author: CORNELIUS, Justice.

text:
    Jackie Coleman WHEELER, Appellant, v. John W. NAILLING and Deborah Lynn Nailling, Appellees.
    No. 8292.
    Court of Civil Appeals of Texas, Texarkana.
    June 17, 1975.
    J. D. McLaughlin, Fisher, McLaughlin & Harrison, Paris, for appellant.
    Pat Beadle, Beadle & Beadle, Clarksville, for appellees.
   CORNELIUS, Justice.

This is a venue case. Appellees, John and Deborah Lynn Nailling, sued Robert Joe Flynn and appellant, Jackie Coleman Wheeler, for damages resulting from an automobile-truck collision which occurred in Red River County. The petition alleged that Flynn negligently drove a loaded gravel truck into the appellees’ automobile. Liability of Wheeler was based upon allegations that he owned the gravel truck and that Flynn was his employee acting within the scope of his employment at the time the collision occurred. Flynn and Wheeler both filed pleas of privilege to be sued in Lamar County where they resided. Appellees controverted the pleas, relying upon Subdivison 9a of Article 1995, Vernon’s Tex.Rev.Civ. Stat.Ann. The trial court overruled both pleas of privilege. Wheeler only has appealed.

At the hearing of the pleas, appellant Wheeler introduced no evidence. On the issue of Wheeler’s liability, appellees produced only Wheeler’s admission under Rule 169, Texas Rules of Civil Procedure that “. . .at the time and on the occasion of the collision made the basis of this suit the motor vehicle being operated by . Flynn belonged to Defendant Jackie Coleman Wheeler,” and evidence that Flynn negligently drove the truck into appellees’ vehicle. There was no direct proof that Flynn was employed by Wheeler or was within the scope of any such employment at the time of the collision. The question to be determined is whether proof only that Wheeler owned the truck at the time of the collision was sufficient, in the absence of any evidence to the contrary, to prove pri-ma facie that Flynn was his employee and was acting within the scope of his employment. In the context of this case we conclude that such proof was sufficient.

To sustain venue against Wheeler in Red River County, appellees in this case were required to prove that (1) Flynn committed negligence in Red River County proximately causing appellees’ damages, (2) Flynn was the agent or employee of Wheeler, (3) acting in the scope of his employment. Subdivision 9a, Article 1995, Tex.Rev.Civ. Stat.Ann.

It has long been the majority rule in the United States that, in the absence of any evidence to the contrary, proof that a defendant owned the vehicle used by the negligent driver raises a presumption that the driver was the agent or employee of the owner and was acting at the time in the scope of his employment. 1 C. McCormick & R. Ray, Texas Evidence Sec. 97 (2d ed. 1956); Annotations 42 A.L.R. 898; 74 A.L.R. 951; 96 A.L.R. 634; Blashfield, Cyclopedia of Automobile Law and Practice Sec. 6066 (1954). There has been a division of opinion in the Texas Cases which have considered this point. At one time most of the Texas Cases confined the rule to a presumption of scope of employment arising from proof both that the defendant owned the automobile and that the driver was his employee. Broaddus v. Long, 135 Tex. 353, 138 S.W.2d 1057 (1940); Kirk v. Harrington, 255 S.W.2d 557 (Tex.Civ.App., Fort Worth 1953, no writ); Moreland v. Hawley Independent School Dist., 163 S.W.2d 892 (Tex.Civ.App., Eastland 1942, no writ); Longhorn Drilling Corporation v. Padilla, 138 S.W.2d 164 (Tex.Civ.App., Eastland 1940, no writ); 1 C. McCormick & R. Ray, Texas Evidence Sec. 97 (2d ed. 1956) note 23 and cases cited. Now however, the greater weight of authority in Texas, particularly among the more recent decisions, is that proof of ownership alone is sufficient to raise both the presumption of employment and scope of employment where there is no evidence to the contrary. Strickland Transportation Co. v. Ingram, 403 S.W.2d 192 (Tex.Civ.App., Texarkana 1966, writ dism’d); Whittle v. Saunders, 396 S.W.2d 155 (Tex.Civ.App., San Antonio 1965, no writ); Henderson Drilling Corporation v. Perez, 304 S.W.2d 172 (Tex.Civ.App., San Antonio 1957, no writ); Altano v. International Harvester Co. of America, 121 S.W.2d 466 (Tex.Civ.App., Dallas 1938, writ dism’d); Boydston v. Jones, 177 S.W.2d 303 (Tex.Civ.App., Amarillo 1944, no writ); Waco Cotton Oil Mill of Waco v. Walker, 103 S.W.2d 1071 (Tex.Civ.App., Waco 1937, no writ). It is even held that a presumption of ownership arising from proof of other facts is sufficient to raise the parallel inferences of employment and scope of employment. Pilgrim Industries, Inc. v. Jones, 503 S.W.2d 861 (Tex.Civ.App., Texarkana 1973, no writ); Simpson v. Vineyard, 324 S.W.2d 276 (Tex.Civ.App., El Paso 1959, no writ); Gladewater Laundry & Dry Cleaners, Inc. v. Newman, 141 S.W.2d 951 (Tex.Civ.App., Texarkana 1940, writ dism’d jdgmt. cor.); J. H. Robinson Truck Lines, Inc. v. Jones, 139 S.W.2d 127 (Tex.Civ.App., Galveston 1940, no writ); Kirklin v. Standard Coffee Co., 114 S.W.2d 263 (Tex.Civ.App., Dallas 1938, no writ); Gregg v. De Shong, 107 S.W.2d 893 (Tex.Civ.App., Fort Worth 1937, writ dism’d); Harper v. Highway Motor Freight Lines, 89 S.W.2d 448 (Tex.Civ.App., Dallas 1935, writ dism’d); Globe Laundry v. McLean, 19 S.W.2d 94 (Tex.Civ.App., Beaumont 1929, no writ). Whatever view is taken of the evidence required to raise it, the presumption is not evidence but is a mere rule of procedure which disappears and passes out of the case when contrary evidence is produced. Robertson Tank Lines, Inc., v. Van Cleave, 468 S.W.2d 354 (Tex.1971); Empire Gas & Fuel Co. v. Muegge, 135 Tex. 520,143 S.W.2d 763 (Tex.Com.App.1940, opinion adopted). But in the absence of such contrary evidence, it is sufficient prima facie proof to sustain venue in the county where the negligence occurred.

The difficulty of proof, on behalf of an injured person, of the existence of a driver’s agency and scope of employment, and the comparative ease with which the counterpart of these situations may be proved by the owner in possession of all the facts, support the adoption of the majority rule. As said by Chief Justice Langdon in Simpson v. Vineyard, supra, if the presumption was not correct, “. . .no one was in a better position to establish that fact . . ” than the owner.

In the case at bar, the ownership of the truck was admitted and therefore established without dispute, thus making this a stronger case for the presumption than those cases where ownership itself is presumed from the proof of other facts.

Appellant cites Sumners v. Curry, 347 S.W.2d 22 (Tex.Civ.App., Waco 1961, no writ) as supporting his position, but that case is distinguished. As indicated in the statement of facts in the opinion of that case, the car there was owned by the negligent driver rather than by the nonresident defendant who was alleged to be the driver’s employer.

As the undisputed proof showed that the truck negligently driven by Flynn was owned by Wheeler, the trial court was authorized to presume, in the absence of any controverting evidence, that Flynn was Wheeler’s employee acting within the scope of his employment. The plea of privilege was therefore properly overruled.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: JAMES, Justice.

license: Public Domain

text:
    DAL-MAC CONSTRUCTION COMPANY, Appellant, v. VICTOR LISSIAK, JR., INC., Appellee.
    No. 5461.
    Court of Civil Appeals of Texas, Waco.
    June 5, 1975.

      Strasburger, Price, Kelton, Martin & Unis, W. Edward Walts, II, Dallas, for appellant.
    Odeneal & Odeneal, Dallas, for appellee.
   OPINION

JAMES, Justice.

This is a summary judgment case. Plaintiff-Appellee Victor Lissiak, Jr., Inc., a consulting engineering firm, contracted in writing with Defendant-Appellant Dal-Mac Construction Co. whereby Lissiak agreed to furnish certain professional engineering services to Dal-Mac. The contract was in letter form, dated July 15, 1974, signed by representatives of both parties, described the type of professional engineering services to be performed by Lissiak, and recited that the services would be provided at the hourly rate of $15.00 per hour not to exceed $4200.00 in all. Then the contract provided: “Upon completion and delivery of the drawings, the net fee will be due within 15 days.”

On July 17, 1974, the parties by agreement made a minor alteration in the contract as evidenced by a marginal notation on the contract, whereby one part of the work would not exceed $500.00 and the balance of the work would not exceed $3700.00, making an overall maximum figure of $4200.00, the same maximum figure provided for in the original contract.

On August 2, 1974, Lissiak submitted an itemized statement to Dal-Mac for “professional services rendered” in the total amount of $4212.91, composed of $4120.00 for professional services rendered and $92.91 for reproduction expenses done at the request of Dal-Mac. It is undisputed that the services were satisfactorily performed and accepted.

Plaintiff-Appellee Lissiak filed suit against Dal-Mac for $4212.91 on October 3, 1974, whereupon Defendant-Appellant Dal-Mac answered with a general denial.

Appellee then filed a Motion for Summary Judgment with a supporting affidavit by its President, Victor Lissiak, to the effect that the professional services had been performed by Appellee and had been accepted by Appellant, and that payment was due and owing, but that payment for such services had not been made. Lissiak's affidavit was accompanied with exhibits containing copies of the contract, statement of professional services rendered, and other exhibits.

Defendant-Appellant Dal-Mac filed its Answer to the Motion for Summary Judgment accompanied by the affidavit of its President, H. H. McJunkin, Jr., in opposition thereto. The only defense raised by Defendant-Appellant to the Motion for Summary Judgment was that the contract in question must be interpreted in light of the following custom and usage of trade in the construction industry, to wit, that subcontractors do not get paid for their work performed until the contractor is paid by his principal. Defendant-Appellant further asserted that it had not been paid as contractor, and therefore the Plaintiff-Appel-lee is not entitled to be paid until Defendant-Appellant gets paid for its work from its principal. In other words, that until such time as Defendant-Appellant receives its money on its contract, a reasonable time had not passed for the Plaintiff-Appellee as subcontractor to be entitled to its money.

After notice and hearing, the trial court granted Plaintiff-Appellee Lissiak a Summary Judgment against Defendant-Appellant Dal-Mac as prayed for in Plaintiff’s Original Petition, from which Dal-Mac appeals.

Appellant asserts the trial court erred in granting Appellee’s Motion for Summary Judgment, saying Appellee failed to show as a matter of law that it was entitled to Summary Judgment, because “a fact issue exists as to the effect of industry custom or usage” upon the contract in question. We overrule this contention and affirm the trial court’s judgment.

In effect Appellant is contending that a fact issue exists as to the time of payment pursuant to this contract, saying that extrinsic evidence is admissible to show the customs and usages of the construction industry bearing upon the time of payment under the contract in question.

We do not agree with this argument, because the contract in question is clear and unambiguous in providing for time of payment. It specifically provides: “Upon completion and delivery of the drawings, the net fee will be due within 15 days.”

If there is no ambiguity, the construction of a written instrument is a question of law for the court. City of Pinehurst v. Spooner Addition Water Co. (Tex.1968) 432 S.W.2d 515.

It is only where the writing, on its face, is ambiguous, as where the language used is subject to two or more interpretations, that extrinsic evidence may be used. Smith v. Liddell (Tex.1963) 367 S.W.2d 662. If a written contract is so worded that it can be given a certain or definite legal meaning or interpretation, it is not ambiguous. It follows that parol evidence is not admissible to render a contract ambiguous, which, on its face, is capable of being given a definite certain legal meaning. Lewis v. East Texas Finance Co. (1941) 136 Tex. 149, 146 S.W.2d 977; Remington Rand, Inc., v. Sugarland Industries (Tex.Com.App.1941) 137 Tex. 409, 153 S.W.2d 477, opinion adopted by the Supreme Court.

In the case at bar, the contract was clear and unambiguous in providing for the time of payment, to wit, fifteen days after completion and delivery of the drawings. It is undisputed from the summary judgment proof that the work called for in the contract had been completed by the Plaintiff-Appellee and accepted by the Defendant-Appellant, and the fifteen day period had more than passed thereafter before suit was filed thereupon. Therefore Plaintiff-Appellee was entitled to be paid for his services under the express terms of the contract. Evidence of a custom or usage in the construction industry concerning time of payment for subcontractors was therefore inadmissible, and no fact issue was presented. Evidence of custom is admissible only to explain an ambiguous contract or to add to it an element not in contravention of its terms; but such evidence is not admissible to contradict the plain unambiguous covenants and agreements expressed in the contract itself. Miller v. Gray (1941) 136 Tex. 196, 149 S.W.2d 582; Malone v. Dawson (1928) 117 Tex. 377, 5 S.W.2d 965.

There being no fact issue presented concerning the time of payment, and there being no other material fact issue presented by the summary judgment proof, it appears from the record before us that Plaintiff-Ap-pellee is entitled to judgment as a matter of law. The summary judgment entered by the trial court was therefore proper, and is affirmed.

Affirmed.


author: BARROW, Chief Justice.

text:
    Victor SRALLA et ux., Appellants, v. Bridget Porche SRALLA, Appellee.
    No. 15419.
    Court of Civil Appeals of Texas, San Antonio.
    June 11, 1975.

      Howard, McDowell & Cartwright, Corpus Christi, for appellants.
    John G. Murray, James W. Smith, Jr., Pearsall, for appellee.
   BARROW, Chief Justice.

Appellants, Victor Sralla and wife Sylvia Sralla, have perfected this appeal from the judgment dissolving the marriage between appellants’ son, Larry William Sralla, and appellee, Bridget Porche Sralla. Appellants had intervened in the divorce suit and sought to be appointed managing conservators of the two minor children. The judgment appointed appellee as managing conservator and appointed Larry William Sral-la, as well as appellants, as possessory conservators of the children.

Appellants assert three assignments of error on this appeal. The first two points complain of the trial court’s action in refusing to grant appellants’ motion for continuance because of insufficient time to prepare for trial. They also assert that the trial court refused to permit them to introduce evidence in support of said motion. It is apparent from the record that the trial court did not refuse to hear evidence on the motion. Rather the trial court considered the allegations of fact in the sworn motion for continuance as being true. Appellants’ attorney was permitted to argue the motion under this assumption. In any event appellants did not perfect a bill of exceptions to show said excluded evidence.

The original petition for divorce was filed in Frio County by Larry William Sralla on July 2, 1974. An answer and cross-action was filed by appellee on August 6, 1974, who was at this time living in Houston. A hearing was held on August 23 on the question of appointment of a temporary managing conservator for the two minor children. Appellants were present at the hearing and testified that Larry William, who was living in appellants’ home in Floresville should be appointed temporary managing conservator and that appellants would help in taking care of the children. At the conclusion of the hearing, appellee was appointed temporary managing conservator and Larry William was appointed temporary possesso-ry conservator. The case was specially set for trial on the merits for October 25, 1974. This setting was made in the presence of appellants.

On October 17, 1974, appellants employed their attorney whose law office is in Corpus Christi. This attorney prepared a petition in intervention on behalf of appellants which was mailed to the District Clerk on October 21, and filed on October 22. Leave to file was not sought, nor was any hearing held in this regard. Appellants sought by said petition to be appointed managing conservators of said children. Appellants’ attorney averred in the motion for continuance filed on the morning of the trial that he had not been able to properly prepare for trial due to the distances between his office, the residences of the parties and the Frio County Courthouse together with the short time between his time of employment and the setting of the case. The motion for continuance was overruled and the ease proceeded to trial. We do not have a complete statement of facts, but it is seen that appellants were present and both testified at the trial.

It is settled law that the matter of granting a continuance rests with the discretion of the trial judge, and an order granting or denying a motion will not be disturbed on appeal unless there was an abuse of discretion. Hernandez v. Heldenfels, 374 S.W.2d 196 (Tex.1963); Sherrill v. Estate of Plumley, 514 S.W.2d 286 (Tex.Civ.App.—Houston [1st District] 1974, writ ref’d n. r. e.).

The record in the case before us does not show such an abuse of discretion. Appellants were not parties to the suit until they voluntarily filed the petition in intervention. At this time, and in fact for several months, they knew that the case was specially set for trial on October 25. The record is barren of any injury to them by the court proceeding to trial. They were aligned with their son from the outset in that his prayer for appointment as managing conservator was based on appellants’ willingness to provide a home for their son and the minor children. This situation is different from that presented in Lowe v. City of Arlington, 453 S.W.2d 379 (Tex.Civ.App.—Fort Worth 1970, writ ref’d n. r. e.), where the case was set for the day after the trial court permitted defendant’s attorney to withdraw, and the trial was held before defendant’s new attorney was employed. We conclude from the record before us that the trial court did not abuse its discretion in overruling the motion for continuance filed by appellants. See Sherrill v. Estate of Plumley, supra. Appellants first two points are overruled.

Appellants assert by their final point that the trial court lacked jurisdiction in that the certificates from the State Department of Public Welfare that the children had not been the subject of a suit affecting the parent-child relationship, were not filed until after the case was concluded. See Sections 11.05(c) and 11.07(b) of the Tex. Family Code Ann., V.T.C.A. (1975). Reversible error is not presented by this point for several reasons. In the first place, the record does not show when the certificates were presented to the court. Certificates from the Department, dated October 24, 1974, are in the transcript, but there is no showing as to when they were seen by the trial judge. There is no file mark on either certificate. Furthermore, it is seen that all parties, including appellants, alleged that there were no court-ordered conservator-ships, guardianships or other court-ordered relationships affecting the children. Nor is there any contention that such allegations were incorrect. The District Court of Frio County properly acquired jurisdiction of the suit affecting the parent-child relationship of the children of the marriage of Larry and Bridget Sralla. Section 3.55, Tex.Family Code Ann. (1975). Appellants’ third point is without merit and overruled.

The judgment is affirmed.

      . Two children were bom of the marriage: Jennifer Sralla, bom on January 16, 1970; and Marc Sralla, born on October 19, 1972.


author: CADENA, Justice.

text:
    Walter SIFFORD, Appellant, v. SANTA ROSA MEDICAL CENTER, d/b/a Villa Rosa, Appellee.
    No. 15381.
    Court of Civil Appeals of Texas, San Antonio.
    June 11, 1975.

      Putman & Putman, San Antonio, for appellant.
    Clemens, Weiss, Spencer & Welmaker, Gardner S. Kendrick, San Antonio, for ap-pellee.
   CADENA, Justice.

This is a slip-and-fall case in which plaintiff, Walter Sifford, appeals from the action of the trial court in granting summary judgment in favor of defendant, Santa Rosa Medical Center, d/b/a Villa Rosa.

Plaintiff claims that he was injured when he slipped and fell while visiting his daughter, Louise G. O’Shea, who was a patient at Villa Rosa, a medical facility operated by defendant.

Defendant’s answer consisted of a general denial, a general plea of contributory negligence, and an allegation that plaintiff “voluntarily assumed the risk of the conditions of which he complains.” As we understand its brief, defendant does not here contend that the summary judgment “proof” establishes the absence of material fact issues in connection with the affirmative defense of contributory negligence. If we are mistaken in our interpretation of defendant’s contentions here, we hold that the record before us does not establish contributory negligence as a matter of law.

Insofar as the general denial is concerned, in moving for summary judgment the burden was on defendant to establish that upon a controlling issue essential to his recovery plaintiff would not have enough evidence to go to the jury. 4 McDonald, Texas Civil Practice, Section 17.26.2, p. 134 (1971 rev.).

Plaintiff contends that he slipped and fell because of the slippery condition of the floor on defendant’s premises. His petition contained the following allegations:

1.On April 14, 1973, the date of the alleged accident, it had been raining intermittently. The floor in question was constructed of materials which rendered the area extremely slippery and hazardous when the material became wet.

2. The floor was constructed in such a manner as to permit water and oil to accumulate on the floor.

3. Prior to the time of the alleged accident, the floor had been freshly waxed, causing it to be extremely slippery and hazardous when it became wet.

4. Although defendant knew that during rainy periods the floor would become slippery and hazardous, defendant failed to provide a mat upon which its business invitees could walk as they were entering and leaving the premises.

5. On the occasion in question, water, wax and other substances had accumulated on the floor, causing it to become slippery and dangerous.

6. Defendant knew of such dangerous condition or, through the exercise of reasonable care, should have know of such condition.

7. Defendant failed to warn its invitees of the danger or to take any measures to correct the condition.

8. “Numerous other persons had fallen at the location . . . and this fact was known to defendant.”

Defendant’s motion for summary judgment stated that the pleadings and depositions on file showed, as a matter of law, the absence of any “genuine issue as to any negligence or breach of any duty” by defendant, and that the undisputed facts show as a matter of law, (1) the absence of any duty owed to plaintiff by defendant; (2) plaintiff knew of and appreciated the specific danger of which he complains in his pleadings; and (3) plaintiff was negligent in failing to keep a proper lookout for his own safety, and such negligence was a proximate cause of his injury.

Plaintiff’s reply to the defendant’s motion for summary judgment referred to the pleadings and depositions- and, in addition, was supported by the affidavit of plaintiff. In such affidavit plaintiff stated that the floor was “shiny” from waxing and, in addition, the floor was covered “with a sheen of water which was invisible because of the waxed appearance.” The affidavit recited that the “combination of wax and water” rendered the floor so slippery that the “ordinary caution exercised by” plaintiff in “anticipation of walking on a waxed surface alone was insufficient when walking on a wax and water surface.” The affidavit also asserted that the condition of “wax and water” was known “or should have been known to the defendant.”

It cannot be said that the record before us establishes as a matter of law that the floor was not slippery and dangerous. Plaintiff’s daughter, who was a patient at Villa Rosa, stated in her deposition that the floor was heavily waxed frequently; that it was slippery, and that patients were warned to be careful because of the slippery condition of the floor. Plaintiff’s wife testified that the floor was “slick” and that it appeared to have been waxed the night before. Plaintiff’s deposition states that the floor was slick and slippery, and that on entering the premises he warned his wife to be careful, pointing out the condition of the floor. Plaintiff’s daughter stated that, immediately after plaintiff’s fall, she noted water on the floor, describing the area containing water as not much larger than a cup. She saw footprints on the wet surface. Plaintiff, in his affidavit, stated that the floor was covered with what he described as a “sheen” of water which was invisible.

Defendant contends that the summary judgment in its favor was correctly granted because the record conclusively establishes the absence of any duty owed by it to plaintiff; because the record conclusively establishes that plaintiff knew of and appreciated the specific condition alleged by him to be dangerous; and because the record conclusively establishes that the condition of the floor was open and obvious.

In a trial on the merits, the burden would have been on plaintiff to prove the existence of a legal duty owed to him by defendant. This would include the burden of proving that he did not have actual knowledge of the dangerous condition, that he did not fully appreciate the nature and extent of the danger, and that the danger was not so open and obvious as to charge him, as a matter of law, with such knowledge and appreciation. However, since here the defendant moved for summary judgment, it assumed the burden of proving, as a matter of law, the opposite of what it would have been plaintiff’s burden to establish by a preponderance of the evidence, on a trial on the merits. Stated differently, by moving for summary judgment, defendant assumed the burden of establishing as a matter of law that plaintiff actually knew of the alleged dangerous condition, that he fully appreciated the nature and extent of the danger, and that he voluntarily encountered such danger. See Adam Dante Corp. v. Sharpe, 483 S.W.2d 452, 453, n. 1 (Tex.1972).

Defendant calls our attention to Camp v. J. H. Kirkpatrick Co., 250 S.W.2d 413 (Tex.Civ.App.—San Antonio 1952, writ ref’d n. r. e.), and Hodge v. Quik-Pik Icehouse, 445 S.W.2d 266 (Tex.Civ.App.-San Antonio 1969, no writ), where it was said that proof of water on the floor near an entrance to a building is not proof of danger but is, rather, no more than proof of a normal and natural condition during a moderate rain, and that there is no duty on the occupier of a building to “stay the elements” nor to continuously mop during a shower.

We readily agree that defendant was under no duty to “stay the elements.” Plaintiff does not here complain of defendant’s failure to prevent rain. The alleged negligence consists in maintaining a dangerous condition, not in permitting it to rain. The destruction of the straw man does not solve the problem. We cannot dispose of the question merely by observing that a wet floor is a normal condition of life on a rainy day. As the Supreme Court pointed out in Rosas v. Buddies Food Store, 518 S.W.2d 534, 537 (Tex.1975), after referring to the language contained in Camp: “We do not agree. Whether a condition constitutes a danger is a function of reasonableness. That is, if the ordinarily prudent man could foresee that harm was a likely result of a condition, then it is a danger.”

As the movant for summary judgment, the burden was on defendant to establish, as a matter of law, that it had no knowledge of, or could not, by exercise of reasonable care, have discovered, the dangerous condition. Defendant points out that there is no evidence indicating how long the water had been on the floor. But to conclude that the absence of such evidence establishes defendant’s non-liability is to place the burden on the opponent of the motion, rather than on the proponent.

In view of the conflicting “evidence” concerning the presence of water on the floor, we must assume, for the purpose of determining defendant’s right to summary judgment, that there was water on the floor. The only evidence relating to defendant’s knowledge is the testimony of a security guard to the effect that he saw no water on the floor. Even if the strongest possible probative force is given to this testimony, it does no more than establish that one of defendant’s employees had no knowledge of the presence of the water. Lack of knowledge on the part of one employee does not conclusively establish lack of knowledge on the part of defendant.

The record does conclusively establish that plaintiff was aware of the slippery condition of the floor and, in fact, warned his wife to be careful. But, in view of plaintiff’s affidavit, we must presume that he was unaware of the additional danger created by the presence of water on the floor. In our opinion, reasonable minds could differ as to the conclusions to be drawn from the facts reflected by the summary judgment record. Plaintiff knew that the floor had been recently waxed and he appreciated the danger resulting from that fact. But a reasonable mind could conclude that there was also water, invisible because of the color of the flooring material and its highly polished condition, on the floor. He may have known of some danger, but it is not conclusively established that he knew and fully appreciated the nature and extent of the hidden danger created by the invisible presence of water. Cf. Adam Dante, 483 S.W.2d at 455.

What has been said necessarily disposes of defendant’s contention that the record conclusively establishes that the danger was so open and obvious as to charge plaintiff, as a matter of law, with knowledge and appreciation of the danger.

Defendant, thus, failed to establish, as a matter of law, that plaintiff had actual notice of, and fully appreciated, the danger, or that the danger was so open and obvious as to charge him with such knowledge and appreciation. The absence of conclusive proof as to these two elements of the “no duty” issues makes it unnecessary to discuss at length the third element of the volenti doctrine, that is, whether plaintiff voluntarily encountered the risk. As we understand the doctrine, a person can be held to have voluntarily assumed a risk only if he had knowledge, actual, constructive or imputed, of such risk.

We are aware of conflicts between plaintiff’s deposition and his affidavit, particularly with respect to the presence of water on the floor. However, under our practice, there is no basis for giving controlling effect to a deposition as compared to an affidavit. Gaines v. Hamman, 163 Tex. 618, 358 S.W.2d 557 (1962). The conflict does no more than raise an issue of fact.

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

MURRAY, J., not participating.


author: SHANNON, Justice.

text:
    W H. BETTS, Appellant, v. TEXAS PACIFIC LAND TRUST et al., Appellees.
    No. 12236.
    Court of Civil Appeals of Texas, Austin.
    June 4, 1975.
    Rehearing Denied July 2, 1975.
    W. H. Betts, pro se.
    Lon Sailers, Turner, Rodgers, Sailers, Jordan & Calloway, Dallas, for appellee, Texas Pacific Land Trust.
    William S. Clarke, Houston, for appellee, Texaco Inc.
   SHANNON, Justice.

Appellant, W. H. Betts, appeals from a summary judgment of the district court of Travis County in favor of appellees, Texas Pacific Land Trust and Texaco Inc. The subject of the appeal is 137.91 acres situated in Reeves County. We will affirm the judgment.

Appellant filed suit against the appellees, the Governor of Texas, and the Commissioner of the General Land Office of Texas. In that suit he sought a judgment requiring the Governor and the Commissioner to cancel Patent No. 31, Vol. 73-4, hereafter called “the patent,” for 505 acres out of the 640-acre Section 1, Block 53, Twp. 4, Texas and Pacific Railroad Company, issued on August 3, 1939, or a judgment that the said patent be canceled insofar as it covers the west 137.91 acres of the 505-acre tract. Ap-pellees derive their claim of title under the patent. Appellant also sought relief requiring the Commissioner of the General Land Office and the Governor to issue a patent to him, as purchaser under an award made by the School Land Board on May 10, 1944, of the “South one-half of Section 2, Block 53 (T & P.R.R. Co.),” covering 381.81 acres of land, being the 243.90 acres of land out of Section 2, Block 53, not in conflict with a senior survey to the north, together with the 137.91 acres of the 505 acres out of Section 1, Block 53, not in conflict with the senior surveys to the north now covered by the patent in issue.

Appellant’s petition also contained a claim in the nature of trespass to try title, averring that on May 10, 1944, appellant was the owner in fee simple of the west 137.91 acres of land out of the 505 acres now covered by the patent, and that appel-lees “. . . unlawfully entered upon and dispossessed him of the . . . said lands and premises and withheld from him the possession thereof.”

The Governor and Commissioner of the General Land Office filed a plea to the jurisdiction upon the basis that appellant had sued the State without legislative permission, and that the district court was without jurisdiction to mandamus them. The court granted the plea to the jurisdiction.

Appellees filed a joint motion for summary judgment. Appellant likewise filed a motion for summary judgment. The district court overruled appellant’s motion and granted that of appellees, and entered judgment that appellant take nothing.

Appellant states in his brief that he does not seek any relief against the State by this appeal. Appellant’s case on appeal, then, is one in trespass to try title against appellees in which appellant sues for title to and possession of 137.91 acres of land out of Section 1, Block 53, Twp. 4, T & P.R.R. Co. patented on August 3, 1939. Appellant pleaded that his right or title arose wholly out of his “Application and Obligation to Purchase School Land Without Settlement,” dated April 29, 1944, and the award to him by the School Land Board on May 10, 1944.

The summary judgment proof established that the 137.91 acres was within the boundaries of Section 1, Block 53, Twp. 4, T & P.R.R. Co., as the same was described in the original field notes on file in the General Land Office, and that the said acreage was within the boundaries of Section 1, Block 53, as described in the corrected field notes thereof filed in the General Land Office on July 5, 1939, and which were contained in the patent dated August 3,1939. The summary judgment proof also established that appellant’s only claim to the acreage arose out of his application to purchase the “South one-half of Section 2, Block 53 (T & P.R.R. Co.)” and the award made by the School Land Board under said application on May 10, 1944.

Appellant recognized and admitted that the patent to Section 1, Block 53, must be canceled, or voided, at least as to the west 137.91 acres of land described in and covered thereby, and that the said patent was issued on August 3, 1939. Appellant recognized further that his application was made on April 29,1944, and that the award of the School Land Board to him was made on May 10, 1944. The patent, which appellant must set aside, was issued more than four and one-half years prior to the earliest date appellant acquired any legal or equitable claim to the acreage he sought to recover.

One ground urged in appellees’ motion for summary judgment and on appeal is that appellant had no standing to attack the patent to Section 1, Block 53.

A patent is subject to attack only by the State or by one who holds an interest in the land that is prior to that of the patentee. Miller v. Moss, 65 Tex. 179, 182 (1885); Taylor v. Lewelyn’s Heirs, 79 Tex. 96, 14 S.W. 1052 (1890); Dawson v. McLeary, 87 Tex. 524, 29 S.W. 1044 (1895); Dunn v. Wing, 103 Tex. 393, 128 S.W. 108 (1910); Miles v. Watson, 75 S.W.2d 946 (Tex.Civ.App.1934, writ ref’d). An examination of the summary judgment proof shows that appellant’s only claim to the acreage at issue arose some four and one-half years subsequent to the date of the issuance of the patent, and as a result, appellant may not attack the patent.

The judgment is affirmed.


author: CHADICK, Chief Justice.

text:
    Robert R. CROCKER, Individually and as Next Friend of Andy Crocker, a minor, Appellant, v. GULF INSURANCE COMPANY, Appellee.
    No. 8288.
    Court of Civil Appeals of Texas, Texarkana.
    June 17, 1975.
    Howard Carney, Jr., Carney, Mays & Carney, Atlanta, for appellant.
    George L. McWilliams, Hubbard, Patton, Peek, Haltom & Roberts, Texarkana, for appellee.
   CHADICK, Chief Justice.

This is a declaratory judgment action. A take nothing judgment was entered in the trial court. The judgment of the trial court is affirmed.

Gulf Insurance Company issued a Texas Standard Farm and Ranch Owners Insurance Policy to Robert R. Crocker. The contract is of the type commonly known as a homeowner’s policy. During the term of the policy, Andy Crocker, the minor son of the insured, operating a Honda 125 motorcycle collided with a pedestrian, Jana Lynn Reid, on a public street in the town of Queen City, Texas. As a result of the collision a suit to recover damages was filed against Robert R. Crocker and Andy Crock-er by Freda Reid, individually, and as next friend of Jana Lynn Reid. In their declaratory judgment pleadings Robert R. Crocker and Andy Crocker allege that Gulf Insurance Company is obligated to defend them under the terms of the mentioned policy. The insurance company refused to defend on the theory that the policy does not afford coverage against liability arising out of the operation of a motorcycle away from the premises of the insured.

The allegations of an insured’s petition and the provisions of the policy in suit determine the duty of the insurer to defend. Argonaut Southwest Insurance Company v. Maupin, 500 S.W.2d 633 (Tex.1973); U. S. Fidelity & Guaranty Co. v. Baldwin Motor Co., 34 S.W.2d 815 (Tex.Com.App.1931, jdgmt. adopted); Maryland Casualty Co. v. Moritz, 138 S.W.2d 1095 (Tex.Civ.App., Austin 1940, writ ref’d); 49 A.L.R.2d 703; Ann: Liability Insurer — Refusal to Defend, Sec. 4. The parties have narrowed the issue in this appeal to the problem of whether a motorcycle is within the definition of an automobile as it is defined in the contract here under consideration.

The particular wording of the insurance contract’s definition of “automobile” has not heretofore been considered by Texas Courts. Numerous insurance policy definitions of the term “automobile” have had consideration but the reported cases are helpful mainly in establishing that, standing alone, the term “automobile” does not include a motorcycle and that terms used in insurance contracts are given their ordinary and generally accepted meaning unless the contract shows the terms are meant in a technical or different sense. Futrell v. Indiana Lumbermens Mutual Insurance Company, 471 S.W.2d 926 (Tex.Civ.App., Houston 1st Dist. 1971, no writ); The Guardian Life Insurance Company of America v. Scott, 405 S.W.2d 64 (Tex.1966). The definition of an automobile set out in the contract under consideration is:

“The term ‘automobile’ means a land motor vehicle, trailer or semi trailer; but the term ‘automobile’ does not include, except while being towed or carried on an automobile, any of the following: any crawler or farm-type tractor, farm implement or, if not subject to motor vehicle registration, any equipment which is designed for use principally off public roads.”

The one sentence convoluted definition of “automobile” clearly expands the scope of the term and leaves no doubt but that the term is given a broader meaning in the policy than is ordinarily accorded it in common usage. The first clause of the sentence enlarges the meaning of automobile to include a land motor vehicle, trailer or semitrailer. The second clause specifically excludes certain vehicular apparatus but tempers the exclusion with an exception. Such clause excludes vehicular apparatus that might qualify as an automobile under the first clause definition by specifically excluding any crawler or farm-type tractor, farm implement or, any equipment, not subject to motor vehicle registration, which is designed for use principally off public roads. However, apparatus specified in the second clause is excepted from the second clause exclusion when it is towed or carried on an automobile. The definition in its entirety is broad enough to include a motorcycle within the term “automobile.” Definitions similar in some respects have been considered in other jurisdictions. For such light as they shed upon the problem here see: Lang v. General Insurance Company of America, 268 Minn. 36, 127 N.W.2d 541 (1964); Beeler v. Pennsylvania Threshermen and Farmers Insurance Company, 48 Tenn.App. 370, 346 S.W.2d 457 (Eastern Section 1960); Smith v. Stewart, 21 A.D.2d 551, 251 N.Y.S.2d 342 (1964).

There is no contention that the Crocker motorcycle was being towed or carried on an automobile at the time of the collision with Jana Lynn Reid. The record supports the trial court’s finding that the motorcycle was a land motor vehicle and the court’s legal conclusion that it was an automobile under the policy definition. The parties tacitly agree that the policy coverage did not extend to the operation and use of an automobile while away from the premises referred to in the policy or ways immediately adjoining. Gulf Insurance Company was not under the record presented contractually bound to defend the Crockers in the suit filed against them by Freda Reid, and the trial court properly so held.

The judgment of the trial court is affirmed.

       Discussed in Williams v. Cimarron Insurance Co., 406 S.W.2d 173 (Tex.1966), but not otherwise available to this court.


author: RAY, Justice.

text:
    Marvin THOMAS, Temporary Administrator of The Estate of Richard Murray Harris, Deceased, et al., Appellants, v. Louise ILIFF, Guardian, et al., Appellees.
    No. 8280.
    Court of Civil Appeals of Texas, Texarkana.
    June 17, 1975.
    Cornelius & Shivers, Jefferson, for appellants.
    Ruben K. Abney, Abney & Baldwin, Marshall, Philip Brin, Longview, Ernest F. Smith, Marshall, for appellees.
   RAY, Justice.

This is a probate proceeding. Appellants (petitioners), Marvin Thomas, Temporary Administrator of the Estate of Richard Murray Harris; and, Penelope Harris Jones, an heir at law of the late Richard Murray Harris, have sought to set aside the order appointing Louise A. Iliff the guardian of Richard Murray Harris and the subsequent sale of some of the Harris land to Thomas L. Whaley. Richard Murray Harris is now deceased. Louis A. Iliff was the mother of Richard Murray Harris and was appointed his guardian. Penelope Harris Jones sought without success to overturn the appointment of the guardian and the sale of the realty, acting in her capacity as Temporary Administratrix of the Harris Estate. Marvin Thomas who subsequently became the Temporary Administrator of the Estate of Richard Murray Harris, deceased, in cause No. 74 — 1275-CP in the Probate Court of Dallas County, Texas, did not participate in the proceedings held in the County Court of Harrison County, though a motion for new trial had been filed in that proceeding by Penelope Harris Jones as Temporary Administratrix of the Harris Estate. The ward has died since the appointment of the guardian, the orders complained of, and the sale thereunder. When the will of Richard Murray Harris was filed for probate in Dallas County, Penelope Harris Jones filed a contest. As the result of that contest, a Temporary Administrator, Marvin Thomas, was appointed with limited powers, and he has sought to make himself an appellant and petitioner herein. The Harrison County Court did not grant Penelope Harris Jones any relief, either individually or as Temporary Adminis-tratrix of the Estate of Richard Murray Harris, deceased, but on the contrary entered its order confirming the sale of the real estate.

Appellants have sought to have this court revise and correct the judgment of the County Court of Harrison County.

Appellants’ points of error suggest that the County Court of Harrison County had no authority to appoint a guardian for Richard Murray Harris; that the sale of the property at private sale was not advantageous to the estate of the ward because fair compensation was not received; and, that the County Court erred in upholding Louise Iliff’s motion to strike Penelope Harris Jones’ motion for new trial.

Appellees questioned the jurisdiction of this court to entertain the petition for writ of error on the basis that the petition failed to name as adverse parties (1) the surety upon the bond of the guardian, United States Fire Insurance Company, and (2) one of the purchasers of the realty from the guardian, Patricia Pope Whaley. Appellants have sought to amend their petition for writ of error to include these two adverse parties, but the application to amend was filed more than six months after the complained of orders and not within the time prescribed by Vernon’s Tex.Rev.Civ. Stat.Ann. art. 2255. “There is no statute or rule authorizing amendment of a petition for writ of error in the Court of Civil Appeals and, accordingly, a legally insufficient petition may not be amended in that court.” Appellate Procedure In Texas, Sec. 5.8, Petition for Writ of Error; Summers v. Silverton Nat. Farm Loan Ass'n, 268 S.W. 223, 225 (Tex.Civ.App., Amarillo 1924, writ dism’d); Weems v. Watson, 91 Tex. 35, 40 S.W. 722, 724 (1897).

Since Patricia Pope Whaley and United States Fire Insurance Company are adversely interested parties who were not named in the petition for writ of error as required by Rule 360, Texas Rules of Civil Procedure, the appellants’ petition for writ of error is not sufficient to invoke the appellate jurisdiction of the Court of Civil Appeals to review the provisions of the complained of orders affecting such parties. Because Patricia Pope Whaley and United States Fire Insurance Company could be adversely affected by any judgment that this court might render, it was therefore mandatory that each be named in the petition for writ of error in order to confer jurisdiction upon this court. Weems v. Watson, supra; Padgitt v. Fort Worth & R. G. Ry. Co., 104 Tex. 249, 136 S.W. 442, 444 (1911). We hold that this court has acquired no jurisdiction under the faulty petition for writ of error and thus appellants’ petition for writ of error must be dismissed.

Appellees contend that the remedy of appeal by writ of error from the County Court to the Court of Civil Appeals in probate matters is not available for revision of judgments of the County Court. We agree. At the time this case was tried, the Legislature had only provided three methods for the review of probate proceedings which are, by appeal to the Courts of Civil Appeals (Sections 5 and 28), by certio-rari to the District Court (Section 30), and by bill of review (Section 31). In this case, appellants sought to have the proceedings of the County Court “revised and corrected.” The remedy for such is by certiorari to the District Court. Cluck v. Hester, Judge, et al. 521 S.W.2d 845 (Tex.1975). Tex.Rev.Civ.Stat.Ann. art. 2249 is not applicable to probate matters, Vail v. Vail, 438 S.W.2d 115 (Tex.Civ.App., Waco 1969, no writ).

Had appellants made application for writ of certiorari, it still would have been necessary for them to have named in the application each party adversely interested, and the failure to do so would have constituted a collateral attack upon the proceedings of the County Court and would not have invoked the jurisdiction of the District Court to entertain the application for writ of certiorari. Rule 344, Tex.R.Civ.P.; Moore v. McInnis, 295 S.W.2d 707 (Tex.Civ.App., Eastland 1956, writ ref’d n. r. e.).

Appellants’ petition for writ of error is dismissed.

CORNELIUS, J., not participating.


author: GUITTARD, Justice.

text:
    James H. COKER, Appellant, v. The TEXAS ALCOHOLIC BEVERAGE COMMISSION et al., Appellees.
    No. 18548.
    Court of Civil Appeals of Texas, Dallas.
    May 1, 1975.
    Rehearing Denied May 22, 1975.

      David C. Musslewhite, Moore, Peterson, Bauer, Williams & Musslewhite, Dallas, for appellant.
    Henry Wade, Dist. Atty. of Dallas County, John H. Hagler, Asst. Dist. Atty., John L. Hill, Atty. Gen., Mark Perlmutter, Asst. Atty. Gen., Dallas, for appellees.
   GUITTARD, Justice.

This appeal requires construction of constitutional and statutory provisions governing local-option elections to prohibit or legalize sale of alcoholic beverages.

The Texas Alcoholic Beverage Commission denied James H. Coker a permit for sale of mixed beverages on the ground that he failed to attach to his application certificates by the county clerk and city secretary stating that the premises specified in the application were located in an area where sale of alcoholic beverages was permitted. These certificates could not be obtained because the local officials mentioned took the position that sale of alcoholic beverages was not permitted in the area. The trial court sustained the Commission’s order, and the applicant appeals. We affirm on the ground that the local officials were correct.

More specifically, we hold (1) that a justice precinct which became dry because of a vote to prohibit the sale of alcoholic beverages at a precinct election remains dry notwithstanding a subsequent county-wide vote to legalize sale of alcoholic beverages in the county; (2) that a dry vote at a county-wide local-option election does not nullify an earlier dry vote in a justice precinct; (3) that the area in question remained dry, although detached from the dry precinct and added to a wet precinct which thereafter voted in favor of legalizing the sale of mixed beverages at a special election under the 1970 constitutional amendment; and (4) that the applicant is not denied equal protection of the law by any difficulty of establishing the exact boundaries of the precinct that originally voted dry because the boundaries may be determined administratively by the Commissioners Court.

1. The 1935 Election

We consider first the effect of the county-wide vote in 1935 to legalize the sale of alcoholic beverages.

The facts are stipulated. Before 1967, the premises in question were located in Justice Precinct Two of Dallas County. That precinct had voted to prohibit the sale of alcoholic beverages in local-option elections held in 1877, 1882 and 1894. Statewide prohibition was adopted by constitutional amendment in 1919, and was repealed by constitutional amendment in 1935. The 1935 amendment directed the Legislature to enact laws “whereby the qualified voters of any county, justice’s precinct or incorporated town or city, may, by a majority of those voting, determine from time to time whether the sale of intoxicating liquors for beverage purposes shall be prohibited or legalized within the prescribed limits . . . .” Vernon’s Ann.St.Tex.Const. art. XVI, § 20(b) (emphasis added).

In accordance with the 1935 amendment, the Legislature in 1935 enacted the Texas Liquor Control Act. Under that Act a county-wide local-option election was held in December 1935, and a majority voted to legalize the sale of alcoholic beverages. No other local-option election at the precinct level has been held in Precinct Two or in Precinct One, to which the area in question was annexed by order of the commissioners’ court in 1967.

The applicant contends that the area in question is wet because of the wet vote in the 1935 county-wide local-option election. He argues that since the 1935 amendment to the constitution authorizes counties, justice precincts, and cities to “determine from time to time whether the sale of intoxicating liquors for beverage purposes shall be prohibited or legalized,” the county is on an “equal footing” with the precinct. Consequently, he says, a county-wide vote to prohibit sale of intoxicating beverages supersedes any previous vote to legalize, and, likewise, a county-wide vote to legalize supersedes any previous precinct vote to prohibit. He concedes, however, that this “equal-footing” principle would permit the precinct to make a contrary determination at a contemporaneous or subsequent election. Thus, according to the applicant’s theory, the status of any precinct may be changed from dry to wet and back to dry again, and so on indefinitely, by successive votes in the precinct and in the county, although the county may consistently vote wet and the precinct may consistently vote dry, or vice versa.

The applicant insists that this result follows from inclusion of the words “or legalize" in the 1935 constitutional amendment. Before 1919, the constitution of 1876 permitted counties, precincts and cities to vote by local option to “prohibit” the sale of alcoholic beverages and granted no authority to any of these subdivisions to “legalize.” Tex.Const. art. XVI, § 20 (1876). Under that constitution the rule was that if the county voted to prohibit, that vote was effective in “every foot” of the county, and that no precinct could thereafter vote to legalize. Griffin v. Tucker, 102 Tex. 420, 118 S.W. 635, 639 (1909); Ex parte Fields, 39 Tex.Cr.R. 50, 46 S.W. 1127, 1128 (1898). Applicant bases his argument in part on these decisions. He reasons that if under the 1876 constitution a vote to prohibit was effective in every part of the county, regardless of any prior or subsequent vote in the precinct, it must follow that under the 1935 amendment, which authorizes each subdivision to legalize as well as prohibit, a county-wide vote to legalize is likewise effective in every part of the county, regardless of any prior vote in the precinct.

We cannot accept this argument because we find nothing in either the 1935 amendment, or in the statutes enacted pursuant to that amendment, permitting the will of the voters in a precinct concerning the sale of alcoholic beverages in that precinct to be overridden by a vote of the county as a whole. The crucial question is whether the applicable constitutional and statutory provisions put counties and justice precincts on an “equal footing,” as the applicant contends, or whether they give priority to the vote of the smaller subdivision. We conclude that they give priority to the smaller subdivision, and, accordingly, that they continue the pre-1919 rule, followed in such cases as Ex parte Pollard, 51 Tex.Cr.R. 488, 103 S.W. 878 (1907) that a political subdivision which has once voted dry remains so until sale of alcoholic beverages is legalized by a wet vote in the same subdivision.

We base this conclusion on subsection (c) of the 1935 amendment, which provides:

In all counties, justice’s precincts or incorporated towns or cities wherein the sale of intoxicating liquors had been prohibited by local option elections held under the laws of the State of Texas and in force at the time of the taking effect of Section 20, Article XVI of the Constitution of Texas, it shall continue to be unlawful to manufacture, sell, barter or exchange in any such county, justice’s precinct or incorporated town or city, any spirituous, vinous or malt liquors or medicated bitters capable of producing intoxication or any other intoxicants whatsoever, for beverage purposes, unless and until a majority of the qualified voters in such county or political subdivision thereof voting in an election held for such purpose shall determine such to be lawful . . [Emphasis added.]

The word “such,” as used twice in this subsection, refers back to the preceding language, “counties, justice’s precincts or incorporated towns or cities wherein the sale of intoxicating liquors had been prohibited by local option elections,” and identifies the particular political subdivision that has previously voted dry. A majority of the voters in “such” subdivision must vote to legalize in order to make the subdivision wet. The words “such county or political subdivision thereof” cannot reasonably be interpreted as referring to the county if the precinct has previously voted dry.

The same intention is evidenced by the Texas Liquor Control Act, enacted in November 1935 by the same Legislature which drafted the 1935 amendment and submitted it to the voters of the state. Section 23 of this Act, provides in part as follows:

As to any particular type of liquor, each county, justice precinct, incorporated city or town within this State shall be deemed to be a ‘dry area’ unless such county, justice precinct, city or town, was a ‘wet area’ at the time Section 20 of Article XVI of the Constitution became effective and has not since said time changed its status, or unless the sale of that particular type of liquor has been legalized by local option election in such county, justice precinct, city or town, since said time. [Emphasis added.]

Again, the word “such” refers back to and identifies the particular subdivision which has previously voted dry, and the statute provides that it shall be deemed dry until legalized by local-option election in “such” subdivision.

This construction is consistent with the only cases directly in point decided under the 1935 amendment. Jackson v. State, 135 Tex.Cr.R. 140, 118 S.W.2d 313, 315 (1938), and Powell v. Smith, 90 S.W.2d 942, 944 (Tex.Civ.App.—Fort Worth 1936, no writ) both involved county-wide votes to legalize sale of alcoholic beverages at elections held under the 1935 amendment. Both held that after a precinct has once voted dry it can be made wet only by vote of the same area, regardless of the fact that it may be included in a larger area that votes wet.

Our construction of the amendment is consistent also with Houchins v. Plainos, 130 Tex. 413, 110 S.W.2d 549, 553 (1937) in which a dry municipality had been annexed by a larger wet municipality, and the Supreme Court held that before 1919 the annexed area “remained dry until it was voted wet and a subsequent election held in and for the same identical area which had theretofore voted dry,” and said that this same rule applied under the 1935 amendment.

The applicant contends that these decisions are erroneous and should not control here because all were based on pre-1935 authorities, and none considered the effect of the words “or legalized” as used in the 1935 amendment. He insists that they have been overruled by the decision of the Supreme Court in Myers v. Martinez, 160 Tex. 102, 326 S.W.2d 171 (1959), which, he says, considers the effect of the 1935 amendment and holds that under that amendment counties and precincts are on “equal footing.”

We do not agree that Myers overruled Jackson and Powell. Myers did not deal with the contention now advanced by the applicant that a county-wide wet vote nullifies a previous dry vote in the precinct. Although Myers may be interpreted as rejecting certain dicta in the Jackson and Powell opinions to the effect that a wet precinct cannot exist in a dry county, Myers did not hold that a dry precinct may be made wet by a county-wide vote to legalize, since that question was not before the court.

Moreover, the Myers decision does not support the applicant’s argument that counties and precincts are on “equal footing” under the 1935 amendment. The language concerning “equal footing” is found in the opinion of the court of civil appeals. Myers v. Martinez, 320 S.W.2d 862, 866 (Tex.Civ.App.—San Antonio), writ ref’d n. r. e. per curiam, 160 Tex. 102, 326 S.W.2d 171 (1959). The Supreme Court, however, expressly declined to approve this part of the opinion and pointed out that this language implied that the Legislature was without power under the 1935 amendment to enact a law prohibiting wet precincts and cities in dry counties. The Supreme Court observed that it was unnecessary to decide whether such a statute would be unconstitutional. Accordingly, the court limited its approval to that part of the opinion of the court of civil appeals which held that the 1935 amendment authorized the Legislature to permit wet precincts in dry counties. Myers v. Martinez, 160 Tex. 102, 326 S.W.2d 171, 172 (1959).

As we understand both Myers and Warren v. Moore, 337 S.W.2d 395, 397 (Tex.Civ.App.—Amarillo 1960, writ dism’d), which the applicant also cites in support of his “equal-footing” argument, they interpret the 1935 amendment as providing more local self-determination rather than less than was allowed before 1919. Under pre-1919 decisions, such as Griffin v. Tucker, 102 Tex. 420, 118 S.W. 635, 639 (1909) and Ex parte Fields, 39 Tex.Cr.R. 50, 46 S.W. 1127, 1128 (1898), a dry precinct could exist in a wet county but not a wet precinct in a dry county. Thus counties and precincts were on “equal footing” with respect to voting to prohibit, but not with respect to voting to legalize. Under the 1935 amendment, as interpreted in Myers and Warren, a wet precinct may also exist in a dry county because that amendment authorizes precincts to “legalize” as well as to “prohibit.” We do not interpret the 1935 amendment as putting counties and precincts on an “equal footing” with respect to both legalizing and prohibiting. We conclude, rather, for the reasons above stated, that subsection (c) of the amendment abolished any “equal footing” previously existing and gave priority to the vote of the precinct over the vote of the county as a whole, with respect to both prohibition and legalization.

Moreover, the Legislature itself has construed the 1935 amendment as requiring, or at least permitting, such priority. The 1973 amendment to § 32 of the Texas Liquor Control Act expressly adopts the principle that the vote of the smaller subdivision prevails over a contrary vote in the larger subdivision:

Any authorized voting unit, that is, any county, justice precinct, or incorporated city or town which has at any time heretofore exercised or may at any time hereafter exercise the right of local option, shall retain the status adopted, whether absolute prohibition or legalization of the sale of alcoholic beverages of one or more of the various types and alcoholic contents on which an issue may be submitted under the terms of Section 40 of Article I, until that status is changed by a subsequent local option election in the same authorized voting unit; provided, however, that consistent with the purpose of the local option provisions of the Texas Liquor Control Act and in order to insure that each voter shall have the maximum possible control over the status of the sale of alcoholic beverages in the area of his residence, it is specifically provided that the status which resulted from or is the result of a duly called election for an incorporated city or town shall prevail as against the status which resulted from or is the result of a duly called election in a justice precinct or county in which such incorporated city or town, or any part thereof, is contained; and provided, further, that the status which resulted from or is the result of a duly called election for a justice precinct shall prevail as against the status which resulted from or is the result of a duly called election in an incorporated city or town in which such justice precinct is wholly contained or in a county in which such justice precinct is located. [Emphasis added.]

We do not suggest that this 1973 statute operates retroactively to determine the effect of the county-wide election in 1935. We cite it only as showing a legislative interpretation of the 1935 amendment contrary to the applicant’s “equal-footing” contention.

The applicant recognizes this problem and argues that the 1973 statute is unconstitutional under the 1935 amendment. We agree that the statute would be unconstitutional if the applicant were correct in his contention that the “equal-footing” principle is required by the 1935 amendment. However, for reasons already stated, we do not so construe the 1935 amendment. We conclude, rather, that the 1973 statute declared the law as it existed since adoption of the 1935 amendment. Consequently, we hold that the vote in favor of legalization of the sale of alcoholic beverages in the county-wide local-option election of 1935 was not effective to legalize such sales in precincts, such as Precinct Two, which had previously voted dry and had never subsequently voted wet.

2. The 1917 Election

The applicant contends also that the pre-1900 precinct elections were nullified by a county-wide local-option election in 1917, in which the majority voted to prohibit the sale of alcoholic beverages. The effect of the 1917 election also turns on interpretation of the 1935 amendment. Subsection (c) provides theft sale of intoxicating liquors shall continue to be prohibited “in all counties, justice’s precincts or incorporated towns or cities wherein the sale of intoxicating liquors had been prohibited by local option elections held under the laws of the State of Texas and in force at the time of taking effect of Section 20, Article XVI of the Constitution of Texas.” The section of the constitution referred to is apparently the prohibition amendment of 1919. The applicant argues that the local-option elections of 1877, 1882 and 1894, were no longer “in force” in Precinct Two after the countywide election of 1917 and, consequently, the only local option “in force” in the precinct was that resulting from the county-wide 1917 election, which was superseded by the county-wide wet vote at the 1935 election.

In support of this contention, the applicant cites Garrett v. State, 61 Tex.Cr.R. 254, 134 S.W. 696, 698 (1911) and Raby v. State, 42 Tex.Cr.R. 56, 57 S.W. 651 (1900). These cases do not control the present problem. Garrett held that a dry vote in the precinct does not prevent a local-option election in the county within two years after a precinct election. The court goes on to say that “when the whole county adopts local option, it supersedes and does away, at least for the length of time that the county continues the law in force, the previous adoption thereof by one or more of the several precincts.” In Raby, a conviction for violating the precinct local-option law was reversed because the entire county had voted dry, and the court said that countywide local option “absorbs precincts of the county where local option formerly existed so that an offense occurring in the precinct territory is no longer an offense against the precinct law, that having been obliterated, but is an offense against the county local option law, which alone exists in the territory.”

Neither of these opinions indicates that the court considered whether the precinct local-option law would be destroyed if the county subsequently voted to repeal its local-option law, except that the Garrett court was careful to limit its decision by stating that county local option superseded precinct local option “at least for the length of time the county continues the law in force.” On the other hand, the only authority on the point is clearly against the applicant’s position. Powell v. Smith, 90 S.W.2d 942, 944 (Tex.Civ.App.—Fort Worth 1936, no writ), held that a pre-1919 county-wide dry vote did not nullify a previous dry vote in the precinct, and, consequently, that the precinct remained dry, regardless of a county-wide vote to legalize at an election held under the 1935 amendment. Thus, according to this decision, after a precinct has voted dry at a local-option election, its status cannot be affected by a subsequent county-wide election, whether the county as a whole votes wet or dry. This holding is based on the principle, announced in various cases cited in the Powell opinion, that once an area votes dry it remains dry until the same area votes wet. Since we hold, for reasons already stated, that the same rule applies under the 1935 amendment, we also hold that the 1917 election did not for this purpose nullify the previous dry votes in Precinct Two.

3. The 1971 Election

The applicant further contends that even if Precinct Two did not become wet by reason of the county-wide election of 1935, the area in question had been incorporated into Precinct One in 1967, and that it became wet as a result of a special mixed-beverage election in Precinct One in 1971.

This contention is directly contrary to the statute which authorized the mixed-beverage election. Sale of mixed beverages was authorized by the 1970 amendment to article XVI, § 20 of the constitution. Following this amendment, the Legislature enacted Tex.Laws 1971, ch. 65, § 27, at 700, which provided for a special election on May 18, 1971, concerning sale of mixed beverages “in each area now wet for alcoholic beverages.”

Pursuant to this statute, a mixed-beverage election was held in Precinct One, and the votes were tabulated separately in that part of the precinct which was considered wet and in that part of the precinct, including the area in question, which was considered dry. The vote in each part of the precinct favored sale of mixed beverages.

Applicant argues that the expression “area now wet for alcoholic beverages” refers only to an existing political subdivision, such as a county, precinct, or incorporated city, and, consequently, that all of Precinct One was an “area now wet” for the purpose of this statute. He insists that the vote approving the sale of mixed beverages in the precinct made the entire precinct wet for all purposes.

This interpretation cannot be adopted in view of the express language of the 1971 statute. Use of the word “area” rather than “political subdivision” indicates recognition of cases like Houchins v. Plainos, 130 Tex. 413, 110 S.W.2d 549, 553 (1937) and Ex parte Fields, 86 S.W. 1022, 1023 (Tex.Cr.App.1905), holding that an existing political subdivision may be partly wet and partly dry as a result of changes in precinct or municipal boundaries. Accordingly, the 1971 statute adds:

If the result of said election is to legalize the sale of mixed beverages, such legalization shall be effective only in the area or areas now wet and shall not affect any area presently dry

No more explicit language could have been chosen to express the intention that the special election concerning mixed beverages should have no effect in any dry territory. We need not pass on the question of whether such a special election could be held in only the wet part of a precinct that was partly wet and partly dry, since that question is not presented in this case.

4. The Precinct Boundaries

Alternatively, the applicant contends that if article XVI, § 20 of the Texas Constitution and the Texas Liquor Control Act are construed to mean that the area in question must remain dry until the voters in the identical area that voted dry in 1877, 1882 and 1894, vote wet, then those constitutional and statutory provisions deny equal protection of the law because a local-option election cannot now be held within the exact territorial boundaries of Justice Precinct Two as they existed on the date of those elections. He relies on evidence showing that the former precinct boundaries cannot now be ascertained because of references to roads which have ceased to exist and cannot now be located. The practical result, he says, is that no election can be held in such territories, and their status will be permanently fixed as dry. This result, he insists, will deny residents of the area equal protection of the law under the Fourteenth Amendment of the Constitution of the United States, because the laws as so construed would not operate equally and uniformly with respect to all persons in similar circumstances.

In reply, the Commission contends that under article 666-32, as amended in 1973, the election may not be held in the identical territory, but only in the “same authorized voting unit.” The Commission interprets this term to mean that if the original dry vote was in a justice precinct, then a vote to legalize in the precinct which currently includes the area in question may vote to legalize, even though it may be a different precinct from the one that originally voted dry. Accordingly, the Commission insists that applicant’s remedy is to petition for a local-option election in Precinct One, although it is already partly wet.

We need not decide whether the Commission’s contention is correct, or whether the vote to legalize must take place in the identical area that originally voted dry. Cf. Houchins v. Plainos, 130 Tex. 413, 110 S.W.2d 549, 553 (1937). To dispose of the present case, we need only determine whether the applicant and the residents of former Precinct Two are denied equal protection of the laws because the exact boundaries of the old precinct cannot be determined. We hold that they are not denied equal protection. Assuming, without deciding, that applicant’s remedy is to petition the commissioners’ court for an election on the issue of legalizing sale of intoxicating beverages in former Precinct Two, we hold that this remedy would not be defeated by the difficulty of establishing the exact boundaries. In this respect, technicality must yield to practicality, especially in view of the constitutional question raised. Under article 666-32, the commissioners’ court has responsibility to call the election, and we see no reason why it could not protect all interested persons by drawing a line approximating the original boundaries. Its determination of the boundaries would not be exercised under its general power to fix precinct boundaries, but would be an administrative determination incidental to its power to order an election, and would control unless clearly erroneous or arbitrary.

Neither does any difference in the boundaries of Precinct Two at the time of the local-option elections in 1877, 1882 and 1894 present an insurmountable obstacle to an election in the area that originally voted dry. The evidence indicates that the area of Precinct Two was reduced after the elections in 1877 and 1882 and before the election of 1894. If an election is sought in the area that originally voted dry, the change of precinct boundaries before 1894 would not affect the matter, and neither would the election in the smaller area in 1894, since that election also favored prohibition. The residents of the area that originally voted dry in 1877 are not denied equal protection of the law because the boundaries of that area may be determined administratively by the commissioners’ court.

On motions for rehearing, our original opinion is withdrawn, and the above opinion is substituted. All motions for rehearing are overruled, and the judgment of the trial court is affirmed.

      . Tex.Laws, 2d Spec.Sess.1935, ch. 467 at 1795, now codified as Tex.Penal Code Auxiliary Laws, arts. 666-1 to 666-60 (Vernon’s Ann. 1974).

      . The contrary result had been reached in Whisenhunt v. State, 18 Tex.Ct.App. 491 (1885) and Woodlief v. State, 21 Tex.Ct.App. 412, 2 S.W. 812 (1886). The cases cited in the text appear to be based in part on Tex.Rev.Civ.Stat. art. 3395 (1895) which expressly provided that a wet precinct could not exist in a dry county. The statute was repealed by adoption of state-wide prohibítion in 1919, or in any event, by omission from the Revised Civil Statutes of 1925. Myers v. Martinez, 320 S.W.2d 862, 864 (Tex.Civ.App.—San Antonio), writ ref d n. r. e. per curiam, 160 Tex. 102, 326 S.W.2d 171 (1959).

      . TexAaws, 2nd Spec.Sess.1935, ch. 467, at 1795, now codified as Tex.Penal Auxiliary Laws Annotated, art. 666-23 (Vernon 1974).

      . The Attorney General seems to have adopted a similar view in Tex. Att’y Gen. Op. Co. C-681 (1966). Cf. Patton v. Texas Liquor Control Board, 293 S.W.2d 99 (Tex.Civ.App.—Austin 1956, writ ref’d n. r. e.)

      . We do not pass on the question of whether a change in precinct boundaries as between two precincts with the same local-option status is effective for the purpose of subsequent local-option elections.


text:
    Gus PREISSMAN et al., Appellants, v. CONTINENTAL-BANK OF TEXAS, Appellee.
    No. 15400.
    Court of Civil Appeals of Texas, San Antonio.
    April 23, 1975.
    Rehearing Denied June 4, 1975.
    Second Rehearing Denied June 30, 1975.

      John Oliver, James R. Warncke, Collins B. Cook, San Antonio, for appellants.
    Butler, Binion, Rice, Cook & Knapp, Eugene A. Cook, Nancy B. Hogan, Houston, for appellee.
   BARROW, Chief Justice.

This is a venue action. Appellants, Gus Preissman, Thelma Preissman, Ben Katz (also known as Ben Carter) John Oliver and James Warncke, have perfected their appeal from an order entered after a non-jury hearing sustaining the plea of privilege of appellee and transferring the suit against it to Harris County. Appellants urge that venue is sustainable in Bexar County against appellee under Subdivisions 12, 29a, 23 and 14 of Article 1995, Vernon’s Tex. Rev.Civ.Stat.Ann. (1964).

Appellants filed this suit in Bexar County complaining of Salado Creek Development Company (Salado Company), Moses Muzquiz (Muzquiz), W. G. Horne, III (Horne) and appellee (Bank). All are nonresidents of Bexar County, but only Bank filed a plea of privilege. Several causes of action are asserted by appellants: to recover on a promissory note in the principal sum of $1,044,875 executed by Horne which was assumed by Salado Company and Muzquiz; to foreclose the lien securing this note; to set aside a subordination agreement entered into by appellants with Horne which makes the Bank’s lien on the property the superior lien; and to recover damages from Horne and Muzquiz for false and fraudulent representations in connection with the execution of the subordination agreement.

The facts surrounding this controversy are largely undisputed at this point. On December 21, 1973, appellants, except Oliver and Warncke, sold approximately 96 acres of land in Bexar County to Horne. Horne signed a note to appellants, without personal liability to himself, for the sum of $1,044,875, which was secured by a vendor’s lien and a deed of trust. On December 26, 1973, this note was cosigned by Salado Company and Muzquiz with personal liability. On December 26, 1973, Horne conveyed the land to Salado Company and the latter executed a note in the principal sum of $1,500,-000 secured by a vendor’s lien and deed of trust. At this time all appellants executed a subordination agreement whereby the lien and deed of trust securing the Salado Company note to Horne was expressly granted priority over appellants’ lien and deed of trust. On January 4,1974, Horne borrowed $1,500,000 from Bank and secured same with the lien and deed of trust which had been given priority under the subordination agreement.

The note of December 21, 1973, which is owned by appellants is now in default, and they seek foreclosure of the lien securing same. The note held by the Bank is not in default at the present time and no relief is sought on it. Mr. Warncke testified that the subordination agreement was signed by appellants because Muzquiz represented that he was worth some $8,000,000, and that the loan from the Bank was to be used to improve and enhance the property. He said that Muzquiz’s financial statement was false by some $3,800,000, and that the property has not been developed as promised. Appellants do not contend that the Bank made any false representation whatsoever or is guilty of any fraud. Nevertheless, it is urged that the subordination agreement should be cancelled because it was induced by the fraud of Horne and Muzquiz and appellants’ lien given first priority.

Subdivision 12

Under this exception, a suit to foreclose liens upon real or personal property may be brought in the county where the property is located. The venue facts are: (I) the nature of the action, determined from the petition, and (II) the location of the property or a part thereof, in the county at the time of institution of the suit. 1 McDonald, Tex.Civ.Prac., Section 4.20 (1965). Here the real estate is located in Bexar County, and appellants seek to foreclose a lien on the land. Nevertheless, they do not allege a cause of action for foreclosure against Bank. Bank is not a party to the lien that appellants seek to foreclose, and the appellants can obtain the relief to which they are entitled under their lien without the presence of the Bank. Appellants’ right to foreclosure is independent of Bank’s lien which is not in default. In this situation, venue may not be sustained against the Bank in Bexar County under Subdivision 12. Shaw v. Allied Finance Company, 337 S.W.2d 107 (Tex.1960); Harwood v. Hunt, 473 S.W.2d 287 (Tex.Civ.App.—Beaumont 1971, no writ); Weaver v. Acme Finance Company, 407 S.W.2d 227 (Tex.Civ.App.—Corpus Christi 1966, no writ); Stephenville Production Credit Ass’n v. Drake, 226 S.W.2d 888 (Tex.Civ.App.—Eastland 1950, no writ).

Subdivision 29a

Appellants urge that venue may be sustained against the Bank in Bexar County under Subdivision 29a in that Bank is a necessary party to the suit against the other defendants for foreclosure and to set aside the subordination agreement. The venue facts are: (I) plaintiff must establish the propriety of venue as to some defendant under some exception to the general venue rule and (II) that the defendant urging his plea of privilege is a necessary party upon the cause of action as to which venue against the co-defendant has been established. 1 McDonald, Tex.Civ.Prac., Section 4.36 (1965). Appellants have established that venue would lie in Bexar County against defendants Horne and Muzquiz under Exception 5 in that the note upon which appellants seek foreclosure is payable in Bexar County. Therefore, the critical question is whether Bank is a necessary party to this cause of action.

In Shaw v. Allied Finance Company, supra, it was held that the only proper parties to a suit to foreclose a mortgage are the mortgagor and the mortgagee, and those who have acquired any interest from them subsequently to the mortgage. It necessarily follows that those who are not proper parties cannot be necessary parties under Subdivision 29a. It is only in cases where A, the mortgagor, has conveyed to D, or executed a junior mortgage to D that C, as first mortgagee, can join D as a necessary party to a foreclosure suit under Subdivision 29a in order to secure a decree making fully effective his contract rights under his chattel mortgage.

Nor is Bank a necessary party to appellants’ claim that the subordination agreement was procured through fraud of Horne and Muzquiz. There is no contention that the Bank committed any fraud or even had any part in the execution of the subordination agreement. A somewhat similar question was presented in Stephenville Production Credit Ass’n. v. Drake, supra, where the priority of liens was in issue. The court held there that the superior lienholder was not a necessary party to the suit. In doing so the court said: “It is also well settled that one ‘merely claiming some interest in mortgaged property, upon which foreclosure is sought’ is not a necessary party under Subdivision 29a . . . . The interest or lien alleged and proved must be such that the mortgagee seeking foreclosure could not obtain the relief to which he is entitled under his mortgage without the presence of the claimant of such interest or lien as a party to the suit.” This rule was cited with approval by the Supreme Court in Shaw v. Allied Finance Company, supra.

Appellants’ lien is inferior to the Bank’s lien. Therefore, under the above authorities, Bank is not a necessary party within the meaning of Subdivision 29a, and venue may not be sustained in Bexar County under this exception.

Subdivision 23

Appellants urge that venue against the Bank is sustainable in Bexar County under Subdivision 23, in that Bank is a private corporation and a part of the cause of action maintainable against it arose in Bexar County. Under this exception, appellants must show by a preponderance of the evidence all elements of a cause of action against Bank and that part of the transaction creating the right, or part of the transaction involving the breach, or both, occurred in Bexar County. 1 McDonald, Tex.Civ.Prac., Section 4.30.2 (1965). Specifically, appellants urge that the fraud occurred in Bexar County and the lien asserted by appellants was created in Bexar County. This is true as to all defendants except Bank. There are no pleadings or even any contention that the Bank committed any fraud in Bexar County. The un-contradicted evidence is that all transactions involving the Bank occurred in Harris County. Subdivision 23 has no application here.

Subdivision 14

Finally, it is urged that venue may be sustained in Bexar County against the Bank under Subdivision 14. It is settled that a suit to establish that the rights of the defendant are subject to a lien asserted by the plaintiffs and a suit to obtain a foreclosure of said lien is not governed by Subdivision 14. Bennett v. Langdeau, 362 S.W.2d 952 (Tex.1962). This exception to the venue statute has no application here.

We have considered and overruled all of appellants’ assignments of error. We, therefore, conclude that the court did not err in sustaining Bank’s plea of privilege to be sued in the county of its residence.

The judgment is affirmed.