author: KEITH, Justice.

text:
    EXXON CORPORATION et al., Appellants, v. Joyce SCHUTZMAIER et vir., Appellees.
    No. 7774.
    Court of Civil Appeals of Texas, Beaumont.
    April 15, 1976.
    Rehearing Denied May 13, 1976.

      Louis Paine and W. John English, Jr., Houston, for appellants.
    A. J. Watkins, Houston, for appellees.
   KEITH, Justice.

Defendant Exxon Corporation appeals from a judgment rendered in favor of Joyce Schutzmaier and her husband which found that an easement existed across Exxon’s property for the benefit of the Schutzmai-ers which extended from an express easement, earlier given their predecessors in title, to a public highway.

In 1949, Thomas E. Brawner (Joyce Schutzmaier’s father and predecessor in title) purchased 173 acres from V. L. Peterson. This land was adjacent to a tract of land owned by Exxon which was purchased in two separate conveyances from George L. Dew in 1931 and H. W. Dew in 1932. The Exxon tract is located between Brawner’s land and a public highway. It is undisputed that the sole means of access from the Brawner tract to the public highway was by means of a semicircular road which looped from the highway through Exxon’s property and came within 600 feet of Brawner’s tract — the road being known as Loop Road. In order to obtain a means of ingress and egress to his property, Brawner obtained from Exxon in 1950 a written easement extending for 600 feet from his property to Loop Road. Brawner used Loop Road without interference for a period of 22 years, at which time he conveyed this land to his daughter and her husband, the Schutzmaiers. At no point does the Brawner tract abut on the public highway or on Loop Road, except on the latter by means of the express easement.

When the Schutzmaiers began the development of their tract in 1972, Exxon allegedly began to interfere with the accessibility to the land by tearing up a bridge on the west leg of Loop Road, constructing gates signifying the road as private property, grading and plowing the road in certain sections, and other general acts of “harassment.”

The Schutzmaiers then brought this action seeking the creation of an easement along Loop Road, an injunction against Exxon from further interfering with their rights of access to their property, the dedication of Loop Road as a public highway, the restoration of Loop Road to its pre-1972 condition, and damages for intentional interference and injuries resulting from the defendant’s acts of harassment. Trial was to a jury which found: that defendant had not engaged in willful acts of harassment; that the plaintiffs and Brawner had relied on the use of Loop Road when the express easement was obtained in 1950; that the use of Loop Road had been apparent, continuous, and necessary to the enjoyment of the Brawner tract; that the use of Loop Road by the public was not sufficient to have implied a public dedication; and that the plaintiffs had suffered $10,000 in injuries because of defendant’s acts but that defendant was not negligent. Based upon this verdict, the trial court found that an easement had been created; enjoined the defendant from further interfering with plaintiffs’ rights of ingress and egress; refused to find that Loop Road was a public way or that monetary damages should be awarded; and ordered defendant to restore the entire Loop Road to its pre-1972 condition, including replacement of the bridge which was removed. We will refer to the parties as designated in the trial court.

Defendant’s first point of error is that the plaintiffs are not entitled to a judgment awarding them “an implied easement in their favor over and along Loop Road.”

We note initially that the trial court did not specify whether the easement which was created was by implication or by estop-pel. The parties have addressed themselves to both theories and we will thus discuss each separately.

In order to establish an easement by implication, it was incumbent upon the plaintiffs to prove (1) that there was originally a unity of ownership between the dominant estate [the Brawner tract] and the servient estate [the Exxon tract]; (2) that the use must have been apparent at the time of the grant to the dominant estate; (3) that the use of the easement was continuous so that the parties intended its use to pass by grant; and (4) that the easement must be reasonably necessary to the use and enjoyment of the dominant estate. See, Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d 196, 207-208 (Tex.1962); Bickler v. Bickler, 403 S.W.2d 354, 357 (Tex.1966).

While strict adherence to the four requirements of an implied easement has been criticized, we believe that the weight of authority supports such a construction. Westbrook v. Wright, 477 S.W.2d 663, 665-666 (Tex.Civ.App.-Houston [14th Dist.] 1972, no writ); Johnson v. Faulk, 470 S.W.2d 144, 148 (Tex.Civ.App.-Tyler 1971, no writ); 4 F. Lange, Texas Practice 137, § 375 (1961); Clevenger v. Kulla, 22 Md.App. 448, 323 A.2d 623 (1974); Wetmore v. Ladies of Loretto, Wheaton, 73 Ill.App.2d 454, 220 N.E.2d 491 (1966); Boyd v. McDonald, 81 Nev. 642, 408 P.2d 717 (1965); Knight v. Shell, 313 Ky. 852, 233 S.W.2d 973 (1950); Maioriella v. Arlotta, 364 Pa. 557, 73 A.2d 374 (1950).

Defendant asserts that plaintiffs have not proven the first element above, i. e., that there was an original unity of ownership between the dominant and servient estates at the time of the grant. Since the defendant does not complain of the jury’s findings which support the remaining elements of an implied easement, we will confine our discussion to this one contention. It is plaintiffs’ position that unity of ownership was established because Exxon owned the land which was conveyed for the express easement.

Plaintiffs’ position is not well taken. The property which is subject to the express easement does not concern us here. The unity of ownership which plaintiffs had to establish in order to recover under this theory was the relationship between their tract (the dominant estate) and the tract upon which they seek to impose the easement (the servient estate), which is Loop Road. While defendant’s point of error does not state whether it is complaining upon a “no evidence” point or an “insufficient evidence” point, there is no evidence at all in the record which reveals that there was a common grantor as to the Brawner tract and the land upon which Loop Road is located. The only evidence is that Brawner bought his land in 1949 from V. L. Peterson and that Exxon bought its land in 1931 and 1932 from H. W. Dew and George Dew. This proof is insufficient to comply with the common ownership requirement of Drye v. Eagle Rock Ranch, Inc., supra, and Bickler v. Bickler, supra. Because plaintiffs failed to prove all four requisite elements, we hold that no implied easement has been established.

We next examine the question of whether an easement by estoppel was created. In this context we will also discuss defendant’s point of error No. 2 wherein it asserts error in the submission of special issue No. 3 which inquired whether the plaintiffs had made any improvements and expended any sums of money on the Brawner tract (dominant estate). The jury answered this issue in the affirmative.

In general, one who attempts to create an easement by estoppel must show that (1) a representation must have been communicated to the promisee, (2) that it must have been believed, and (3) that there must have been reliance upon such communication. Doss v. Blackstock, 466 S.W.2d 59, 61 (Tex.Civ.App.—Austin 1971, writ ref’d n. r. e.). But the doctrine of easement by estoppel (or estoppel in pais as sometimes referred to) has not been applied with the same strictness and conclusiveness as easements by implication. As has been said by the Supreme Court, “The exact nature and extent of the doctrine of estoppel in pais have not been clearly defined.” Drye v. Eagle Rock Ranch, Inc., supra, 364 S.W.2d at 209. In certain situations, it has thus been suggested that the cases should more properly be based upon a construction of the surrounding circumstances. Drye v. Eagle Rock Ranch, Inc., supra [at 210, citing 3 Tiffany on Real Property 315, § 800 (3d Ed. 1939)].

In North Clear Lake Development Corp. v. Blackstock, 450 S.W.2d 678 (Tex.Civ.App.—Houston [14th Dist.] 1970, writ ref’d n. r. e.), the court, in finding an easement by estoppel, also considered the fact that improvements which had been made were permanent and substantial, that such improvements were open and obvious to the owner of the servient estate, that the servient estate had constructive notice of the activities of the dominant estate holders, and that such use and improvements had the tacit consent of the servient estate owners because there was no complaint made when the improvements were constructed.

There is no question in the case at bar that the only means of ingress and egress for the plaintiffs is by Loop Road. This access was used for 22 years without any apparent interference by defendant. The Brawners and plaintiffs have expended money on their property and made improvements thereon. It was found that Brawner relied upon defendant’s consent in the use of Loop Road when he obtained the express easement in 1950 and that he and his successors in title have continued to rely on this use. Until 1972 or shortly thereafter, school buses, mail delivery vehicles and other public persons used the road with full use and enjoyment. The defendant knew of plaintiffs’ actions on their property and their use of the road, but there is no indication that any complaints were made until 1972. Gates were then erected across the roadway which designated the road as private, and sections were plowed up. It was then that school buses and mail trucks plus others were unable to gain access to plaintiffs’ property.

Despite this evidence, it is defendant’s contention that an easement by estoppel cannot be created here because there is no proof that money was spent on the servient estate. In support of the proposition that expenditures on the servient estate is essential to the creation of an easement by estop-pel, defendant cites Drye v. Eagle Rock Ranch, Inc., supra, and Coleman v. Forister, 514 S.W.2d 899 (Tex.1974). We do not agree with defendant’s construction of these cases.

In Drye, the Supreme Court did note that estoppel in pais has been applied in cases where the seller allows the purchaser to spend sums on the servient estate and stated that in Drye the owners of the ser-vient estate had not done so. The Court did not phrase this as a necessary element, but rather made it in the context of a recitation of the evidence. The Court then said: “While estoppel cases are not limited to situations involving this type of expenditure, this group does form a large part of the cases affixing easements appurtenant by estoppel.” (364 S.W.2d at 210, emphasis supplied). It appears clear then that in using this language the Court did not intend to limit the application of the doctrine to only those situations where expenditures were made on the servient estate; it was merely recognizing that many cases did involve servient funds.

We do not believe that Coleman v. Forister, supra, precludes this construction. In reviewing the claim of whether the plaintiffs had an easement by estoppel to waterfront lots, the Supreme Court in Coleman states that:

“Similarly, there has been no expenditure of money on the servient tract by the lot owners to bring the case within the usual scope of estoppel in pais as that doctrine has developed in this Court. Drye v. Eagle Rock Ranch, Inc., supra, 364 S.W.2d at 210.” Coleman v. Forister, supra (514 S.W.2d at 904, emphasis supplied).

The reference to Drye which we have already discussed, and the use of the term “usual” (which does not denote something which is exclusive or all encompassing, but which does recognize that exceptions or varying situations do exist) signifies that the Court was not limiting the application of the doctrine to only those circumstances in which money had been spent on the servient estate. This interpretation has also been stated as follows:

“Appellant . . . argues that Drye, supra, requires that money be spent on the ‘servient’ estate . We believe appellant’s reading of Drye is too restrictive, and that the Supreme Court was simply illustrating one situation, among several, wherein the doctrine of estoppel in pais is applicable. We believe that Drye is authority that reliance may be shown by an expenditure other than upon the ‘servient’ estate.” Doss v. Blackstock, supra, 466 S.W.2d at 61-62.

We agree with Justice Shannon’s construction in Doss.

The courts of this State have said that “ ‘the owner of land may create an easement by parol agreement or representation which has been so acted on by others as to create an estoppel in pais’.” 4 F. Lange, Texas Practice 148, 149, § 377 (1961); Harris v. Rabe, 375 S.W.2d 919, 922 (Tex.Civ.App.—Waco 1964, no writ); Johnson v. Back, 378 S.W.2d 723, 726 (Tex.Civ.App.—Amarillo 1964, no writ). The reliance and resulting possible detriment to the plaintiffs if the easement is revoked is well established by the evidence restated above.

Based upon the evidence and findings as noted above, we hold that an easement by estoppel was created. Defendant’s points of error Nos. 1 and 2 are overruled.

By way of its point of error No. 3 defendant complains of the trial court’s action requiring it to restore all of Loop Road to its pre-1972 condition. By replacing the bridges and regrading the plowed sections on the western part of the road, the trial court’s order effectively gave to the plaintiffs two means of access to their property: one by the western portion and one by the eastern portion of Loop Road.

A party who obtains an easement is not entitled to use all means of access to their property by way of the ser-vient estate. “The use of such an easement is limited to those uses which are reasonably necessary and convenient and as little burdensome to the servient estate as possible, for "the use of the right granted.” Bland Lake Fishing and Hunting Club v. Fisher, 311 S.W.2d 710, 717 (Tex.Civ.App.— Beaumont 1958, no writ); Coleman v. Forister, supra, 514 S.W.2d at 903; see also, Parshall v. Crabtree, 516 S.W.2d 216, 219 (Tex.Civ.App.-San Antonio 1974, writ ref. n. r. e.).

There is no evidence that the use of the west part of the road is “reasonably necessary” for the plaintiffs’ use of their land. Such use is nothing more than merely convenient. There was no showing that a restoration of the eastern leg of Loop Road would not furnish them with adequate means of ingress and egress. This is all that is required under the law of this State and we see no reason to extend its application beyond the scope of what has been established by present law.

The judgment of the trial court is therefore reformed to exclude from its scope any reference to the western portion of Loop Road as concerns the requirement for restoration.

Judgment of the trial court REFORMED and, as reformed, it is AFFIRMED.

      . While Exxon Corporation was Humble Oil & Refining Company during most of the time period involved here, we will refer to this entity as “Exxon.”

      . 3 Tiffany on Real Property 255, 257, § 781 (3d Ed. 1939 and 1976 Supp.), wherein he states that primary emphasis should be given to the parties’ intention and the circumstances surrounding the transaction.


source: Caselaw Access Project

license: Public Domain

text:
    William STEPHENSON et al., Appellants, v. Werner J. PERLITZ et ux., Appellees.
    No. 7706.
    Court of Civil Appeals of Texas, Beaumont.
    April 22, 1976.
    Rehearing Denied May 13, 1976.

      Scott R. Kidd, Austin, for appellants.
    Thomas Watkins, Austin, for appellees.
   KEITH, Justice.

Pursuant to directions of our Supreme Court, we again review this appeal involving a suit for the enforcement of restrictive covenants in a deed. The underlying facts have been stated in the prior opinions: (1) of this Court reported in Tex.Civ.App., 524 S.W.2d 786; and (2) of the Supreme Court reported in Tex.Civ.App., 532 S.W.2d 954. We refer to these opinions for the facts giving rise to the litigation.

It is now clearly the law in Texas that a duplex dwelling cannot be erected upon a lot which has a restriction providing that the premises shall be used for residence purposes and only one residence erected thereon. 532 S.W.2d at 955.

But, under the language found in Cowling v. Colligan, 158 Tex. 458, 312 S.W.2d 943, 945 (1958), a court of equity may refuse to enforce a residential-only restriction under at least two circumstances:

“[B]ecause of the acquiescence of the lot owners in such substantial violations within the restricted area as to amount to an abandonment of the covenant or a waiver of the right to enforce it.”
“[B]ecause there has been such a change of conditions in the restricted area or surrounding it that it is no longer possible to secure in a substantial degree the benefits sought to be realized through the covenant.”

The trial court filed findings of fact and conclusions of law which supported the denial of the equitable relief upon each of the grounds set out in Cowling, supra. In addition to the specific findings quoted in the margin, the trial court found that there will be no economic or aesthetic damage to plaintiffs by the construction of the duplex. It concluded that enforcement of the restriction would be inequitable and that the violation of the restriction does not “materially affect the Plaintiffs.”

Plaintiffs attack the findings and conclusions of the trial court by appropriate no evidence and insufficient evidence points. Findings of fact are not conclusive on appeal when, as in this case, a statement of facts appears in the record. Swanson v. Swanson, 148 Tex. 600, 228 S.W.2d 156, 158 (1950); Rosetta v. Rosetta, 525 S.W.2d 255, 260 (Tex.Civ.App.—Tyler 1975, no writ). And, findings of fact are binding on the appellate court only if supported by evidence of probative force.

In Stewart v. Welsh, 142 Tex. 314, 178 S.W.2d 506, 508 (1944), the Court recognized the rule that an owner may waive his right to insist upon compliance with the restriction; but, the Court continued:

“[H]e is not precluded from enforcing a restriction against an owner whose violation of it materially affects him, by failing to complain of another’s violation which does not materially affect him in the enjoyment of his property or which is merely trivial.”

This rule is well recognized and has been applied in other cases, see, e. g., Ortiz v. Jeter, 479 S.W.2d 752 (Tex.Civ.App.—San Antonio 1972, writ ref’d n. r. e.); Davis v. Hinton, 374 S.W.2d 723 (Tex.Civ.App.—Tyler 1964, writ ref’d n. r. e.); Barham v. Reames, 366 S.W.2d 257 (Tex.Civ.App.—Fort Worth 1963, no writ); Zent v. Murrow, 476 S.W.2d 875 (Tex.Civ.App.—Austin 1972, no writ).

Moreover, the burden was on the defendants to prove that the prior violations “were substantial in nature and materially affected the use of plaintiff’s land for residential purposes.” Ortiz v. Jeter, supra (479 S.W.2d at 757).

We have reviewed the evidence carefully and the following resume serves to put the contentions into proper perspective: At most, there were no more than nine violations of the one-residence restriction in the entire subdivision consisting of more than one hundred lots. With one exception, all of these buildings were originally designed, constructed, and used as single-family residences in compliance with the restriction. Many of the existing violations consisted of servants’ quarters which had been converted into separate living units or cabanas, etc.

Plaintiffs denied that they knew of several of the violations which were shown to have existed in parts of the subdivision. Those violations could not have affected the appellants in the enjoyment of their property. One of the violations, that upon Lot 7, Block 2, was known to appellants to contain two living units. However, this was far removed from appellant’s properties, being situated on another block and another street.

Two of the violations were closer to plaintiffs’ properties: Lot 8, Block 2, and Lot 3, Block 6. The first of these was the Holland Page home designed as a single-family residence with a unit above the garage in which the Page’s son lived. This latter unit was later to be used as a residential unit although the entire property maintained the appearance as a single-family residence. Under the authorities cited earlier, we are of the opinion that there was no evidence of probative value which established or supported the finding that there had been a waiver by the plaintiffs.

In Massachusetts Bond. & Ins. Co. v. Orkin Exterm. Co., 416 S.W.2d 396, 401 (Tex.1967), we find this language:

“Waiver has been frequently defined as an intentional relinquishment of a known right or intentional conduct inconsistent with claiming it.”

And, it is to be noted: “Waiver presupposes full knowledge of existing right.” Wirtz v. Sovereign Camp, W. O. W., 114 Tex. 471, 268 S.W. 438, 441 (1925).

Tested by the authorities herein considered, we sustain plaintiffs’ point of error 2a: “[T]here is no evidence that appellants acquiesced in substantial violations of the one-residence restriction.”

Plaintiffs’ third point of error challenges the trial court’s finding and conclusion that “change of conditions within the subject neighborhood make it no longer possible to secure benefits to the Plaintiffs by the enforcement of the deed restrictions.” As shown earlier, this is the second of the grounds for denial of the enforcement articulated in Cowling v. Colligan, supra (312 S.W.2d at 945).

Again, we have reviewed the testimony and sustain plaintiffs’ point 3a: There is no evidence to support a finding of such a change of conditions within the subject neighborhood that it is no longer possible to secure benefits to plaintiffs by enforcement of the deed restriction.

Defendants’ expert witness, Thomas Gardner, testified that there were more than a thousand lots in the area of the subject property; that he observed sixty-six lots that were or might have been put to multi-family uses; of these, twenty-four were not duplexes but were homes containing gate houses or servants’ quarters. Thus, less than seven percent of the lots in the area had non-conforming multi-family dwellings on the lots. On the other hand, the record discloses that there were many fine homes in the addition which were kept and maintained as single-family dwellings. Indeed, a reading of the record leads to the conclusion that Edgemont has remained virtually unchanged from its single-family status for many years.

Plaintiffs were and are entitled to the protection of the restrictions contained in the deeds to the lots in the subdivision. It follows, therefore, that the trial court erred in denying plaintiffs the injunction they sought.

The judgment of the trial court is reversed and the cause is remanded to that court with instructions to grant plaintiffs an appropriate permanent injunction enjoining and restraining the defendants from erecting any improvements upon their lot other than a single-family dwelling. All costs are adjudged against the defendants. Cowling v. Colligan, supra (312 S.W.2d at 948).

REVERSED and REMANDED with instructions.

      . Findings of Fact Nos. 6 and 7: “There are currently nine lots being used in violation of the subject deed restriction.” “Plaintiffs have filed no other lawsuits to enforce the deed restrictions.” Conclusion of Law No. 3: “The acquiescence of the Plaintiffs to multiple-family usages within the restricted area constitutes a waiver of the right to enforce the subject deed restriction.”
      Finding of Fact No. 8: “In addition to the multiple-family usages in the subject subdivision, there are considerable multiple-family usages in the two contiguous subdivisions so that the construction of Defendants’ duplex will not change the nature of the neighborhood.” Conclusion of Law No. 4: “The change of conditions within the subject neighborhood make it no longer possible to secure benefits to the Plaintiffs by the enforcement of the deed restrictions.”

      . Green v. Gerner, 283 S.W. 615 (Tex.Civ.App.—Galveston 1926), affirmed, 289 S.W. 999 (Tex.Com’n App.1927), was one of the cases cited in Stewart. Green v. Gerner was the leading authority relied upon by the Supreme Court in reversing our prior decision.

      . In Green v. Gerner, supra (283 S.W. at 618), the court quoted from De Galan v. Barak, 223 Mich. 378, 193 N.W. 812, 814 (1923): “Violations in other blocks and on other streets did not require plaintiffs to run to court to prevent them, or, for failure to do so, remain supine when other and nearer violations of the restrictions threatened them with direct financial injury.”

      . We follow the rule set out in Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965), in evaluating the evidence in this record. If we were to reach the question, we would also sustain plaintiffs’ point 2b complaining that the evidence is factually insufficient to show plaintiffs acquiesced in substantial violations of the restriction.

      . The statement made in footnote 4, supra, is also applicable to plaintiffs’ alternate point 3b.


author: STEPHENSON, Justice. DIES, Chief Justice

text:
    Shelton D. HOOD, Appellant, v. Dr. John R. PHILLIPS, Appellee.
    No. 7769.
    Court of Civil Appeals of Texas, Beaumont.
    April 22, 1976.
    Rehearing Denied May 27, 1976.

      John Holloway, Houston, for appellant.
    Howard S. Hoover, W. N. Arnold, Jr., Sandra K. Foster, Houston, for appellee.
   STEPHENSON, Justice.

This is a medical malpractice suit in which a judgment was rendered below for the defendant physician based upon a jury verdict which found, inter alia, that the defendant was not guilty of gross negligence in removing the carotid bodies from the neck as a treatment for emphysema. This appeal by the plaintiff patient is predicated upon his assertions that the trial court should have submitted the case on a theory of ordinary negligence, that records and information concerning the defendant’s reputation were erroneously excluded and that defendant made misrepresentations to plaintiff as to the value of the surgery.

The evidence shows that the plaintiff had an advanced case of emphysema when he was first examined by the defendant in 1966, but he was still working. Emphysema is a disease of the lungs for which there is no known cure. The usual treatment for emphysema by the majority of the medical profession is nonsurgical. After consultations with defendant, plaintiff was advised that carotid body surgery might prove beneficial. Defendant performed the operation and removed the carotid body (gland) from each side of the patient’s neck together with certain nerves associated therewith. Defendant told plaintiff that the operation was not a cure, but “it is hoped will lessen the spasm [of the bronchial tubes], improve the circulation in the lungs, allow the air to get out, the trapped air to get out so good fresh air can get in.” This is a highly controversial procedure, but there is evidence that carotid body surgery is performed by at least one other doctor in Texas, a doctor in Boston, Massachusetts, and doctors in Japan, Poland, and Italy. Until his retirement in 1967, defendant was apparently the only physician in the Houston area who employed this procedure. The defendant stated that eighty-five percent of the some 1,200 persons on whom he jias operated derived some benefit, but there is medical evidence in the record that the procedure is generally recognized as having no value in treating emphysema and in some cases may be detrimental to the patient’s health.

The plaintiff’s first point of error complains of the trial court’s refusal to submit his theory that performance of carotid body surgery as a treatment for emphysema was ordinary negligence.

In dealing with this question, we are confronted with the apparently unique issue in this State of the standard to be used when a claim of medical malpractice is based upon a surgical procedure which is allegedly unnecessary. There is no assertion here, and there is no evidence to support such an assertion, that the surgery itself was unskillfully or negligently performed — only that it was improper to perform the operation in the first place.

The paucity of cases dealing with the issue of unnecessary surgery has not revealed a consensus of what is the applicable test. Viewing the question in a legal context, the sole issue of what is unnecessary surgery was addressed in Martin v. Parks, 165 So.2d 220 (Fla.App.1964). In Martin, the attending physician stated that the plaintiffs injury resulting from an automobile accident could only be corrected by performing anterior dissectomy and inter-body fusion [on her neck]. The plaintiff asserted that a reasonably prudent doctor would not have performed the operation because it was improper and not necessary. It was the opinion of other neurosurgeons that such an operation was unnecessary. The appellate court affirmed the summary judgment for the defendant because the defendant’s conduct did not fall outside the general rule that a neurosurgeon would not be liable in damages for performing surgery, which in the opinion of other specialists was unnecessary and improper, unless in performing such surgery, the neurosurgeon departed from accepted medical practice in the community. Martin v. Parks, supra at 220.

It has also been held that a doctor who has failed to keep current on surgical practices and performs an operation that is not generally accepted therapy has failed to meet his duty of care to practice with that degree of knowledge and skill exercised by reasonable surgeons in similar circumstance. Kelly v. Carroll, 36 Wash.2d 482, 219 P.2d 79 (1950); Unnecessary Surgery: Doctor and Hospital Liability, 61 Geo. L.J. 807, 813 (1973). In Kelly v. Carroll, the Washington Supreme Court stated the rule in terms of “generally recognized treatment”:

“[I]f there is a reasonable general agreement as to what is the proper medical treatment for a disease or an organic disorder, the question of whether or not the treatment, in a particular case, was correct must be determined by the testimony of expert witnesses from the medical field who alone are qualified to speak.
* * ⅜ ⅜ * *
“[I]f he steps out of his limits and undertakes to treat a disorder for which, in the highest level of medical science, there is a generally recognized treatment, such an interloper must be held accountable to the accepted standard of treatment.” Kelly v. Carroll, supra at 85-86.

Thus, even when a dentist had an option as to methods of treatment, the Massachusetts Supreme Court held that where the dentist used a “less safe” method to anesthetize a patient rather than a better, well-known method, such action constituted negligence and demonstrated a lack of necessary skills. Vigneault v. Dr. Hewson Dental Co., 300 Mass. 223, 15 N.E.2d 185, 188 (1938). The evidence in Vigneault revealed that the better, well-known method was the one ordinarily used by dentists in the community. The fact finder in the lower tribunal determined whether the dentist followed the accepted procedure of treatment.

The review of the “options” opened to a doctor, as alluded to in Vigneault v. Dr. Hewson Dental Co., supra, is important because courts have also enunciated a corollary to the above rule that one should follow the “better” method: that where there are several possible methods of treatment, a doctor will not be liable for a patient’s injuries as long as the treatment used is one followed by a respectable minority of the medical profession and his care under that treatment conforms with the general practice of reasonable physicians utilizing the same treatment. Barrette v. Hight, 353 Mass. 268, 230 N.E.2d 808 (1967); 61 Geo. L.J., supra at 813 (1973); 61 Am.Jur.2d, Physicians & Surgeons, § 147 (1972) and cases cited therein; but cf. Helling v. Carey, 83 Wash.2d 514, 519 P.2d 981 (1974).

The difficulty with this rule is in the determination of what constitutes a “respectable minority”. Again, no Texas case has been found which provides a definition. However, in Leech v. Bralliar, 275 F.Supp. 897 (D.Ariz.1967) it was said:

“Prolotherapy [injecting a proliferating solution into ligamentous attachments to create a ‘weld’ and relieve whiplash pain in the neck] as a method of treatment, as espoused and used by . . .a respectable minority of physicians in the United States, cannot be said to be an inappropriate method of treatment or to be malpractice as a matter of law even though it has not been accepted as a proper method of treatment by the medical profession generally.” Id. at 902.

In Leech the “respectable minority” was composed of sixty-five physicians throughout the United States, who claimed an improvement rate of eighty-five percent. At the time the defendant used the method, prolotherapy was two years old, and was not without critics within the medical profession, including communities which were similar to that where the doctor resided. Treating the issue as a fact question, the district court, without a jury, held the doctor negligent because he varied the treatment—such variations not conforming to the accepted procedures as used by the respectable minority. The clear implication of the case is that had the doctor adhered to the procedures of the minority, albeit a very small minority, he would not have been guilty of malpractice.

After reviewing these standards, we think the better rule concerning unnecessary surgery, and one which we adopt, is that a physician is not guilty of malpractice where the method of treatment used is supported by a respectable minority of physicians, as long as the physician has adhered to the acceptable procedures of administering the treatment as espoused by the minority.

As in other cases of this nature, the determination should be predicated upon ordinary negligence—what a reasonably prudent physician would do under the same or similar circumstances. See, e. g., King v. Flamm, 442 S.W.2d 679, 681 (Tex.1969); Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779 (1949); Fortner v. Koch, 272 Mich. 273, 261 N.W. 762 (1935); Leech v. Bralliar, supra; Martin v. Parks, supra. We see no reason for the standard to be otherwise for an action for unnecessary surgery must be measured by traditional malpractice eviden-tiary standards. No cases have been found or cited to us which used the test of gross negligence in malpractice suits, and we cannot perceive any rationale which would incorporate such a test.

It was error for the trial court to refuse to submit this case on the theory of ordinary negligence. Plaintiff’s Point of Error No. 1 is sustained.

Plaintiff’s next point complains of the trial court’s failure to submit requested issues inquiring whether the defendant failed to obtain the consent to the surgery from plaintiff. There is no evidence to support the submission of this issue. Both the plaintiff and Mrs. Hood signed a form which gave the consent to perform the operation. Defendant’s duty was to make reasonable disclosures of the risks which were incidental to the treatment. Wilson v. Scott, 412 S.W.2d 299, 301 (Tex.1967). The evidence shows that plaintiff and his wife knew generally what procedures were to be involved. The plaintiff does argue that the surgery did not help him and that he would not have consented to surgery had he known this beforehand. But in the absence of a special contract, a doctor does not insure or guarantee results or even that surgery will be beneficial. Henderson v. Mason, 386 S.W.2d 879, 882 (Tex.Civ.App.—El Paso 1964, no writ); Helms v. Day, 215 S.W.2d 356, 358 (Tex.Civ.App.—Fort Worth 1948, writ dism’d); Perdue, The Law of Texas Medical Malpractice, 11 Hous.L.Rev. 1, 27 (1973). The evidence supports the conclusion that plaintiff was told that only about eighty-five percent of defendant’s'patients benefited from surgery. Point of Error No. 2 is overruled as being without merit.

Plaintiff next asserts error in the trial court’s action in quashing subpoenas requiring the defendant to produce records in his possession of surgery he performed on other patients, and in quashing subpoenas to the Executive Secretary of the Harris County Medical Society to produce certain records of the Board of Censors.

Tex.Rev.Civ.Stat.Ann. art. 4447d, § 3 (Pamp.Supp. 1974-1975) provides in part:

“The records and proceedings of any hospital committee, medical organization committee or extended care facility committee established under state or federal law or regulations or under the by-laws, rules or regulations of such organization or institution shall be confidential and shall be used by such committee and the members thereof only in the exercise of the proper functions of the committee and shall not be public records and shall not be available for court subpoena.”

(Emphasis supplied)

The meaning of the statute is clear and unambiguous. The evidence requested by plaintiff was not available to him. See Karp v. Cooley, 493 F.2d 408, 425—426 (5th Cir. 1974). It was also immaterial since it related to matters which were collateral to this particular cause of action; i. e., surgery which had been performed by the defendant on other patients. Goodnight v. Phillips, 458 S.W.2d 196, 199-200 (Tex.Civ.App.—Houston [1st Dist.] 1970, writ ref’d n. r. e.).

Plaintiff Points of Error Nos. 3, 4, and 5 are without merit and are overruled.

Having found error in the submission of this cause, we find it unnecessary to consider plaintiff’s remaining points.

Because it is necessary to remand this case, we think it pertinent to make additional comments on issues which will probably arise upon retrial relating to the standard or test which we have adopted. Indemnity Ins. Co. of North America v. Williams, 129 Tex. 51, 99 S.W.2d 905 (1937).

As alluded to earlier, we again emphasize that we are not dealing with those procedures which might be termed either “experimental” or progressive surgery. This opinion and the rule enunciated should not be construed as being applicable to physicians who perform and'adhere to valid surgical procedures which legitimately seek to advance medical knowledge in areas which are as yet unexplored or not adopted. Where, as here, the pleadings and the evidence reveal that the cause of action is not based upon either experimental or progressive surgical techniques, the jury should be instructed that these issues are not involved in the case — in effect carving out an exception to the rule as adopted.

The procedure in our ease is not experimental or progressive surgery, at least as is reflected in our present record. The present weight of the evidence is that the medical community has rejected carotid body surgery as a treatment for emphysema as being of no or little value and unnecessary. There is supportive expert testimony in the case at bar that definitively states that such surgery is useless, that it could not possibly benefit a patient with advanced emphysema, that there is no medical justification for such surgery, and that such procedure would be “falling below the minimum standards of medical treatment in the treatment of emphysema.” There is also testimony that removal of the carotid body eliminates a regulatory factor of the oxygen in the blood and that such surgery may damage nerves which control the tongue and/or face. There is further evidence that this procedure is currently used by six physicians in the entire world. It is noteworthy that this is not a new technique. This procedure was first developed in 1961. Thus, the medical profession has apparently had sufficient time in which to evaluate the credibility of the procedure. In light of the above evidence, an issue was raised as to whether the surgery here was “unnecessary” and such determination is to be made by the trier of fact.

Further, the issue of whether the doctor is part of a “respectable minority” of physicians who adhere to the particular procedure as espoused by that minority should be submitted, where supported by the evidence, to the trier of fact after hearing testimony from experts in the field.

Finding error in the court below, the judgment is reversed and the cause remanded to the lower court for a new trial.

REVERSED AND REMANDED.

DIES, Chief Justice

(dissenting).

I respectfully dissent.

I would affirm the judgment of the trial court. In my judgment the evidence does not raise an issue of malpractice (ordinary negligence) by Physician.

Patient had a severe and incurable case of emphysema. He had been treated conservatively (medically) and his condition continued to worsen. He was told that the carotid surgery would not cure him but hopefully would make it easier for him to breathe. There is no evidence the surgery made his condition any worse. He lived some six years after the surgery; there is no evidence his death was in any way connected with the surgery. There is no allegation or evidence of unskillfulness in the surgery on the part of Physician. Thousands of these operations have and are being performed. Some patients report improvement from the surgery.

After diligent research, I am unable to find any case in America holding a physician guilty of malpractice under these circumstances.

Three physicians testified for the Patient. One, Dr. Longfield, based his conclusions that “[t]he main findings we made, there was no benefit from the operation” on ten patients. Another doctor, Dr. Thomas, testified, “The only thing I can say is what I have read and what I have heard at conventions.” admitted he didn’t “know anything about the operation.”

The third physician, Dr. Petty, from Denver, testified by deposition, but the deposition does not reveal whether he ever had any direct experience with the operation or examined patients who had undergone carotid surgery.

The majority opinion would absolve Physician if (1) the operation were experimental or (2) if a “respectable minority” of physicians supported it.

This rule brings into mind these questions: (1) When does surgery stop being experimental and (2) how many is a “respectable minority”?

This surgery, of course, as the majority opinion states, cannot be considered “experimental,” because thousands of these operations have been performed. There is no showing that the surgeons who performed them are not a “respectable minority.”

After a procedure is no longer “experimental” and until a “respectable minority” is accumulated, those physicians who use a new procedure do so on their own peril. This rule must surely inhibit and discourage new treatments and procedures.

Texas law presumes initially that physicians have discharged their duty to the patient which presumption can be defeated only by an affirmative showing of a specific breach of duty resulting in injury. Walker, Parker, and Williamson, The Application of Res Ipsa Loquitur in Texas Medical Professional Liability Actions, 12 Hous.L.Rev. 1045 (1975). Error in judgment by Physician is not a sufficient showing. Harle v. Krchnak, 422 S.W.2d 810, 814 (Tex.Civ.App.—Houston [1st Dist.] 1967, writ ref’d n. r. e.). Negligence is never imputed from unsatisfactory results. Hunter v. Robison, 488 S.W.2d 555, 560 (Tex.Civ.App.—Dallas 1972, writ ref’d n. r. e.); Floyd v. Michie, 11 S.W.2d 657, 658 (Tex.Civ.App.—Austin 1928, no writ); see also Hopkins v. United States, 152 F.Supp. 473, 476 (W.D.Mo.1957).

The law must recognize that by the nature of medicine there will always be differences of professional opinion as to diagnosis and treatment. See Hoglin v. Brown, 4 Wash.App. 366, 481 P.2d 458, 461 (1971). See also Schueler v. Strelinger, 43 N.J. 330, 204 A.2d 577, 584 (1964). See also: 70 C.J.S. Physicians and Surgeons § 48 at 959 (1951).

Unnecessary surgery is a very serious problem in America. See Unnecessary Surgery: Doctor and Hospital Liability, 61 Geo. L.J. 807 (1973).

But I question whether the way to correct it is by opening a new area of malpractice (as this opinion does) or by vigorous self-regulation by the medical proféssion. If the courts get into this problem some genuine abuses, of course, will be revealed, but I fear the long term effect would discourage new procedures and techniques, so necessary to improve health care. I want to emphasize that this dissent is strictly limited to the facts of this case, viz., where the procedure is thought by some physicians to be of help, where there is no showing of unskillfulness on the part of the physician, and where there is no showing of injury to the patient other than the normal injury attendant with any surgery.

      . We recognize that a distinction must be made as to what is “medically” unnecessary surgery and what is “legally” unnecessary surgery. See Unnecessary Surgery: Doctor and Hospital Liability, 61 Geo. L.J. 807, 809-814 (1973).

      . For a discussion of experimental surgery and its attendant liabilities, see e. g. Karp v. Cooley, 493 F.2d 408 (5th Cir. 1974).


author: O’QUINN, Justice.

text:
    MAJESTIC INDUSTRIES, INC., et al., Appellants, v. J. W. ST. CLAIR, Commissioner of the Texas Department of Labor and Standards, Appellee.
    No. 12391.
    Court of Civil Appeals of Texas, Austin.
    April 28, 1976.
    Rehearing Denied May 19, 1976.

      William L. Ehrle, Rogers, Ehrle & Hughes, Mary Joe Carroll, Clark, Thomas, Winters & Shapiro, Austin, for appellants.
    John L. Hill, Atty. Gen. of Tex., David M. Kendall, First Asst. Atty. Gen., and Robert Giddings, Asst. Atty. Gen., Austin, for ap-pellee.
   O’QUINN, Justice.

Appellants brought this suit in district court of Travis County on August 29, 1975, seeking to enjoin the Commissioner of the Department of Labor and Standards of Texas from enforcing certain provisions of the Texas Mobile Homes Standards Act and for declaratory judgment adjudging certain provisions of the Act unconstitutional.

After hearing on temporary injunction, the trial court entered an order on September 12, 1975, denying the injunction, from which plaintiffs below have appealed, bringing four points of error. We will overrule the points and affirm judgment of the trial court.

The three statutory provisions attacked by appellants are contained in the Texas Mobile Homes Standards Act as passed by the Legislature in 1975. The basic Act, known then as “Uniform Standards Code for Mobile Homes,” was passed by the Legislature in 1969 (Acts 1969, 61st Leg., p. 1954, ch. 656), and subsequently was amended in 1971 and in 1973 (Acts 1971, 62nd Leg., p. 2765, ch. 896; Acts 1973, 63rd Leg., p. 1673, ch. 606). The entire Act, as so amended, underwent a complete revision and reenactment in 1975, and as revised the Act became effective on September 1, 1975 (Acts 1975, 64th Leg., p. 2036, ch. 674; Art. 5221f, Vernon’s Ann.Civ.Sts.), redesignated “Texas Mobile Homes Standards Act.”

The sections under attack are Sections 13, 14, and 17(d), the first requiring manufacturers, dealers, and salesmen to file performance bonds, the second requiring manufacturers and dealers to provide specified warranties on all new mobile homes, and the last section providing: “Any contract between a consumer and a mobile home salesperson, dealer, or manufacturer is voidable at the option of the consumer if said manufacturer, dealer, or salesperson was not bonded as per the provisions of this Act at the time the contract was consummated.”

Appellants’ attack, embraced in the several points of error, is grounded on the claim that the caption of the bill as passed by the Legislature did not meet the requirements of notice insured by Article III, section 35, of the Constitution of Texas, and on the additional claims that in various aspects the Act violates certain guaranties of protection accorded by both the State Constitution and the Constitution of the United States.

Appellants concede that “the granting of a temporary injunction is ordinarily within the discretion of the trial court.” Since the trial court explicitly denied injunctive relief upon the basis of holdings that the provisions of the Act in question are not unconstitutional, as contended in this suit, appellants urge that in effect the trial court decided the case on the merits and that “Erroneous conclusions of law are not within the discretion of the trial court.”

We turn first, however, to consideration of a jurisdictional question raised by the attorney general in behalf of appellee. The Commissioner of the Department of Labor and Standards urged by motion and argument in the trial court, and contends on appeal, that the courts “lack jurisdiction of this suit.” Four grounds are advanced in support of this contention.

The grounds are (1) that this is a suit against the State and may not be maintained without prior consent of the State; (2) that appellants in bringing suit for declaratory judgment failed to plead existence of a justiciable controversy involving an amount expressly pleaded in excess of $500; (3) that by delaying the filing of suit until three days before effective date of the Act, appellants slept on their rights and came to court with unclean hands; and (4) that necessary parties were not joined and are not before the Court because appellants failed to make parties “the consumers of the State of Texas,” to whom the statute accords certain benefits, as well as all county and district attorneys of the state and the attorney general’s department.

We have examined the basis for appel-lee’s attack on jurisdiction of the court, which we will briefly review, and will overrule the contention before proceeding to the merits of the case.

It was established at the trial that appellants are manufacturers or dealers engaged in pursuing these occupations in the mobile homes industry affected by the statute. The trial court found and appellee conceded that a showing of probable injury had been made by appellants, who by this suit attack the Act as unconstitutional and one jeopardizing their right to earn a livelihood.

The Supreme Court in 1958, in a suit challenging validity of the Texas “Bail Bond Law,” declared, “That a right to earn a living is a property right within the meaning of our Constitution was early established by the United States Supreme Court in the Slaughter House ’ cases, 16 Wall. 36, 21 L.Ed. 394, and a person cannot be deprived of it by simple mandate of the legislature.” Smith v. Decker, 158 Tex. 416, 312 S.W.2d 632, 633 (1958).

In an earlier action brought, as in this case, for declaratory judgment and injunc-tive relief in testing constitutionality of a statute, this Court held that the cause was not a “suit against the state” requiring that legislative consent be first obtained. American Federation of Labor v. Mann, 188 S.W.2d 276 (Tex.Civ.App. Austin 1945, no writ). It is recognized as a general rule that even when the State has an interest in the vindication of its laws, “ . . . unless the property or contract rights of the State, or its rights to collect taxes levied by such law, be foreclosed by the judgment, the suit is not forbidden.” Mann, supra, 188 S.W.2d 279.

When, as in this case, the State acting through one of its principal branches of government, has issued a legislative mandate which may affect fundamental rights protected by the Constitution, the courts would invoke a strange brand of justice to deny citizens directly and vitally concerned, by reason of the mandate provisions, the right to seek equitable relief and a declaration respecting such rights, on the ground that the State itself, again acting through the same body that fashioned the mandate, had not elected to waive immunity from suit. It is not a function of the legislature, by giving or withholding its consent, to determine whether the mandate does or does not conform to the Constitution. That function rests solely with the courts.

Appellee’s contention that appellants failed to plead facts sufficient to establish jurisdiction under the Declaratory Judgments Act is also without merit. We hold that appellants’ pleadings under the Act are clear in showing a justiciable controversy and an amount involved far in excess of $500. The Supreme Court more than thirty years ago approved the basic principle “ . ... that the action for declaratory judgment ‘is an instrumentality to be wielded in the interest of preventative justice and its scope should be kept wide and liberal, and should not be hedged about by technicalities.’ ” Cobb v. Harrington, 144 Tex. 360, 190 S.W.2d 709, 713 (1945).

Appellee’s third and fourth grounds upon which jurisdiction is attacked are likewise without merit to support the contention. Appellee urges that “Appellants are asking for an advisory legal opinion as to anticipated controversies that have not yet arisen and, in fact, may never arise,” and in the same argument inconsistently castigates appellants as among “those who slumber on their rights” in bringing a tardy action for equitable relief. The argument is not persuasive and presents no cogent reason to refuse jurisdiction. The final ground, that the consumers of Texas and all county and district attorneys of the state are indispensable parties, presents no reason to refuse jurisdiction. We are not aware of any requirement that every person who might be injured by the Act, or have an official interest in local enforcement, should be made a party plaintiff. This Court rejected a similar contention in Texas Liquor Control Board v. Diners’ Club, Inc., 347 S.W.2d 763, 767 (Tex.Civ.App. Austin 1961, writ ref. n. r. e.).

The trial court properly overruled appel-lee’s motion to dismiss the action on the ground that the court was without jurisdiction, and we affirm that action.

Returning to the merits of the appeal, we consider appellants’ first point under which the contention is made that the caption of the Act failed to meet the standard fixed by the Constitution, Article III, section 35. The portion of section 35 under examination provides: “No bill, (except general appropriation bills . . .) shall contain more than one subject, which shall be expressed in its title.” This provision is mandatory upon the Legislature, and in this or similar form has been placed in every constitution of this state beginning in 1845. Constitutions prior to 1876 used the word “object” in the same connection in which the word “subject” is used in section 35. The Supreme Court has said that the word subject “ . . . perhaps expresses more accurately the meaning and intent of the constitutional provision.” Day Land and Cattle Co. v. State, 68 Tex. 526, 4 S.W. 865, 872 (1887). In Day Land and Cattle the Supreme Court stated, “A title or act essentially single in subject, which does not thus conceal or disguise the real purpose, is not subject to constitutional objection, although the ends intended to be reached through the one subject may be many.” 4 S.W. 872.

Here we are concerned with an amenda-tory Act passed by the Legislature in 1975, amending an earlier Act passed in 1969, both dealing with standards for mobile homes in Texas. Of an amendatory Act, the Supreme Court in 1968 stated, “There is no constitutional requirement that the caption of an amendatory act set out exactly what changes were made in the amended act, Shannon v. Rogers, supra, [159 Tex. 29, 314 S.W.2d 810 (1958)] so long as the subject of the amendatory act is not ‘remote’ from the subject of the original act, as in Board of Water Engineers v. City of San Antonio, 155 Tex. 111, 283 S.W.2d 722 (1955).” Smith v. Davis, 426 S.W.2d 827, 833 (Tex.Sup.1968). Further, the Supreme Court held, “It is not necessary that the caption of an amendatory bill apprise the reader of the precise effects of the body of the bill, so long as the general subject of the amending bill is disclosed,” and invited comparison of the Court’s decisions in Shannon and Board of Water Engineers, supra.

Comparison discloses that the basic difference between the decisions in Shannon and in Board of Water Engineers is that in the former the caption of the amendatory Act disclosed the general subject of the amending bill and the subject was not “remote” from that of the original Act, whereas in the latter case the caption of the amendatory Act failed to reveal that the agencies authorized by the original Act to furnish water for municipalities were, for the first time, by the amendment prohibited from diverting water from the watersheds of two specified public streams. Because the added subject was not germane to the subject of the original Act and had not been announced in the caption, the amendatory Act in the latter case was held invalid under section 35 of Article III.

Appellants place reliance on the holdings in Board of Water Engineers, supra, and other cases involving amendatory Acts to demonstrate the fatal defects of the Act under review in this case. We have examined the cases on which appellants rely and have concluded that each of the Acts may be properly distinguished from the present Act. In Board of Water Engineers, as noted, the denial of rights in certain public streams, introduced in the amendatory Act, was not germane to the original Act which dealt with general powers of corporations supplying water for domestic use without making any reference to rivers, streams, watercourses, watersheds, dams or lakes. (283 S.W.2d 725, col. 2)

The caption of the amendatory Act in this case stated: “An Act revising the Texas Mobile Home Standards Act, Chapter 656, Acts of the 61st Legislature, Regular Session, 1969, as amended (Article 5221f, Vernon’s Texas Civil Statutes); defining certain offenses and prescribing civil and criminal penalties; and declaring an emergency.”

Appellants’ position is that the caption is defective because it failed to refer to bonds and warranties prescribed by the amendato-ry Act. The caption did announce that the prior Act concerning mobile homes standards was the subject of revision by the amendatory Act, and that the amendment would define offenses and prescribe penalties. The standards of the original Act were regulatory in nature, as were the provisions found in the amendatory Act dealing with requirements for bonds and giving of warranties, matters clearly germane to the original subject of regulation of a single industry in Texas. The caption specifically named and identified the statute being amended, and the amendments were germane to the subject matter of the original Act. Bryant v. State, 457 S.W.2d 72, 76 (Tex.Civ.App. Eastland 1970, writ ref. n. r. e.); Shannon v. Rogers, supra.

We hold that the caption of the amenda-tory Act was sufficient to meet the requirements of section 35, Article III, of the Constitution.

Under the second point of error appellants insist that the provisions of the “Texas Mobile Homes Standards Act” (Art. 5221f, V.A.C.S.), in sections 13, 14, and 17(d), “constitute an unjustifiable exercise of the police power of the State” and “are void for vagueness.”

In connection with the first contention appellants rely in the main on evidence in the record that certain mobile home dealers and manufacturers experienced difficulty in securing bonds, and that in some instances bonding companies required large security deposits and individual guaranties before the companies would agree to issue the bond required by statute. The Legislature found “that mobile homes have become a primary housing resource of many of the citizens of the state . . . and a growing awareness exists that many consumers are injured by unprincipled and dishonest members of the mobile home industry, that current warranties are deficient, that existing means of remedying these injustices are inadequate and do not provide a viable means for protecting the consumer . [and] . . . the legislature deems it necessary to expand various regulatory powers to deal with these problems.” (Sec. 2 of the amendatory Act passed in 1975).

A state statute designed to prevent the deception of consumers of particular goods is recognized as a valid exercise of police power. Florida Lime and Avocado Growers, Inc. v. Paul, 373 U.S. 132, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963); Texas Underwriters v. Martinal, 140 S.W.2d 582 (Tex.Civ.App. El Paso 1940, no writ). Protection of the public’s financial safety is also included within the state’s police power. Nebbia v. New York, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940 (1934). Discretion of the legislature in the exercise of police power is recognized as very broad. Stephenson v. Binford, 287 U.S. 251, 53 S.Ct. 181, 77 L.Ed. 288 (1932); East New York Savings Bank v. Hahn, 326 U.S. 230, 66 S.Ct. 69, 90 L.Ed. 34 (1945).

The fact that some dealers and manufacturers of mobile homes were unable to make bonds, or experienced difficulty in obtaining bonds, as pointed out by appellants, may demonstrate a want of financial stability or financial security of some members of the industry, but such burdens of expense and inconvenience will not form a basis for declaring the statute invalid. Merrick v. N. W. Halsey and Co., 242 U.S. 568 at 587, 37 S.Ct. 227, 231, 61 L.Ed. 498 (1917). In Merrick the Supreme Court recognized that the statute “ . burdens honest business . . . but burdens it only that, under its forms, dishonest business may not be done. This manifestly cannot be accomplished by mere declaration; there must be conditions imposed and provision made for their performance. Expense may thereby be caused and inconvenience, but to arrest the power of the state by such considerations would make it impotent to discharge its functions. It costs something to be governed.”

Under the second contention under point two appellants attack the statute for vagueness. The Legislature clearly provided that details of the administration of the Act were to be promulgated by the Texas Department of Labor and Standards. This is a proper delegation of enforcement rules recognized by the Supreme Court in Texas Liquor Control Board v. The Attic Club, Inc., 457 S.W.2d 41 (Tex.Sup.1970), in which the Court also held that “A statute is fatally vague only when it exposes a potential actor to some risk or detriment without giving him fair warning of the nature of the proscribed conduct.” See also Texas Liquor Control Board v. Super Savings Stamp Company, 303 S.W.2d 536 (Tex.Civ.App. San Antonio 1957, writ ref. n. r. e.). We hold that the sections of the statute under attack are not fatally vague. Point two is overruled. .

Appellants, by their third point of error, urge that the statute denies equal protection because the Legislature failed to place finance companies and lending institutions, offering repossessed mobile homes for sale on “repo lots,” under the bond and warranty provisions of the Act. We find no merit in this contention for the reason that the persons included within the requirements are a class engaged primarily in the industry and constitute a different class from those not “engaged in the business” of manufacturing and selling mobile homes.

It is clear that the Legislature intended to regulate only those “engaged in the business” of manufacturing or selling new mobile homes and did not intend to include lending institutions that, after default of the purchase money note by the buyer, may foreclose their lien and resell the mobile home incidental only to recoupment of their loss. In determining classifications, the Legislature has broad powers, and the courts will interfere only when clear showing has been made that no reasonable basis exists for the classification adopted. American Transfer and Storage Company v. Bullock, 525 S.W.2d 918, 924 (Tex.Civ.App. Austin 1975, writ ref.). The third point is overruled.

Appellants urge, under their fourth and final point, that the Act violates the “Supremacy Clause” of the Constitution of the United States. We overrule the point.

The Legislature with commendable care expressly provided in Section 5 of the Act for compliance by the state “with the federal standards” established by Act of Congress, and in case of conflict, “ . the federal standards shall be applicable and given full force and effect.” In Section 9 the Legislature directed that administration and enforcement of the Act, under rules and regulations to be promulgated, in recognition of the National Home Construction and Safety Standards Act of 1974 and for submission of the “state plan” to the secretary of the United States Department of Housing and Urban Development for approval.

The recognized test to determine whether the state statute violates the supremacy clause is to ascertain whether the chai-lenged Act “ . . . stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Perez v. Campbell, 402 U.S. 637, at 649, 91 S.Ct. 1704 at 1711, 29 L.Ed.2d 233 (1971). We hold that the Act challenged by appellants was carefully designed to comply with federal law and not to stand as an obstacle to the purposes of Congress found in related legislation.

For the reasons stated, the judgment of the trial court is affirmed.

Affirmed.

      . Plaintiffs below, now appellants, are six corporations and four individuals engaged in phases of the mobile homes industry in Texas: Majestic Industries, Inc., Tally-Ho Mobile Homes, Inc., Skidmore-Carter Corp., Caravan Mobile Homes, Inc., Harold C. Kemp, Jerry Thomas, Doug Bennett, and Ted Balter. Defendant below, now appellee, is J. W. St. Clair, Commissioner of the Department of Labor and Standards.


author: BREWSTER, Justice.

text:
    Bill P. COGDELL, Appellant, v. The FORT WORTH NATIONAL BANK, Trustee, Appellee.
    No. 17717.
    Court of Civil Appeals of Texas, Fort Worth.
    April 30, 1976.
    Rehearing Denied June 4, 1976.
    Gloria T. Svanas, Midland, for appellant.
    Law, Snakard, Brown & Gambill, and Robert M. Randolph and Marvin Champlin, Fort Worth, for appellee.
   OPINION

BREWSTER, Justice.

The appellant, Bill P. Cogdell, here appeals from the trial court’s order overruling his plea of privilege.

The record before us and the argument made by counsel on submission of this appeal show that the appellant, Bill Cogdell, began this litigation by filing a suit against the Fort Worth National Bank seeking reimbursement from the Bank for expenses, attorney’s fees, and costs incurred by him in allegedly protecting his interest in the Bill P. Cogdell trust from the overt acts of the Bank, which was the trustee of that trust. Cogdell, in his action, also sought injunctive relief (Tr. 22) and the recovery of $1,600,000 as punitive damages from the Trustee Bank for wilful delay in closing the trust.

While that action was pending in a district court of Tarrant County, the Fort Worth National Bank, as Trustee under the will of D. M. Cogdell, deceased, which trust was for the benefit of Bill P. Cogdell, the appellant here, filed a cross-action in that case against the said Bill P. Cogdell. In its cross-action the Bank alleged that D. M. Cogdell died on November 15, 1964; that his will was admitted to probate on November 30, 1964, by the Probate Court of Scurry County; that the will created an express trust in favor of the appellant, Bill P. Cog-dell; that the Bank was named in the will as trustee of that trust; that the 10 year term of said trust created under the will of D. M. Cogdell for the benefit of appellant, Bill Cogdell, ended on November 15, 1974; that time for termination of the trust has therefore arrived; but that as of that termination date the trust is still involved in three lawsuits; that the appellant, Bill Cog-dell, has since November 15, 1974, made demand on the Bank as trustee to distribute to him all assets of the trust that were in the Bank’s hands; that the Bank is authorized to continue the litigation referred to in which it will incur expenses; it has to hire accountants to prepare a final accounting, which will cause expenses to be incurred; because of Bill Cogdell’s demands the oil companies have impounded oil runs that are due the trust estate; and that the trustee should have a reasonable time after terminating the litigation in which to file its final accounting. The relief sought by the Bank in the cross-action against appellant was a declaratory judgment declaring that the Trustee Bank had the authority to continue to exercise the powers necessary to preserve the trust estate, including the authority to proceed with the litigation in which the trust was involved until final termination thereof; that it then have a reasonable time thereafter in which to file a final accounting; that it be declared that it has the right to continue to pay litigation and operating expenses out of the trust; and that it be declared that it has the right to receive the oil runs until the trust estate is closed.

When the Bank filed this cross-action seeking a declaratory judgment, the appellant, who was the cross-defendant, filed a plea of privilege seeking to have the cross-action transferred to Scurry County, where he lived. The Bank then filed a controverting plea and later filed a motion for summary judgment as to the venue question. The trial court granted a summary judgment overruling the plea of privilege of Bill Cogdell, and Cogdell has brought this appeal from that decree.

The appellant’s single point of error is that the trial court erred in rendering summary judgment on venue of the counterclaim in the absence of it having jurisdiction of the counterclaim.

We overrule that point and affirm the trial court’s order overruling Cogdell’s plea of privilege.

The D. M. Cogdell will provided that the Bill Cogdell trust therein created shall terminate 10 years after date of his death. This termination date was November 15, 1974. It also provided: “At the termination of each trust . . . the . property thereof shall pass free . of trust to the . . . beneficiaries.”

It appears that appellant’s argument in support of his single point of error is that the provisions of Art. 7425b-24 do not apply to this case because there was no trust in existence at the time the counterclaim was filed. He argues that under the terms of the will creating the express trust the trust ended on the last day of the ten year period, to-wit: November 15, 1974, that after that date the Bank had no further powers to act as trustee; and that on that date he had the right to the immediate possession of the assets of the trust estate. He argues that because of these facts there was no trust at the time the Bank’s counterclaim was filed and that the trial court for that reason had no jurisdiction of the counterclaim. He argues that since the trial court had no jurisdiction of the counterclaim it did not have venue.

We overrule appellant’s contentions.

In the Bank’s controverting plea it alleged that its counterclaim was filed under the authority of Article 7425b-24, Subsection A, for the purpose of having the court declare the powers, responsibilities, duties, and liabilities of the trustee and that venue of such an action is by Article 7425b-24, Subsection B, expressly placed in Tarrant County, under the particular facts of this case.

The Bank also alleged that venue of the cross-action should be kept in Tarrant County because Cogdell had first filed a suit that was pending in Tarrant County against the Trustee Bank to recover his expenses incurred in litigating with the trustee and that the cross-action involved here was a permissible counterclaim that was properly brought in connection with Cogdell’s main action.

Article 7425b-24, Subsection A, provides: “The district court shall have original jurisdiction to construe the provisions of any trust instrument; to determine the law applicable thereto; the powers, responsibilities, duties, and liability of trustee. . . ”

Subsection B: “In cases where there be a single trustee, the venue of such actions shall be in the county of the residence of such trustee; or if a corporation, in the county of its principal place of business.

By affidavits in support of the motion for summary judgment the Bank proved the death of D. M. Cogdell on November 15, 1964; that he left a will that was admitted to Probate in Scurry County; that the terms of the will created the trust; that pursuant to the terms of the will the Bank accepted the appointment as trustee; that the Bank is a National Banking Association with its principal place of business in Tar-rant County; and the Bank also proved the facts it had alleged in its counterclaim as above set out, including the fact that the trustee was still involved in undisposed of litigation. Cogdell offered no evidence to oppose the motion for summary judgment.

The case of Kimble v. Baker, 285 S.W.2d 425 (Tex.Civ.App., Eastland, 1955, no writ hist.), was an action wherein a declaratory judgment was sought by the trustee declaring the powers and duties of the trustee in connection with the winding up of the trust estate after the time when the trust had expired. Many questions involved in this case were involved in the Kimble case. The court at page 428 stated that the trial court held:

“. . . that plaintiffs, as trustees, were, on September 1, 1954, authorized to continue to exercise the powers necessary and proper for the preservation of the trust, to partition the property and to prepare and file a final accounting and that a reasonable time for the performance of such duties would be on or before March 1, 1955; that the trustees had authority to adjust the accounts between the parties in making their final accounting; that they had authority to employ an auditor to prepare a final accounting and to pay him a reasonable fee therefor, and that they had authority to employ an attorney to file suit for a declaratory judgment to determine their status and powers.”

The trial court’s judgment was affirmed on appeal.

The court stated on page 428 the following: “The principal issue involved under the plaintiffs’ petition was whether under the terms of the trust instruments plaintiffs’ power to perform any further act as trustees had, as defendants were contending, fully terminated on September 1, 1954. This disputed question was vital to all parties concerned.”

The court said at page 429:

“It was essential to the trustees, to those with whom they dealt and to the estate itself to determine the authority of the trustees. Otherwise, any action on their part concerning the estate would be based upon uncertainty and would be perilous and unsatisfactory to the trustees and all other parties concerned.”

In answer to the beneficiaries’ contention that the trustees’ powers had terminated the Court of Civil Appeals in the Kimble case said at pages 430-431:

“The rule in such cases is that subject to the provisions of the trust instrument, the trustee has such powers and duties as are necessary for winding up the estate and has the duty to make a reasonably prompt distribution. 90 C.J.S. Trusts § 343, p. 604; Restatement of the Law of Trusts, Vol. 2, page 344. There was nothing in the trust instruments inconsistent with the trustees’ exercising such powers as were necessary to wind up the trust estate within a reasonable time after the expiration of the trust.
“We overrule the contention that the court erred in holding the trustees were authorized to employ an attorney for the prosecution of this suit and to pay him a reasonable fee. We cannot say as a matter of law that the bringing of this suit by the trustees for instructions under the facts of this case was not in good faith. The trustees, under the law, had a reasonable time after the termination of the trust to make a distribution of the assets and to make an accounting. Their power to do this was questioned by appellants.
“The trustees were entitled to apply to the court for instructions concerning their powers and to incur the expense of making the application. Article 7425b-25, Vernon’s Texas Civil Statutes; 54 Am.Jur., page 491; West Texas Bank & Trust Co. v. Matlock, Tex.Civ.App., 172 S.W. 162. The trustees were also authorized to pay reasonable fees to an auditor for the preparation of a final account.”

There was nothing in the will creating the trust that is involved in this case that is inconsistent with the trustee exercising such powers as are necessary to enable the trustee to wind up the trust estate within a reasonable time after the date provided therein for the termination of such trust.

We hold that jurisdiction of the Bank’s cross-action was expressly placed in the District Court by Article 7425b-24, Subsection A, that is set out above.

One venue fact to be determined by the trial court was whether the action urged in the Bank’s cross-action was one falling under Article 7425b-24, Subsection A, V.A. T.S. (The Texas Trust Act).

The question involves a determination of the nature of the suit. The petition is the best and is sufficient evidence of the nature of the cause of action. Gilbert v. Gilbert, 145 Tex. 114, 195 S.W.2d 936 (1946).

The nature of the suit is a question of law to be determined by the Court solely from the facts alleged in the petition, the rights asserted, and the relief sought. Scott v. Whittaker Pipeline Constructors, Inc., 517 S.W.2d 406 (Tex.Civ.App., Austin, 1974, no writ hist.), and Shellberg v. Shellberg, 428 S.W.2d 117 (Tex.Civ.App., Fort Worth, 1968, writ dism.). The cause of action involved in the Shellberg case is very similar to the one involved in this suit.

Our examination of the cross-petition leads us to the conclusion that the action there urged clearly involves a determination of “the powers, responsibilities, duties and liability” of a trustee and that it is therefore an action falling under Article 7425b-24, Subsection A.

The remaining venue fact to be determined was the location of the principal place of business of the sole trustee, the Bank. The undisputed evidence established that the Bank is the sole trustee and that its principal place of business is in Tarrant County.

We also hold that Article 7425b-24, Subsection B, puts venue of the action in Tar-rant County, where the principal place of business of the trustee Bank is located.

The trial court’s ruling as to venue was correct. Shellberg v. Shellberg, supra; and Bill P. Cogdell v. The Fort Worth National Bank, decided by the Eastland Court of Civil Appeals, 536 S.W.2d 257, 1976.

Further support for the legal principles announced in the Kimble case, supra, can be found in the Restatement of the Law of Trusts, Vol. 2, Sec. 344; in A. Scott, “Law of Trusts” (3d Ed., 1967), Secs. 344 and 345; and in G. Bogert, “The Law of Trusts and Trustees” (2d Ed., 1962), Sec. 1010.

In its argument under its single point of error Cogdell also makes the following statement: “There was no jurisdiction in the lower Court in the absence of indispensable parties under the . . . Declaratory Judgments Act, (V.A.T.S. art. 2524-1, § 11).” He at no place in his argument suggests the names of persons that he claims were indispensable parties that were not made parties in the cross-action.

We overrule that contention. Article 2524-1, Sec. 11, V.A.T.S., requires that “all persons shall be made parties who have or claim any interest which would be affected by the declaration. . . .” The relief sought by the counterclaim was a declaration of the rights, powers and duties of the trustee Bank under the Bill Cogdell trust of which trust the appellant is the sole beneficiary. The trustee and the sole beneficiary are parties to the suit and they are the only necessary parties under Article 2524-1, Sec. 11, V.A.T.S.

Added authority for our conclusion that the trustee Bank and the sole beneficiary of the trust are the only necessary parties to the counterclaim involved here is Article 7425b-24, Subsection C, which provides: “Actions hereunder may be brought by a trustee. . . . The only necessary parties to such actions shall be those persons designated by name in the instrument creating the trust. . . .”

We are convinced that there are additional reasons why the trial court’s ruling on venue was correct. It is not necessary for us to discuss them in view of what has been said.

The judgment is affirmed.


author: REYNOLDS, Justice.

text:
    Joe PUTMAN, Appellant, v. Doris SANDERS, Appellee.
    No. 8663.
    Court of Civil Appeals of Texas, Amarillo.
    April 30, 1976.

      Crenshaw, Dupree & Milam, Cecil C. Kuhne, Lubbock, for appellant.
    Griffith & Brister, Thomas J. Griffith, Lubbock, for appellee.
   REYNOLDS, Justice.

Doris Sanders recovered a money judgment against Joe Putman for damage sustained to her automobile while it was in the possession of Putman who had repaired it at the request of her son. The trial court’s determinations of a bailment and the amount of damage have the requisite evi-dentiary support to hold Putman liable because he failed to rebut the presumption of his negligence. Affirmed.

In January of 1974, Doris Sanders purchased a 1969 Buick automobile for $1,195. She agreed to permit her son, Don Sanders, to use the Buick for job transportation on the condition that he have the transmission fixed. On 14 April 1975, Don contracted with Joe Putman, the owner and operator of Fourth Street Automobile Transmissions located on the southwest corner of the curved off-set intersection of Avenue D and Fourth Street in Lubbock, Texas, to overhaul the transmission. Don made a down payment of fifty dollars and the balance was to be paid when the repairs were made. Putman pushed the Buick from Doris Sanders’ yard to his garage. He recharged the battery, inflated the tires and repaired the transmission. When the car was ready for delivery on April 15, Don did not have the $146.60 balance due and he told Putman he would pay the balance on the first of the month. Putman retained possession of the Buick. He kept the car in his garage at night and moved it out on his lot during the day so he could work on cars in the garage. After some three or four days the Buick’s battery “went down” and Putman left it where it was parked some ten feet south of the curb on Fourth Street and about eighteen feet west of the Avenue D curb. Fourth Street is a heavily travelled U. S. highway. When Putman came to work on the morning of April 21, he saw skid marks indicating to him that a car had travelled across Fourth Street, over the curb and hit the Buick. The investigating officer concluded that an unidentified vehicle driven by an unknown driver had collided with the parked Buick, but he freely volunteered that he did not know the cause of the collision. The damage to the Buick, which had a speedometer reading of 90,000 miles, was photographically depicted. Putman did not learn until after the damage that Doris Sanders owned the Buick.

Doris Sanders pleaded, among other grounds for recovery, the theory of mutual bailment. Putman answered and, without joining Don Sanders, counterclaimed against Doris Sanders for the repair balance of $146.60, pleading that he

at the special instance and request of Mr. Don Sanders, son of Cross-Defendant [Doris Sanders] herein, undertook to repair the automobile of Cross-Defendant in the regular course of his business. Cross-Defendant thereby became bound to pay .
******
IV.
Cross-Defendant has not provided payment for such labor and materials furnished by Defendant/Cross-Plaintiff [Joe Putman] at Cross-Defendant’s request,

Consistent with his pleadings, Putman requested Doris Sanders to, and she did, admit that her automobile was presented to Putman for repairs at the instance and request of her son, Don Sanders, who was acting for and on her behalf.

Trial was before the court without the intervention of a jury. Additional to hearing an elaboration of the facts just stated, the court: heard from Doris Sanders, over objection, that the value of her Buick before the damage was $900 to $950 and aft-erwards it was worth $100 or less; heard from a used car dealer that the Buick had a before-damage market value of $350; heard evidence of automobile accidents occurring in the vicinity of and at the intersection, but that no car had jumped the curb and hit a car parked on Putman’s property prior to the occasion in litigation; and admitted, over Putman’s objection, a verified copy of a record kept by the Lubbock Traffic Engineering Division of automobile accidents occurring near and at the intersection.

The court, finding that the Buick had a before- and an after-damage market value of $796.60 and $150 respectively, rendered judgment in favor of Doris Sanders for $646.60, judgment in favor of Joe Putman for $146.60, and a net judgment of $500 in favor of Doris Sanders. At Putman’s request, the court made and filed findings of fact and conclusions of law.

In appealing, Putman first attacks, on grounds of no evidence and factually insufficient evidence, the court’s factual finding that Doris Sanders engaged Joe Putman to repair the transmission of her Buick and the court’s legal conclusion that the parties occupied the relationship of bail- or and bailee. The attack is repelled because, if for no other reason, Putman has judicially admitted by his pleadings the contract for and the act of bailment which he now contends were not proved.

Adair v. Roberts, 276 S.W.2d 565, 569-70 (Tex.Civ.App.-Texarkana 1955, no writ), cites several Texas cases speaking of the elements of a bailment. There, in essence, a bailment is denominated as the delivery of personal property by one person to, and acceptance by, another under contract, express or implied, for a specific purpose which shall be faithfully executed and, when the purpose has been carried out, the property shall be redelivered or accounted for. By his counterclaim pleadings, Put-man admitted all of the necessary elements of the bailment and, thereby, he formally waived proof of the elements and is barred from disputing it. Gevinson v. Manhattan Construction Company of Oklahoma, 449 S.W.2d 458, 466 (Tex.1969). The principle of judicial admission is particularly applicable here where the pleadings admitting the bailment are the only pleadings which support the judgment Putman recovered. The first two points of error are overruled.

We do not reach Putman’s points four through eleven, inclusive. Putman utilizes these points to assert that Doris Sanders produced no evidence or insufficient evidence to prove her alternative theories of recovery, and to support the court’s findings and conclusions, that the doctrine of res ipsa loquitur applied and that Put-man’s negligence proximately caused the damage to her automobile. By these points he does not contend that it was established conclusively, or as a matter of law, that the damage to the Buick was due to some cause other than his own negligence; rather, he argues that Doris Sanders did not produce evidence of his negligence proximately causing the damage. The approach misses the mark. Once the bailment was established, proof that the bailed Buick was damaged while in Putman’s possession made a prima facie case of negligence against Put-man and, unless he produced evidence of some other cause of the damage, Doris Sanders was not required to proceed with additional evidence of Putman’s negligence. Trammell v. Whitlock, 150 Tex. 500, 242 S.W.2d 157, 159 (1951). Accord, Buchanan v. Byrd, 519 S.W.2d 841 (Tex.1975).

Thus, to overcome the prima facie case of his negligence, Putman had the burden of showing that the damage resulted from some other cause consistent with due care on his part. Rhodes v. Turner, 171 S.W.2d 208, 214 (Tex.Civ.App.—Fort Worth 1943), mandamus to certify points of dissent ref’d sub nom. Rhodes v. McDonald, 141 Tex. 478, 172 S.W.2d 972 (1943). True, there is evidence that the damage was inflicted when a third party collided with the Buick for which Putman says he is not responsible, but it was Putman’s responsibility to show what caused the damage despite due care on his part. Mere evidence of a collision without showing its cause, coupled with testimony that a similar collision had not happened previously, is not, without more, evidence that Putman exercised due care to prevent the damage to the Buick he left exposed contrary to his established practice of garaging it at night. The showing made is no more explanatory of what caused the damage than was the unexplained wreck that damaged the trailer in Trammell or the unexplained open gate through which the horse escaped to be killed by a train in Buchanan. It is, in the words of Buchanan quoting Trammell, “an ‘explanation which does not explain’ ” and it does not rebut the presumed negligence on the part of Putman. Consequently, Doris Sanders was not required to go forward with additional evidence of negligence, and the complained of findings and conclusions by the court become immaterial.

Because Putman failed to rebut his presumed negligence, we do not determine whether it was error, as assigned in point three, for the court to admit in evidence, over Putman’s objection that the proper predicate was not laid, the City of Lubbock record of automobile accidents occurring at or near the intersection of Avenue D and Fourth Street. If error, it was harmless, for the record does not bear upon the theory of recovery sustained.

Points twelve and thirteen are no evidence and factually insufficient evidence points challenging the court's findings that the Buick had a before-damage market value of $796.60 and an after-damage market value of $150 and conclusion that the amount of the damage of $646.60. The crux of the challenge is that the value testimony of Doris Sanders is not entitled to any weight because she did not establish her familiarity with market values of automobiles in Lubbock County.

It seems well settled that the owner of an automobile may testify to the value of his own car before and after a collision even though his qualifications are not adequate to enable him to give expert testimony as to like property owned by others. Stewart v. Frazier, 461 S.W.2d 484, 486 (Tex.Civ.App.—Dallas 1970, no writ). The weight to be given the owner’s testimony is for determination by the trier of the facts. Cortez v. Mascarro, 412 S.W.2d 342, 343 (Tex.Civ.App.-San Antonio 1967, no writ). The court was justified in blending all the evidence before it concerning the Buick automobile, McConnico v. Texas Power & Light Company, 335 S.W.2d 397, 399 (Tex.Civ.App.-Beaumont 1960, writ ref’d n. r. e.), to arrive at the values that are within the range of the admissible testimony. Barstow v. Jackson, 429 S.W.2d 536 (Tex.Civ.App.-San Antonio 1968, no writ). The before-damage market value found by the court was not as high as the maximum value testified to and the after-damage market value fixed by the court was not as low as the minimum value expressed in the testimony. The last two points of error are overruled.

The judgment is affirmed.