text:
    RELIABLE, INC., Appellant, v. AIRCO PLUMBING & SHEET METAL, INC., Appellee.
    No. 997.
    Court of Civil Appeals of Texas, Tyler.
    Feb. 17, 1977.

      John M. Gillis, Gillis, Rogers & Taylor, Dallas, for appellant.
    Ray Farabee, Fillmore, Lambert, Farabee & Purtle, Wichita Falls, for appellee.
   McKAY, Justice.

This is a venue case in which Reliable, Inc. (Reliable) appeals from an order of the trial court sustaining the plea of privilege of Aireo Plumbing & Sheet Metal, Inc. (Air-eo) to be sued in Clay County, its principal place of business. Reliable brought suit on a sworn account in Smith County; Aireo filed its plea of privilege, and Reliable filed a controverting affidavit alleging exclusive venue in Smith County under Subdivision 5, Art. 1995, V.A.C.S. After a hearing the trial court sustained the plea and ordered the case transferred to the district court in Clay County. No findings of fact or conclusions of law were requested or filed.

Aireo had a subcontract to do mechanical and plumbing work on a General Telephone building in Seymour, Texas. Aireo subcontracted with Reliable and J & K Insulation Co. (J & K) in writing for Reliable and J & K to furnish labor and materials for insulation work on the building. The contract provided for a total price of $6,150.00, but there was no provision as to where the money was payable. Several deliveries of materials were made to the job site and to Aireo, and Reliable billed Aireo on invoices which included the language, “All invoices due and payable in Tyler, Smith County, Texas.” The question is whether such language on the invoices brings this case under Subsection 5 of Art. 1995.

The contract and two copies of one Reliable invoice to Aireo were introduced into evidence, one of the copies having notations of some credit memos. Nine other invoices and two credit memos were offered into evidence together with Reliable’s petition to which they were attached, but apparently they were never admitted although the trial judge stated, “The court can take judicial knowledge of the pleadings on file in the papers; they are automatically a part of this record, and there is no necessity to offer them into evidence.” Six of the nine invoices were signed by Jack Mayfield of J & K upon delivery to the job site. There is also in evidence a letter dated February 21, 1973, from Bob Skinner, the Secretary or Treasurer of Aireo, to Glenn Martin of Reliable in which Skinner explained that Aireo did not receive certain invoices from Reliable in time to be included in their estimate to the general contractor for the month of January, but that “We will send you payment on invoices as soon as we receive payment for them.” The letter further said, “You will take note that I have corrected Invoice No. 1002. I have also included two invoices that I believe were sent to us by mistake.” Skinner was the only witness to testify that he admitted Aireo received the invoices, but he testified he thought he had paid part of the invoices, but that the contract had not been modified.

Appellant brings two points of error. Point one complains that the trial court erred in sustaining defendant’s plea of privilege and ordering transfer from Smith County, Texas, when “the parties had agreed in writing to pay the account in Smith County, Texas,” within the meaning of Section 5, Article 1995, V.A.C.S. Point two complains that the trial court’s “implied finding” that the parties had not contracted in writing to perform an obligation in Smith County, Texas, is against the greater weight and preponderance of the evidence. Since both points relate to whether the term “All invoices due and payable in Tyler, Smith County, Texas” is a part of the contract for venue purposes, both will be discussed together.

Subsection 5, Article 1995, V.A.C.S., provides:

“If a person has contracted in writing to perform an obligation in a particular county, expressly naming such county, or a definite place therein, by such writing, suit upon or by reason of such obligation may be brought against him, either in such county or where the defendant has his domicile.”

The burden is upon the plaintiff to allege and prove by a preponderance of competent evidence, the facts necessary to bring the case within the particular exception of Article 1995 it relies upon. Collins v. F. M. Equipment Co., 162 Tex. 423, 347 S.W.2d 575, 577 (1961); Admiral Motor Hotel of Texas, Inc. v. Community Inns, 389 S.W.2d 694, 698 (Tex.Civ.App.-Tyler 1965, no writ); Barnwell v. Fox & Jacobs Construction Co., 469 S.W.2d 199, 204 (Tex.Civ.App.—Dallas 1971, no writ). We believe Reliable failed to make such proof.

The settled law of this state is that where all the terms of the contract have been agreed upon and the contract is complete, the seller cannot unilaterally fix the place of payment by subsequently sending the buyer an invoice providing for payment in a specified county. Jenkins v. Silverthorne, 510 S.W.2d 171, 173 (Tex.Civ.App.—Amarillo 1974, no writ); Knapp Corporation v. Lofland, 466 S.W.2d 847, 848, 849 (Tex.Civ.App.—Dallas 1971, no writ); K. T. Lease Service, Inc. v. Alamo Welding and Boiler Works, Inc. 431 S.W.2d 58, 62 (Tex.Civ.App.—San Antonio 1968, no writ). There is no evidence that the invoices sent out by Reliable were intended to modify the terms of the original contract. The invoice was merely a billing, not required by the contract, for money owed by Aireo to Reliable for goods already delivered pursuant to the contract. The fact that Skinner promised in his letter to Martin to pay the invoices is of no consequence, for this would only be an acknowledgment of a debt already owed by Aireo. The fact that May-field signed the invoices upon delivery is of no consequence, since the invoices were merely being used as delivery slips to insure Reliable proof that such goods had been delivered. Moreover since there are no findings of fact and conclusions of law, we must presume every fact issue and such implied findings as were necessary were found by the trial court in support of the judgment rendered. Morris v. Texas Elks Crippled Children’s Hospital, Inc., 525 S.W.2d 874, 881 (Tex.Civ.App.—El Paso 1975, writ ref’d n.r.e.); Washington v. Law, 519 S.W.2d 953, 954 (Tex.Civ.App.-Houston [14th Dist] 1975, writ ref’d n.r.e.).

We hold that the invoice language in question was not a part of the contract between Aireo and Reliable, thus venue cannot be sustained in Smith County.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: McDONALD, Chief Judge.

license: Public Domain

text:
    MISSOURI PACIFIC RAILROAD COMPANY, Appellant, v. Lula COOPER et al., Appellees.
    No. 5696.
    Court of Civil Appeals of Texas, Waco.
    Feb. 17, 1977.
    Rehearing Denied March 17, 1977.
    John L. Lancaster, III, Dallas, for appellant.
    Ernest L. Sample, Beaumont, for appel-lees.
   OPINION

McDONALD, Chief Judge.

This is a suit by the surviving family members to recover for the death of Wilford Cooper and his wife Evinia for personal injuries to Sheronell, their daughter. The deaths and injuries occurred as the result of a collision between the Cooper’s automobile and a Missouri Pacific freight train.

Trial was to a jury which found:

1) On February 2, 1969, at the time and on the occasion in question, defendant’s railroad crossing over FM 413 near the Brazos River, which was involved in this case, was extra hazardous.
The court instructed: “A railroad crossing is extra hazardous when, because of surrounding conditions, it is so dangerous that persons using ordinary care cannot pass over it in safety without some warning other than the usual cross arm sign”.
2) Defendant was negligent in failure to have an automatic signal at the crossing to warn vehicle or traffic.
3) Such negligence was a proximate cause of collision between the Cooper automobile and the train.

After striking one item of damages (not here in question) the trial court rendered judgment on the verdict for plaintiffs against defendant for $71,000.

Defendant appeals on 4 points contending:

1) There is no evidence to support jury finding 1, that the crossing was extra hazardous.
2) Jury finding 1, that the crossing was extra hazardous, is so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust.
3) It was prejudicial error to admit evidence of the reputation in the community of the crossing for being extra hazardous or dangerous.

Wilford Cooper and wife and their infant daughter (and Mrs. Cooper’s daughter) were occupants of an eastbound automobile which collided with the 110th car of defendant’s southbound 113-car freight train, at night, in a fog, on February 2, 1969, at the railroad’s grade crossing on FM Highway 413 in Falls County. The railroad had at the crossing its standard crossbuck sign (which contained no automatic signal with light or bell). There were no witnesses to the accident. Mr. and Mrs. Cooper were both killed, and the daughter received a broken arm.

Plaintiffs plead the crossing of Highway 413 and the railroad track was extra hazardous, and that the railroad was negligent in not taking extraordinary means to guard the crossing and warn motorists.

The witness Kilgore testified he knew of prior accidents that happened at this crossing; that the Bama pie salesman had an accident in daylight hours with a train at this crossing; that an elderly couple had an accident at this crossing. Over objection by defendant he further testified, this crossing had the reputation of being a dangerous crossing; that such reputation was by reason of accidents that had actually happened there before this accident occurred.

The witness Pearson testified he lives on FM 413; that he is familiar with the locality and the crossing where the accident occurred; that a mile from the crossing is a pretty tall hill, “and you cross the river bridge, and just as you cross the bridge you go across the railroad track”; that there was no “type of illumination there whereby the area would be lighted and would light the crossing so you could see a train there”; that there had been other accidents at this crossing; and over defendant’s objection testified the crossing haci “a reputation as an extremely dangerous crossing”.

He further testified there were obstacles, namely trees, which prevented one from seeing a good long way in either direction. He steadfastly maintained there were obstructions to the view of a motorist at this location, in addition to the fog (which he said was more prevalent near the river than at other places), and under searching cross-examination refused to agree that visibility was unobstructed.

The witness Vardeman, brakeman on the train involved in the accident, testified the train was 113 cars long with 3 locomotives; that the train cars do not have any lights on them; that the train was travelling 45 miles per hour; that all trains run “extra” on this line, and are not on any schedule.

The witness Gibson testified it would take about 2 minutes and not more than 3 minutes for a train of 120 cars to clear a point at 45 miles per hour.

The witness Thomas, Missouri Pacific Claim Agent since 1959, testified he is familiar with all accidents during the 10-year period before 1969; that he knows of only the Bama pie truck accident at this crossing; that the Bama case occurred in daylight about noon; that he knows the reputation of this crossing as being not dangerous; that this crossing is over the main line between Fort Worth and Houston, and is a heavily used line.

An extra hazardous crossing may arise from permanent conditions. Karr v. Panhandle & Santa Fe Ry. Co., 153 Tex. 25, 262 S.W.2d 925. And in a railroad crossing collision case, it is the province of the jury to judge the credibility of the witnesses and the weight to be given their testimony and to resolve conflicts and inconsistencies in testimony. Ford v. Panhandle & Santa Fe Ry. Co., 151 Tex. 538, 252 S.W.2d 561.

The railroad company used long trains; the line on which the crossing here involved is a main line between 2 large cities; the trains are frequent but unscheduled; the cars are not lighted; travel is through the low area adjacent to the Brazos where fog is prevalent; the crossing was obscured; and without illumination of any kind at night. Prior accidents have occurred at this crossing, one of which was testified to by defendant as occurring in daylight.

We think the jury authorized to believe if a crossing was dangerous in daylight it was dangerous at night; from all the evidence that the crossing was extra hazardous; that the evidence is ample to sustain the finding; and that such finding is not against the great weight and preponderance of the evidence. In re Kings Estate, 150 Tex. 662, 244 S.W.2d 660.

In regard to the evidence the crossing had a reputation in the community for being an extremely dangerous crossing, we think such admissible. Ft. Worth & Denver City Ry. Co. v. Looney, CCA, NRE, 241 S.W.2d 322. In any event such evidence is harmless in view of the record as a whole. Rule 434 TRCP.

All defendant’s points are overruled.

AFFIRMED.


author: O’QUINN, Justice.

text:
    O. F. FORBUS, Appellant, v. SAFEWAY STORES, INCORPORATED, Appellee.
    No. 12486.
    Court of Civil Appeals of Texas, Austin.
    Feb. 23, 1977.

      Galen A. Moeller, San Angelo, for appellant.
    George S. Finley, Smith, Davis, Rose, Finley & Hofmann, San Angelo, for appel-lee.
   O’QUINN, Justice.

O. F. Forbus, the appellant, brought this lawsuit in Tom Green County against Safeway Stores, Incorporated, on a claim of personal injuries received in a Safeway Store in San Angelo as a result of slipping on grapes and falling on the store floor.

Trial was before a jury, and the verdict consisted of jury responses to seven special issues. The jury found there were grapes on the floor of the grocery store, that For-bus slipped on the grapes and fell, and was not negligent in failing to keep a proper lookout. The jury also found that “agents, servants or employes” of defendant company did not know of the grapes on the floor nor should have known “by the exercise of ordinary care” that grapes were on the floor. The jury also absolved Safeway of any percentage of negligence.

Based on jury findings, the trial court entered judgment that Forbus takes nothing by his suit.

Forbus filed a motion for new trial based entirely on matters of alleged jury misconduct. After hearing on the motion, at which three members of the jury including the foreman testified, the court overruled the motion and denied new trial.

Forbus appeals and brings two points of error, both pertaining to jury misconduct. Appellant urges error under both points in failure of the trial court to grant a new trial because appellant says (1) one juror discussed matters of personal knowledge and experience during jury deliberations, and (2) one juror during deliberations made statements adverse to the reputation and honesty of an attorney representing appellant at the trial.

The record on appeal does not include a statement of facts relating to the trial, but only a transcript and transcription of testimony at the hearing on motion for new trial. Appellee urges under two counterpoints on appeal that (1) jury misconduct was not demonstrated as a matter of law, and that (2) appellant has failed to meet his burden to show that misconduct, if misconduct occurred, resulted in an improper verdict, the record on appeal being inadequate for determination of the question.

We agree with the contention of appellee under the second counterpoint based on insufficiency of the record brought forward by appellant. We will overrule appellant’s points of error and affirm judgment of the trial court.

Upon overruling motion for new trial, the trial court made no findings of fact related to jury misconduct, and no findings were requested. When no express findings are filed, the appellate court will presume that the trial court found all controverted facts in support of the trial court judgment overruling motion for new trial and that no jury misconduct occurred. Even if the evidence offered at the hearing was conflicting as to whether misconduct occurred, decision of the trial court on the question is binding on appeal. Brawley v. Bowen, 387 S.W.2d 383, 384 (Tex.Sup.1965) and cases cited.

Appellant, having alleged jury misconduct, had the burden to show not only occurrence of misconduct but its materiality, and that the record as a whole indicated that, due to the misconduct shown, injury probably resulted to the party alleging misconduct. By failing to bring forward the statement of facts, appellant failed to prove that the claimed misconduct, rather than the state of the evidence, probably caused the jury to answer special issues adversely to appellant ás plaintiff below. Fountain v. Ferguson, 441 S.W.2d 506, 509 (Tex.Sup.1969). See also Pope: Jury Misconduct and Harm, 12 Baylor L.Rev. 355 (1960); 3 McDonald, Texas Civil Practice, secs. 14.16.1—14.16.5 (1970); 4 Tex.Jur.2d Appeal and Error-Civil Cases, secs. 857-858 (1974).

The judgment of the trial court is affirmed.


author: SHANNON, Justice.

text:
    John STRATTON, Jr., et ux., Appellants, v. DEL VALLE INDEPENDENT SCHOOL DISTRICT, Appellee.
    No. 12498.
    Court of Civil Appeals of Texas, Austin.
    Feb. 23, 1977.
    Rehearing Denied March 16, 1977.
    John Robert Stratton, Austin, for appellants.
    J. C. Hinsley, Austin, for appellee.
   SHANNON, Justice.

Appellee, Del Valle Independent School District sued appellants, John Stratton, Jr., and his wife Eulane Stratton, in the district court of Travis County for delinquent taxes due against realty. After trial to the court, judgment was entered for appellee fixing a lien against the realty in the sum of $2,968.13 representing taxes, penalty, and interest. We will affirm that judgment.

In its trial petition appellee pleaded for recovery of taxes, penalty, and interest on a 1-acre tract, a 1.36-acre tract, and a 2-acre tract. Appellants’ trial pleading was a general denial.

At trial the district court admitted a certified copy of the official tax roll of the Del Valle Independent School District showing the taxes, penalty, and interest due against appellants’ three tracts of land. On cross-examination John Stratton, Jr., testified that he and his wife owned the three tracts of land, that the three tracts were situated in Del Valle Independent School District, that he was aware that there were delinquent taxes “on” the three tracts, that he had not “rendered” the three tracts for purposes of taxation. Stratton admitted that his chief complaint was not that the taxes were not due and owing but instead that appellee’s tax records had misdescribed the land that he and his wife owned. For years appellee had mistakenly listed the 1-acre tract and 2-acre tract on the tax rolls as a single tract of 2.9 acres.

Upon request, the court filed findings of fact and conclusions of law. Among other things, the court found that appellee is legally constituted and authorized to levy, assess, and collect the taxes in question, and the said taxes, concerned in this appeal, were duly and legally assessed. All required notices concerning the taxes were given by appellee. Appellants had title to the land involved. Appellants knew the taxes were delinquent, and appellants refused to tender payment or pay those taxes or any part thereof. Appellants did not render the land for taxation. Appellants paid State and County taxes on the same tracts of land and therefore knew what property was involved in the instant suit. The court concluded that $2,968.13 was due and owing appellee and that a lien existed in that sum on the said tracts.

Appellants’ points of error one through three claim that the court's finding that appellee had lawfully and properly assessed the 2-acre tract and the 1-acre tract was supported by no evidence or that the finding was so contrary to the great weight and preponderance of the evidence so as to be manifestly unjust.

By the admission of the certified copy of appellee’s delinquent tax record, a presumption was raised that there was a valid levy and assessment of the taxes in issue made by a legally constituted taxing authority and that all conditions precedent to such assessment and levy had been performed. Whaley v. Nocona Independent School District, 339 S.W.2d 265 (Tex.Civ.App. 1960, writ ref’d), Newton v. Highland Park Independent School District, 361 S.W.2d 916 (Tex.Civ.App.1962, no writ).

There was evidence that appellee had assessed two tracts of land as one single tract. Nevertheless, appellants were not misled or harmed by that misdescription and appellants were aware that it was the two tracts to which the assessment referred. See Victory v. State, 138 Tex. 285, 158 S.W.2d 760 (1942). Moreover, if the consolidation of the two tracts constituted an erroneous assessment, that assessment was in effect validated by Tex.Rev.Civ.Stat. Ann. art. 7351 (1960). Article 7351 validates among other things, an assessment wherein the assessor failed to give a separate value on each lot, block, or tract of land, or stated in other terms, where the assessor made a “bulk assessment.” Points of error one through three are overruled.

Points of error four and five claim error in the admission into evidence of the certified copy of appellee’s official tax roll showing the taxes, penalty, and interest due against appellants’ land. The copy of the tax roll was admitted into evidence without objection. Whatever objection appellants may have had was waived by appellants’ failure to object. Hill v. Baylor, 23 Tex. 261 (1859), Bohanan v. Hans, 26 Tex. 445 (1863), Barrera v. Duval County Ranch Company, 135 S.W.2d 518 (Tex.Civ.App. 1939, writ ref’d.), 1 McCormick and Ray, Texas Law of Evidence § 27 (2nd Ed. 1956).

The final points of error maintain that the district court’s finding that appellants refused to pay the taxes or to tender any amount in payment thereof was supported by no evidence or that the finding was so contrary to the great weight and preponderance of the evidence so as to be manifestly unjust. Upon this finding judgment was entered against appellants for penalty and interest.

In general, a tender is an unconditional offer by the debtor to pay another a sum of money not less in amount than that due on an obligation. Baucum v. Great American Insurance Co. of New York, 370 S.W.2d 863 (Tex. 1963). An offer to pay less than the sum due is ineffectual as a tender. French v. May, 484 S.W.2d 420 (Tex.Civ.App. 1972, writ ref’d n.r.e.). The same rule should be, and is, applicable in tax cases. See Lufkin Land & Lumber Co. v. Noble, 60 Tex.Civ.App. 30, 127 S.W. 1093 (1910, writ ref’d.), Dickinson Independent School District v. McGowan, 533 S.W.2d 127 (Tex.Civ.App. 1976, no writ).

John Stratton, Jr., knew that the taxes were delinquent on the three tracts of land. Stratton never unconditionally tendered appellee payment for what he thought the taxes would be. Stratton did tell the officials of the taxing authority that he “. . . would pay them [the taxes] if they [appellee] would straighten them [the description of the tracts] out.” Mrs. Stratton testified that she had offered to pay the taxes on the property she owned “. . .if they [appellee] would straighten the 9 point, that acre out, the 2.9.” Appellants’ points are overruled because appellants’ conditional offer to pay was not an effective tender of the amount due.

The judgment is affirmed.


author: PHILLIPS, Chief Justice. SHANNON, Justice,

text:
    The STATE of Texas on the relation of Will Ray LOVELESS et ux., Appellants, v. BRADY INDEPENDENT SCHOOL DISTRICT, Appellee.
    No. 12517.
    Court of Civil Appeals of Texas, Austin.
    Feb. 23, 1977.
    Rehearing Denied March 16, 1977.

      John M. Harrod, County Atty., Eden, for appellants.
    Michael G. Maloney, J. C. Hinsley, Austin, for appellee.
   PHILLIPS, Chief Justice.

This is a suit in the nature of quo war-ranto by The State of Texas on the relation of two individuals alleging that the Brady Independent School District and the Eden Independent School District, not a party to this appeal, were both asserting the right to tax property belonging to the relators.

The district court of Concho County sustained appellee Brady Independent School District’s plea of privilege and ordered the cause transferred for trial to McCulloch County, domicile of the appellee.

We affirm this judgment.

Appellants contend that the purpose of this proceeding in Concho County against both of the above-mentioned school districts was to determine which of them has the jurisdiction and authority to tax a particular and defined portion of their property for public free school purposes.

Appellants seek reversal of the court’s ruling on the plea of privilege contending that they have a bona fide cause of action against both school districts and that the Brady Independent School District was so intimately connected with the cause of action brought against the Eden Independent School District in Concho County as to make the Brady District a necessary or proper party defendant. Tex.Rev.Civ.Stat. Ann. art. 1995, § 4 (1964).

We hold that under the aegis of Stockyards National Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300 (1936), appellants did not plead or prove a bona fide cause of action against the Eden Independent School District, the only defendant residing in Con-cho County where the suit was instituted and that the court was correct in sustaining appellee’s plea of privilege to be sued in the county of its residence.

Appellants’ petition in quo warranto alleged that it was filed on the relation of Will Ray Loveless and wife, Cecilia Loveless, and named as defendants the Eden Independent School District, alleged to be a resident of Concho County, and the Brady Independent School District, alleged to be a resident of McCulloch County.

The petition further alleged that the rela-tors own real property which was at one time located in the Melvin County-Line Independent School District, which had levied and collected school taxes on such property, but that after 1971 that district ceased to assess and collect taxes and the Brady District levied and collected school taxes against that part of relator’s property.

Appellants further alleged in the petition that relators had been notified that their property would continue to be taxed by the Brady District but additionally, that rela-tors had received a notice from the tax assessor-collector of the Eden District that they should also render their property to the Eden District for taxation.

Appellants’ petition further alleged that they were in doubt as to which district was entitled to collect taxes on the property and that there was a justiciable controversy as to which district was entitled to assess and collect taxes on the property.

Appellants then asked the court to determine which school district had the right and authority to tax the property.

It is well settled that two elements are necessary to maintain venue in a county under subdivision 4 of Tex.Rev.Civ.Stat. Ann. art. 1995. First, there must be a defendant who resides in that county; and second, plaintiff must plead and prove that it has a cause of action against the resident defendant. Stockyards National Bank v. Maples, supra. The opinion in that case makes it clear that proof of a cause of action against the nonresident defendant has no relevancy to the issue of venue.

It is also necessary that the cause of action plaintiff pleads against the resident defendant must be a bona fide one. Zurich Insurance Company v. Wiegers, 527 S.W.2d 511 (Tex.Civ.App.1975, no writ).

The term “cause of action” has been defined “as a fact or facts entitling one to institute and maintain an action, which must be alleged and proved in order to obtain relief.” A. H. Belo Corp. v. Blanton, 133 Tex. 391, 129 S.W.2d 619 (1939).

We note that appellee’s special exception to appellants’ controverting plea specifically urged that the controverting plea failed to allege any facts that show that appellants have a bona fide cause of action against the defendant Eden Independent School District. This special exception was sustained by the trial court. Appellants have no point of error in their brief complaining of that ruling. Although appellants were permitted to file a trial amendment, the trial amendment amends the controverting plea only to allege that the Eden Independent School District is a resident of Concho County and does nothing further to meet the exception in question by pleading any facts which would constitute a cause of action against the resident defendant Eden Independent School District. The only allegations are that the tax assessor-collector of that district had notified relators to render their property for taxation to the Eden District. There are no allegations whatever that such a demand was not justified by facts.

Thus, if appellants’ pleadings in the controverting affidavit were insufficient to allege the cause of action against the resident defendant Eden Independent School District, then appellants have no pleadings as a basis upon which to introduce evidence on the hearing which would prove a bona fide cause' of action against the resident defendant Eden Independent School District. Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91 (1935), Jefferies v. Dunklin, 131 Tex. 289, 115 S.W.2d 391 (1938).

It has long been settled in this State that evidence is inadmissible unless it has support in the pleadings. Erisman v. Thompson, 140 Tex. 361, 167 S.W.2d 731 (1943), Bowles v. Fickas, 140 Tex. 312, 167 S.W.2d 741 (1943).

Even assuming appellants plead a bona fide cause of action against the resident defendant, appellants are still not entitled to reversal because appellants failed to prove a bona fide cause of action at the hearing on the plea of privilege. The burden is on the plaintiff to prove a bona fide cause of action against the resident defendant by a preponderance of competent evidence. See Collins v. Ford Motor Credit Co., 454 S.W.2d 469 (Tex.Civ.App.1970, no writ), and cases cited therein.

The trial court ruled that appellants had not proved the necessary venue facts under subdivision 4 of Article 1995 to allow the case to be retained in Concho County. Such ruling is supported by the evidence and is not against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Because appellants failed in this indispensable requirement to maintain suit in the county where filed under subdivision 4 of Article 1995, appellee was entitled to have its plea of privilege granted. The trial court so held and we affirm that judgment.

The judgment of the trial court is affirmed.

SHANNON, Justice,

concurring.

I concur.

This is an appeal from the judgment of the district court of Concho County sustaining the plea of privilege of appellee, Brady Independent School District, and pertains to Tex.Rev.Civ.Stat.Ann. art. 1995 § 4 (1964).

The State of Texas, appellant, on the relation of Will Ray Loveless and wife, Cecilia Loveless, filed suit in the district court of Concho County against appellee, Brady Independent School District, and against Eden Independent School District. The State pleaded that Eden Independent School District was a resident of Concho County and that Brady Independent School District was a resident of McCulloch County-

Appellant pleaded that the Lovelesses owned real property in Concho County and that all or part of that realty was located in what was formerly the Melvin County-Line Independent School District. After 1971, the Melvin County-Line Independent School District “. . . ceased to assess and collect such school taxes and Relators [the Lovelesses] were directed to render their real property for assessment by the Brady District.” Thereafter, the Brady District levied and caused to be collected school taxes against that part of the real estate of the Lovelesses which had been located within the Melvin District.

Appellant averred further that in 1976 the Lovelesses received a notice from the Tax Assessor-Collector of the Eden District directing them to render for assessment the same real estate which was within the former Melvin District and which had been taxed by the Brady District. With the notice from the Eden Tax Assessor-Collector, the Lovelesses received a letter from the Board of School Trustees of the Eden District stating that the real property which was formerly within the Melvin District was now consolidated into the Eden District and subject to taxation for school purposes by the Eden District.

Appellant then alleged that a justiciable controversy existed between all parties to the suit. Appellant prayed for a determination by the court by what authority the respective school districts had the right to tax the Loveless property and for a declaration that as between the school districts which district had the right and authority to tax the said property.

The Brady District filed a plea of privilege to be sued in McCulloch County. Appellant filed its controverting plea, asserting venue in Concho County by reason of Tex.Rev.Civ.Stat.Ann. art. 1995 § 4 and other exceptions not here important. Upon trial, the district court sustained the plea of privilege.

Section 4 of Art. 1995 provides in part: “4. Defendants in different counties. —If two or more defendants reside in different counties, suit may be brought in any county where one of the defendants resides.”

Under § 4 the venue facts to be established are: (1) one defendant resides in the county of suit; (2) the party asserting his privilege is at least a proper party to the suit against the resident defendant; and (3) the plaintiff has a bona fide claim against the resident defendant. Stockyards National Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300 (1936), Zurich Insurance Company v. Weigers, 527 S.W.2d 511 (Tex.Civ.App.1975, no writ), 1 McDonald, Texas Civil Practice, § 44.10.2 (Rev. ed. 1965).

Appellant failed to show that the Love-lesses had a bona fide claim against the Eden District. Stated another way, appellant failed to prove a justiciable controversy between the Lovelesses and the Eden District.

A justiciable controversy must exist before the trial court has jurisdiction to grant any relief, declaratory or otherwise. Expressed in other terms, Article 5, § 8, of the Constitution of Texas does not empower the trial court to render advisory opinions. Morrow v. Corbin, 122 Tex. 553, 62 S.W.2d 641 (1933), California Products, Inc. v. Puretex Lemon Juice, Inc., 160 Tex. 586, 334 S.W.2d 780 (1960), United Services Life Insurance Co. v. Delaney, 396 S.W.2d 855 (Tex.Sup.1965), Firemen’s Insurance Co. of Newark, New Jersey v. Burch, 442 S.W.2d 331 (Tex.Sup.1968), Sub-Surface Construction Co. v. Bryant-Curington, Inc., 533 S.W.2d 452 (Tex.Civ.App.1976, writ ref’d n.r.e.). It follows that if a justiciable controversy exists, the trial court has jurisdiction to entertain the declaratory judgment action, and that the declaratory relief subsequently granted is not advisory.

To constitute a “justiciable controversy” for declaratory judgment purposes, there must be a real and substantial controversy involving a genuine conflict of tangible interest, rather than a theoretical one. Laborers’ Int. U. of N. A., Const., etc. v. Blackwell, 482 S.W.2d 327 (Tex.Civ.App.1972, no writ), Phillips Petroleum Company v. Bevins, 423 S.W.2d 340 (Tex.Civ.App.1967, writ ref’d n.r.e.), Sub-Surface Construction Co. v. Bryant-Currington, Inc., supra.

Appellant’s proof was that the Lovelesses had received the following notice from the Tax Assessor-Collector of the Eden District.

“Please call at my office and sign your school tax rendition form for the current year.
If this rendition is not made by you before June 10, 1976, it will be rendered by the Board of Equalization.”

Appellant’s other proof was the receipt by the Lovelesses of the form letter from the Board of School Trustees of the Eden District. The letter was addressed to: “Residents and Taxpayers of that portion of the former Melvin County-Line Independent School District lying South of Farm-to-Market Road 765 in Concho County, Texas.” The letter referred to a purported consolidation with the Eden District of that portion of the former Melvin School District lying south of Farm-to-Market Road No. 765 in Concho County. The letter then stated that all such property “. . .is now subject to the assessment, levy, and collection of school taxes by the Eden Independent School District.”

Appellant did not prove that any property involved in this appeal had been assessed for taxation by the tax assessor of Eden District or that any other step had been taken other than to request the Lovelesses to render the property for taxes, with the statement that if such were not done, the tax assessor would assess the property. Appellant failed to prove a real and substantial controversy between the Lovelesses and the Eden District involving a genuine conflict of tangible interest, rather than a theoretical one. As a result, the district court correctly sustained the plea of privilege and ordered the cause transferred to McCulloch County.

      . See 32 Texas L.Rev. 441 (1954).


author: HUGHES, Justice.

text:
    WESTERN NATIONAL BANK, DENTON, Texas, Appellant, v. Earl R. KING, Appellee.
    No. 17825.
    Court of Civil Appeals of Texas, Fort Worth.
    Feb. 25, 1977.
    Minor, Jester & Davidge, Denton, for appellant.
    King & Massey, Inc., Fort Worth, for appellee.
   OPINION

HUGHES, Justice.

In this non-jury case, Earl King sued Western National Bank for interest on church bond accounts of various churches which accounts were carried in the name of Firstamerica Trust Company of which King was trustee. Trial court rendered judgment for King for $2,682.13. Bank appealed.

We affirm.

Some time before February 15, 1972, King placed some accounts with Bank in the name of Firstamerica Trust Company as trustee for various churches. Such accounts were compensating balances to pay off bonds and interest due thereon. Individuals borrowed funds from Bank to buy such bonds.

Bank agreed to pay interest on such accounts’ average unpaid balance, and such accounts were subject to withdrawal by check or order instrument.

Bank paid interest on such accounts for over a year, but refused to pay for the months of January through March of 1971. Such refusal was based on the claim that interest payments on demand deposits were illegal. Bank resumed payments in April and continued same until February 15,1972, when the notes were sold to King through a written contract. King claimed that Bank charged in excess of agreement and, in effect, failed to allow accrued interest on church accounts’ average balance.

Bank contends in points of error nos. 1, 2, 4 and 6 that the contract for it to pay interest on the trust accounts’ average unpaid balance is illegal. Bank says it is illegal because it is payment of interest on demand deposits and against public policy. 12 U.S.C.A. § 371. King says the contract is not illegal; that Bank did not prove it to be; that it was Bank’s burden to prove illegality, if any.

Further, in points of error nos. 3 and 5, Bank contends that a later contract of February 15 was an attempt to make the illegal transaction legal, contrary to 12 U.S.C.A. § 371a. King says the novation cured any such defect particularly since he was not in pari delicto to Bank.

Bank alleges that the original contract is void because the deposits involved were demand deposits. Bank has the burden of proving such to be demand deposits. 13 Tex.Jur.2d, Contracts, § 167, 390. Bank relies on an agreement of the parties to admit that if Robert Hicks were present in court and sworn he would testify that in his opinion “these accounts are demand accounts.” We hold this to be insufficient in the face of other testimony, which the trial court believed, to the effect that the accounts were labeled “time savings accounts”. Also, Bank did not prove the nature or type of withdrawals to which these accounts were subject, nor what procedures were followed in making such withdrawals. The trial court had sufficient testimony to conclude that the accounts were not demand accounts.

We hold that Bank and King were not in pari delicto as in the transaction described by Graham v. Dean, 144 Tex. 61, 188 S.W.2d 372 (1945). Illegality here is dependent on facts peculiarly known to Bank but not known to King. Bank did not show that King knew the deposits were demand deposits. We overrule all six of Bank’s points of error for the reasons stated.

Judgment of the trial court is affirmed.


author: YOUNG, Justice.

text:
    Juvenal RIVERA and wife San Juana Rivera, Appellants, v. AUSTIN NATIONAL BANK and Robert G. Mathews, d/b/a Mathews Recovery Bureau, Appellees.
    No. 1182.
    Court of Civil Appeals of Texas, Corpus Christi.
    Feb. 28, 1977.
    Rehearing Denied March 17, 1977.

      J. L. Covington, Covington & Morrow, Brownsville, Robert J. Hearon, Jr., Owen L. Roberts, Graves, Dougherty, Hearon, Moody & Garwood, Austin, for appellants.
    George W. Storter, Storter & Pena, Cari-nhas & Cunningham, Brownsville, for ap-pellees.
   OPINION

YOUNG, Justice.

In this venue case, Juvenal G. Rivera and wife, San Juana Rivera, sued Austin National Bank and Robert G. Mathews, d/b/a Mathews Recovery Bureau, for money damages arising out of an alleged conversion of the plaintiffs’ mobile home. Suit was filed in Cameron County, Texas. The bank then filed a plea of privilege to be sued in Travis County, Texas, where it is located. The Riveras controverted the plea of privilege and maintained that venue was proper in Cameron County under Subdivisions 4, 9 and 29a of Tex.Rev.Civ.Stat.Ann. art. 1995 and under Tex.Rev.Civ.Stat.Ann. art. 5069-8.04. The trial court sustained the plea of privilege and the Riveras therefore appeal.

In December 1970 appellant Juvenal Rivera bought a mobile home from a dealer in Houston, Texas. In that connection, Mr. Rivera signed a promissory note for part of the purchase price and a security agreement which granted the dealer a security interest in the mobile home. Subsequently the dealer assigned its interest in the note and agreement to Austin National Bank, a national banking association located in Travis County. The bank then notified Mr. Rivera of the assignment and requested him to make payments to the bank in Travis County.

Later Mr. Rivera moved the mobile home to Cameron County. In the summer of 1975, Mr. Rivera became three payments in arrears on the note. Whereupon the bank authorized Mathews Recovery Bureau, located in Cameron County, to collect the unpaid balance on the note or repossess the mobile home. Eventually Mathews seized and took possession of the home and then notified Mr. Rivera that he could redeem the home by paying the unpaid balance of the note plus all repossession expenses.

The Riveras then filed suit on September 2, 1976, against the bank and Mathews alleging conversion of their mobile home and asking for damages. On October 7, 1976, the plea of privilege hearing was begun and the trial court sustained the plea by order of December 1, 1976. And before this appeal was submitted to us, the Riveras paid all amounts under the note and agreement and they redeemed the mobile home.

The sole question on appeal is one of waiver as set out in appellants’ only point of error which is as follows:

“The District Court erred in its sustention of the plea of privilege of Appellee Austin National Bank because in the circumstances of this case Appellee Austin National Bank waived its privilege to assert venue in Travis County, Texas pursuant to 12 U.S.C. § 94.”

The venue of suits against national banks is governed by 12 U.S.C. § 94 which provides as follows:

“§ 94. Venue of Suits
Actions and proceedings against any association under this chapter may be had in any district or Territorial court of the United States held within the district in which such association may be established, or in any State, county or municipal court in the county or city in which said association is located having jurisdiction in similar cases.”

This provision, which is mandatory and not permissive, overrides any conflicting state venue statutes. Mercantile Nat’l Bank at Dallas v. Langdeau, 371 U.S. 555, 83 S.Ct. 520, 9 L.Ed.2d 523 (1963); Michigan Nat’l Bank v. Robertson, 372 U.S. 591, 83 S.Ct. 914, 9 L.Ed.2d 961 (1963). The mandatory effect of § 94 was by us recently reaffirmed in South Padre Development Company v. Texas Commerce Bank National Association, 538 S.W.2d 475 (Tex.Civ.App.—Corpus Christi 1976, no writ).

There are two exceptions, however, to § 94: one, where a bank consents to be sued or waives its defenses when sued in another county; the other, where the action brought against a national bank is purely local, rather than transitory.

The appellants’ action against the bank is for money damages and is based primarily upon an alleged conversion of movable personal property and upon alleged violations of the Texas Consumer Credit Code. An action for money damages for conversion of personal property is transitory. Richter v. Plains National Bank of Lubbock, 440 S.W.2d 76 (Tex.Civ.App.—Fort Worth 1969, writ dism’d w. o. j.). An action for money damages for violations of the Texas Consumer Credit Code is very similar to an action based on violation of our usury laws. We recently held that an action based upon violation of our usury laws is transitory. South Padre Development Company v. Texas Commerce Bank Nat’l Ass’n, supra. So the “local action” exception is not applicable here.

About the “waiver” exception to § 94, the bank filed no action against appellants in Cameron County; only when appellants filed their action did the bank file any proceeding, its plea of privilege. A waiver requires an intentional relinquishment of a known right or intentional conduct inconsistent with claiming that right. This definition has been held to be appropriate in determining whether a national bank has waived its rights under § 94. First National Bank of Midland v. Stoutco Inc., 530 S.W.2d 619 (Tex.Civ.App.—San Antonio 1975, writ dism’d w. o. j.).

In Stoutco, the appellant bank had obtained a writ of garnishment in Midland County and had caused the writ to be served by the Sheriff of Bexar County on a bank in Bexar County, thereby freezing the appellees’ bank accounts in Bexar County. The San Antonio Court of Civil Appeals, speaking through Chief Justice Barrow, held that such actions by the appellant national bank did not constitute a waiver of venue rights under § 94. In explaining the reasons for its holding, which we approve, the Court said the following:

“. . . Appellant did not file any proceeding in the Courts of Bexar County; nor did the appellant commit any acts evidencing an intent to relinquish its venue right. The record would probably support a finding that a part of the cause of action arose in Bexar County within the meaning of Subdivision 23 of Article 1995, Tex.Rev.Stat.Ann. (1964). Nevertheless, the provisions of Sec. 94 are mandatory and overrule conflicting state venue statutes. Otherwise the congressional enactment permitting suit to be brought in the bank’s home county could become largely meaningless.” (Emphasis supplied.)

Consequently, the “waiver” exception is not applicable here either.

In its argument under its sole point of error, the appellants also assert that the trial court erred when it ordered that the appellants’ cause of action against Mathews (who was a resident of Cameron County) be transferred, with that against the bank, to Travis County. Appellants say this action violated Mathews’ statutory and constitutional rights. Appellants’ contentions are without merit for the reasons that: 1) Mathews, the proper party to complain of these alleged violations, has not complained, and 2) appellants have not' properly assigned error to these alleged violations.

Finally, the appellants complain of the trial court’s failure to file findings of fact and conclusions of law upon the appellants’ request. Under Rule 385(e), T.R.C.P., the trial court was not compelled to file such requested findings and conclusions in an interlocutory matter such as we have here.

The judgment of the trial court is AFFIRMED.


text:
    JAY-LOR TEXTILES, INC., Appellant, v. PACIFIC COMPRESS WAREHOUSE COMPANY et al., Appellees.
    No. 1101.
    Court of Civil Appeals of Texas, Corpus Christi.
    Feb. 28, 1977.
    Rehearing Denied March 21, 1977.

      Jack K. Dahlberg, Jr., Guy Allison, Corpus Christi, for appellant.
    Houston C. Munson, Jr., Gonzales, for appellees.
   OPINION

YOUNG, Justice.

This is an appeal from an order overruling defendant’s plea in abatement and from a judgment for the plaintiffs based on an instructed verdict entered against the defendant at the close of all the evidence in a jury trial.

Pacific Compress Warehouse Company, Curtis Goedecke, Otto Goedecke, and Otto Goedecke, Inc., sued Jay-Lor Textiles, Inc., based on Jay-Lor⅛ operation of a textile mill in Cuero, Texas, for approximately 2½ years. The reasons alleged, the amounts sought, and the awards made by the trial court are as follows:

1. Pacific sought $2,800.00 per month for its equipment used by Jay-Lor from June 1971 through October 1973 and was awarded $72,800.00.
2. Curtis Goedecke sought $6,221.33 for cotton furnished to and unpaid for by Jay-Lor and was awarded $6,221.33. He further sought $4,532.66 for interest paid on behalf of Jay-Lor and was awarded $4,532.66.
3. Otto Goedecke sought $16,310.00 under his managerial employment contract with Jay-Lor from January 20, 1971, to November 24, 1973, and was awarded $16,310.00.
4.Otto Goedecke, Inc., sought $1,878.45 for miscellaneous expenses incurred on behalf of Jay-Lor and was awarded $1,389.45.

Additionally, the plaintiffs each sought reasonable attorney’s fees and were awarded $5,000.00 in a lump sum.

Appellant has brought forward 20 points of error. In its points 1 through 7 together with points 19 and 20, the appellant complains of actions of the trial court regarding Pacific.

The appellant complains in its point 1 that the trial court erred in overruling the appellant’s plea in abatement. In that regard, prior to the jury trial, the appellant-defendant filed its plea in abatement asserting that appellee-Pacific was a foreign corporation without a permit to do business in the State of Texas and was thereby barred from enforcing any cause of action occurring while it had no permit. Pacific answered the plea by contending that Tex. Bus.Corp. Act Ann. art. 8.01, excluded this suit because it was based on an interstate transaction and because it was an isolated transaction completed within a period of thirty days. The trial court, after a hearing, denied appellant’s plea.

As in our case, where the plaintiff’s petition does not affirmatively show that the foreign corporation cannot maintain the suit, the burden is on the defendant to plead, by way of a plea in abatement, and prove facts showing the corporation cannot maintain the suit. Continental Supply Co. v. Hoffman, 135 Tex. 552, 144 S.W.2d 253 (Tex.Comm’n App. 1940, opinion adopted); Ero Industries, Inc. v. Be-In Buttons Co. of Houston, 473 S.W.2d 677 (Tex.Civ.App.—Houston [1st Dist.] 1971, no writ); 2 McDonald, Texas Civil Practice, Sec. 6.03.3 (1970).

Appellant properly plead a plea in abatement and the following is a fair summary of the facts produced at the hearing on the plea. Otto Goedecke was the only witness. Pacific is a California corporation and has no permit to do business in Texas. The equipment involved was located in Mexia and then in Cuero, Texas. It was purchased by either Pacific or Lone Star Textiles from a North Carolina corporation. Thereafter it was shipped to Texas from North Carolina and France. It was then used by Lone Star until Walter Heller, the lien holder, foreclosed on the assets of Lone Star in 1970. At that time, Otto Goedecke, the president of Pacific, introduced Mr. Heller and Mr. Schneider, the president of Jay-Lor, for the purpose of having Jay-Lor purchase the equipment. The equipment was not purchased, but Jay-Lor did begin using it at Cuero with “an understanding that they would have to compensate”. There was no written agreement as to this arrangement, nor was there a rental price ever agreed upon in any form. The main office of Pacific was always maintained in Hallettsville, Lavaca County, Texas, in the office of Otto Goedecke who was its major stockholder and its president.

The Texas Business Corporation Act prohibits a foreign corporation from maintaining any action until it has a certificate of authority. Article 8.18A, in part, states:

“No foreign corporation which is transacting, or has transacted, business in this State without a certificate of authority shall be permitted to maintain any action, suit, or proceeding in any court of this State (whether brought directly by the corporation or in the form of a derivative action by a shareholder) on any cause of action arising out of the transaction of business in this State, until such corporation shall have obtained a certificate of authority. . . . ”

A foreign corporation which does not comply with this section is not allowed to maintain a suit until it complies with the law. Troyan v. Snelling & Snelling, Inc., 524 S.W.2d 432 (Tex.Civ.App.—Dallas 1975, no writ); Ammann v. St. Joe Paper Co., 341 S.W.2d 700 (Tex.Civ.App.—San Antonio 1960, no writ). Article 8.01 of the same Act excludes, however, from this requirement transactions in interstate commerce and isolated transactions completed within a thirty day period and not in the course of a number of repeated transactions of like nature.

We find that the evidence presented clearly shows that the transaction was only intrastate. Appellee would have us hold that the movement of the equipment from North Carolina and France made the transaction interstate. We do not agree. It is clear that this original transaction in no way was connected to Jay-Lor’s dealings with Pacific. It cannot, therefore, give to the leasing arrangement an interstate flavor. Estey Corporation v. St. Mary’s University of San Antonio, Inc., 470 S.W.2d 138 (Tex.Civ.App.—San Antonio 1971, no writ). Appellee, also, cites various cases in support of its contention that this is an interstate transaction. We note, however, that in each of these cases there was shipment of goods between states which shipment formed the basis of the transaction. Not so here. The equipment was already in Texas before Jay-Lor had any dealings with it.

Appellee also argues that this is an isolated transaction occurring within thirty days. This is clearly not the case here where the plaintiff claims rents for a period extending several months past thirty days. Appellant’s first point is sustained and it is, therefore, our duty to reverse the judgment of the trial court as to Pacific and to dismiss its cause of action. Altheimer & Baer, Inc. v. Vergal Bourland Home Appliances, 369 S.W.2d 478 (Tex.Civ.App.—Fort Worth 1963, writ ref’d n. r. e.); Davis v. United Shoe Repairing Mach. Co., 92 S.W.2d 1107 (Tex.Civ.App.—Beaumont 1936, writ dism’d w.o.j.). Because of this ruling, we deem it unnecessary to discuss appellant’s other points pertaining to Pacific other than to note that we have considered them and we sustain those points 2 through 7, 19 and 20.

In appellant’s remaining points, it challenges the trial court’s action in granting an instructed verdict for the remaining appel-lees.

In determining whether the trial court was correct in instructing a verdict, we must view the evidence in the light most favorable to the losing party. Thus, we must indulge in every reasonable inference which can be properly drawn from the evidence favorable to the movant and disregard all contrary evidence. If, so viewed, the evidence has any probative force, an issue is raised and we must hold the instructed verdict improper. White v. White, 141 Tex. 328, 172 S.W.2d 295 (1943); Wood v. Paulus, 524 S.W.2d 749 (Tex.Civ.App.—Corpus Christi 1975, writ ref’d n. r. e.); 3 McDonald Texas Civil Practice, § 11.28.2 (1970).

Reviewing the evidence in the light most favorable to the losing party, Jay-Lor, we find the following testimony pertinent to the instructed verdict for Curtis Goe-decke on his cotton claim. Francis Miku-lenka, appellant’s expert on cotton quality, testified that upon examination of the mix (the material used to spin the yarn), he could not tell whether it was cotton and did not really know what it was. Jimmy Kora-nek, formerly employed as an overseer for appellant in its mill, testified that the yarn spun from the cotton was weak. This weakness resulted in breakage of the yarn causing production to stop for repairs. He suggested that this was caused by the poor quality of the cotton used in spinning yarn. We hold that the foregoing evidence raises a fact issue whether Jay-Lor was due an off-set for the quality of cotton sold to it by Goedecke or whether the cotton was of such poor quality that Jay-Lor had no duty to pay for it. Appellant’s points 8 and 9 are sustained.

About Curtis Goedecke’s claim for interest paid by him because of Jay-Lor’s delays of payment to him, we look to Otto Goe-decke’s testimony. After the original financing arrangement in Mexia collapsed, Jay-Lor arranged through a New York bank to open irrevocable letters of credit to be used in purchasing the cotton. The procedure then was that Otto Goedecke would notify Jay-Lor that cotton had been purchased and Jay-Lor then would open the letter of credit. The bank, upon the receipt of the invoice, would tender the money. Apparently, delays developed in the payment to the sellers of the cotton and a new means of financing had to be devised to obtain a steady supply of cotton. Whereupon Otto Goedecke approached Curtis Goe-decke about financing the purchase of cotton in Curtis’ name through a Hallettsville bank. An agreement was worked out with the bank whereby the bank would finance 75% or 80% of the purchase price and Curtis would furnish the remainder. Jay-Lor did not enter into this agreement and never provided any financial backing for it. Jay-Lor did, however, continue to open letters of credit in New York when notified of purchases of cotton. The result was that Curtis Goedecke sustained the delay in payment for the cotton, thereby assuring Jay-Lor of a steady supply.

There was testimony also from Otto Goedecke that, in connection with the interest claim against Jay-Lor for late payment on letters of credit, there was no interest' charged by the bank to Curtis because of those late payments. Further, Otto calculated the claimed interest several different ways. To us the foregoing raises several material fact issues: whether Jay-Lor was responsible for interest paid by Curtis; whether Curtis paid any interest; and, if Jay-Lor was obligated to Curtis for interest, what the correct amount was. Appellant’s points 10, 11 and 12 are sustained.

Appellant’s point 13 attacks the trial court’s motion for instructed verdict for wages earned under Otto Goedecke’s employment contract. Jay-Lor and Otto Goe-decke entered into employment contract on January 20, 1971, binding Jay-Lor to pay Otto Goedecke $250.00 a week for managing its Cuero and Mexia operations. Contained within the contract was the following provision:

“(4a) During the term of this agreement the employee shall devote his full time and energy to this employment and shall not engage or work in any other business or employment of any nature.”

A full review of the record reveals two instances in which Otto Goedecke violated this provision, thereby, establishing a fact question as to the justness and correctness of this account. First, he was the actual purchaser and dealer of cotton behind Curtis Goedecke’s sale of cotton to Jay-Lor; second, his admitted motivation in managing Jay-Lor’s Cuero operation was to restart Lone Star Textiles, his own bankrupt operation. Appellant’s point 13 is sustained.

In its point 14, appellant challenges the instructed verdict for expenses claimed by Otto Goedecke, Inc. Once again, a full review of the record leads us to conclude that a fact question was presented as to the justness of this claim. Otto Goedecke testified that he was the actual purchaser and seller of cotton for Curtis Goedecke. He further testified that phone bills and travel expenses could have been the result of this operation. Travel expenses between Cuero and Hallettsville were shown to be incorrect based upon mileage between Cuero and Hallettsville and the number of trips claimed. Freight expenses claimed were also shown to be probably the result of Otto Goedecke’s personal enterprises. Appellant’s point 14 is sustained.

Appellant’s final points of error (15, 16, 17 and 18) complain of the trial court’s instructed verdict for attorney’s fees for all plaintiffs. The granting of attorney’s fees is dependent on the party’s proof of a “valid claim” upon which a judgment is “finally obtained”. Tex.Rev.Civ.Stat.Ann. art. 2226 (1971). Article 2226, therefore, contemplates recovery of attorney’s fees only if the claimant finally obtains judgment. Cook v. Layne Texas Company, Inc., 495 S.W.2d 377 (Tex.Civ.App.—Waco 1973, writ ref’d n. r. e.); Nichols v. Acers Company, 415 S.W.2d 683 (Tex.Civ.App.—Austin 1967, writ ref’d n. r. e.). Because of our holdings, plaintiff-appellees have not obtained a judgment in this case. Appellant’s final points are sustained.

The judgment of the trial court is REVERSED as to all appellees. The cause is dismissed as to Pacific and remanded for trial as to all the other appellees.


author: PARK, Judge.

text:
    Wayne SULLIVAN et al., Appellants, v. CITY OF PADUCAH et al., Appellees.
    Court of Appeals of Kentucky.
    Jan. 7, 1977.
    Discretionary Review Denied March 30, 1977.
    W. David Denton, Paducah, for appellees.
    J. William Graves, Goheen, Yaffe & Graves, Paducah, for appellants.
    Before HAYES, LESTER and PARK, JJ.
   PARK, Judge.

This is an appeal from a judgment of the McCracken Circuit Court upholding an annexation ordinance enacted by the Board of Commissioners of the City of Paducah on November 23, 1971. The ordinance provided for the annexation of an area containing approximately 250 acres adjacent to the City of Paducah and the Paducah Flood Wall. The area is essentially commercial in character, with approximately 74 business establishments. The area is bisected by U.S. 60-62-68, one of the main arteries into the City of Paducah. Some 20 to 25 people reside in the five or six residences within the area.

This litigation was commenced in the McCracken Circuit Court on December 10, 1971, by persons opposing the annexation. The parties stipulated that more than fifty percent of the resident freeholders within the area sought to be annexed have remonstrated against the annexation. The City of Paducah being a city of the second class, this case is governed by KRS 81.140 which provides in part:

“Any city of the second class may annex any unincorporated territory or reduce the boundaries of the city, in the same manner and under the same procedure as is provided in KRS 81.100 and 81.110 for annexation of unincorporated territory or reduction of boundaries by cities of the first class, with the following exceptions:
⅜ * ⅜ ⅜ # ⅜
(2) The proceedings in the circuit court shall be tried according to the practice prescribed for the trial of equity cases, without the intervention of a jury.
(3) The number of freeholders whose remonstrance will control the question of annexation or reduction shall be fifty per cent (50%). * * * ”

With the changes dictated by KRS 81.140 set forth in brackets, the relevant portion of KRS 81.110 provides:

“(2) If the [court] finds, upon a hearing, that less than [fifty per cent] of the freeholders of the territory to be annexed or stricken off have remonstrated, and that the adding or striking off of the territory will be for the interest of the city, and will cause no manifest injury to the persons owning real estate in the territory sought to be annexed or stricken off, the annexation or reduction shall be approved and become final. If the [court] finds that [fifty per cent] or more of the resident freeholders of the territory sought to be annexed or stricken off have remonstrated, the annexation or reduction shall not take place, unless the [court] finds from the evidence that a failure to annex or strike off will materially retard the prosperity of the city, and of the owners and inhabitants of the territory sought to be annexed or stricken off, in which case the annexation or reduction shall take place notwithstanding the remonstrance.”

As more than fifty per cent of the resident freeholders remonstrated against the annexation, the City of Paducah had the burden of proving that a failure to annex (1) would materially retard the prosperity of the city, and (2) would materially retard the prosperity of the owners and inhabitants of the territory sought to be annexed.

Proof in the case was taken by deposition and in open court from August through December of 1975. After making extensive findings of fact, the circuit court on March 16, 1976, entered a judgment upholding the city’s right to annex the area in question. On April 21, 1976, after a further hearing, the circuit court overruled a motion for new trial and for relief under CR 60.02.

In reviewing the findings of fact and judgment of the circuit court, this court is governed by CR 52.01 which provides:

“Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.”

The appellants argue that the trial court erred in considering evidence of events since the enactment of the annexation ordinance in 1971. Particular objection is made to testimony concerning a study conducted in 1975 shortly before the trial of the case. If this evidence is eliminated from consideration, the appellants then argue that there would be insufficient evidence in the record to sustain the city’s burden of proving that the prosperity of the city and the area sought to be annexed would be materially retarded.

Whenever a city of the second class enacts an annexation ordinance, the city can not know whether fifty per cent or more of the resident freeholders within the area to be annexed will remonstrate against the annexation. At the time the annexation ordinance is adopted, the city can not know what burden of proof may be imposed upon it in any future annexation litigation. In adopting an annexation ordinance, the governing body of the city is exercising a legislative function. The statutes do not require the governing body of the city to make .findings of fact after a trial-type hearing.

Under the statutory scheme, the only fact finding is by the trial court under KRS 81.110 as incorporated by KRS 81.140. The trial court must find from the evidence that a failure to annex will materially retard the prosperity of the city and of the owners and inhabitants of the territory to be annexed. There is nothing in the statute to indicate that the court’s findings must relate back to the date of the annexation ordinance rather than the time of trial. The question of the prosperity of the city and of the area to be annexed necessarily involves the future development and progress of the community. This court concludes that the trial court must make its findings in light of the actual conditions existing at the time of trial. The trial court did not err in considering events which had transpired between the enactment of the annexation ordinance in 1971 and the trial in 1975. There is no suggestion that the city delayed the trial of the case in order to avoid the burden of proof imposed upon it by the statute.

Having ruled that the evidence in question was admissible, this court must also determine whether the city sustained its burden of proving that a failure to annex would materially retard the prosperity of the city and the area sought to be annexed. The appellants contend that the record does not establish that the prosperity of the area in question will be materially retarded if not annexed. No real issue is raised as to the effect on the city.

The trial court found that the area to be annexed did not receive adequate fire protection from the Reidland Voluntary Fire Department. The area had been the site of several major fires which were beyond the capabilities of a voluntary fire department. In those fires, the city had provided assistance, but only after delay. The circuit court found that the city would be able to provide modern professional fire protection through its fire department. In addition, the distance between fire hydrants would be reduced from 1000 feet to 500 feet.

The circuit court found that the area in question received its water supply from the City of Paducah’s water plant. Annexation would insure the area an adequate supply of water at a reduced rate following annexation. The circuit court also found that the city’s police department could provide better police protection than was being provided to the area by the sheriff’s office and the Kentucky State Police. If annexed, the area would also have the benefit of the lighting system used throughout the City of Paducah.

The circuit court also found that annexation would result in an improvement of streets and roads in the area. Not only would this speed traffic into and out of the central part of the city, but it would also improve access to many of the commercial businesses in the area to be annexed.

The record also establishes that the area in question receives all of its electricity from the city’s municipally owned power plant. In addition, the area is protected by the city owned flood wall. The prosperity of the area to be annexed is completely dependent upon a continuation of the services being provided by the city. This area of commercial development is completely urban in character. This court concludes that the evidence amply supports the findings of the circuit court that the prosperity of the territory will be retarded if not annexed to the City of Paducah. See Loeffler v. City of Louisville, 308 Ky. 629, 215 S.W.2d 535 (1948). Only by annexation can the area in question be assured of the municipal services without which the area can not survive.

The appellants also question the probative value of the testimony of many of the witnesses on behalf of the city because these witnesses were city employees. The appellants objected particularly to the testimony of the city manager who was formerly the corporation counsel who drafted the annexation ordinance. Because of the alleged conflict between his role as an attorney and as a witness, it is argued that his testimony had no probative value. Under CR 52.01, the credibility of these witnesses was for the trial court. The findings of fact of the circuit court are not clearly erroneous.

There being no error, the judgment of the circuit court is affirmed.

All concur.


text:
    Donald Lewis COVINGTON, Appellant, v. FRIEND TRACTOR AND MOTOR COMPANY, INC., and Woodrow Friend, Appellees.
    Court of Appeals of Kentucky.
    Jan. 7, 1977.

      B. L. Kessinger, Jr., Harbison, Kessinger, Lisle & Bush, Lexington, for appellee.
    Joe C. Savage, Turley, Savage & Moore, Lexington, for appellant.
    Before HOGGE, PARK and VANCE, JJ.
   PARK, Judge.

This litigation arises out of a collision on May 7,1970, between a motorcycle operated by the plaintiff-appellant Donald Lewis Covington and a truck operated by the defendant-appellee Woodrow Friend, and owned by the appellee Friend Tractor and Motor Company, Inc. Covington sought to recover damages for personal injuries suffered in the collision and for damages to his motorcycle. A trial of the case in the Scott Circuit Court resulted in a jury verdict for the defendants. Covington appeals from the judgment dismissing his complaint.

The following issues are raised by the appeal: (1) Did the trial court err in admitting an out of court statement by Coving-ton’s mother purporting to repeat an earlier out of court statement by Covington? (2) Was Covington entitled to a directed verdict on the issue of liability? (3) Did the trial court err in admitting a posed photograph purporting to show the location of Friend’s truck following the collision? (4) Did the trial court err in giving two instructions setting forth the defense of contributory negligence? (5) Did the trial court err in failing to sustain an objection to the closing argument by the defendants’ counsel?

HEARSAY ISSUE

At the trial, Covington testified that he had no memory of the collision itself or the events immediately before the collision. This loss of memory was attributed to the injuries sustained by Covington in the collision. As a part of his evidence, Covington called his mother to testify concerning a visit with her son in the hospital, Mrs. Cov-ington testified:

“Q.18 Were you able to speak with him about the accident?
A. I talked to him and asked him what happened and he just kept saying, I don’t know.”

This testimony from Covington’s mother clearly supported his theory that he was unable to recall any of the events immediately surrounding the collision.

On cross-examination, the plaintiff’s mother testified:

“Q.121 Now, Mrs. Covington, the day after the accident, which would have been November — rather May the 8th, at that time Ernie was in the room at the St. Joseph’s Hospital, was he not?
A. Yes, sir.
Q.122 Now, on that date were you present when Mr. Friend and his' daughter, Mrs. Lackey came to the room?
A. Sir, that was on Sunday that they came.
A. 123 Was that?
A. I was present, yes sir.
* * * * * *
Q.127 I will ask you, Mrs. Covington, if on that occasion, Mr. Friend didn’t ask you had the boy ever indicated what happened and your reply was he just said he didn’t see your truck and was not holding you responsible. Do you remember making that statement?
A. I certainly do not.
******
Q.129 But you did not make that statement to Mr. Friend at the hospital?
A. If I did, I certainly do not remember. In fact they were only there approximately 15 minutes.”

As a part of his case, the defendant, Friend testified:

Q.99 All right, sir. Did you have occasion to be with Mrs. Covington, the mother of Donald [sic] Covington within a couple or two or three days or the following Sunday after this accident?
A. I was.
Q.100 Where were you?
A. I went to the St. Joseph’s Hospital in Lexington.
Q.101 All right. Who was present in the room?
A. My daughter, Mrs. Covington, her daughter and Ernie.
******
Q.112 Speak up so we can all hear you?
A. I asked Mrs. Covington if Donald had ever — Ernie had ever said anything about what happened. And she said Ernie said he just didn’t see the truck and he didn’t hold us responsible.”

The substance of Friend’s testimony was confirmed by the testimony of his daughter, Mrs. Lackey.

Covington asserts that the trial court erred in admitting this testimony of Mr. Friend and his daughter. Since the testimony related to an out of court statement by Covington’s mother which purported to repeat another out of court statement made by Covington himself, it is argued that the testimony constitutes double hearsay. We disagree.

In Taylor v. Commonwealth, Ky., 461 S.W.2d 920, 923 (1970), the Court of Appeals stated:

“Appellant’s fourth contention is that the trial court erroneously permitted the Commonwealth, after one of its witnesses had denied that the defendants had made certain incriminatory statements to her, to prove by other witnesses that she had told them of the statements. The witness in question was in court; she had testified and was available for cross-examination; the persons to whom she allegedly had repeated the defendants’ statements to her were in court and available for cross-examination; and had she testified to the defendants’ statements her testimony would not have been inadmissible as hearsay because it would have consisted of repeating admissions made by the defendants. Under these circumstances the evidence in question was admissible in accordance with the holding in Jett v. Commonwealth, Ky., 436 S.W.2d 788.”

This case is directly in point.

Had Mrs. Covington testified that her son stated that he never saw the truck, the testimony would have been admissible as an admission by a party. Mrs. Coving-ton’s prior statement to Mr. Friend in the presence of his daughter was admissible under Jett v. Commonwealth, Ky., 436 S.W.2d 788 (1969). Mrs. Covington had testified as a witness, and on cross-examination a proper foundation had been laid. The trial court committed no error in admitting the testimony of Mr. Friend and his daughter relating to the conversation with Covington’s mother.

DIRECTED VERDICT ISSUE

Whether Covington was entitled to a directed verdict actually involves two questions. First, was Friend negligent as a matter of law? Second, was Covington free of contributory negligence as a matter of law? In order to dispose of these questions, the facts of the case must be given in some detail. In considering whether a directed verdict should have been given, the testimony must be examined in the light most favorable to Friend.

Friend was operating a 30 to 35 foot long flat bed truck south on Highland Avenue in the City of Georgetown. Friend intended to turn left in order to proceed east on College Street. Covington was traveling north on Highland Avenue on his.motorcycle, intending to proceed straight through the intersection with College Street.

Friend testified that he activated his left turn signal approximately 30 yards from the intersection of Highland Avenue and College Street. Friend further testified that he looked south down Highland Avenue prior to commencing his left turn onto College Street. According to Friend, he saw no traffic proceeding north on Highland Avenue, and he did not become aware of Covington’s motorcycle until it struck the right front of his truck. Friend had almost completed his turn onto College Street when the impact occurred.

Highland Avenue was approximately three lanes wide. Consequently, traffic normally moved in the center of the street if there were were parked cars on both sides of the street. Friend testified that there were no parked cars on the west side of Highland Avenue in the block between College Street and Clinton Street, the next street south of College. However, Friend did testify that there were two or more cars parked on the east side of Highland Avenue between College Street and Clinton Street. Friend also admitted that he had a clear view beyond Clinton Street as he proceeded south down Highland Avenue.

Covington had stopped his motorcycle at the intersection of Highland and Clinton Street, before proceeding north toward College Street. Covington remembers nothing about the events which occurred after he left the intersection at Clinton Street. As he left the intersection of Clinton Street, Covington was seen by two deputy sheriffs who testified that Covington was proceeding at a slow rate of speed. One of the deputy sheriffs testified that Covington was traveling “close” to the right hand side of Highland Avenue, about 6 to 8 feet from the curb. Another witness testified that he observed Covington’s motorcycle traveling at a speed of 35 to 40 m. p. h. immediately before the impact although he did not actually see the collision itself.

The driver of an automobile seeking to make a left turn across the projected path of oncoming traffic must yield the right of way unless and until it appears to him in the exercise of ordinary care that the left turn can be made in reasonable safety. When there is nothing to prevent the left turning driver from observing the imminent approach of a vehicle which is traveling in a straight course, the left turning driver is negligent as a matter of law when a collision results. Compton v. Johnson, Ky., 522 S.W.2d 448 (1975). KRS 189.380(1).

In the present case, there is no evidence of anything that would have prevented Friend from observing the imminent approach of Covington’s motorcycle. Friend had an unobstructed view down Highland Avenue beyond the intersection with Clinton Street. Two cars were parked on the east side of Highland Avenue, but there is no evidence that the parked cars obstructed Friend’s view of Covington’s motorcycle. One of the witnesses placed Covington’s motorcycle only 6 or 7 feet from the east curb of Highland Avenue as Covington left the Clinton Street intersection, but there is no evidence that Covington’s motorcycle suddenly appeared from behind one of the parked cars. Covington’s speed would not have affected Friend’s ability to see the motorcycle, but Friend never saw Coving-ton before the collision. Friend gives no reasonable explanation for his failure to observe the approach of Covington’s motorcycle. The trial court erred in failing to direct a verdict on the question of Friend’s negligence.

Even though Covington had the right of way, it does not follow that he was free of contributory negligence as a matter of law. This is analogous to the line of cases in which a driver entering a superior highway from an inferior highway or private property fails to yield the right of way to approaching traffic. See, Killman v. Taylor, Ky., 453 S.W.2d 574 (1970). If by the exercise of ordinary care Covington should have realized that Friend would not yield the right of way, then Covington had a duty to exercise ordinary care to avoid the collision. Considering Friend’s testimony that he had activated his left turn signal some 30 yards from the intersection, the length of Friend’s truck and its slow speed as it made the left turn, and the fact that Covington’s view was unobstructed as he approached the intersection of Highland Avenue and College Street, there was an issue of Covington’s contributory negligence. The trial court did not error in instructing the jury on the issue of contributory negligence. Moskowitz v. Peariso, 458 F.2d 240 (6th Cir. 1972).

The jury returned only a general verdict in favor of the defendants. It is impossible to determine whether the jury found that Friend was not negligent or that Covington was contributorily negligent. As the jury’s verdict may have been based upon the issue of Friend’s negligence, it follows that it was prejudicial error for the trial court to fail to direct a verdict on that issue. Consequently, the case must be reversed, and a new trial must be granted. See, Dickerson v. Martin, Ky., 450 S.W.2d 520 (1970).

In passing, it should be noted that it is better practice to require the jury to return special or separate verdicts on the issue of the negligence of each driver. Thus, if the jury’s verdict made it clear that the jury found both drivers to be negligent, it would have been harmless error for the court to have failed to direct a verdict on the issue of the Friend’s negligence.

POSED PHOTOGRAPH ISSUE

Friend introduced a photograph which purported to show the location of his truck following the collision. The photograph was made long after the accident. Such photographic reconstructions of accident scenes should be admitted with extreme caution. Claycomb v. Howard, Ky., 493 S.W.2d 714 (1972). However, the trial judge does have some discretion in admitting posed photographs which were not taken for the purpose of representing the theory of only one party. Tumey v. Richardson, Ky., 437 S.W.2d 201 (1969). The photograph in question was not included in the record on appeal. This court can not say that the trial judge abused his discretion in admitting the photograph in question.

DUAL INSTRUCTIONS ISSUE

The court is not persuaded that it was prejudicial error for the issue of contributory negligence to be mentioned in two separate instructions. However, better practice would dictate that the issue of contributory negligence be confined to a single instruction. As only the issue of contributory negligence is to be submitted to the jury, this question should not arise upon a re-trial of the case.

CLOSING ARGUMENT ISSUE

Because the case has been reversed for a new trial the court need not determine whether the trial court also committed prejudicial error in failing to sustain an objection to certain matters made in the closing argument by defendants’ counsel. Upon a re-trial of the case, the matters objected to need not, and should not be repeated, in closing argument.

For the foregoing reasons, the judgment of the trial court is reversed, and the case is remanded for further proceedings in conformity with this opinion. All concur.