author: GODDARD, Judge.

text:
    MOBILE HOME CITY OF CHATTANOOGA et al., Appellants, v. HAMILTON COUNTY, Tennessee, Appellee.
    Court of Appeals of Tennessee, Eastern Section.
    Oct. 22, 1976.
    Certiorari Denied by Supreme Court Feb. 7, 1977.
    Certiorari Denied by United States Supreme Court June 13, 1977.
    J. Troy Wolfe, Jr., Herbert A. Thornbury, Chattanooga, for appellants.
    James F. Turner, Michael J. Mahn, Chattanooga, for appellee.
   OPINION

GODDARD, Judge.

Mobile Home City of Chattanooga, Inc. and others, most of whom are mobile home dealers, Plaintiffs-Appellants, filed a suit for declaratory judgment in the Chancery Court for Hamilton County against Hamilton County, Defendant-Appellee. Plaintiffs contend that a recently adopted resolution amending the zoning regulations of Hamilton County violated the provisions of both the Federal and State Constitutions. The Chancellor found the ordinance constitutionally permissible and entered an order dismissing the complaint, from which the Plaintiffs have duly perfected their appeal.

The amendment in question establishes single-unit mobile home districts, prescribes their minimum size, as well as the minimum frontage and area for building sites within the district. The Plaintiffs’ principal objection is directed to that provision which provides that such districts shall not be smaller than five acres.

In this regard, it is the Plaintiffs’ main position, as we understand it, that the ordinance bears no relation to the health, morals or safety of the community, and because it was adopted purely for esthetic purposes, may not be sustained. In City of Norris v. Bradford, 204 Tenn. 319, 321 S.W.2d 543 (1958), the Supreme Court dealt with an ordinance which prohibited fences along the front line of property, although permitting them, if their height did not exceed six feet, along the sides and rear lot lines. In striking down the ordinance as unconstitutional, the Supreme Court said (204 Tenn. at 325; 321 S.W.2d at 546):

The police power inherent in the sovereign is born of necessity for the protection and advancement of the public safety, health, morals and natural well being of its people. If a given exercise of such power in forbidding a natural use of one’s realty fails to accomplish that result, then the proposed exercise thereof is of no validity. Under practically all the authorities there falls within this invalid class those provisions of a zoning ordinance which accomplishes a result which is solely esthetic.

Conversely, when a zoning ordinance bears a reasonable relation to the public health, safety or morals, it must be sustained as a valid exercise of police power. Davidson County v. Rogers, 184 Tenn. 327, 331, 198 S.W.2d 812, 814 (1947), discusses the question at some length, as well as defines the meaning of the word “reasonable” as used in this context:

The defendants recognize that the exercise of the police power in furtherance of zoning restrictions has been validated repeatedly by former decisions of this Court, and they do not assail the Act of 1939, nor the general resolution passed in 1940. But they insist that the Resolution of April 1945 was arbitrary, unreasonable and unconstitutional.
Before considering the defendants’ contentions, the very limited scope of judicial review must be kept in mind lest this Court in error, substitute its judgment for that of the Legislature. “It is said that the courts have the right to determine whether such law is reasonable. By this expression, however, it is not meant that they have power to pass upon the act with a view to determining whether it was dictated by a wise or a foolish policy, or whether it will ultimately redound to the public good, or whether it is contrary to natural justice and equity. These are considerations solely for the Legislature. In determining whether such act is reasonable the courts decide merely whether it has any real tendency to carry into effect the purposes designed — that is, the protection of the public safety, the public health, or the public morals — and whether that is really the end had in view, and whether the interests of the public generally, as distinguished from those of a particular class, require such interference, and whether the act in question violates any provision of the state or federal Constitution.” Motlow v. State, 125 Tenn. 547, 589, 590, 145 S.W. 177, 188, L.R.A. 1916F, 177.
We have said that when a Quarterly County Court is acting in its legislative capacity in matters political and municipal in character, that there will be no judicial review unless the action is clearly unconstitutional. Donnelly v. Fritts, 159 Tenn. 605, 609, 21 S.W.2d 619; Gamble v. Paine, 141 Tenn. 548, 551, 552, 213 S.W. 419; County Court of Obion v. Marr, 27 Tenn. 634; Carey v. Justices of Campbell County, 37 Tenn. 515.
We may not say that such legislative action is “unreasonable” when it is taken in pursuance of a specific enabling Act, as here. Rutherford v. City of Nashville, 168 Tenn. 499, 508, 79 S.W.2d 581. That the passage of a zoning regulation such as the one before us, is a valid exercise of the police power, has long been settled in this State. Spencer-Sturla Co. v. City of Memphis, 155 Tenn. 70, 290 S.W. 608.
In the case of Village of Euclid et al., v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 118, 71 L.Ed. 303, 311, 54 A.L.R. 1016, which established the same rule for the United States, it was said:
“If the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment must be allowed to control. Radice v. People of State of New York, 264 U.S. 292, 294, 44 S.Ct. 325, 68 L.Ed. 690 [694].”
“One who assails classification made in a police measure must carry the burden of showing that it does not rest upon any reasonable basis, but that such classification is essentially arbitrary. Thomas v. State, 136 Tenn. 47, 188 S.W. 617; City of Memphis v. State ex rel. [Ryals], 133 Tenn. 83, 179 S.W. 631, L.R.A. 1916B, 1151, Ann.Cas. 1917C, 1056; Motlow v. State, 125 Tenn. 547, 145 S.W. 177, L.R.A. 1916F, 177.
“If any possible reason can be conceived to justify such classification, it will be upheld and deemed reasonable. Peters v. O’Brien, 152 Tenn. 466, 278 S.W. 660; Hunter v. Conner, 152 Tenn. 258, 277 S.W. 71; Caldwell & Co. v. Lea, 152 Tenn. 48, 272 S.W. 715; Bank of Commerce & Trust Co. v. Senter, 149 Tenn. 569, 260 S.W. 144; Ogilvie v. Hailey, 141 Tenn. 392, 210 S.W. 645.” Darnell v. Shapard, 156 Tenn. 544, 553, 3 S.W.2d 661, 663. (Italics ours.)
If the reasonableness of the legislative classification be “fairly debatable,” it must be upheld. Foster v. Mayor of City of Beverly, 315 Mass. 567, 53 N.E.2d 693, 151 A.L.R. 737; Simon v. Town of Needham, 311 Mass. 560, 42 N.E.2d 516, 141 A.L.R. 688.
Neither the “motives” of the County Court (Soukup v. Sell, 171 Tenn. 437, 441, 104 S.W.2d 830; Madison v. City of Maryville, 173 Tenn. 489, 493, 121 S.W.2d 540), nor the methods (Leonard v. Haynes, 82 Tenn. 447; Donnelly v. Fritts, 159 Tenn. 605, 21 S.W.2d 619) are subject to our review.

Henry v. White, 194 Tenn. 192, 250 S.W.2d 70 (1952) and Meador v. City of Nashville, 188 Tenn. 441, 220 S.W.2d 876 (1949) are also in accord.

While it does not appear that an appellate court in this state has dealt with the precise question, the question has been considered in other states. The appellate courts of New York and Minnesota, in criminal cases involving statutes requiring trailers to be placed only in trailer parks, repelled a constitutional attack and found the statutes bore a reasonable relationship to the public good:

In view of sewage, water supply, waste disposal and other problems connected with the maintenance of trailers, permitting them in trailer parks where these public services can be strictly supervised indeed bears a relationship to the public health and welfare.

People v. Clute, 47 Misc.2d 1005, 263 N.Y.S.2d 826, 830 (1965).

Other jurisdictions which have dealt with this question have generally upheld zoning ordinances banning trailer homes from some districts if another area within the municipality is zoned as a trailer park. In other words, while- trailer homes cannot be completely banned from a municipality, they may be restricted to established trailer camps. Decisions of these jurisdictions are discussed extensively in Annotation, 96 A.L.R.2d 232, § 5. By limiting trailer homes to designated parks, cities have found it easier to provide police and fire protection and to regulate health conditions, as well as to provide necessary services such as water, sewage, and lighting. See, Annotation, 96 A.L.R.2d 232, § 2. For these reasons, Blaine’s zoning ordinance relating to mobile homes does aid in the protection of the health, safety, and general welfare of the people and was a valid exercise of the police power.

State v. Larson, 292 Minn. 350, 195 N.W.2d 180, 184 (1972).

It is true as pointed out by Plaintiffs that the ordinance treats mobile homes differently from conventional residences. The fact of the matter is they are different, and because they are, a different treatment is warranted. We also recognize that this ordinance restricts landowners in the use of their property without compensating them. This however is not the test, because the same can be said of any zoning regulation.

Finally, we concur in the concluding remarks of the Chancellor’s memorandum opinion:

Arguments raised by the plaintiffs about the cost of obtaining rezoning for mobile homes, the requirement of five acres for mobile home districts and other related matters are properly addressed to legislative bodies and are not legal issues, and the Court cannot substitute its judgment for that of the County Council. The Court holds that the Zoning Resolution is a reasonable exercise of the police power of Hamilton County and is constitutional.

For the foregoing reasons the assignments of error are overruled and the Trial Court affirmed. The costs are taxed to the Plaintiffs and their sureties.

PARROTT, P. J., and SANDERS, J., concur.


source: Caselaw Access Project

author: DANIEL, Justice. POPE, Justice,

license: Public Domain

text:
    Alice M. RED, Petitioner, v. George RED, Respondent.
    No. B-6104.
    Supreme Court of Texas.
    March 9, 1977.
    Dissenting Opinion May 18, 1977.
    Dohoney, Collier, Cartwright & Wandel, J. Philip Wandel, Houston, for petitioner.
    James R. Lewis, Tyler, Hart, Keahey & Hart, James P. Hart, Austin, for respondent.
   DANIEL, Justice.

The question in this case is whether a divorce court which ordered payment of child support until the child reached the age of 18 had jurisdiction of a motion to order resumption of payments filed by the custodial parent after the child became 26 years of age. The basis for the motion to modify the decree was that before and since the age of 18, the child has been physically and mentally incompetent to the extent of requiring custodial care, but this motion and allegation were not presented to the trial court until twelve years after the divorce decree was entered and more than eight years after the child became 18 years of age. The trial court dismissed the motion for want of jurisdiction. The Court of Civil Appeals affirmed, with one judge dissenting. 536 S.W.2d 431. We affirm.

Petitioner, Alice M. Red, was granted a divorce from Respondent, George Red, by the Court of Domestic Relations # 3 of Harris County on May 29, 1963. She was awarded custody of their daughter, Diana Red, then 14 years of age, and an agreed sum of $200.00 per month for child support “beginning July 1,-1963, until the said Diana Red reaches the age of eighteen (18) years.” Diana became eighteen on July 9, 1966. No modification of the 1963 judgment was sought until this action was filed by plaintiff, Mrs. Red, in April of 1975. Mr. Red, however, after full performance of the judgment of July 9, 1966, made voluntary child support payments until after Diana became 26 years of age. From 1968 until 1975 these voluntary payments included $400.00 per month for tuition at The Magnolia School, Inc., an institution in Louisiana for handicapped children. The parties will be referred to hereafter as in the trial court. Diana Red was not a party by next friend or otherwise.

Plaintiff’s suit, entitled “Motion to Modify — Suit Affecting Parent-Child Relationship Requiring Continued Support,” was filed under the same number and in the same court which had entered the 1963 divorce judgment. In addition to the above facts, plaintiff’s first amended motion, filed on May 29, 1975, alleged that the court had continuing jurisdiction of the suit; that Diana had been physically and mentally incompetent to care for herself before and since reaching age 18; that at all pertinent times thereto, Diana has required and still requires custodial care and other expenses which the defendant had paid voluntarily from 1966 until 1975; that although defendant was financially able to make such payments, he had reduced them and finally discontinued them in early 1975; that due to the alleged change of circumstances, plaintiff was entitled to modification of the divorce judgment under the terms of Sections 14.05, 14.08, and other applicable provisions of the Texas Family Code. A copy of the 1963 judgment was attached to the motion, and plaintiff prayed that the child support order be modified to provide for payments to her of not less than $500.00 per month, or that such payments be made direct to The Magnolia School, Inc., where Diana is staying.

The defendant filed a plea to the jurisdiction of the trial court. He asserted that the child support order and judgment of May 29, 1963, had been fully performed as of Diana’s 18th birthday on July 9, 1966, and that neither Sections 14.05, 14.08, nor any other provisions of the Texas Family Code (effective January 1, 1974) empower the trial court to resume and entertain jurisdiction of the subject matter of that order. Subject to such plea, defendant denied that Diana requires institutional care and supervision or that he is any longer financially able to pay for the same without undue sacrifice and burden. He offered, however, to take Diana into his own home in Houston and supervise and care for her at his sole expense if the court has jurisdiction and will so order. He filed other conditional and alternative affirmative pleas, including one that he be appointed managing conservator or personal representative of Diana.

There can be no doubt of the obligation of a financially able father or mother of an incompetent unmarried person to maintain the incompetent, whether a minor or an adult. Defendant acknowledges this responsibility and the existence of other remedies, while insisting that the reopening and modification of a fully performed child support order is not an authorized remedy after the “child” has become an adult.

Section 14.05 of the Texas Family Code became effective on January 1, 1974, as a part of Subtitle A of Title 2 of the Code, which relates almost exclusively to parent-child relationships and suits affecting such relationships. “Child” is defined in Section 11.01 of the Code as “a person under 18 years of age who is not and has not been married or who has not had his disabilities of minority removed for general purposes,” unless the context requires a different definition. “Adult” is defined as “any other person.” The relevant portions of Section 14.05 read:

“§ 14.05. Support of Child
“(a) The court may order either or both parents to make periodic payments or a lump-sum payment, or both, for the support of the child until he is 18 years of age in the manner and to the persons specified by the court in the decree. In addition, the court may order a parent obligated to support a child to set aside property to be administered for the support of the child in the manner and by the persons specified by the court in the decree.
“(b) If the court finds that the child, whether institutionalized or not, requires continuous care and personal supervision because of a mental or physical disability and will not be able to support himself, the court may order that payments for the support of the child shall be continued after the 18th birthday and extended for an indefinite period.”

Section 14.08 of the same Act, which authorizes modification of child support orders under certain circumstances, provides that, “A court order or the portion of a decree that provides for the support of a child . may be modified only by the filing of a motion in the court having jurisdiction of the suit affecting the parent-child relationship.”

On the effective date of the above Act, Diana Red was over 25 years of age, and there was no viable or pending order in any court for payment of child support which was unperformed. We agree with the Court of Civil Appeals that the order for payments of child support in the original divorce decree “until Diana Red reaches the age of eighteen (18) years” was a final judgment subject only to modification as allowed by law. Ex parte Padfield, 154 Tex. 253, 276 S.W.2d 247 (1955). See also Schwartz v. Jefferson, 520 S.W.2d 881 (Tex.1975); Curtis v. Gibbs, 511 S.W.2d 263 (Tex.1974), and McAfee v. McAfee, 152 Tex. 156, 255 S.W.2d 185 (1953). As to child support, that judgment was fully performed and discharged on July 9, 1966, when Diana reached the age of 18 years. Subsequent thereto the divorce court ceased to have jurisdiction over the subject matter. See Ex parte Williams, 420 S.W.2d 135 (Tex.1967); Ex parte Hatch, 410 S.W.2d 773 (Tex.1967); McCullough v. McCullough, 483 S.W.2d 869 (Tex.Civ.App.1972, no writ). Thereafter there was no pending order subject to modification under Sections 14.05 and 14.08 of the Family Code.

We also agree with the Court of Civil Appeals that the clear import of Section 14.05(a) and (b), when read in context with other provisions of all of Title 2 of the Family Code, is that “the court ‘may order that payments for the support of the child shall be continued after the 18th birthday’ ” only if the grounds therefor exist and are invoked before the child becomes an adult; i. e., before reaching age 18. A contrary interpretation would defer any possibility of finality or discharge of a judgment of this nature, since the matter could be raised throughout the lifetime of an adult who had once been the subject of child support orders in a divorce judgment.

By analogy, the opinion of this Court in Ex parte Hatch, 410 S.W.2d 773 (Tex.1967), supports the interpretation and decision of the Court of Civil Appeals in this case. In dealing with Article 4639a, which originally gave the divorce courts the power to modify child support orders, the Court said:

“ . . . The only authority the court had to retain jurisdiction to modify and enforce the child support order was by virtue of Article 4639a, supra. This statute gave the court authority to order child support and modify such order, until the child reached 18 years of age; and only such order that was entered prior to the time the child reached such age was enforceable by contempt proceedings.
“Respondent contends that the cases of DuPre v. DuPre, 271 S.W.2d 829 (Tex.Civ.App.1954, no writ) and McGowen v. McGowen, 273 S.W.2d 658 (Tex.Civ.App.1954, writ dism’d) hold that a divorce decree can be modified after the passage of a statute providing for contempt proceedings even after the child in question has become 18. In both of these cases the-trial courts permitted modification of support orders to conform to the amendment of Article 4639a raising the age limit from 16 to 18 years. However, in neither case had the child for whom support was ordered reached 16 years of age before the enactment of the amendment. These cases do not hold that a child support order may be modified and thereafter enforced by contempt when the court has lost continuing jurisdiction thereof before enactment of the statute.’’ (Emphasis added.)

Further, with reference to Article 4639a-1, which in 1961 authorized support payments for a child requiring custodial care, “whether minor or not,” the Court said that it was cumulative of the provisions of Article 4639a, that it must be interpreted consistently therewith, and therefore it did not apply to an incompetent child who was 19 years of age when the statute was enacted. The Court said:

“. . .We therefore hold that Article 4639a-l does not confer jurisdiction upon the trial court to modify support orders to conform to its provisions, and require and enforce support payments for children requiring custodial care who were already 18 years of age when the statute became effective.”

In the same case, this Court disapproved a decision upon which plaintiff relies:

“The case of Cuellar v. Cuellar, 406 S.W.2d 510 (Tex.Civ.App.1966, no writ), appears to conflict with the holding in this case. In Cuellar the divorce was granted in 1948. At the time of a hearing on a motion to amend the prior divorce judgment in November, 1965, the child requiring custodial care was 23 years of age. The Court of Civil Appeals held that the trial court.had jurisdiction of the subject matter of the motion, under the provisions of Article 4639a-1, without mentioning the fact that the child in question must have been at least 18 years of age when the statute became effective on November 6, 1961. We expressly disapprove this holding.”

The principal thrust of plaintiff’s argument is based upon the theory that the Legislature intended to carry forward the terms of Article 4639a-1, as interpreted in Tharp v. Tharp, 438 S.W.2d 391 (Tex.Civ.App.1969, writ dism’d), when it enacted Section 14.05(b) of the Texas Family Code. In Tharp, the trial court was held to have jurisdiction to order resumption of child support payments under Article 4639a-1 after the oldest child became 18 years of age. Since the plaintiff did not seek to invoke the jurisdiction of the trial court under Article 4639a-1 during the time the law was effective, and since material changes were made when it was repealed, it is unnecessary for us to lengthen this opinion by setting forth all of the facts and circumstances which may distinguish the Tharp case from this case. It is sufficient to note that the Tharp case involved an unperformed order in a divorce decree which provided that the father pay $350.00 per month for the support of two minor children. After the oldest child reached age 18, the father began to pay only one-half of that monthly amount, and sixty days thereafter he filed a motion which, among other things, sought clarification of his obligation under the existing order. The wife’s reply sought clarification or modification and resumption of payments for the support of the oldest child under Article 4639a-1. Upon proof of physical and mental unsoundness and need for custodial care, the father was ordered to pay a monthly sum of $175.00 for the support of the disabled child until otherwise ordered by the court.

It is significant that the Tharp case and the present case were tried by the same Court of Domestic Relations and by the same Court of Civil Appeals. Obviously, the different result in the present case is due in part to the difference in the statutes after January 1, 1974. Prior to that date, Article 4639a-1 specifically authorized trial courts upon certain findings to “require and enforce support payments for such [physically or mentally incompetent] child, whether a minor or not . . . .” (Emphasis added.) The underlined words, which were stressed in Tharp, were omitted by the Legislature in Section 14.05(b) of the Family Code. The latter also included new language tied to continuation of child support payments “after the 18th birthday,” which was not contained in the repealed Article 4639a-l.

The adoption of these materially different provisions indicates legislative intent to change or clarify the previous law so that it could not be originally invoked on behalf of mentally or physically handicapped adults. The language of § 14.05(b) clearly limits the effect of the Act to a child who is found by the court to require continuous care and personal supervision because of the existence of mental or physical disability prior to reaching the 18th birthday. With the remainder of Subtitle A (Chapters 11-17) of the Family Code dealing only with children under 18 years of age, it is consistent that § 14.05(b) was drafted to apply only to those children who were under 18 when they qualified for support payments to be continued after their 18th birthdays.

Plaintiff presents an alternative argument that her motion might be treated as “a further proceeding in a pending action” which could be decided under the terms of Article 4639a-l rather than § 14.05(b) of the Family Code. Assuming, but not conceding, that the Court of Civil Appeals’ interpretation of the Family Code is correct, plaintiff contends that the trial court was authorized under Subsection (a) of the Enactment Clause of Title 2 of the Texas Family Code to apply pre-existing law when in its opinion application of the new Act “would not be feasible or would work injustice.” Among other reasons, we disagree with this alternative argument because Subsection (b) of the Enactment Clause, rather than Subsection (a), is applicable to plaintiff’s action. Her action was commenced after January 1,1974, and “has as its object the modification of an order, judgment, or decree entered prior to January 1, 1974, but which under this Act would be a suit affecting the parent-child relationship.” Under the holding of this Court in Curtis v. Gibbs, 511 S.W.2d 263 (Tex.1974), plaintiff’s action is a new suit governed by the provisions of the Family Code. Therefore, § 14.05(b) of the Code is applicable rather than pre-existing law. We also held in Gibbs, supra, that under Subsection (b) of the Enactment Clause, “No court could have ‘continuing jurisdiction’ based on its jurisdiction of any suit in which final judgment was entered prior to January 1, 1974.”

Nothing herein should be interpreted as prejudicing the right of Diana Red, or any proper person acting in her behalf, to seek support from her parents, or either of them, under Section 423 of the Texas Probate Code or any other applicable law.

The judgments of the courts below are affirmed.

POPE, Justice,

dissenting.

The dissenting opinion filed March 9, 1977, is withdrawn and this opinion is substituted.

What did the legislature want to accomplish by enacting article 14.05(b) which authorized continued parental support for a child over eighteen who suffers from a mental or physical disability? That is our question. The facts are few and simple. On May 29, 1963, Alice and George Red were divorced. Their daughter, Diana, was at the time, fourteen years old. Diana was then and has been since, physically and mentally handicapped. The divorce decree ordered that Mr. Red pay two hundred dollars per month for child support “beginning July 1,1963, until the said Diana Red reaches the age of eighteen (18) years.” Diana became eighteen on July 9, 1966. Mr. Red continued to support Diana until she reached twenty-five. When he stopped his payments, this suit was filed seeking support under article 14.05(b) of the Family Code. The trial court and the court of civil appeals have ruled that the divorce court exhausted its jurisdiction when Diana reached eighteen. 536 S.W.2d 431. In my opinion, that result thwarts a long history of a contrary legislative intent.

The History of Child Support Statutes

Prior to 1935, there was no statute which authorized the divorce court to provide for child support orders as a part of a divorce decree. The court, however, recognized the parent’s duty of support and devised their own procedure for providing it. It was in this context that the courts from a very early period held that child support was a factor that judges should consider in dividing the estate of the parties. The courts also created the device of placing property in trust as a means to afford child support from the revenues. Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21 (1923); Rice v. Rice, 21 Tex. 58 (1858); Fitts v. Fitts, 14 Tex. 443 (1855).

In 1935, the legislature for the first time authorized divorce courts to inquire into the financial circumstances of the family and to order child support in the decree. Tex. Laws 1935, ch. 39, § 1 at 111. The legislation was codified as article 4639a. In 1953, the statute was amended to extend the support period from age sixteen to age eighteen. Tex.Laws 1953, ch. 127, § 1, at 439.

In 1961, the legislature again expressed its special concern for physically or mentally unsound children. Tex.Laws 1961, ch. 31, § 1, at 135. The law was codified as article 4639a-1 and became effective on November 6, 1961. It provided that divorce courts could order support for such a child “ whether a minor or not, subject to the power and authority of the Court to alter, change, suspend or otherwise revise its judgments as the facts and circumstances may require . . .” (emphasis added). For the first time, the legislature authorized divorce courts to make provision, not only for minors up to a stated age, but for “continued” support beyond majority and “whether a minor or not.”

While article 4639a-1 was in force, the case of Tharp v. Tharp, 438 S.W.2d 391 (Tex.Civ.App.1969, writ dism’d) arose. The sequence of events in Tharp parallel the facts of the present case. The Tharps were divorced on June 17, 1960. At that time article 4639a-1 had not been enacted, the decree, consequently, made no provision for support of Peter Tharp, an incompetent child. In 1961 when Peter was thirteen years old, that statute became effective. The father made his support payments under the court order until Peter reached eighteen and then he stopped. There was no order by the trial court that payments should be continued after Peter reached eighteen. This is the same thing that has happened in the case of Mr. Red. Three months after Peter reached age eighteen, his mother returned to the trial court seeking an order for continued support for her incompetent child. The reasoning in Tharp for imposing upon the father the duty of continuing support for his disabled child is:

Here the statute became effective in 1961, but Peter Tharp did not reach 18 until 1966. Also, the disability and required custodial care is shown to have existed continuously since about 1952, and appellant knew it. This disability did not originate after the child became 18 years of age, and we do not believe the trial court lost jurisdiction of the case when Peter Tharp became 18. The statute itself provides that the court may require and enforce support payments for such disabled child “whether a minor or not.”
We do not believe the Legislature intended that Art. 4639a-l receive a restrictive and technical application. On the other hand the statute should receive a liberal interpretation to insure that its just purpose is effective and meaningful. We need not labor the question. We hold that the statute, under the facts of this case, is applicable and fully effective to require that appellant continue support of his unmarried, physically and mentally unsound child, requiring custodial care, and who cannot adequately take care of or provide for himself and who is without property or income sufficient to provide for his reasonable and necessary care. At 394-395.

A like holding is found in McGowen v. McGowen, 273 S.W.2d 658 (Tex.Civ.App. 1954, writ dism’d). A divorce decree ordered the support of a child until she reached sixteen. Before she reached sixteen, the legislature amended article 4639a by authorizing support up to age eighteen rather than sixteen. After the child reached sixteen, a motion was filed to compel support up to age eighteen. The court ruled that the duty of support came into existence by statute before the child reached sixteen and granted the relief. See also Du Pre v. Du Pre, 271 S.W.2d 829 (Tex.Civ.App.1954, no writ).

It is acknowledged that Mr. Red was under the duty to support Diana under the provisions of article 4639a-1 and the precedents which construed that statute. The holding, however, of the majority is that the legislature intended by the enactment of section 14.05 of the Family Code, effective January 1,1974, to repeal the duty and to set aside Tharp v. Tharp and similar cases.

The Family Code Carried Forward the Duty To Support Incompetent Children

The majority has found on the face of section 14.05 an intent on the part of the legislature to change the meaning of the continuing duty spelled out by article 4639a-1. The difference, notes the majority, is that article 4639a-1 imposed the duty of support for an incompetent child “whether a minor or not,” whereas section 14.05 of the Family Code omitted those words. Indeed, the Code omits those words but imposes the same duty by stating that support may continue “after the 18th birthday” and “for an indefinite period” thereafter. With respect, I suggest that the meaning of the words is the same. It is the heavy burden of the majority to show that support required both before age eighteen and after eighteen for an indefinite time means something different from “whether a minor or not.” The Family Code made two other changes in the prior law showing that the legislature intended to relax the conditions to the award of support by the earlier statute. The Family Code eliminated the requirement in article 4639a-1 for “custodial care,” by substituting an express provision for entitlement to support after eighteen “whether institutionalized or not.” The Family Code eliminated the other requirement that the court must act only upon “full and satisfactory evidence.”

One must look hard in the face of these facts to find any legislative intent for the majority’s strict construction and retrenchment from the direction of the earlier law. In fact, one must ignore section 3.01 of article 5429b-2 which was the rule of construction intended by the Code Construction Act at the time the Family Code was enacted. That section says:

in enacting a statute, it is presumed that:
(3) a just and reasonable result is intended;
(4) a result feasible of execution is intended; and
(5) public interest is favored over any private interest.

The majority construes the word “child” as used in section 14.05 to mean a person less than eighteen. This construction raises more problems than it solves. The holding is inconsistent with the meaning of “child” as used in section 12.04 which says that “the parent of a child has the following rights, privileges, duties and powers: (9) the right to inherit from and through the child ..” The majority’s construction would deny the right to inherit from one who is more than eighteen. Section 13.21 concerns voluntary legitimation. It begins:

(a) If a statement of paternity has been executed by the father of an illegitimate child, the father or mother of the child . may file a petition for a decree designating the father as a parent of the child.

The majority to be consistent would say a person beyond eighteen is not a child and the legislature having used the word “child” did not intend to afford legitimation procedures for one who is beyond eighteen. Section 14.08 of the Family Code authorizes modification of orders concerning a child. Under the majority view, even if the court had ordered Diana’s support as an incompetent before she reached age eighteen, the court could not have modified that order after age eighteen because she was no longer a “child.” The court has extracted a narrow meaning from the word that the legislature nowhere indicates it intended.

The majority’s construction of article 14.-05 is troublesome in other ways. The majority holds that parents must hurry to the divorce court before a child reaches age eighteen because, absent an order before that age, there is nothing to continue. Children must develop their mental or physical disability before eighteen because if they unfortunately develop the handicap at age nineteen, they do not qualify for help. If a parent amicably agrees to support a child until the child reaches age eighteen, as Mr. Red did, and there is no prior support order which may be continued, the parent supplying the support may stop and the court is left powerless to require future payments.

The majority opinion suggests that Diana has a remedy through section 423, Probate Code. The argument begs the question and is indeed a harsh construction for the denial of relief under the Family Code. Section 423 authorizes repeated suits for debt against a parent who has refused to reimburse the state for its expenses in providing institutional care for an incompetent child. State v. Stone, 271 S.W.2d 741 (Tex.Civ.App.1954, no writ).

The Trial Court Had Jurisdiction to Order Support For an Over-Eighteen-Year-Old Child Who Was Incompetent

The majority says that section (b) of article 14.05 could not become operative without a prior order for support under section (a), that without an order of a court prior to a child’s reaching eighteen there can be none thereafter. I find nothing in section 14.05 which makes the duty in section (b) conditioned upon a prior order under section (a).

Support for Diana is now denied because the judgment which provided support under article 14.05(a) has become final, according to the court’s opinion. She would have been better off if her father had not voluntarily provided her support. There was no reason to litigate what the father acknowledged was his duty, so time passed until Diana became eighteen and was still incompetent. One does not lose his statutory rights merely because they are not asserted in limine in the divorce action. In Slattery v. Hatmaker, 255 S.W.2d 334 (Tex.Civ.App. 1953, no writ), a divorce was granted in which no mention was made of a child. Judge Norvell writing:

Appellant contends that the trial court was without authority to order him to pay child support money, in that such order was in the nature of an attempt to amend the original decree of divorce which had theretofore become final.
******
However, this Court has held that the fact that the original divorce decree failed to award support money did not deprive the court of authority to thereafter do so. Tipton v. Lester, Tex.Civ.App., 178 S.W.2d 580, following Townsend v. Townsend, Tex.Civ.App., 115 S.W.2d 769.

The judgment concerning support was not final after Diana reached eighteen. The majority cites three cases for its holding that the divorce decree was final. Ex parte Williams, 420 S.W.2d 135 (Tex.1967), and McCullough v. McCullough, 483 S.W.2d 869 (Tex.Civ.App.1972, no writ), concerned normal children and of course there was no duty to support after age eighteen and the judgments were final. Ex parte Hatch, 410 S.W.2d 773 (Tex.1967), however, is precedent against the majority statement of the rule. I respectfully state that the majority opinion takes quotations out of context and omits the following controlling facts: The divorce in that case was granted on October 28, 1958. It ordered support for two children, one of whom was incompetent. At that time article 4639a-1 providing for support for incompetent children over eighteen had not been enacted. Quoting the relevant facts from the opinion itself, “At the date of divorce Carna Mary was 16 years old. At the date Article 4639a-1 became effective she was 19 years old.” (emphasis added).

The incompetent child, in Hatch, was already more than eighteen years old when the statute requiring support for an over-eighteen incompetent child first became effective. The quotations in the majority opinion take on a different meaning in this factual context. The supreme court considered these facts important enough to mention them four times saying:

The question presented is whether the statute (art. 4639a-1) applies to an attempted modification of a prior divorce decree where the child in question was already 18 or more years of age at the time the statute became effective. . These cases do not hold that a child support order may be modified and thereafter enforced by contempt when the court has lost continuing jurisdiction thereof before enactment of the statute (article 4639a-l). . . .We therefore hold that Article 4639a-1 does not confer jurisdiction upon the trial court to modify support orders to conform to its provisions, and require and enforce support payments for children requiring custodial care who were already 18 years of age when the statute became effective. . The Court of Civil Appeals held that the trial court had jurisdiction of the subject matter of the motion, under the provisions of Article 4639a-1, without mentioning the fact that the child in question must have been at least 18 years of age when the statute became effective on November 6, 1961. (emphasis added).

The holding in Hatch was that a parent could not enforce by contempt a failure to provide support for an incompetent child who was more than eighteen years old before the effective date of article 4639a-1 which for the first time established such a duty. The court made this clear by disapproving Cuellar v. Cuellar, 406 S.W.2d 510 (Tex.Civ.App.1966, no writ), which was a case in which the child was already nineteen when the statute became effective.

In Hatch and Cuellar, there was no statutory duty in being when the child reached age eighteen. The application of article 4639a-l required a retroactive application of a duty which did not exist when the child reached eighteen. In this case, article 4639a-1 was already effective in 1963 at the time of the divorce. Diana Red was then fourteen years old. The statutory duty existed before age eighteen and continued thereafter. There has never been any contention that the duty of support under either article 4639a-1 or the Family Code had to be retroactively applied. In re Hatch has been misread and misapplied,

I would reverse the judgments of the courts below which dismissed this cause for want of jurisdiction, order the cause reinstated upon the docket of the trial court, and remand it for trial.

STEAKLEY, McGEE and YARBROUGH, JJ., join in this dissent.

      . Section 423 of the Texas Probate Code provides that an incompetent with no estate and no spouse “shall be maintained ... by the father or mother, if able to do so . ..”
      See also Section 108 et seq., Texas Probate Code, relating to Guardianship of Minors and Incompetents.

      . Repealed by the Texas Family Code effective January 1, 1974. Unless otherwise noted, statutory citations refer to Vernon’s Annotated Texas Civil Statutes.

      . Article 4639a-l was enacted as a separate statute effective 90 days after August 8, 1961. Prior to its repeal, effective January 1, 1974, it read as follows:
      “In addition to all other requirements, each petition for divorce shall further set out, if such is a fact, that (1) an unmarried child, bom of the marriage sought to be dissolved, is physically or mentally unsound and requires custodial care, and (2) that such child cannot adequately take care of or provide for himself, and (3) that such child has no personal estate or income sufficient to provide for his reasonable and necessary care. If the Court shall find all of such has been proven by full and satisfactory evidence the Court may require and enforce support payments for such child, whether a minor or not, subject to the power and authority of the Court to alter, change, suspend, or otherwise revise its judgments as the facts and circumstances may require and in the manner required by law.” (Emphasis added.)

      . The Enactment Clause of Title 2 of the Texas Family Code appears in Section 4 of Chapter 543, Acts of the 63rd Leg., 1973, and a copy precedes Chapter 11 of Vernon’s Annotated Texas Family Code, Vol. 2, p. 3. It reads:
      “(a) This Act takes effect on January 1, 1974, and governs all proceedings, orders, judgments, and decrees in suits and actions brought after it takes effect, and also all further proceedings in actions then pending, except to the extent that in the opinion of the court its application in an action pending when this Act takes effect would not be feasible or would work injustice. All things properly done under any previously existing rule or statute prior to the taking effect of this Act shall be treated as valid.
      “(b) Any action or suit commenced after January 1, 1974, that has as its object the modification of an order, judgment, or decree entered prior to January 1, 1974, but which under this Act would be a suit affecting the parent-child relationship, is governed by the provisions of this Act, and shall be treated as the commencement of a suit affecting the parent-child relationship in which no court has continuing exclusive jurisdiction.”

      . § 14.05. Support of Child
      (a) The court may order either or both parents to make periodic payments or a lump-sum payment, or both, for the support of the child until he is 18 years of age in the manner and to the persons specified by the court in the decree. In addition, the court may order a parent obligated to support a child to set aside property to be administered for the support of the child in the manner and by the persons specified by the court in the decree.

        (b) If the court finds that the child, whether institutionalized or not, requires continuous care and personal supervision because of a mental or physical disability and will not be able to support himself, the court may order that payments for the support of the child shall be continued after the 18th birthday and extended for an indefinite period.

      . Art. 4639a-l. Children Requiring Custodial Care
      In addition to all other requirements, each petition for divorce shall further set out, if such is a fact, that (1) an unmarried child, bom of the marriage sought to be dissolved, is physically or mentally unsound and requires custodial care, and (2) that such child cannot adequately take care of or provide for himself, and (3) that such child has no personal estate or income sufficient to provide for his reasonable and necessary care. If the Court shall find all of such has been proven by full and satisfactory evidence the Court may require and enforce support payments for such child, whether a minor or not, subject to the power and authority of the Court to alter, change, suspend, or otherwise revise its judgments as the facts and circumstances may require and in the manner required by law.


author: DANIEL, Justice. REAVLEY, Justice,

text:
    MISSOURI PACIFIC RAILROAD COMPANY, Petitioner, v. AMERICAN STATESMAN, Respondent.
    No. B-6207.
    Supreme Court of Texas.
    May 18, 1977.
    Rehearing Denied June 22, 1977.

      Gresham, Davis, Gregory, Worthy & Moore, Bond Davis and Marshall B. Miller, Jr., San Antonio, for petitioner.
    Clark, Thomas, Winters & Shapiro, Barry K. Bishop, Austin, for respondent.
   DANIEL, Justice.

The American Statesman, a newspaper publishing company, filed this suit against Missouri Pacific Railroad Company for damages alleged to have resulted from the negligence of the railroad company in running a boxcar into the steel scaffolding (tram) extending from the American Statesman’s building over a spur track owned and operated by the Missouri Pacific. The principal question is whether the trial court should have found proximate cause as a matter of law as a result of American Statesman’s negligent failure to provide a clearance of twenty-two feet beneath the structure as required by Article 6559a.

A jury found that Missouri Pacific or its agent was negligent in assuring American Statesman that the tram, built with a clearance of 16' 4", could accommodate any boxcar which would move under such tram and that such negligence wás a proximate cause of American’s damages. The jury also found negligence and proximate cause on the part of Missouri Pacific in moving the boxcar into the American Statesman’s tram. On the other hand, the jury found that the Statesman’s failure to construct the tram with a clearance of twenty-two feet, as required by statute, was negligence on the part of American Statesman. However, the jury found that such failure was not a proximate cause of American Statesman’s damages. Both parties moved for a judgment on the verdict. The trial court entered judgment for the American Statesman. The Court of Civil Appeals affirmed. 538 S.W.2d 229. We reverse the judgments of the courts below and render judgment for Missouri Pacific.

On July 17, 1972, a boxcar, allegedly being “spotted” by a Missouri Pacific train crew, collided with the steel scaffolding which was attached to the American Statesman’s building. The scaffolding or “tram” had been constructed to facilitate the movement of a press, consisting of eight units, each weighing approximately 50,000 pounds, to the new American Statesman building.

Prior to the July collision, Mr. Tim Brown, production director for the Statesman, attempted to contact Mr. Leo Murphy, Missouri Pacific’s local freight agent, to discuss the construction of the tram across the spur track. Although Mr. Murphy was unable to meet with Mr. Brown at that time, Mr. John Henry, an assistant construction engineer for Missouri Pacific, visited the American Statesman’s office and provided two employees of the newspaper with information on the 22 ft. clearance requirements mandated by Article 6559a. Thereafter, Mr. Brown determined that the newspaper could not feasibly construct the tram with a clearance of 22 feet. Mr. Murphy met with Mr. Brown, and, according to Mr. Brown, assured him that it was safe for the tram to be built with a 16' 4" clearance. The American Statesman contends that Mr. Murphy, as agent for the railroad, gave the newspaper authority to build the tram lower than the statutory clearance. Mr. Murphy denies that he gave the American Statesman authority to build the tram across the spur track, but merely that he assured the newspaper that a lower clearance would be adequate. The parties disagreed on the height of the minimum clearance that Mr. Murphy stated as being adequate.

Article 6559a provides:

“All bridges, viaducts, overheadways, footbridges, wires or other structures hereafter built over the tracks of a railway, or over the tracks of railroads, by the State, or by a county, municipality, a railroad company or other corporation, firm, partnership, or natural person, shall be placed not less than twenty-two (22) feet in the clear from the top of the rails of such track, or tracks to such structure or wire, or to the bottom of the lowest sill, girder or crossbeam, the lowest downward projection on the bridge, viaduct, overheadway, or footbridge or other structure.”

Article 6559e provides for a penalty of not less than $100 nor more than $1000 for any violation of the clearance requirements. Suit for penalties under Article 6559e shall be filed by the Attorney General. Clearance deviations under Article 6559f may be granted only by the Texas Railroad Commission after proper notice to the Attorney General.

Missouri Pacific contends that the Statesman was negligent as a matter of law in constructing the structure at a lower elevation than required by law and that the facts and circumstances warrant a finding that such negligence was also a proximate cause of the accident as a matter of law. In Southern Pacific Company v. Castro, 493 S.W.2d 491 (Tex.1973), this Court discussed the doctrine of negligence per se and adopted the view of the Restatement (Second) of Torts, Sec. 288 B (1965):

“(1) The unexcused violation of a legislative enactment or an administrative regulation which is adopted by the court as defining the standard of conduct of a reasonable man, is negligence in itself.”

Thus, for negligence per se, there must (1) be a violation of a legislative enactment, (2) which is unexcused. The rule is also well settled in Texas that one who seeks to excuse a statutory violation must present some evidence of a permissible excuse for his statutory violation. L.M.B. Corporation v. Gurecky, 501 S.W.2d 300 (Tex.1973).

In Impson v. Structural Metals, Inc., 487 S.W.2d 694 (Tex.1972), this Court cited some of the permissible excuses for violation of legislative standards by quoting from the Restatement (Second) of Torts, Sec. 288 A (1965). Sec. 288 A provides that a violation of a statute may be excused (unless the enactment or regulation is constructed not to permit such excuse) when

(a) the violation is reasonable because of the actor’s incapacity;
(b) he neither knows nor should have known of the occasion for compliance;
(c) he is unable after reasonable diligence or care to comply;
(d) he is confronted by an emergency not due to his own misconduct;
(e) compliance would involve a greater risk of harm to the actor or to others.

This Court in Impson approved of the general treatment of legally acceptable excuses cited above, noting that the applicable illustrations of the five categories were merely dictum. The evidence in this case establishes that the American Statesman knowingly violated the clearance statute, and the newspaper did not show a legally acceptable permissible excuse for the violation.

American Statesman contends that the doctrine of negligence per se is inapplicable for the benefit of Missouri Pacific in this case, not because of any excusable violations, but because the statute involved was not designed to protect railroad companies. Mundy v. Pirie-Slaughter Motor Co., 146 Tex. 314, 206 S.W.2d 587 (1947), has generally been cited for the proposition that in order for a party to show negligence per se, it must belong to the class of persons which the statute is designed to protect. American Statesman contends that a statute imposing such severe penalties upon railway companies was not designed to protect the railroad. American Statesman also contends that the statute was not intended to prevent the type of incident that occurred here, but was intended to protect railroad employees who used to be required to work on top of cars. This argument is without merit. Where the Legislature has declared that a particular act shall not be done, it fixes a standard of reasonable care, and an unexcused violation of the statute constitutes negligence or contributory negligence as a matter of law. Parrott v. Garcia, 436 S.W.2d 897 (Tex.1969). It should be noted that Article 6559a applies to the State and any county, municipality, railroad company, corporation, firm, partnership or natural person. The railroad company and the newspaper are within the class of persons covered and the type of accident that occurred here was one of the very types of accidents that the Legislature apparently sought to avoid in enacting Article 6559a.

The jury found that the American Statesman was negligent in constructing the tram with a clearance of less than twenty-two feet. No attack is made on that finding. Such construction was in violation of the statute and unexcused. Therefore, the plaintiff, American Statesman, is contributorily negligent per se. However, a finding of negligence per se only subjects the American Statesman to possible liability; it does not establish liability. In addition, a showing is required that such negligence was a proximate cause of the damages. East Texas Motor Freight Lines v. Loftis, 148 Tex. 242, 223 S.W.2d 613 (1949); Waterman Lumber Co. v. Beatty, 110 Tex. 225, 218 S.W. 363 (1920). In other words, a liability does not attach to every act of negligence per se; such liability only attaches when the injury or damages are a proximate result of that negligence. H. and T. C. Ry. Co. v. J. F. Wilson, 60 Tex. 142 (1883).

Whether we label the act or omission as negligence per se or common negligence, the rules for determining proximate cause are the same. Katz v. Southwestern Scrap Materials Co., 412 S.W.2d 685 (Tex.Civ.App.1967, no writ); Kenny v. El Paso Elec. Co., 371 S.W.2d 777 (Tex.Civ.App.1963, writ ref’d n. r. e.). Under Texas law, proximate cause consists of two elements: (1) cause in fact, and (2) foreseeability. Farley v. M. M. Cattle Co., 529 S.W.2d 751 (Tex.1975); East Texas Theatres, Inc. v. Rutledge, 453 S.W.2d 466 (Tex.1970); Riggers v. Continental Bus System, Inc., 157 Tex. 351, 303 S.W.2d 359 (1957). Both elements must be present. Clark v. Waggoner, 452 S.W.2d 437 (Tex.1970). Cause in fact as an element of proximate cause means that the negligent act or omission was a substantial factor in bringing about the injury and without which no harm would have been incurred. Texas and Pacific Railway Company v. McCleery, 418 S.W.2d 494 (Tex.1967). Foreseeability is satisfied by showing that the actor as a person of ordinary intelligence should have anticipated the danger to others by his negligent act. Foreseeability does not require that the actor anticipate just how the injuries will grow out of the particular dangerous situation. Clark v. Waggoner, supra; Hopson v. Gulf Oil Corp., 150 Tex. 1, 237 S.W.2d 352 (1951). An act wanting in ordinary care which actively aids in producing an injury as a direct and existing cause need not be the sole cause; but it must be a concurring cause and such as might reasonably have been contemplated as contributing to the result under the attending circumstances. It matters not what the actor believed would happen, but whether he ought to have reasonably foreseen that the event in question, or some similar event, would occur. Clark v. Waggoner, supra, at 440; Gonzales v. City of Galveston, 84 Tex. 3, 19 S.W. 284 (1892).

As for causation, we conclude that but for the American Statesman’s erection of the tram in violation of the statute, the accident would not have occurred. Although Missouri Pacific was negligent in moving its car into the tram, such an incident was the kind of accident clearly contemplated by the Legislature when Article 6559a was enacted to provide sufficient clearance of structures built above or across railroad tracks.

The majority of the Court is of the opinion that in this case proximate cause was established as a matter of law and that there was no evidence to support the jury’s finding to the contrary. As noted heretofore, the provisions of Article 6559a are all inclusive.

Two recent cases, which involve similar considerations, support this conclusion. In Lewie Montgomery Trucking Co. v. Southern Pacific Company, 439 S.W.2d 691 (Tex.Civ.App.1969, writ ref’d n. r. e.), Southern Pacific sued the defendant trucking company for damages to its railroad bridge near Burton when an overheight truck attempted unsuccessfully to proceed through the underpass below the bridge. The truck driver had obtained a Texas Highway Department Permit for his oversized load and had been warned of two low bridges on his planned course. The bridge with which he ultimately collided was not one of those two of which he was warned, but the bridge was marked as to maximum height by a sign on the bridge itself and on a road sign placed to warn those approaching the bridge.

The permit obtained by the driver included a provision which stated that “applicant shall detour all low structures on this route at his own risk.” Furthermore, a statute was in effect which made it unlawful “to operate or attempt to operate any vehicle over or on any bridge or through any underpass or similar structure unless the height of such vehicle, including load, is less than the vertical clearance of such structure.” Article 6701d-11, Sec. 3(b) (1973). At trial, the jury found that the truck driver was not negligent, that Southern Pacific was negligent in failing to place adequate warning signs, and that this negligence was a proximate cause of the collision in question. Southern Pacific filed a motion for judgment notwithstanding the jury’s answers to the special issues. The trial court entered judgment for Southern Pacific, holding as a matter of law that the truck driver was negligent and that such negligence was a proximate cause of the damages incurred. The court held that Southern Pacific was not negligent. The Court of Civil Appeals affirmed, and this Court found no reversible error in that judgment. The Court of Civil Appeals said:

“We hold that defendant’s conduct, considering the prohibitive nature of the criminal statute involved and its purpose, together with all the circumstances, constitutes negligence as a matter of law, and that such negligence, as a matter of law, was a proximate cause of the accident and the damages sustained by plaintiff. .
“Proximate cause becomes a question of law when it consists of a violation of the law or the circumstances are such that, in the opinion of the court, reasonable minds could not arrive at different conclusions. Burton v. Billingsly, 129 S.W.2d 439, 442 (Tex.Civ.App.), writ ref.; Cave v. Texas & Pacific Railway Company, 296 S.W.2d 558, 560 (Tex.Civ.App.), writ ref., n. r. e.; Missouri Pacific Railroad Company v. Dean, 417 S.W.2d 357 (Tex.Civ.App.), writ ref., n. r. e. And see Hopson v. Gulf Oil Corp., 150 Tex. 1, 237 S.W.2d 352, 355, 356. We hold that the negligence of defendant was a proximate cause of the damages as a matter of law.”

In Southwestern Bell Telephone Company v. Hertz Equipment Rental Company, 533 S.W.2d 853 (Tex.Civ.App.1976, writ ref’d n. r. e.), the phone company sued defendant trucking company for driving under an overhead cable with an oversized load. The Court of Civil Appeals found negligence and proximate cause against the defendant as a matter of law, stating:

“It is obvious from legislative enactments on mandatory heights of structures etc. across highways and in limitations put upon heights of vehicles carrying loads that our Senators and Representatives foresaw the probability of collisions, one with the other. Thereby a guide is supplied to ‘foreseeability’ by a reasonably prudent person, both as related to negligence and proximate cause, excepting when he might encounter some extraordinary circumstance.” 533 S.W.2d at 857.

See also Missouri Pacific Railroad Company v. Dean, 417 S.W.2d 357 (Tex.Civ.App. 1967, writ ref’d n. r. e.), wherein Dean sued the railroad for damages sustained when his car ran into the railroad’s freight train that was stopped on a public highway. The jury found that the plaintiff was negligent, but “that such negligence was not a proximate cause of the collision.” The court, however, held:

“Ordinarily, the question of whether the plaintiff’s contributory negligence is a proximate cause of his injury is a question of fact, but in some instances the question becomes one of law. Texas & P. Ry. Co. v. Bigham, 90 Tex. 223, 38 S.W. 162; Cave v. Texas & Pacific Railway Company (Tex.Civ.App.) 296 S.W .2d 558-560; Geo. D. Barnard Company v. Lane (Tex.Civ.App.) 392 S.W.2d 769.
“Proximate cause exists as a matter of law where the circumstances are such that reasonable minds could not arrive at a different conclusion. Texas & N. O. R. Co. v. Stewart (Tex.Civ.App.) 248 S.W.2d 177; Wichita Valley Ry. Co. v. Fite (Tex.Civ.App.) 78 S.W.2d 714.
* * * * * *
“It appears to us that the evidence as outlined above conclusively shows that reasonable minds could not arrive at a different conclusion other than that the failure of the plaintiff to keep a proper lookout was a proximate cause of the accident and resulting injury.”

In the present case, as in those cited above, there was no evidence of any extraordinary or unforeseeable circumstances which might excuse the American Statesman’s violation of the clearance statute. We hold that the American Statesman’s negligence was a proximate cause as a matter of law of the collision and resultant damage done to its structure.

American Statesman attempts to relieve itself from liability by its contention that Missouri Pacific’s “waiver” of the clearance height excused the newspaper’s negligence. In other words, Statesman argues that the railroad employee’s assurances that the structural height would be adequate obviates any foreseeability inherent in the statute, the newspaper having relied on the assurances of the railroad. The jury found that Missouri Pacific waived its right to require the Statesman to construct the tram with a clearance of twenty-two feet. A similar type of argument was unsuccessfully argued in Lewie Montgomery, supra. The function of waiver or estoppel is to preserve rights, not to create independent causes of action. Southland Life Ins. Co. v. Vela, 147 Tex. 478, 217 S.W.2d 660 (1949). Waiver and estoppel are defensive in nature and operate to prevent the loss of existing rights. Jones v. Texas Gulf Sulphur Co., 397 S.W.2d 304 (Tex.Civ.App.1965, writ ref’d n. r. e.). Missouri Pacific had no existing “right” which it could waive in assuring that the lower clearance would be adequate.

As heretofore noted, only the Railroad Commission may waive the clearance requirement set forth in Article 6559a. Moreover, the doctrine of estoppel or waiver cannot be invoked to nullify a mandatory statutory restriction, especially when such restriction is enacted for the benefit of the general public as opposed to those benefits that inure to a private individual. See Phillips v. City of Abilene, 195 S.W.2d 147 (Tex.Civ.App.1946, writ ref’d); Sartin v. Hudson, 143 S.W.2d 817 (Tex.Civ.App.1940, no writ).

American Statesman by a cross-point asserts that damages in the amount of $19,-835.35 were established as a matter of law, and that the jury award of $12,000 was erroneous. In view of our holding it is unnecessary to pass on the merits of this point.

Accordingly, the judgments of the courts below are reversed, and judgment is rendered for Missouri Pacific that American Statesman take nothing by its suit.

Dissenting opinion by REAVLEY, J., in which GREENHILL, C. J., joins.

REAVLEY, Justice,

dissenting.

The American Statesman newspaper plant and one other business site are served by Missouri Pacific train crews over this spur track. After they discussed the loading problem, the railroad’s agent assured the newspaper’s agent that any railroad car which would come down this track would clear the structure if constructed at the planned 16 feet 4 inch height. American Statesman acted upon that assurance, but Missouri Pacific came along and drove a boxcar into the structure.

The jury found that the railroad agent was negligent in assuring the newspaper’s agent that a clearance of 16 feet 4 inches would accommodate any boxcar which the railroad would be moving under the structure, and the jury found that this negligence was a proximate cause of the mishap.

The jury then found that American Statesman was contributorily negligent in constructing the structure with less than 22 feet clearance. This finding was not one of common law negligence but of unexcused violation of the statute. The jury failed to find that this negligence was a proximate cause of the mishap.

The judgment in favor of American Statesman is correct unless the record establishes the foreseeability element of proximate cause as a matter of law. To do this we must allow the jury no latitude except to say that a reasonably prudent person would have foreseen or anticipated this boxcar collision after being given assurance by the railroad agent that any boxcar that would come down the tracks would clear at this height. The jury found that the newspaper agent was reasonable in relying upon the assurance given him, and it seems to me that the jury was clearly entitled and justified to so find.

The cases cited by the majority only reveal that proximate cause may be held to be established as a matter of law — when the attending circumstances do not permit reasonable minds to differ as to the consequences of the statutory violation. That is not the case here. The newspaper agent, acting upon the assurance of the railroad agent, did not knowingly enter such a “zone of danger” as the drag racer did in Parrott v. Garcia, 436 S.W.2d 897 (Tex.1969).

The foreman of the Missouri Pacific switching crew, which was operating the cars when the collision occurred, testified that he had observed the American Statesman structure on a prior occasion and had consulted the railroad agent to see if there would be any problem. The foreman was told that “it would clear. He said the engineer said it was all right so that’s all I had to go by.” This was sufficient for the switching crew foreman, but it is now held that it cannot be reasonably sufficient for the newspaper agent.

I read the Court here to impute foresight to the newspaper agent — and to do so because a statute has been violated. We should neither disregard the attending circumstances nor change the proximate cause rule for the case of negligence per se.

GREENHILL, C. J., joins in this dissent.

      . All citations to statutes refer to Vernon’s Annotated Texas Civil Statutes, unless otherwise noted.

      . The incident here occurred before the Legislature enacted the comparative negligence statute. Article 2212a, Section 1 (1973).

      . This article was transferred from Vernon’s Ann.Penal Code, Art. 827a, by authority of § 5 of Acts 1973, 63rd Leg., p. 995, ch. 399, enacting the new Texas Penal Code.