dawson, Charles Tighe, Midland, Lawrence L. Barber, Jr., Monahans, Smith, Davis, Rose, Finley & Hoffmann, Richard W. Davis, San Angelo, for appellees.
   OPINION

OSBORN, Justice.

The basic issue in this case is whether an employee who was driving a company owned vehicle after working hours on a personal mission was a permissive user and an omnibus insured under a liability policy issued to the owner of the vehicle. The jury found the operator of the vehicle was within the scope of the permission granted by the employer who owned the vehicle. The trial Court entered judgment non ob-stante veredicto. We affirm.

The Appellee, Employers National Insurance Company, issued a comprehensive automobile liability policy to White Well Service, Inc., for the period April 1, 1974 to April 1, 1975. The insured was in the well servicing business with its yard at Wickett, Texas. The Company operated about half a dozen well pulling units and each operator was furnished a Company pickup to use in taking his crew to work each morning and home each evening. It was Company policy that these vehicles were to be used only for the purpose of hauling crews back and forth to work.

On August 23, 1974, Fernando Garcia So-telo, a unit operator for White Well Service, and his crew of three other employees, left the Company yard at Wickett in the Company pickup around 5:00 p. m. and started to Monahans where all the crew lived. They stopped at Wally’s lounge, a bar on the southwest side of town, rather than going to the north and east of town where all the crew members lived. Wally’s was approximately thirty blocks east and twenty-four blocks south of Mr. Sotelo’s home. The crew drank beer and played pool for about three hours. After one member of the crew went home, the others went to the Rose Garden, another bar located further west from town. After leaving that bar some time after midnight, Mr. Sotelo had an accident in which the Appellant’s husband was killed. Mrs. Coronado obtained a judgment against Mr. Sotelo for $325,000.00 and by this suit seeks to collect on the policy issued to White Well Service.

Of the seven witnesses who had at some time worked for the Company, none testified as to any express authority to use these vehicles for personal reasons. Two former operators, called as witnesses by the Appellant, testified that the pickups were furnished for Company use only and not for personal use. Mr. Sotelo testified on direct examination:

“Q (By Mr. Heagy): Did either one [owner or foreman] tell you directly not to stop and drink beer?
A Not that I can remember.”

But on cross examination, he testified:

“Q Well, whatever was said, didn’t you know that that pickup was given to you only for the business of White Well Service?
A Yes.
Q Didn’t you understand it was not being given to you for you to go out to bars at night after you were through working, you knew that?
A Yes.”
“Q Did you understand that you were not supposed to be using the pickup at that time, at that place and under those circumstances?
Yes.”

On this appeal it is not contended that there was any express permission, but only that there was implied permission to use the pickup at the time of the accident. Appellant contends implied permission to use the Company vehicle on the occasion of the August, 1974 accident was shown by three occurrences prior to that date.

On one occasion Hubert Harris, a field foreman for White, had gone to Wally’s lounge in a Company vehicle and drank a beer with Mr. Sotelo and his crew who were there in a Company vehicle. This occurred about 7:00 o’clock one evening. Nothing was said to Mr. Sotelo about his violation of Company rules, although Mr. White and Mr. Harris said the Company was strict in its policy about drinking and driving Company vehicles, and that it was a policy to fire employees who violated this policy.

On another occasion, Mr. White had gone to the Matador Lounge to get Mr. Sotelo and his crew to go out on a job about 4:00 p. m. Mr. Sotelo said the crew was playing pool and drinking beer, but he did not know if Mr. White saw the drinking. Mr. White testified he did not see anyone drinking and thus took no action for violating Company policy.

On the day of the accident when the crew left the Company yard, Mr. Sotelo told Mr. Harris “we’ll be at Wally’s, see you later.” He admitted that this was said jokingly and that he actually decided to go to Wally’s only after the crew got to Monahans. The evidence establishes that Mr. Sotelo did go to bars in Monahans in his Company pickup with some frequency, but there is no proof that those managing the Company knew of this practice.

Mr. White testified that the day after the accident Mr. Sotelo said he was sorry and knew he shouldn’t have gone to the bars. Mr. White concluded that he had learned his lesson and did not fire him because he had a family and needed to keep working. Although there was evidence about drinking on the job on other occasions, the real issue is not whether the vehicle could be used to go to bars but whether it could be driven any place other than to take the crew to work and home.

The leading case in Texas with regard to permissive users is Royal Indemnity Company v. H. E. Abbott & Sons, Inc., 399 S.W.2d 343 (Tex.1966). In that case, the Court said:

“Under the standard omnibus clause of an automobile liability policy, an operator is entitled to protection as an additional insured if his use of the vehicle is with either the express or implied permission of the named insured. While express permission must be affirmatively stated, implied permission may be inferred from a course of conduct or relationship between the parties in which there is mutual acquiescence or lack of objection signifying consent. It is usually shown by usage and practice of the parties over a period of time preceding the occasion on which the automobile was being used. 7 Appleman, Insurance Law and Practice, Section 4365.”

The first point asserts error in entering judgment n. o. v. because there was sufficient evidence to support the jury’s verdict. There are three different rules applied in deciding if an employee has permission to use a vehicle when there has been some deviation from the authority granted or use is made in violation of restrictions on such use. In some states, if initial permission of use is given by the employer that is all that is required to make all future use permissive. In other states, permission for the exact use of the vehicle at the time and place must have been given for there to be permissive use. Between these so-called liberal and strict rules is a third rule which takes a middle ground and holds it is necessary to consider the extent and effect of the particular deviation involved, with material deviations voiding the initial permission and minor deviations leaving such permission unaffected. Texas follows this last rule. Automobile liability insurance: permission or consent to employee’s use of car within meaning of omnibus coverage clause, 5 A.L.R.2d 600 at 625 (1949). Also see Olgin v. Employers Mut. Casualty Co., 228 S.W.2d 552 (Tex.Civ.App. —San Antonio 1950, writ ref’d n. r. e.); Aetna Insurance Company v. Weatherford, 370 S.W.2d 100 (Tex.Civ.App.—San Antonio 1963, aff’d, Tex., 385 S.W.2d 381, 1964); Allstate Insurance Company v. Smith, 471 S.W.2d 620 (Tex.Civ.App.—El Paso 1971, no writ); 7 Appleman, Insurance Law and Practice, Sections 4366, 4367, 4368 (1962).

In this case, the Court instructed the jury as follows:

“ ‘You are instructed that under Texas law “permission” may be express or implied.
You are further instructed that “permission” means consent to use the vehicle in question at the time and place in question and in a manner, authorized by the owner, either express or implied.
“Implied permission,” as used in this charge, means permission that is not expressly given or stated in words, and the word “implied” means inferential or tacitly conceded and involved an inference arising from a course of conduct or relationship between the parties in which there is mutual acquiescence or lack of objection under the circumstances, signifying assent, and “implied permission” is not confined alone to affirmative action. You are further instructed that not every deviation or departure from the purpose, place, distance and time, or a combination of them, will operate to cancel or destroy the permission which the user of the vehicle originally had from its owner. If the deviation is material, such original permission is destroyed; if immaterial, it is not. The question of materiality must be determined from all the circumstances relating to the entire course of conduct of the parties as it related to the handling of the vehicle in question.’ ”

This appears to be a proper and correct statement of the applicable law. As the Court instructed the jury, “permission” means consent to use the vehicle at the time and place in question.

In considering the attack on the trial Court’s judgment n. o. v., we are reviewing a “no evidence” issue and must consider only the evidence and inferences which support the jury’s verdict and disregard all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821 (Tex.1965).

We conclude there is some evidence of knowledge of the employer that on at least two occasions (the visit at Wally’s by Mr. Harris and the visit at the Matador by Mr. White), Mr. Sotelo had used the Company pickup to go to a place with his crew which was unauthorized and for which he had received no reprimand and which the jury, under the instruction given, could conclude was implied permission “by mutual acquiescence or lack of objection under the circumstances signifying assent.”

But that is only half the test. We find no evidence of permission expressed or implied to use the vehicle at the time in question. Certainly Mr. White’s locating the crew at the Matador at 4:00 to 4:30 p. m. does not imply consent to drive after midnight. Nor does Mr. Harris’ finding Mr. Sotelo at Wally’s at 7:00 p. m. imply a consent to drive the pickup five hours later. In Yorkshire Indemnity Co. of New York v. Collier, 172 F.2d 116 (6th Cir., 1949), the Court noted “The time element during which the use is permitted by the owner is * * * the element to be stressed rather than the particular use to which the car is put, * * In Aetna Insurance Company v. Weatherford, supra, Justice Barrow concluded that the driver of a vehicle was not a permissive user because his driving of the 1947 Chrysler “was not within the ‘time’ intended by the parties * * He concluded for that reason first and then others that the deviation was not minor and reversed and rendered judgment for the insurance carrier.

That holding was consistent with and based in part upon the earlier decision by the same Court in Olgin v. Employers Mut. Casualty Co., supra. In that case, the driver had an accident two miles from home and about three and a half hours after he should have been there had he gone straight home. In our case, the accident was more than two miles from the employee’s home and more than six hours after he should have been home had he not stopped at the bars to drink and play pool.

In Mid-Continent Casualty Company v. Everett, 340 F.2d 65 (10th Cir. 1965), a bus driver for Roy Hopkins Bus Line drove a bus from Clinton, Oklahoma, to the terminal at Wichita, Kansas. He was supposed to leave the next morning at 6:00 a. m. and return to Clinton. The driver had an accident the next morning at 8:30 a. m. twenty-four blocks from the terminal, going in the opposite direction from his scheduled route.

In reversing a trial Court finding of permissive use on the occasion of the accident, the Court said:

“The record in this case discloses that while Hopkins subsequently denied that Segroves had permission to operate the bus on the day in question, he had previously given a written statement to representatives of the garnishee wherein he stated that Segroves did have such permission. The trial court apparently found that permission was given and we accept that finding. But, it is also clear from the facts that whether Segroves had permission or not, he was not on the regular bus route at the time of the accident. He was driving in the opposite direction from the normal route, he was 2V2 hours behind the scheduled departure time, he had no passengers or other cargo and he was intoxicated. In view of these conditions, Segroves had deviated in time, purpose, direction and distance to such a degree from any permissive use he may have had that it cannot be doubted that the actual use of the vehicle was not within the contemplation of the named insured, Hopkins, and it follows that the insurance company has no obligation to Segroves under the omnibus clause of the policy.”

In numerous other cases, the Courts in applying the minor deviation rule have held that there was no permission where the use was some distance and several hours beyond that which was intended when the vehicle was originally taken with permission. Frederiksen v. Employers’ Liability Assur. Corporation, Limited, of London, England, 26 F.2d 76 (9th Cir. 1928); Farmers Mutual Automobile Insurance Company v. Noel, 211 F.Supp. 216 (D.Mo.1962); Gulla v. Reynolds, 82 Ohio App. 243, 81 N.E.2d 406 (1948, aff’d 151 Ohio St. 147, 85 N.E.2d 116, 1949); Collins v. New York Cas. Co., 140 W.Va. 1, 82 S.E.2d 288 (1954).

We recognize that there is authority to the contrary. One of the most recent cases is Martin v. Traveler’s Indemnity Company, 450 F.2d 542 (5th Cir. 1971). In that case, the Court, applying Mississippi law, held that an employee who was using a company vehicle furnished to him for the purpose of traveling to and from his place of employment to his home under instructions not to use the company vehicle for any purpose other than traveling to and from work was a permissive user when he drove to his girl friend’s home in a nearby community on a Friday night and had an accident the following morning while enroute to his home. The Court in reaching its conclusion makes no mention of the time element involved in the deviation and relies almost exclusively upon the prior holding in Traveler’s Indemnity Company v. Watkins, 209 So.2d 630 (Miss.1968). In that case, the Supreme Court of Mississippi in a five to four decision appears to apply the middle-of-the-road or minor deviation rule. In applying the rule, it held that a pickup loaned to an employee to haul a calf to the employee’s home on Saturday afternoon and with instructions to leave the truck at his home and bring it back on Monday morning was a permissive user while driving the pickup on Sunday to pick up his wife and take her home. In that opinion, the Court makes no mention of the time element involved in the deviation between the permissive use to drive the pickup home on Saturday afternoon and the accident a day later.

But that same Court two years earlier in Employers Mutual Casualty Company v. Poe, 191 So.2d 541 (Miss.1966), held there was a violent deviation by an employee who was given permission to drive a company vehicle home and back to work the next morning, but instead went a distance some twenty miles and was so intoxicated that he did not know where he was at the time of the collision. We conclude that the Poe case is more in line with the majority of the cases applying the minor deviation rule than are the Watkins and Martin cases, particularly when the element of time as well as place is considered. The Appellant also relies upon the opinion in Traders & General Ins. Co. v. Powell, 177 F.2d 660 (8th Cir. 1949). In that case, there was substantial evidence that the employer knew, despite his testimony to the contrary, that the driver had continually used the company truck for personal missions unrelated to company business. Under those facts, that case is not controlling in this instance where the Appellant relies upon three isolated instances to show implied permission.

The Appellant’s first point of error is overruled.

By the fourth point of error, the Appellant complains of error upon the part of the trial Court in allowing counsel for the Appellee to lead Mr. Sotelo, and error in refusing Appellant’s counsel the right to lead adverse witnesses. It seems to be a well recognized principle that the allowance of leading questions is a matter resting largely within the discretion of the trial Court, and in this State a case will not be reversed in the absence of a showing of abuse of discretion. Crook v. Malone, 571 S.W.2d 544 (Tex.Civ.App.—Eastland 1978, writ pending); Travelers Insurance Company v. Hurst, 358 S.W.2d 883 (Tex.Civ.App.— Texarkana 1962, writ ref’d n. r. e.). To begin with, we are at a loss to understand why Mr. Sotelo remained a party to this suit at the time of trial. The pleadings on which the case was tried did not seek any new and additional relief over and above the $325,000.00 which had been obtained in the prior judgment, and in the judgment entered in this case the Court recites that no relief was requested against Mr. Sotelo. But, having left him in the case, he was a party at the time he was called as a witness, and counsel for the Appellant should have been permitted to cross examine him. There is no showing that he was adverse to the insurance carrier and we see no reason why counsel for the carrier should have been permitted to ask leading questions. But we have reviewed the testimony of this witness very closely and conclude that those facts which the Appellant sought to establish from this witness were placed in the record before the jury through proper questions, whether leading or not. We cannot say that the trial Court abused its discretion, and have concluded that any error in its rulings were not reasonably calculated to result in the rendition of an erroneous judgment. Rule 434, Tex.R.Civ.P. This is particularly so since the Appellant did obtain a favorable finding on the only issue submitted to the jury. Point of Error No. 4 is overruled.

The Appellant complains in the second and third points of error that the trial Court erred in holding that the carrier had no duty to furnish a defense to Mr. Sotelo and in refusing to enter judgment against the carrier for the full amount of the judgment previously obtained against Mr. Sotelo plus interest and costs. The policy issued to White Well Service had a limitation of $100,000.00 per person, but Appellant contends the earner should be liable for the full amount of the judgment since it wrongfully refused to defend Mr. Sotelo in the suit filed against him. Having overruled the first point of error, the second and third points become immaterial but, in the event we should be in error on the first point, we would nevertheless overrule Points of Error No. 2 and No. 3.

First of all, we conclude that the creditor has no cause of action for the excess above the policy limits. Samford v. Allstate Insurance Company, 529 S.W.2d 84 (Tex.Civ. App.—Corpus Christi 1975, writ ref’d n. r. e.); Cook v. Superior Insurance Company, 476 S.W.2d 363 (Tex.Civ.App.—Beaumont 1972, writ ref’d n. r. e.). If there was any breach of duty in failing to defend, that breach of duty was to Mr. Sotelo and not to the Appellant in this case. Even if there was a duty owed to the Appellant, no issues were submitted to the jury to establish a cause of action for breach of any duty owed to Mr. Sotelo to defend him in the prior case, and thus the cause of action was waived. The second and third points of error are overruled.

The judgment of the trial Court is affirmed.


author: McDONALD, Chief Justice.

text:
    F. L. J., Appellant, v. STATE of Texas, Appellee.
    No. 6005.
    Court of Civil Appeals of Texas, Waco.
    Jan. 25, 1979.
    James A. Amis, Jr., Bryan, for appellant.
    Sarah Ryan, Child Services and Juvenile Court Atty., Bryan, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by F. L. J., a child, from an order committing him to the Texas Youth Council.

The Juvenile Court Attorney for Brazos County filed petition in the trial court (sitting as Juvenile Court) alleging that F. L. J. had engaged in delinquent conduct and had on May 11, 1978 entered a house without consent of the owner with intent to commit theft.

All procedural requirements were complied with, and after hearing the trial court found the allegations in the petition to be true and adjudged F. L. J. to have engaged in delinquent conduct, to come under the jurisdiction of the court and subject to further orders of the court, and set a disposition hearing for June 26, 1978.

The disposition hearing was held on June 26, 1978, at the conclusion of which the court ordered F. L. J. committed to the Texas Youth Council. Such order states:

“The court, after hearing the evidence and argument of counsel, finds that the child is in need of rehabilitation and that the protection of the public requires that disposition be made; * * *
“It further appears to the Court that the best interest of the child and the best interest of society will be served by committing him to the care, custody and control of the Texas Youth Council for the following reasons:
“(1) On or about the 11th day of May, 1978 said child violated a penal law of this State, to wit: Article 30.02 of the Penal Code of Texas, in that he did then and there in Brazos County, Texas, enter a habitation, without the effective consent of Maxie Lee Ross, the owner thereof with intent to commit theft, to wit: with intent then and there to appropriate property without the effective consent of Maxie Lee Ross, the owner thereof, and with intent to deprive Maxie Lee Ross of said property.
“(2) Said child has a history of attacking others, both verbally and physically-
“(3) Said child is in need of a strict environment such as that offered by the Texas Youth Council.
“(4) While at the Texas Youth Council said child will receive individual counseling and he will be included in group therapy sessions in which he will be immediately confronted by staff and peers when he exhibits negative behavior.”
Appellant appeals on 2 points:
1) The trial court erred in failing to state specifically in its order of commitment the reason the child was committed to the Texas Youth Council rather than to some type of probation.
2) The trial court erred in basing its order of commitment on the testimony and recommendation of the juvenile probation officer because the testimony does not support such order and the recommendation is based upon subjective conclusions of the officer and not upon probative evidence.

Family Code, Article 54.04(f) states “The court shall state specifically in the order its reasons for the disposition * * * and In the Matter of T. R. W., (Tex.Civ.App.— Dallas) NWH 533 S.W.2d 139 holds that such is mandatory.

The trial court’s order of commitment here fully complied with Article 54.-04(f) and we hold that the reasons recited in such order, supra, are sufficient.

The record before us discloses that appellant threatened a worker at the detention center with a knife, has a history of attacking others including staff members at the Mary Lee School, and is in desperate need of a strict environment. Moreover, he has no home to go to, and probation of any sort is conclusively negated by the record. The evidence is sufficient to support the court’s judgment without the aid of any inadmissible testimony. In the Matter of A. A. A., (Tex.Civ.App.—Corpus Christi) 528 S.W.2d 337.

Appellant’s points are overruled.

AFFIRMED.


author: HUTCHINSON, Justice.

text:
    John CONWAY et al., Appellants, v. The HOSPITAL CORPORATION OF AMERICA and the City of Longview, Texas, Appellees.
    No. 8703.
    Court of Civil Appeals of Texas, Texarkana.
    Jan. 25, 1979.
    Rehearing Denied Feb. 12, 1979.
    Frank L. Supercinski, Longview, for appellants.
    Robert M. Parker, Longview, for Hospital Corp.
    Earl Roberts, Jr., Longview, for City.
   HUTCHINSON, Justice.

This suit challenges the validity of an ordinance enacted by the City of Longview, Texas, changing the zone classification of a 10.3 acre tract of land from “SF-4” (Single Family Residential) and “A” (Agricultural) to “Planned Development — Hospital.”

In 1968 the City of Longview adopted a Comprehensive Zoning Ordinance and accompanying master plan establishing zoning for the entire city and plans for future development. In 1970 a 186 acre tract of land of which the 10.3 acre tract in question is a part was annexed into the City and given a zoning designation of “A” except for a 100 foot strip on the west side of the 10.3 acre tract which was designated “SF-4.” A short time thereafter a portion of the 186 acre tract was zoned to “Planned Development — Hospital” and attempts were made to secure the construction of a hospital on the rezoned portion. However, about two years later when efforts to secure the hospital were abandoned the land was placed back in its “A” zoning designation and remained in such category until the ordinance in controversy was enacted.

The application of the owners of the 186 acre tract of land and appellee, Hospital Corporation of America, to the Longview Planning and Zoning Commission for rezoning of the 10.3 acre tract to “Planned Development — Medical Center” was denied on April 18, 1978, and no other applications were filed with or hearings had before the Planning and Zoning Commission. On May 9,1978, the Longview City Commission held a public hearing to consider the same request which was denied on April 18, 1978, by the Planning and Zoning Commission and on July 6, 1978, enacted Ordinance No. 1178 rezoning the subject lands from “A” and “SF-4” to “PD — Medical Center.” Shortly thereafter this action was filed alleging Ordinance No. 1178 to be invalid for failure of the City to comply with the notice provisions of Tex.Rev.Civ.Stat.Ann. art. lOlld and upon hearing, the trial court so ruled and the appellees here agree that such was a correct ruling. However, after the notice defect was pled by appellants, the Longview City Commission on August 29, 1978, caused notice to be issued and published that a public hearing would be held on September 15,1978, for the purpose of considering the zoning change for the 10.3 acre parcel of land. This hearing was held and was attended by appellants’ attorney and other interested persons. Thereafter Ordinance No. 1211, which is identical in all respects to Ordinance No. 1178, was enacted and the pleadings in this cause amended to so reflect.

This cause was heard on October 2, 1978, and the trial court entered its judgment finding Ordinance No. 1178 to be void because of a defect in notice and upholding the validity of Ordinance No. 1211. Findings of fact and conclusions of law were filed at appellants’ request.

Appellants and their attorney are residents of the City of Longview residing in a residential area to the south of the 10.3 acre tract of land.

Appellants’ first four points of error attack the validity of Ordinance No. 1211 on the basis that it was never presented to the Planning and Zoning Commission, was passed without a hearing first being had before the Planning and Zoning Commission, and the Longview City Commission by its passage of Ordinance 1211 (replacing Ordinance No. 1178 under judicial attack) usurped and encroached upon the constitutional powers and functions of the judiciary. Appellants by their pleadings, briefs and arguments take the position that each ordinance as such must be first presented to and acted upon by the Planning and Zoning Commission. Neither Tex.Rev.Civ.Stat. Ann. art. lOllf nor the zoning ordinances of the City of Longview contain any such requirement nor is it contemplated that zoning or zoning changes originate with the Longview City Commission, given an ordinance number, and then referred to the Planning and Zoning Commission. It is undisputed that the application upon which Ordinance No. 1178 was based was properly before the Planning and Zoning Commission and the hearing and the action of the Commission thereon conformed with the controlling statutes and ordinances. It is further undisputed that the contents of Ordinance No. 1178 and Ordinance No. 1211 are identical in every respect. We can conceive of no logical reason why another hearing before the Planning and Zoning Commission should be required. Appellants cite the cases of Smart v. Lloyd, 370 S.W.2d 245, 248 (Tex.Civ.App. Texarkana 1963, no writ), and Wallace v. Daniel, 409 S.W.2d 184 (Tex. Civ.App. Tyler 1966, writ ref’d n. r. e.), as supporting their contentions. We do not disagree with either decision but do not find them to be determinative of the case before us. In Smart, supra, there was no recommendation of any type at any time from the Planning and Zoning Board to the City Commission. In Wallace, supra, the application before the Planning Commission was for a change to C-l classification and upon hearing the Planning Commission recommended to the City Commission a change to C-4 classification. The ordinance enacted pursuant to such recommendation was held to be invalid as a proper hearing before the Planning Commission had not been afforded, citing Smart, supra. Here the appellants were afforded a hearing before the Planning and Zoning Commission and received a favorable recommendation therefrom, and there are no provisions or requirements for a second or additional hearing. Delay of itself cannot form the basis for this Court to require another hearing before the Planning and Zoning Commission.

Appellants’ contention that the City Commission was without power to enact Ordinance No. 1211 until such time as a final judgment voiding Ordinance No. 1178 had been entered is without merit. The legislative power of the City Commission cannot be stayed by the mere filing of a suit alleging the invalidity of an ordinance.

Appellants’ further points of error assert that Ordinance No. 1211 is void because there was no change of conditions to justify its enactment; it was not passed pursuant to a comprehensive plan; it is unreasonable, capricious, arbitrary, oppressive and confiscatory; and is a clear abuse of municipal discretion. These contentions are briefed together and will be considered together. First, however, the applicable legal principles governing the determination of this controversy will be set forth in the language of the Texas judiciary.

City of Waxahachie v. Watkins, 154 Tex. 206, 275 S.W.2d 477 (1955):

“Since it is an exercise of the legislative power of the city’s council, the ordinance must be presumed to be valid.
“The courts cannot interfere unless it appears that the ordinance represents a clear abuse of municipal discretion. And the ‘extraordinary burden’ rests on one attacking the ordinance ‘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.’ .
“The presumption of validity accorded original comprehensive zoning applies as well to an amendatory ordinance. Weaver v. Ham, 149 Tex. 309, 232 S.W.2d 704. In either case the courts have no authority to interfere unless the change is clearly unreasonable and arbitrary. Clesi v. Northwest Dallas Improvement Ass’n, Tex.Civ.App., 263 S.W.2d 820, 827, error refused, N. R. E., .
“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. . if the issue of validity is fairly debatable courts will not interfere.
“. . .if there is an issuable fact as to whether the ordinance makes for the good of the community, the fact that it may be detrimental to some private interest is not material. Edge v. City of Bellaire, Tex.Civ.App., 200 S.W.2d 224, 227, error refused.”

City of Fort Worth v. Johnson, 388 S.W.2d 400 (Tex.1964):

“The first ground is unsound because it fails to take cognizance of the rule, firmly established in this State, that a zoning ordinance, duly adopted pursuant to Arts. 1011a-1011k, is presumed to be valid, and the burden is on one seeking to prevent its enforcement, whether generally or as to particular property, to prove that the ordinance is arbitrary or unreasonable in that it bears no substantial relationship to the health, safety, morals or general welfare of the community. City of Bellaire v. Lamkin, 159 Tex. 141, 317 S.W.2d 43; City of Waxahachie v. Watkins, 154 Tex. 206, 275 S.W.2d 477; Connor v. City of University Park, Tex.Civ.App., 142 S.W.2d 706, writ refused. Adoption of a zoning ordinance by the governing body of a city represents the exercise of a delegated legislative discretion, and enforcement or non-enforcement of the ordinance is not a matter for judicial discretion. ... If the evidence is conclusive that a zoning ordinance is arbitrary and unreasonable, generally or as to particular property, it is the duty of the courts to refuse to enforce it; but in the absence of such proof, it is the duty of the courts to enforce it.”

Baccus v. City of Dallas, 450 S.W.2d 389 (Tex.Civ.App. Dallas 1970), writ ref’d n. r. e., 454 S.W.2d 391 (Tex.1970):

“. . . A city ordinance is presumed to be valid. This presumption applies to amendatory zoning ordinances as well as an original comprehensive zoning ordinance. Courts should not interfere unless the amending ordinance is clearly unreasonable and arbitrary and represents a clear abuse of discretion. If the question is fairly debatable, courts will not interfere. The burden rests on one attacking an ordinance to show that no conclusive or even controversial facts or conditions exist which would authorize the Council to exercise the discretion confided to it. Whether attacking parties have met their burden is a question of law. If there is an issuable fact whether the ordinance makes for the good of the community, the fact that it may be detrimental to private interest is immaterial.
“Art. lOlle, Vernon’s Ann.Civ.St. of Texas, authorizes changes in zoning ordinances from time to time. The statute does not by its terms require that there shall be a change in conditions since the enactment of the Comprehensive Zoning Ordinance. It has been held that such a change is not necessary if the rezoning ordinance bears a reasonable resemblance to the general welfare, to the orderly plan of zoning development and is not objectionable as constituting spot zoning.

Hunt v. City of San Antonio, 462 S.W.2d 536 (Tex.1971):

“. . . A city ordinance is presumed to be valid, and this presumption applies to amendatory zoning ordinances as well as original comprehensive zoning ordinances. In either case the courts have no authority to interfere unless the ordinance is unreasonable and arbitrary — a clear abuse of municipal discretion. If reasonable minds may differ as to whether or not a particular zoning ordinance has a substantial relationship to the public health, safety, morals or general welfare, no clear abuse of discretion is shown and the ordinance must stand as a valid exercise of the city’s policy (sic) power. An ‘extraordinary burden’ rests on one attacking the ordinance to show that no conclusive or even controversial issuable facts or conditions exist which would authorize the governing board of the municipality to exercise the discretion confided to it. This query presents a question of law, not a question of fact. City of Waxahachie v. Watkins, 154 Tex. 206, 275 S.W.2d 477 (1955).

Thompson v. City of Palestine, 510 S.W.2d 579 (Tex.1974):

“At the outset it should be noted that this Court has consistently recognized that the adoption of a zoning ordinance by a city’s governing body in accordance with Article 1011a et seq., is an exercise of its legislative discretion and therefore is presumed to be valid. City of University Park v. Benners, 485 S.W.2d 773 (Tex.1972); Hunt v. City of San Antonio, 462 S.W.2d 536 (Tex.1971); City of Waxahachie v. Watkins, 154 Tex. 206, 275 S.W.2d 477 (1955). We have also held that an ‘extraordinary burden’ rests on the party attacking the ordinance to show that no conclusive or even controversial issuable facts or conditions exist which would authorize the City Council to exercise the discretion confided to it, and that if reasonable minds may differ as to whether or not a particular zoning ordinance has a substantial relationship to the public health, safety, morals or general welfare, no clear abuse of discretion is shown and the ordinance must stand as a valid exercise of the city’s police power.

McWhorter v. City of Winnsboro, 525 S.W.2d 701 (Tex.Civ.App. Tyler 1975, writ ref’d n. r. e.):

“. . . The determination of when the public interest does require an amendment of a zoning ordinance is within the legislative discretion of the municipality and if reasonable minds may differ as to whether or not the amendatory ordinance has substantial relation to the public health, safety, morals or general welfare, no clear abuse of discretion is shown, and the amendatory ordinance must stand as a valid exercise of the city’s power. Nichols v. Dallas, 347 S.W.2d 326 (Tex.Civ.App. Dallas, 1961, writ ref’d., n. r. e.).”

The rezoned 10.3 acre tract of land is located north of Hollybrook Drive and west of North Fourth Street. North Fourth Street is a four-lane north-south street connecting Highway No. 80 to the south and U. S. Highway 259 (Loop 281) to the north and transverses the residential area of appellants and the 186 acre tract. Loop 281 borders the 186 acre tract on the north and east. Hollybrook Drive runs generally east and west and is the north boundary of the residential area and the south boundary of the 186 acre tract and the 10.3 acre tract. Hollybrook Drive connects with Loop 281 near the southeast corner of the 186 acre tract. The entire tract is undeveloped pine timber land. The rezoning ordinance sets forth conditions and restrictions for the use and development of the 10.3 acre tract, one of which is the maintenance of a 50 foot natural berm north of Hollybrook Drive and another providing for building setbacks of 200 feet from Hollybrook Drive and 300 feet from North Fourth Street.

From a review of the entire record before this Court it cannot be said that appellants have demonstrated that the amending ordinance is clearly unreasonable and arbitrary. Appellants have not met the “extraordinary burden” of showing that there were no facts existing which would authorize the rezoning of the 10.3 acre tract.

The judgment of the trial court is affirmed.


author: MOORE, Justice.

text:
    R. L. GILLESPIE et al., Appellants, v. Sam GRIMES, Appellee.
    No. 1158.
    Court of Civil Appeals of Texas, Tyler.
    Feb. 1, 1979.

      C. David Porter, Fenley, Bate & Deaton, Lufkin, for appellants.
    Wilson McVicker, Jr., McVicker & Evans, Lufkin, for appellee.
   MOORE, Justice.

Plaintiffs, R. L. Gillespie, Clemmie Gillespie, and Robert Gillespie and wife, brought suit against defendant, Sam Grimes, seeking a temporary and permanent injunction enjoining the defendant from interfering with their privacy and interfering with their sawmill operations conducted on land adjacent to that owned by the defendant, Sam Grimes. Defendant answered with a general denial and filed a cross-action for damages alleging that smoke, noise and dust emitting from the sawmill known as Cherokee Lumber Company, Inc., owned and operated by plaintiffs, created a nuisance resulting in personal injuries to the defendant, as well as depreciating the value of his land and interfering with his horse breeding operation conducted thereon. Ancillary to his action for damages, defendant also sought injunctive relief against the plaintiffs to prevent them from harming him and his family or livestock.

Trial was before a jury. In response to the special issues, the jury found, among other things, that the smoke, noise and dust from the sawmill constituted a temporary nuisance. The jury further found that the nuisance had continued and would continue for a period of twenty-nine months and that the depreciation in the reasonable rental value of defendant’s land during such time amounted to $1,000.00 per month. Pursuant to the verdict, the trial court entered judgment against plaintiff, Cherokee Lumber Company, Inc., for the sum of $29,-000.00. The trial court also entered judgment permanently enjoining plaintiff, R. L. Gillespie, from harming Sam Grimes, his family or livestock, and entered judgment enjoining defendant, Sam Grimes, from interfering with R. L. Gillespie’s privacy and interfering with the sawmill activities carried on by Gillespie. All other relief requested by all parties was denied.

Cherokee Lumber Company, Inc., and the R. L. Gillespies perfected this appeal. Since the Gillespies do not complain of the judgment, Cherokee Lumber Company, Inc., will hereinafter be referred to as “appellant” and Sam Grimes will be hereinafter referred to as the “appellee.”

As the case reaches us, the controversy is confined to that part of the judgment awarding appellee $29,000.00 in damages for the depreciation of the rental value of his land based on the jury’s finding of a temporary nuisance. No complaint is made of the action of the trial court in granting injunctive relief.

Appellant seeks a reversal by fifty-one points of error. Under points 34 through 36, appellant contends that the trial court erred in overruling its motion for new trial because there is no evidence or in the alternative that the evidence is insufficient to support the jury’s findings to Special Issues Nos. 6 and 6A , in which the jury found a depreciation in the reasonable rental value of appellee’s land. As we view the record, these points must be sustained.

The jury found by their answers to Special Issues Nos. 1 and 2 that the manner in which the sawmill operation was conducted constituted a nuisance in several respects, but further found that the cross-plaintiff, Sam Grimes, suffered no damages for his personal discomfort, annoyance, and inconvenience.

In Special Issue No. 6 the jury found that the reasonable rental value of appellee’s property during the existence of the nuisance was $1,500.00 per month, and in Special Issue No. 6A, the jury found that had the nuisance not existed during such period of time the property would have had a reasonable rental value of $2,500.00 per month. As stated, the jury found that the nuisance was temporary and existed and would continue to exist for a period of twenty-nine months. Accordingly, the trial court entered judgment in favor of the appellee for $29,000.00 for the depreciation in the rental value of the property.

It has long been the rule in this state that an action at law for damages may be maintained by a person who has suffered injury through a nuisance. 41 Tex.Jur.2d Nuisance, see. 77, p. 654. The burden is on the plaintiff to prove the existence of the alleged nuisance and to prove it was a proximate cause of the injury. 41 Tex.Jur.2d Nuisance, sec. 80, p. 658.

Where a nuisance causing injury to land is temporary, as here, the plaintiff may recover damages measured by the loss of the reasonable rental value of the property. 41 Tex.Jur.2d Nuisance, sec. 82, p. 664.

Although the statement of facts in this case consists of some four hundred-forty pages, we fail to find even one line of testimony mentioning or alluding to the reasonable rental value of the property in question. Appellee argues that his testimony showing that but for the existence of the nuisance, he could have gone into the business of boarding horses and earned considerable business profits, constitutes some evidence supporting the jury’s findings of reasonable rental value of the property. While business profits might, in some instances, be an element to be considered in determining reasonable rental value, it constitutes no evidence of what the premises were reasonably worth in the rental market. Insofar as we have been able to discern, the record is completely devoid of any evidence of rental value of the property in question. It follows that the jury’s findings of reasonable rental value is not supported by the evidence. Consequently that portion of the judgment awarding appellee damages for depreciation in rental value of the land must be reversed.

In view of our conclusion that there is no evidence to support the jury’s findings of the reasonable rental value of appellee’s land, we do not reach appellant’s factually insufficient evidence points in that regard. However, if such points were reached, we would sustain those points.

There being no evidence to support that portion of the judgment awarding appellee damages for depreciation in rental value of the land, the judgment awarding appellee damages in the amount of $29,000.00 is reversed and judgment is rendered decreeing that appellee take nothing on his cause of action for damages to his land. In all other respects the judgment is affirmed.

Affirmed in part and reversed and rendered in part.

      . Cherokee Lumber Company, Inc., and Lloyd Gillespie were subsequently joined as third-party defendants.

      . Plaintiffs answered the cross-action with a general denial and a counterclaim for damages.

      . SPECIAL ISSUE NO. 6:
      If you have found that the nuisance, if any, is temporary in nature and only in that event, then find from a preponderance of the evidence the reasonable rental value of Sam Grimes’ property from and after the commencement date, if any, found by you in Special Issue No. 3, up to and including the date of termination, if any, found by you in Special Issue No. 3.
      ANSWER: $1,500.00 per month.
      SPECIAL ISSUE NO. 6A:
      If you have found that the nuisance, if any, is temporary in nature and only in that event, then find from a preponderance of the evidence the reasonable rental value of Sam Grimes’ property from and after the commencement date, if any, found by you in Special Issue No. 3, up to and including the date of termination, if any, found by you in Special Issue No. 3, if the condition you have found in Special Issue No. 2 had not existed during said period of time.
      ANSWER: $2,500.00 per month.


author: PER CURIAM.

text:
    Curley MAHAN, Appellant, v. Calvin BOST et al., Appellees.
    No. 1273.
    Court of Civil Appeals of Texas, Tyler.
    Feb. 1, 1979.
    Benjamin F. Corn, Stephens, Corn & Ro-senstein, Tyler, for appellant.
    Frank McClendon, III, Hathaway & Jackson, Tyler, for appellees.
   PER CURIAM.

Appellee, First Federal Savings and Loan Association of Coffeyville, Kansas, has filed its motion to dismiss this appeal for want of jurisdiction and asserts that the order complained of is interlocutory and not appeala-ble.

Appellee is one of eleven defendants, however, the summary judgment was granted only as to appellee. It is settled law that, with certain exceptions not applicable here, an appeal may be prosecuted only from a final judgment. North East Independent School District v. Aldridge, 400 S.W.2d 893 (Tex.1966); Stalco, Inc. v. Zero Refrigerated Lines, Inc., 390 S.W.2d 476 (Tex.Civ.App.—San Antonio 1965, writ ref’d); 4 McDonald, Texas Civil Practice, Judgments, sec. 17.03.2. However, this summary judgment order is interlocutory and not a final judgment.

No order of severance has been entered to sever First Federal Savings and Loan, and therefore the summary judgment which is interlocutory is not appealable. Travelers Insurance Co. v. Appell, 471 S.W.2d 886 (Tex.Civ.App.—San Antonio 1971, writ ref’d n. r. e.).

The order granting summary judgment as to appellee is not a final judgment within the meaning of art. 2249, Tex.Rev. Civ.Stat.Ann. (1971), nor is it an interlocutory order appealable within the meaning of art. 2250, Tex.Rev.Civ.Stat.Ann. (1971), nor has it been severed, nor is it otherwise appealable in accordance with any rule or statute of the State of Texas.

Therefore the Court of Civil Appeals does not have jurisdiction to hear and determine the appellant Curley Mahan’s appeal because the trial court’s judgment is interlocutory and has not disposed of all issues against the remaining ten defendants. Future action will be necessary by the trial court in order to settle and determine the entire controversy.

Appellee’s motion is granted for the reasons stated above.

Appeal dismissed.