text:
    Leroy COHRON, Appellant, v. The STATE of Texas, Appellee.
    No. 40116.
    Court of Criminal Appeals of Texas.
    Feb. 15, 1967.
    Rehearing Denied April 12, 1967.

      John F. Evans, Breckenridge, for appellant.
    T. J. Rodgers, Dist. Atty., Graham and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

The offense is burglary; the punishment, 4 years.

Trial was before a jury on a plea of not guilty. The jury having found appellant guilty, he and his counsel elected to have the court assess the punishment.

The first ground of error presented by appellant’s brief, filed in the trial court, is that the indictment is fatally defective in that it alleged only that a corporation occupied and controlled the building alleged to have been burglarized, and the personal property therein.

The charging portion of the indictment alleged:

“Leroy Cohron, who is hereinafter called ‘Defendant’, did then and there unlawfully break and enter a house then and there occupied and controlled by Heairren & Rogers, Inc., a corporation, O. C. Heair-ren, president, who is hereinafter called ‘Injured Party’, with intent then and there to fraudulently take therefrom corporeal personal property therein being and then and there belonging to the said injured party, from the possession of the said injured party, without the consent of the said injured party, and with the intent then and there to deprive the said injured party of the value of same and to appropriate it to the use and benefit of him the said defendant.”

There was no motion to quash or exception to the indictment.

While we do not recommend the form in which it was drawn, we conclude that in the absence of an exception or motion to quash, the indictment sufficiently alleged the ownership of the house in the president of the corporation as well as in the corporation.

The principal case cited by appellant to support his contention that the indictment was fatally defective is Ricks v. State, 41 Tex.Cr.R. 676, 56 S.W. 928. The court in that case stated that the possession of the corporation is the possession of its officers.

The second ground of error relates to the sufficiency of the evidence.

The state relied upon circumstantial evidence and the court so charged the jury.

Viewed from the standpoint most favorable to the state, the evidence reflects the following :

Dean Morales, night watchman, testified that shortly after 10:30 P.M. he heard two men talking and saw an automobile in the parking area some 25 feet from the back door of the building alleged to have been burglarized. Appellant was under the steering wheel attempting to start the car. John Crawford had the hood raised and “was trying to wire it up.” Crawford said that he had lost his car keys.

Eight automobile tires and some tools that were later identified as missing from the building-were inside the car.

Morales saw the tires and, upon investigation, found the back door of the building open; a window broken and saw “where the tires had been taken out beside the window.”

When he discovered that the building had been broken into, he “went running up to the car where it stalled in the alley”; placed appellant under arrest and “walked him to City Hall.”

The undisputed evidence shows that the eight automobile tires and the tools found in the back seat of the car were taken from the building alleged to have been burglarized without the consent of O. C. Heairren, president of the corporation, who had control of its property.

The evidence also shows without dispute that the automobile in which the tires were found belonged to John Crawford.

We find the evidence sufficient to sustain the conviction.

The third ground of error is the refusal of appellant’s requested charge No. 1 which relates to possession of recently stolen property.

We see no error. 5 Branch’s Ann.P.C. 2d, Section 2652.

The fourth ground relates to the failure of the court to charge on the law of principals.

This claim of error was not raised by objection to the court’s charge or by a requested charge. We observe, however, that there is nothing in the record to suggest that appellant was harmed or prejudiced by the absence of a charge on the law of principals.

The fifth and most serious ground of error relates to the failure of the trial judge to declare a mistrial, because of questions propounded by the district attorney on cross-examination of appellant as to whether he had been charged with burglary in Wichita County and whether he had been convicted of “D.W.I.”

Appellant testified that he came to Breckenridge with John Crawford early in the day; that he was drunk, and the last he remembered was when he and John Crawford left the “Busy Bee Beer Joint” to go to the car.

He testifiéd that he had no control over the car; had nothing to do with anything being taken out of the building; did not break the glass window or go into the building ; that he did not drive the car that night.

Asked as to the night watchman’s testimony that he saw him trying to start the car, appellant testified that nothing like that happened.

He further testified that the next thing he remembered, after leaving the Busy Bee, was when the night watchman woke him up and arrested him. He denied knowing that the tires and other property piled in the back seat were in the car until he was wakened and arrested.

On cross-examination he testified that he did not know whether he went into the building or not; whether he took anything out of the building or not, or whether he was trying to start the car or not, at the time the watchman arrived, and testified:

“Q. You don’t know if you were asleep or not?
“A. I know I was drunk. That’s all I know and I would call it asleep or passed out, whichever one you want to call it.”

Neither intoxication nor temporary insanity of mind produced by the voluntary recent use of ardent spirits, intoxicating liquor or narcotics shall constitute any excuse for the commission of crime. Art. 36 Vernon’s Ann.P.C.

For impeachment purposes, appellant was asked how many times he had been to the penitentiary and he answered one time for forgery, in 1949. He was then asked: “Were you not also charged with burglary in Wichita County?”

Before any objection was made or any answer was given, the court intervened saying: “Now gentlemen, you can’t prove what he was charged with.” Appellant’s counsel then objected to the question as being prejudicial and the court sustained the objection. Motion was then made that the question be stricken and the jury told not to consider the question for any purpose,, and the court so instructed the jury.

Appellant’s counsel then moved for mistrial “on account of the prejudicial testimony offered,” which motion was overruled.

In the absence of the jury, appellant was asked whether or not he had been convicted of burglary of a private residence in Wichita County, to which he answered: “Well, I’m still being tried on it. I’ve got a reversal and remanded and I’m still being tried on it.”

The charge not having resulted in a final conviction, the question as to whether appellant was charged with burglary in Wichita County was improper. Art. 38.29 Vernon’s Ann.C.C.P.

There is nothing in the record to show that the district attorney was aware of the fact that the conviction upon the charge of burglary of a private residence in Wichita County had been reversed when he asked the question.

The district attorney, also for impeachment purposes, asked appellant: “Q. You have been convicted for D.W.I. have you not?” to which appellant answered: “Yes, sir.”

The court intervened before any objection was tnade. In the absence of the jury the record was made to show that the court sustained objection to the question of whether appellant had been convicted of D. W.I. and that appellant moved for mistrial on account of both questions asked in the jury’s presence being so prejudicial that the error could not be remedied.

The court overruled the motion for mistrial, stating that he did not know whether the conviction inquired about was a felony or not, and correctly pointing out that a misdemeanor conviction for driving while intoxicated did not involve moral turpitude and would not be admissible for impeachment purposes. Gibbs v. State, Tex.Cr. App., 385 S.W.2d 258.

The objection as to the D.W.I. conviction was not timely made. Bell v. State, 160 Tex.Cr.R. 538, 272 S.W.2d 888.

Under the record, and in the absence of any showing of bad faith or whether the conviction inquired about was a felony or a misdemeanor, the failure of the trial court to grant the motion for mistrial does not warrant reversal.

It should be clearly understood that we are here dealing with testimony offered for impeachment purposes in a trial on the question of guilt or innocence, and not evidence introduced at a hearing on the question of punishment only, as to prior criminal record of the defendant. Art. 37.07, Section 2(b) C.C.P.

No reversible error appearing, the judgment is affirmed.


source: Caselaw Access Project

author: MORRISON, Judge.

license: Public Domain

text:
    Alton Irvan CHEW, Appellant, v. The STATE of Texas, Appellee.
    No. 40197.
    Court of Criminal Appeals of Texas.
    March 29, 1967.
    Lawrence R.- Green (On Appeal Only), Dallas, for appellant.
    Henry Wade, Dist. Atty., Kenneth R. Blassingame, Ross Teter and Kerry P. FitzGerald, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is robbery; the punishment, SO years. Notice of appeal was given on December IS, 1965, and the disposition of this appeal is governed by the 1925 Code of Criminal Procedure.

The injured party testified that as he was walking home on the night in question he was robbed, beaten and stabbed by three men, one of whom was appellant.

The witness Wesley testified that he was in the vicinity of the robbery and saw three men flee from the scene and described the manner of their attire. He further testified that he was also present when the three were apprehended a short while after the robbery.

Officer Johnson testified that he arrived upon the scene, got a description of the three men who had perpetrated the robbery and apprehended the three a block away after they attempted to flee. He stated that from appellant’s person his partner recovered a knife which was held open by means of match stems being forced into the handle and that on the blade he found blood stains. He further testified that the injured party identified appellant and his two companions shortly after their arrest.

Appellant did not testify or offer any evidence in his behalf.

Finding the evidence sufficient to sustain the conviction and no reversible error appearing, the judgment is affirmed.


author: BELCHER, Judge.

text:
    Curlee MURRY, Appellant, v. The STATE of Texas, Appellee.
    No. 40140.
    Court of Criminal Appeals of Texas.
    March 8, 1967.
    Rehearing Denied April 12, 1967.
    Richard H. Caldwell, Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough, and Joseph P. Witherspoon, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Judge.

After waiver of a jury, the appellant entered a plea of not guilty before the court to the charge of robbery by assault. On March 24, 1966, the appellant was found guilty and his punishment was assessed at fifteen years.

The testimony of the state reveals the robbery of the operator of a service station about 3 a. m. The defense was alibi.

The appellant insists that this cause should be reversed on the ground that the evidence is insufficient to identify him as the person who committed the robbery alleged.

Jim Holladay, the alleged assaulted party, testified in part as follows:

“A I had a colored man come into the service station and said that he had run out of gas down the street from me. He had a two-gallon can in his hand and he asked me if he could have a couple of gallons of gas, and I said ‘Yes.’ I gave him the gas, and' he handed me a ten-dollar bill and I started to make change for it. When I started to hand him the change, he said, ‘Give me the rest,’ and pointed a gun at me.
“Q Do you see the person who robbed you in this courtroom today?
“A Yes, sir.
“Q Would you point him out, please?
“A Sitting there beside his attorney.
“The State: Let the record reflect that the witness has pointed out the defendant, Curlee Murry.
“Q Now, let me ask you this: Are you positive of that identification?
“A Yes, sir.
******
“Q How far away was he?
“A Maybe four foot.
“Q Did you have lights in that little— I believe you call it the ‘doghouse’ ?
“A Yes, sir, lights all around and inside, both.
“Q Did you have a good chance to take a good look at his face?
“A Yes, sir.”

On cross-examination, the witness Holla-day testified:

“Q And the 20th of September of ’65 you only saw him as best you recall for about three or four minutes ?
“A Approximately.
“Q And some portion of that time you, of course, were not observing him, but were making other motions, were you not? Getting money, turning around, making change ?
“A When the man come in, I knew what he was going to do, because I had been warned by the police what to look for. I felt when I seen the man coming that that’s what it was, so I did look at him closely to try to be able to identify him when I did see him again, because I knew it would eventually come up.
“Q You had been robbed many times before?
“A No sir, I said the police had come by and warned us, because at that time there was a lot of robberies going on in that area which they called ‘gas-can robbers’.”

The evidence is sufficient to warrant the finding of the coijrt that the appellant was the person who committed the robbery alleged.

The judgment is affirmed.


author: PARKER, Justice.

text:
    George VANDER WEG, Appellant, v. The STATE of Texas, Appellee.
    No. 6885.
    Court of Civil Appeals of Texas. Beaumont.
    March 16, 1967.
    Rehearing Denied April 5, 1967.

      M. H. Oldham, Beaumont, for appellant.
    W. G. Walley, Jr., Beaumont, for appellee.
   PARKER, Justice.

This is a condemnation suit brought by the State of Texas against George Vander Weg who owned 1.3287 acres west of and next to State Highway 347. The tract was irregular in shape, described as:

Beginning on the south boundary line of Avenue B at its intersection with State Highway 347;
Thence south with west boundary of the highway 336.7 feet;
Thence west 200 feet;
Thence north 231 feet;
Thence east 60 feet;
Thence north 105 feet to south boundary line of Avenue B;
Thence east 155 feet to place of beginning.

The suit involved a taking, for highway purposes, of .3092 of an acre of Vander Weg’s land and the market value thereof, and damages to the remainder of his tract. The taking was of highway frontage for 336.7 feet to a depth of 40 feet.

Trial was to a jury which found:

“SPECIAL ISSUE NO. 1
“From a preponderance of the evidence, what do you find was the market value of the strip of land, together with the improvements thereon, condemned by the State for highway purposes at the time it was condemned on April 3, 1962, considered as severed land ?
“Answer in dollars and cents.”
To which the jury answered: “$5,500.00.”
“SPECIAL ISSUE NO. 2
“From a preponderance of the evidence, what do you find was the market value of the Defendants’ tract of land, together with the improvements thereon, exclusive of the strip of land condemned, immediately before the strip was taken for highway purposes?
“Answer in dollars and cents.”
To which the J ury answered: “$29,000.00.”
“SPECIAL ISSUE NO. 3
“Excluding increase in value, if any, and decrease in value, if any, by reason of benefits or injuries received by defendants in common with the community generally and not peculiar to them and connected with their ownership, use, and enjoyment of the particular tract of land across which the strip of land has been condemned, and taking into consideration the uses to which the strip condemned is to be subjected, what do you find from a preponderance of the evidence was the market value of the remainder of defendants’ tract of land immediately after the taking of the strip condemned for highway purposes?
“Answer in dollars and cents.”
Towhich the Jury answered: “$22,000.00.”

Plaintiff filed its motion to disregard the findings of the jury in answer to special issues 2 and 3 and enter judgment upon the answer to special issue No. 1. This motion was based upon the allegation that there was “no support in the evidence, and there being no competent evidence in the record to support such findings” in answer to special issues 2 and 3. This motion was sustained. The court entered judgment upon the jury finding in response to special issue No. 1 only with the plaintiff, the State of Texas, recovering from the defendant George Vander Weg title to and possession of, for highway purposes, .3092 acres of land, being a strip 40.1 feet x 336.7 feet with the defendant recovering the sum of $5,500 by reason of the condemnation of such strip; but it appearing that the said defendant had withdrawn the amount of $7,250 deposited by the plaintiff with the clerk of the county court at law of Jefferson County on the 3rd day of April, 1962, being the sum awarded by the special commissioners appointed by the judge of the county court of Jefferson County at law for the market value of the land taken and damages to the remainder, the judgment then provided that the plaintiff, the State of Texas, do have and recover of and from the defendant $1,750 with interest thereon from date until paid. This sum of $1,750 represented the difference between the award of the special commissioners of $7,250 and $5,500 damages for the taking of the .3092 acres. Costs were also adjudged against Vander Weg.

In the original petition of the State of Texas v. George Vander Weg the State sought to condemn a strip of land along Highway 347 to a depth of 40 feet “together with any and all abuttors’ rights of defendants and rights of defendants of direct access from the land and premises above described, * * * ” except access was to be furnished to an abutting frontage road— not the highway. The special commissioners on August 31, 1961 awarded $4,392 as the value of the land taken and $2,858 as the damages to the remaining land owned by the defendants. Having appealed to the county court at law of Jefferson County, on February 12, 1963, plaintiff filed its first amended original petition to condemn the same .3092 of an acre strip but omitted its allegation to deny access to Highway 347 contained in its original petition. Such an amendment is authorized. Texas Power & Light Co. v. Cole, 158 Tex. 495, 313 S.W.2d 524 (1958).

George Vander Weg, the appellant, has three points of error:

1. The court erred in disregarding special issues Numbers 2 and 3, pertaining to damage to the remainder of appellant’s land.
2. The court erred in entering judgment only on the jury’s finding to special issue Number 1, instead of ordering a new trial.
3. The court erred in entering a money judgment against appellant, when the amount shown by the findings of the jury exceeded those found by the special commissioners.

The third point of error is without merit and is overruled.

The first and second points of error will now be considered.

The burden was on the landowner to establish his damages to the remainder of the land after the taking of the strip. In answer to special issues 2 and 3 the jury found such damages to be $7,000. L. B. Nicholson was a witness. He operated a building supply business and was a building contractor in Nederland. He was a member of the Board of Directors of Nederland State Bank and former director of other banks. His duties with these banks required the making of appraisals. He had been m the business of building, buying and selling houses and building supplies and in the real estate business in this area for 19 years. He testified he was familiar with the specific tract of land under consideration and property values in the area. He testified the entire tract of land in his opinion had a value of $33,600 plus the value of a house located on the remainder worth $8,000, the entire tract with improvements having a value of $41,600. He testified the house and improvements were located on the remainder. After the taking, the front of the house was 2 or 3 feet from the property line of the State. This house had a front yard of 3 feet after the taking, whereas it had a front yard of 43 feet before the taking. Nicholson was of the opinion that after the taking the house was only worth $4,000. In the opinion of Nicholson the value of the part taken by the State was $16,800. In his opinion the value of the remaining tract together with the improvements, before taking, was $24,800.

The garage was a part of the south end of the house. With only 3 feet from the door of the garage to the State property line a car could not be parked in front of the house on the driveway without the major portion of the car being upon the 40 feet strip taken by the State. Utility pole had been moved to some 3 feet from the house.

D. X. Rienstra, also a banker and real estate man, testified he was familiar with real estate values in Nederland; that he was chairman of the Board of the Neder-land State Bank, had to and did know values in making loans; that he had been familiar with and dealing with land values in the area for 35 years and had bought and sold property in the area for that period of time, and was familiar with the tract in question. In his opinion the entire tract before taking was of the value of $33,600 based upon a frontage value on Highway 347 of $100 per front foot, which he would apportion prior to the taking at $45 per front foot as to the tract 40 feet deep to be taken and $55 per front foot as to the tract remaining, thus he placed a value of $15,180 for the part taken and the value upon the remainder before taking of $18,420.

Generally, witnesses referred to the tract as being 336 feet on Highway 347 by 200 feet on Avenue B. From exhibits and the evidence of the witness Avant, it is clear that it was not a rectangle for there was a tract out of the northwest corner of said 200 x 336 feet rectangle not owned by condemnee.

The witnesses for the State, Avant and Terry, were qualified. Their opinion as to values and damages were in conflict with the evidence above. Below is a tabulation summarizing the opinion as to values and damages by all witnesses.

Entire Tract Remainder After Part Taken Remainder Fronting Hwy. Before
State’s Witnesses
Avant $20,000 $3,734 $16,266 $18,800
Terry 21,748 4,281 17,467 17,467
Owner’s Witnesses
Nicholson 41,600 16,800 24,800 ⅜ O to to
Rienstra 33,600 15,180 18,420 to cvj CO to

As stated in Roberts v. State, 350 S.W.2d 388, on page 391 (Tex.Civ.App.1961, no writ):

“ * * * It has been held in Maddox v. Gulf, Colorado & Santa Fe Ry. Co., Tex.Civ.App., 293 S.W.2d 499, (err. ref. n. r. e.) that in a condemnation case of this kind the jury, when considering the value of condemnee’s remaining property immediately after condemnation, are restricted only by the lowest figure testified to. See Houston Belt & Term. Ry. Co. v. Lynch, Tex.Civ.App., 185 S.W. 362, affirmed Tex.Com.App., 221 S.W. 959. Also, in McConnico v. Texas Power & Light Co., Tex.Civ.App., 335 S.W.2d 397, (err. ref. n. r. e.) the court held that a jury is at liberty to reach its conclusion by blending all of the evidence admitted before them, aided by their own experience and knowledge of the subject of inquiry; that they are not compelled to credit all the testimony of any witness or to reject it all. Moreover, our courts have held that opinion evidence is not conclusive. A jury may consider and accept or reject such opinions or it may find its own opinion from evidence and by utilizing its own experience in matters of common knowledge. McCarthy v. City of Amarillo, Tex.Civ.App., 307 S.W. 2d 595 (err. ref. n. r. e.) ; Coxson v. Atlanta Life Ins. Co., 142 Tex. 544, 179 S.W.2d 943 and Nelson v. State, Tex.Civ.App., 342 S.W.2d 644.”

Also see Adams v. Houston Light & Power Co., 158 Tex. 551, 314 S.W.2d 826 (1958), and Houston Belt & Term. Ry. Co. v. Lynch, Tex.Com.App., 221 S.W. 959.

Appellant Vander Weg’s points of error 1 and 2 are sustained, except the trial court should not have ordered a new trial under this record.

Appellee, State of Texas, has three counterpoints. The first counterpoint is as follows:

“The Court properly disregarded the answers of the jury in response to special issues Numbers 2 and 3, upon motion by plaintiff and rendering the judgment rendered by the Court on special issue No. 1 and the record.”

Viewing the evidence most favorable to Vander Weg, as we are required to do, there is evidence supporting ths submission and respective answers to special issues 2 and 3.

Appellee’s second counterpoint is as follows :

“In the event this honorable Court should determine that there was evidence in the record sufficient to warrant the submission of special issues No. 2 and No. 3, and to preclude the trial court from disregarding the jury’s findings on the same, then, as a matter of law such evidence is wholly insufficient to support such findings and this cause should be remanded to the trial court.”

Examining, considering and weighing the entire record and all the evidence in the case, we conclude that the verdict of the jury in answer to such special issues is not so against the great weight and preponderance of the evidence as to be manifestly unjust and appellee’s second counterpoint is overruled.

Appellee’s third counterpoint is as follows:

“The Court erred in failing and refusing to give the jury the following special instruction to the jury:
‘MEMBERS OF THE JURY: You' are instructed that in this case the plaintiff, the State of Texas, by its pleadings, does not seek to condemn the right of access owned by the defendant, George Vander Weg, Jr. to U. S. Highway 347 prior to the taking, and therefore said defendant has and retains a right of access to such highway after the taking of the parcel of land taken for highway purposes in this proceeding.’ ”

Upon request by appellee, duly, properly and timely made in writing, that such instruction be given by the court in response to written inquiry being made by the jury as follows:

“Does a person have the right to cross the easement owned by the state, county or city, or must a person be given permission by the state, county or city to cross this property ?’ ”

In a suit of this nature the jury needs instruction as to the applicable law, which the court alone can give. The trial court should have given such instruction. Examining the findings of fact by the jury in answer to special issues, it is apparent the jury was not misled by the failure of the trial court to give the instruction requested by appellee and such error is harmless error.

The judgment of the trial court is affirmed in part and reversed and rendered in part to the end that judgment is here rendered that plaintiff, the State of Texas, do have and recover of and from George Vander Weg the title to and possession of, for highway purposes, the .3092 acres of land and George Vander Weg is entitled to have and recover the sum of $5,500 by reason of the condemnation of such tract of land and is also entitled to recover the further sum of $7,000 from the State of Texas by reason of damages to the remainder, but from such total sum of $12,500 the State of Texas shall be credited with the amount of $7,250 deposited with the clerk of the trial court on the 3rd day of April, 1962, and withdrawn by George Vander Weg so that George Vander Weg is entitled to recover from appellee, the State of Texas, the difference of $5,250.

       This value on erroneous theory and ignored by this court. The jury found the market value of the tract taken to be $5,500.


author: GRISSOM, Chief Justice.

text:
    Charles E. HENRY et ux., Appellants, v. AMERICAN AIRLINES, INC., Appellee.
    No. 4122.
    Court of Civil Appeals of Texas. Eastland.
    March 3, 1967.
    Rehearing Denied April 7, 1967.

      Peticolas, Luscombe & Stephens, John B. Luscombe, Jr., El Paso, for appellants.
    Kemp, Smith, White, Duncan & Hammond, Jack Ratliff, El Paso, for appellee.
   GRISSOM, Chief Justice.

Charles E. Henry and wife sued American Airlines, Inc., for damages alleged to have been suffered when Mrs. Henry’s crutch slipped on an “oil slick” at the Nashville airport while the Henrys were about to board appellee’s plane there en route from El Paso to Knoxville. Plaintiffs alleged that Mrs. Henry was crippled, having a fused right hip; that she was using crutches going toward defendant’s plane, while other passengers surged about her, and, as she reached the stairs leading up to the plane, her left crutch slipped on an “oil slick”, a dangerous and hazardous condition at the foot of the stairs, causing her body to twist violently to maintain her balance and resulting in serious permanent bodily injury. The Henrys alleged that American Airlines was guilty of the following acts of negligence and that each was a proximate cause of Mrs. Henry’s injury and damage:

(A) In falling to furnish Mrs. Henry reasonably safe premises for boarding its plane when it knew, or should have known, of the oil slick at the foot of the stairs;

(B) In failing to warn her of the existence of the oil slick when it knew, or should have known, of its existence, as a person exercising a high degree of care would have done under the same or similar circumstances ;

(C) In failing to permit her to board the aircraft in advance of other passengers when it knew, or should have known, of her physical condition.

(D) In permitting other passengers to surge about her in boarding its aircraft, without affording her time to board the plane;

(E) In failing to post an employee at the foot of the stairway to aid passengers and

(F) In failing to place abrasive material over the “oil slick.”

In the alternative, the Henrys alleged they were passengers on appellee’s airline between El Paso, Texas and Knoxville, Tennessee on August 7, 1964, and that it was necessary to change planes at Nashville; that, upon arrival at Nashville, the Henrys awaited the departure of appellee’s flight to Knoxville; that American Airlines had the management and control of the boarding, of its passeengers, in that, it had the management and control of the placing of its plane on the runway; management and control of placing the stairway; management and control of access to its plane, in that passengers were not permitted to board the plane until called; that when said flight was called for boarding Mrs. Henry proceeded in a careful and prudent manner from the airport building to the ramp, or stairs, to board its plane; that she was walking with the aid of crutches and as she was about to go up the stairs her left crutch suddenly slipped from under her causing her body to twist violently in an effort to regain her balance, severely wrenching her back and left hip and causing serious and permanent injury; that American owed Mrs. Henry, as a passenger, a high degree of care to furnish safe access to its plane; that by the defendant’s management and control of the boarding of passengers it-was in a position of superior knowledge concerning the condition of said access and, but for some act of negligence by appellee, better known to it, Mrs. Henry would not have been injured and that plaintiffs relied upon the doctrine of res ipsa loquitur.

A jury found (1) that Mrs. Henry was not injured; (2) that American placed the passenger loading ramp “at or near an oil slick or smudge”; (3) that the condition of the oil slick or smudge did not prevent such place from being a reasonably safe place for Hrs. Henry to board the plane; that (6) Mrs. Henry did not slip on the oil slick or smudge; that (9) appellee did not fail to warn Mrs. Henry of the oil slick or smudge “as a very cautious and prudent person would have done under the same or similar circumstances;” that (11) American did not know that Mrs. Henry was physically handicapped; that (12) American should not have discovered that she was physically handicapped in the exercise of a degree of care that a very careful and prudent person would have exercised under the same or similar circumstances; that (16) Mrs. Henry did not fail to keep a proper lookout for her own safety; that (18) Mr. Henry failed to properly assist his wife “immediately prior to her loss of balance, if she did lose her balance;” that (19) the failure of Mr. Henry to properly assist his wife was negligence which (20) was a proximate cause of Mrs. Henry’s injuries, “if any;” that (21) Mrs. Henry did not know of the existence of the oil smudge before she lost her balance, “if she lost her balance” that (23) Mrs. Henry did not know that the “oil smudge was hazardous to persons on crutches, if it was”; that (24) the injuries, if any, suffered by Mrs. Henry were the result of an unavoidable accident. In answer to question (25), what sum of money would reasonably compensate Mrs. Henry for the injuries and damages, if any, which were a proximate result of the incident in question, the jury said “none”. In other words, the jury found that Mrs. Henry didn’t slip on the oil smudge; that she wasn’t injured and that she suffered no damages. Based on said findings, the court rendered judgment that the Henrys take nothing. They have appealed.

Appellants’ first point is that the court erred in refusing to submit to the jury appellants’ requested issues submitting the doctrine of res ipsa loquitur because that theory of liability was raised by the pleadings and evidence. In support thereof the Henrys say they were passengers on American Airlines flight from El Paso to Knoxville and it was necessary to change planes at Nashville; that Mrs. Henry was crippled and walked with the aid of two aluminum crutches; that at Nashville they awaited their flight in the airport at facilities furnished by appellee; that they were required to remain in a waiting room furnished by appellee and were not permitted access to the plane until an attendant unlocked its door and permitted the passengers to board; that the plane was positioned on the runway by appellee and the loading ramp was placed in position by ap-pellee; that appellee’s crew had access to the plane for one-half hour before departure and for fifteen minutes before boarding by passengers; that there was an oil slick near the base of the stairs; that ap-pellee called the flight for boarding, the Henrys proceeded out the runway to the stairs with Mrs. Henry ahead of her husband, who had fallen behind to protect her, since she was walking with the aid of crutches and, as she was about to mount the stairs, the tip of one crutch slipped on the oil smudge, she lost her balance, and as she fell she twisted her back and hip attempting to regain her balance but that she was saved from completely falling to the concrete by her husband catching her on the way down when she was in approximately a sitting position; that the incident was promptly reported and soon after boarding Mrs. Henry began to feel pain, which became worse. The Henrys argue that at the time Mrs. Henry claims she slipped and was injured they were passengers and appellee owed her a high degree of care to furnish her with reasonably safe facilities, equipment and means of ingress and egress; that by their pleadings they gave notice to appellee that they would rely upon the doctrine of res ipsa loquitur; that the evidence established that the boarding was under the control and management of appellee, as was placement of the aircraft on the runway and placing of the gangplank ; that it was uncontradicted that there was an oil slick near the base of the loading ramp and that they had no opportunity to see it before loading and no warning was given of its existence but that the access and approach to the plane were under appellee’s management and control. Appellants say the principle which required the court to submit their requested issues submitting the case under the doctrine of res ipsa loquitur were announced in Honea v. Coca Cola Bottling Company, 143 Tex. 272, 183 S.W.2d 968, 969, 160 A.L.R. 1445, as follows:

“Res ipsa loquitur is a rule of evidence whereby negligence of the alleged wrongdoer may be inferred from the mere fact that the accident happened, provided (1) the character of the accident and the circumstances attending it lead reasonably* to the belief that, in the absence of negligence, it would not have occurred, and (2) the thing which caused the injury is shown to have been under the management and control of the alleged wrongdoer.”

The issues submitting the theory of res ipsa loquitur which appellants requested the court to submit inquired (1) whether the approach to the plane was under the management and control of appellee; (2) whether it failed to maintain its approach and access to its plane in a reasonably safe condition as a very cautious and prudent person would have under the same or similar circumstances and (3) whether such failure, if any, was a proximate cause of Mrs. Henry’s injuries. The Henrys say the court erred in refusing to submit them because they were raised by the pleadings and evidence. They cite in support of that contention Montgomery Ward & Co. v. Scharrenbeck, Tex.Civ.App., 199 S.W.2d 830, affirmed 146 Tex. 153, 204 S.W.2d 508; Dallas Railway & Terminal Co. v. Clayton, Tex.Civ.App., 274 S.W.2d 422 (ref. n. r. e.); Mattox v. C. R. Anthony Company, Tex.Civ.App., 326 S.W.2d 740 (ref. n. r. e.) and Smith v. Koenning, Tex. Civ.App., 398 S.W.2d 411. (ref. n. r. e.).

Appellee says the court did not err in refusing to submit said issues; that appellants pleaded and attempted to prove in great detail that Mrs. Henry walked on the airport runway using crutches and was injured when a crutch slipped on an oil slick near the stairs; that the Henrys were the only people who testified that she slipped; that they testified at great length about the accident, how it happened, fixing the exact cause thereof. Appellee says the burden was upon the Henrys to first prove that an accident occurred but the jury found there was no accident; that Mr. Moore, appellee’s employee, testified that his attention was called to Mrs. Henry as she walked to the plane because of the type of crutches she was using; that he saw her when she was out of the building a few feet and continued to watch her until she went up the stairs; that he did not see her-slip or fall, make a violent movement of any kind or see any one grab or support her; that the first time he knew about her claim that she had slipped was when he saw appellee’s employee with a camera and was told that some lady had fallen and that there were no people immediately around her but there were some soldiers behind her. He was shown photographs of the oil smudge and testified that it appeared to be an old dark spot without any marks on it; that the concrete there was unfinished and rough and it was just a dark spot on the concrete; that he watched Mrs. Henry because she was walking with crutches like those used by a friend. A stewardess testified that she was standing inside the doorway as the passengers boarded the plane so she could examine their tickets as they went in; that she first saw the Henrys when they boarded the plane; that she noticed Mrs. Henry because she had crutches; that she did not remember, the Henrys saying anything to her about having oil on a crutch, as the Henrys testified they did; that, after all the passengers had boarded the plane and had been seated, Mr. Henry came to her and told her that his wife had slipped and fallen; that he wanted her to “make a note of it”; that she offered to help them but was advised that it was not necessary, but she reported the incident; that Mrs. Henry was not assisted when she boarded the plane; that later Mrs. Henry asked for an aspirin and that she entered and left the airplane without assistance. The stewardess testified that when she went out to the plane she did no see any fresh pool of oil around the stairs and that she did not recall Mrs. Henry telling her that she did not want to track oil on the carpet. Appel-lee concludes that there was ample evidence to support the findings that no accident happened; that Mrs. Henry was not injured and she suffered no damages. They further correctly say that the airport was owned by the City and appellee did not have exclusive use of the part where the accident was claimed to have happened but that other airlines and individuals also used that part of the airport.

Appellee says that before the doctrine of res ipsa loquitur can be applied appellants must establish to the satisfaction of the jury that an accident occurred; that the Henrys failed to establish this; that they were also required, after establishing such fact, to show that the accident was of a kind which ordinarily does not occur if due care is exercised and that the injury was caused by something under the exclusive control of appellee and that the injured person was free of contributory negligence. Appellee says that appellants did not establish any of them. Appellee cites in support of their answers to appellants’ contention International Creosoting and Construction Company v. Daniel, Tex.Civ.App., 114 S.W. 2d 393, 395 (writ dis.) ; Alley v. Texas Electric Service Company, Tex.Civ.App., 134 S. W.2d 762, 769; Carothers v. Olshan, 198 S.W.2d 941, 943 (ref. n. r. e.) and Longoria v. Violet Gin Co. et al., Tex.Civ.App., 309 S.W.2d 484 (ref. n. r. e.).

Appellee says, but incorrectly, that the only instrumentality involved was Mrs. Henry’s crutch and that it was not under its control. The thing that was alleged to have caused the accident and did cause it, if there was one, was an oil smudge or slick on rough concrete on the airport runway near the place where the stairs were lowered to permit passengers to board the plane. Appellee cites Southland Industries v. O. R. Mitchell Motors, Tex. Civ. App., 244 S.W.2d 528, 530 (ref. n. r. e.), wherein the court pointed out that the plaintiff knew the manner in which the fire was started when he filed suit; that the deposition of an eye witness had been taken which disclosed how the fire started, and since the plaintiff knew how the fire started and what caused it the res ipsa loquitur doctrine was not applicable. Ap-pellee says the Henrys knew how they claimed an accident happened, and testified to the exact cause; that since the main reason for applying said doctrine is necessity, arising from an absence of such knowledge, the doctrine is not applicable here, all such facts and circumstances being in evidence. It also cites in support of that conclusion Dallas Railway & Terminal Company v. Clayton, Tex.Civ.App., 274 S.W.2d 422. See also 65A C.J.S. Negligence § 220.6, p. 539. Said decisions support appellee’s conclusion. In Welliver v. Lone Star Gas Company, Tex.Civ.App., 260 S.W.2d 70 (writ ref.), the court pointed out that the theory of res ipsa loquitur in relation to control and management of the thing that caused the injury is that the defendant has superior knowledge or means-of information to determine the cause of the injury. Appellee says appellants wholly failed to establish any ground for submission of issues under that doctrine; that appellants did not establish that an accident occurred; that the finding of no accident was supported by the testimony of Moore and Larkin, and that the airport and the concrete runway where the oil smudge was located was not under the exclusive control of appellee. Appellee says that the cases cited by appellant deal with some specific instrumentality, such as an exploding coke bottle, an exploding water heater, a guard rail, which a bus ran into, and an escalator. Appellee says, and we think correctly, that the facts in the cases cited by appellant are materially different from those here and said cases do not support appellants’ contention that the court committed reversible error in refusing to submit issues under the doctrine of res ipsa loquitur. In Wichita Falls Traction Co. v. Elliott, 125 Tex. 248, 81 S.W.2d 659, 667, the court said:

“An essential allegation necessary to warrant its application in a case in which defectiveness in equipment is alleged is that the management and control of the equipment which produced the injury shall be with the defendant exclusively.”

In Universal Atlas Cement Co. v. Oswald, 138 Tex. 159, 157 S.W.2d 636, 639, the court said:

“In this case if plaintiffs had alleged generally that the defendant set off the blast and that the claimed damages to them proximately resulted therefrom, leaving negligence to be inferred from the fact of such blast we would be confronted with res ipsa loquitur. But they are not content so to pitch their case. They follow up their charge that the defendant set off the blast with an allegation of the specific acts which they say made it an act of negligence. Hence res ipsa loquitur is not in the case.”

In Estrada v. Central Power & Light Company, Tex.Civ.App., 336 S.W.2d 768 (writ ref.), the court said:

“In order to invoke the doctrine of res ipsa loquitur there are four elements which must be pleaded and proved: (1) The thing or instrumentality which causes the injury must be under the management of the defendant or his servants; (2) the accident must be such as in ordinary course of events does not happen, if those who have its management and control use proper care; (3) there must be an absence or unavailability of direct evidence of negligence; (4) there must exist a sufficient duty on the part of defendant to use due care. 65 C.J.S. Negligence §§ 220(2) and 220(4), pp. 987-999.”

Appellants’ testimony shows that they knew how the accident claimed by them occurred and what caused it. The evidence shows that the place where the cause of the asserted accident was located was not under the exclusive control of ap-pellee. Under the authorities cited we think the court did not err in refusing to submit said issues. What has been said, we think, answers appellants’ contention that the court committed reversible error in refusing-to submit the requested issues, thereby submitting the case for the plaintiff under the doctrine of res ipsa loquitur. There is another reason why the refusal to submit said issues did not constitute reversible error. Suppose the court had inquired, as appellants requested, (1) whether the approach to the plane was under the control of American; (2) whether it failed to maintain such approach in a reasonably safe condition and (3) whether such failure was a proximate cause of Mrs. Henry’s injuries and, further, assuming that the jury answered them favorably to the plaintiffs, the plaintiffs still could not have recovered because the jury found that Mrs. Henry did' not slip; that she was not injured and that she suffered no damage. Brown & Root v. Haddad, 142 Tex. 624, 180 S.W.2d 339, 342; Hammon v. Texas & New Orleans Railroad Company, Tex.Civ.App., 382 S.W.2d 155, 160 (ref. n. r. e.) ; Blanton v. E. & L. Transport, 146 Tex. 377, 207 S.W.2d 368, 369; Quintero v. Sinclair Refining Company, 5 Cir., 311 F.2d 217; Brown v. Dallas Gas Company, Tex.Civ.App., 42 S.W.2d 869 (writ ref.); Webb v. City of Lubbock, Tex.Civ.App., 380 S.W.2d 135, 137; Maynard v. Dallas Railway & Terminal Company, Tex.Civ.App., 291 S.W.2d 363. Thus, for an additional reason, we conclude that the court did not commit reversible error in refusing to submit said requested issues.

Appellants’ second point is that the evidence conclusively established that Mrs. Henry was injured on August 7, 1964 while boarding appellee’s plane and therefore there was no evidence to support the answer to issue 1 that she was not injured. Their third point is that the evidence was insufficient to support that answer. Appellants also complain, under their 4th and 5th points, that the evidence conclusively established that the condition near the base of appellee’s loading ramp prevented it from being a reasonably safe place for Mrs. Henry to board the plane and, therefore, there was no evidence to support the finding that such “oil slick” did not prevent it from being a reasonably safe place for Mrs. Henry to board the plane and, also, that there was insufficient evidence to support said answer. We think the evidence of Moore and the stewardess was sufficient to support said findings. Tersely stated, Moore’s testimony was that he watched Mrs. Henry from about the time she left the waiting room until she boarded the plane and that she didn’t slip or fall and no one grabbed her; that is just the opposite of the testimony of appellants that Mrs. Henry’s left crutch slipped on the oil smudge on the concrete near the stairway and that she fell nearly to a sitting position, violently twisting and injuring her back, at which point she was caught and prevented from completely falling to the pavement by her husband. There was evidence that the oil stained spot on the concrete runway showed no sign of anything sliding on it and that it was an old oil discoloration on rough concrete. The testimony of Dr. Cameron, who testified for appellants, is too long to be repeated here but it justifies the conclusion that Mrs. Henry was born with a defective hip; that he began seeing her as early as 1959; that her complaint then was chiefly about her knee but her back also hurt; that he saw her in 1961, when she was having pains in her left leg; that sciatic pains in her left leg continued until she had surgery in 1963; that in 1961 he thought she needed an operation; that in October 1961 she had an accident; that she had neuritis on the left side; that her complaint in 1963 was comparable to her complaint in 1961; that, in August 1962, she complained of pain in her whole leg; that this related to what he thought an operation might be necessary for back in February 1961; it was the same type of thing; that he put her on crutches in July 1962 and she was on crutches one year before she had an operation and laminectomy; that in October 1962 he told her to continue using crutches until December; that in the Summer and Fall of 1962 she was having a real hard time; that in March 1963 she was having difficulty with one knee and then the other and trouble with her back and hip; that in August, 1963 she developed a severe back trouble; her back was operated in August 1963 for a ruptured in-tervertebral disc between the 4th and 5th lumbar vertebra; that in September 1963 he put her on crutches indefinitely; that in November 1963 she called on him again complaining of her back; that in 1964 she complained of her back; that she was then having a hard time and he didn’t know how she was continuing to work; that in May she injured her knee in an accident; that since 1959, off and on, she had been having a lot of problems; that all of her pain relates back as far as 1961 and is due to the same disc condition; that it was a “recurrent disc”; that the disc was removed; that people have multiple operations for removal of the same disc; that the pain she now has is the same she had before the incident boarding the plane. We think it is important that he testified that it would take a violent sort of thing, more than the body could bear, to create the condition that Mrs. Henry now has. This certainly indicates that her condition is not the result of merely slipping and being caught by her husband before she reached the conCrete. Mrs. Henry testified that she was born with a defective right hip; that she had an operation in 1945; that her hip was solid; that a cartilage was removed from her knee; that a year before boarding the plane she had a very serious operation on her back; that she had back trouble in 1952 or 1953, when she slipped in a food store and made a claim for damages and that, in August 1963, she bent over to pick up a piece of paper and had a severe pain in her back and the doctor told her she had a herniated disc. She testified that she first noticed her disc problem in 1959.

The jury did not believe there was an accident. It did not believe Mrs. Henry was injured while boarding the plane. It did not believe she was damaged. It evidently thought that she was claiming damages from appellee for the same old infirmity that had been plaguing her since, at least, 1959, which caused an operation a year before the alleged accident that is the basis of this suit and which, according to her physician, was a recurrent condition. The pictures of the spot on the concrete near the foot of the stairs to the plane in front and to the left of the left-hand side of the stairs, according to some testimony, looked like an old oil stain where the concrete was rough and unfinished, just a black spot on the concrete which showed no sign that a crutch had slipped on it. The jury had a right to conclude that the thing on the concrete was an old oil stain that did not create a dangerous condition. As stated, the Henry’s physician testified that only a violent sort of thing, more than the body could bear could cause her condition. Mr. Moore testified he watched her; he saw no violent action, no slip, no fall, and he saw no one grab and support her. There was evidence that she boarded the plane and got off without assistance. We conclude that there was not only some evidence but sufficient evidence to support the controlling findings to the effect that there was no accident, no injury and no damages.

Appellants present the contention that there was no evidence, or insufficient evidence, to authorize the submission and answers to other issues. They were rendered immaterial by the answers to issues 1 and 6 that Mrs. Henry did not have an accident and suffered no injury while boarding the plane. It was, in effect, so held in the following cases: Louisiana & A. Ry. Co. v. Chapin, Tex.Civ.App., 225 S.W.2d 614 (writ ref.); Collins v. Smith, 142 Tex. 36, 175 S.W.2d 407; Dallas Ry. & Terminal Company v. Orr, Tex.Civ.App., 210 S.W.2d 863, 869, affirmed on other grounds 147 Tex. 383, 215 S.W.2d 862; Bruce v. Denton County Electric Cooperative, Inc., Tex.Civ.App., 377 S.W.2d 722, 724; Commercial Standard Insurance Company v. Ford, 400 S.W.2d 934, 938 (ref. n. r. e.) and West Texas Coaches v. Madi, Tex.Com.App., 26 S.W.2d 199, 202.

Appellants’ 14th and 15th points assert Mr. Henry had no duty to assist his wife and that issue 19 assumed vital facts and (16) that Mr. Henry could not foresee his wife’s injury. They also complain of the definition of unavoidable accident. The jury found that there was no accident and no injury. Other issues and answers as to negligence and proximate cause thereupon became immaterial. If we should assume that otherwise there was error, said findings of no accident and no injury prevented appellants from recovering damages and errors in submitting and answering other issues became immaterial. Martin v. Jenkins, Tex.Civ.App., 381 S.W. 2d 115, 122 (ref. n. r. e.).

The finding that appellants sustained no damages is understandable because the jury evidently thought that, there being no accident and no injury, no damage was suffered at this occasion. The jury’s findings of no accident and no injury was supported by the evidence and required rendition of a judgment for appellee. Southern Pine Lumber Company v. Andrade, 132 Tex. 372, 124 S.W.2d 334, 335; Dunn v. Sears Roebuck & Company, Tex.Civ.

App., 371 S.W.2d 731 (ref. n. r. e.); Dillon v. Moore, Tex.Civ.App., 367 S.W.2d 70, 71. Most of the asserted errors not specifically disposed of were rendered harmless by said findings. In Patterson v. East Texas Motor Freight Lines, Tex.Civ. App., 349 S.W.2d 634 (ref. n. r. e.), a jury found the appellant guilty of negligence proximately causing the accident. The ap-pellee was found not guilty of negligence. Judgment was rendered for the appellee. Appellants asserted the court committed reversible error by inquiring as to a matter of contributory negligence. It was held that it was not necessary to consider such an assignment because all issues relating to the alleged primary negligence of appellee were answered in its favor and any error in the manner of submitting contributory negligence of appellant was immaterial, because no judgment other than one for ap-pellee could have been rendered. Here a jury found there was no accident and no injury. Those findings were supported by sufficient evidence, which has been mentioned, therefore appellants could not have recovered regardless of other issues and answers. All of appellants’ points are overruled. The judgment is affirmed.


author: BARROW, Chief Justice.

text:
    FINGER FURNITURE COMPANY, Inc., et al., Appellants, v. The CHASE MANHATTAN BANK, Appellee.
    No. 14552.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 23, 1967.
    Rehearing Denied March 29, 1967.

      Moursund, Ball & Young, San Antonio, Ellis Morris, Harry Brochstein, Houston, Dobbins & Howard, Schweppe, Schweppe & Allison, Gray, Gardner, Robison & Pape, San Antonio, for appellants.
    Clemens, Knight, Weiss & Spencer, San Antonio, Dewey, Ballantine, Bushby, Palmer & Wood, Johnston & Ward, New York City, Wiley & Thornton, Dayton G. Wiley, A. Lewin Plunkett, San Antonio, for appel-lee.
   BARROW, Chief Justice.

This appeal is a multi-party case concerning the rights of appellee, The Chase Manhattan Bank, under its construction loan on the Tradewinds Apartments, as opposed to the claim of appellant Finger Furniture Company, Inc., under a chattel mortgage, and the lien claims of appellants Olmos Building Materials Company, Hicks Company, Inc., and Door Unit Mfg. Corp., who were contractors and materialmen on the project. After a non-jury trial, the rights of Chase were held superior to all other claimants. Although the facts and the law differ somewhat as to each of the appellants, the claims were consolidated in the trial court and all four appeals were made under one record. The basic questions on this appeal relate to the validity and priority of the liens of the parties.

Certain general facts apply to all parties. Alvin Frieden, as general contractor, entered into a written contract hearing date of August 15, 1962, with F. B. & D., Inc., a Texas corporation of which Frieden was President and General Manager, to construct an apartment complex to be known as the Tradewinds Apartments, pursuant to certain plans and specifications, for the sum of one million dollars. On September 18, 1962, FB & D entered into a building loan agreement with The Chase Manhattan Bank, whereby Chase agreed to loan one million dollars and FB & D agreed to erect and fully equip the apartment complex in accordance with the plans and specifications. On the same date FB & D executed a promissory note to Chase in that amount, secured by a deed of trust. The deed of trust was recorded in the deed records, and in the chattel mortgage records of Bexar County on September 18, 1962. Frieden signed all instruments as President of FB & D.

On September 18, 1962, a statutory payment bond in the sum of one million dollars, executed by Trinity Universal Insurance Company as surety, Frieden as contractor, Chase as lender, and FB & D as owner-obligee, was recorded, pursuant to Art. 5472d Vernon’s Ann.Civ.St. A dual-obligee bond was also executed on that date, with Frieden as principal and Trinity Universal as surety, in the sum of one million dollars. On the same date a written guaranty was signed by Frieden and Harry S. Pullen and their wives, whereby the guarantors agreed to pay up to $100,000 on this note under certain conditions.

On March 6, 1963, FB & D, by Frieden as President, executed an additional note to Chase in the amount of $200,000 which was secured by another deed of trust, which was recorded in the deed records and chattel mortgage records on April 8, 1963, and payment guaranteed by Frieden and Harry S. Pullen and their wives. Chase advanced the last $100,000 of this $200,000 on September 17, 1963. FB & D was unable to meet its financial obligations incurred in the construction of this apartment project, and on September 4, 1964, Chase took over the management of the complex.

Several suits have been filed on behalf of the unpaid contractors and materialmen. This is the fourth appeal to reach this Court involving construction of the Trade-winds Apartments. See: F. B. & D., Inc. v. Nathan Alterman Electric Company, Tex. Civ.App., 394 S.W.2d 821, writ ref’d n. r. e.; Barlite, Inc. v. Trinity Universal Insurance Company, Tex.Civ.App., 400 S.W.2d 405, writ ref’d n. r. e.; Trinity Universal Insurance Co. v. Palmer, Tex.Civ.App., 412 S.W.2d 691.

FINGER FURNITURE COMPANY APPEAL

On July 24, 1963, Finger sold furniture to Frieden and Lois Pullen, for use in Tradewinds Apartments, taking a promissory note for $59,881.00, secured by a chattel mortgage which was recorded on September 4, 1963. On July 24, 1963, Finger also sold carpets and drapes to them for installation in the apartment complex for $53,728.60, under a Lease Agreement. The trial court found that this “Lease Agreement” was actually a chattel mortgage which was recorded on October 9, 1963. Finger concedes this finding is correct. Chase assumed and timely made all payments on the furniture note but urged, and the trial court found, that the chattel mortgage on the carpeting and drapes is inferior to the final advancement of $100,-000 which Chase made on September 17, 1963.

Finger urges that the so-called dragnet clause contained in the printed form of the furniture chattel mortgage, whereby the security for said mortgage is also security for “any other indebtedness for which any mortgagor herein may be or hereafter becomes liable to mortgagee” applies to the indebtedness for the drapes and carpeting. Finger says that since the furniture chattel mortgage was recorded prior to the Chase final advancement of $100,000 this lien is superior.

In Moss v. Hipp, 387 S.W.2d 656 (1965), the Supreme Court set forth the applicable rule for determining the application of such a clause: “Provisions of this type apply only to indebtedness which was reasonably within the contemplation of the parties to the mortgage at the time it was made.” Here the trial court found that the “other indebtedness” clause in Finger’s chattel mortgage on the furniture was not applicable to the contemporaneous carpet indebtedness.

It is our opinion that this finding is fully supported by the record in this case. The furniture note and the lease agreement were both executed on the same occasion. However, only the amount owed on the furniture note was inserted in the blank provided in the chattel mortgage for the amount of the debt. If the parties had intended the furniture chattel mortgage to include the carpeting debt, they could have easily so provided. To the contrary, the parties treated the “lease agreement” as a completely separate agreement, with the apparent intention of trying to retain title to the carpeting and drapes in Finger until paid for by Frieden and Mrs. Pullen. Finger did not record the “lease agreement” as a chattel mortgage until October 9, 1963, which was after Chase had paid the final $100,000 under the March 6, 1963, note.

The furniture note, alone, was at one time assigned to Associates Investment Company by Finger. There is no evidence that Finger at any time prior to filing its cross-action on January 18, 1966, claimed that the lease agreement was secured by the furniture chattel mortgage. Prior thereto it had filed suit in Harris County on the lease agreement, and judgment was taken on March 31, 1965, for the carpet debt. In the meantime Finger had accepted the exact amount due on the furniture note without claiming, for over two years after the carpeting debt was due, that the furniture mortgage secured the carpeting debt. The trial court properly concluded that the parties did not contemplate that the contemporaneous carpeting debt would be secured by the chattel mortgage on the furniture.

Finger next urges that neither Chase nor FB & D ever acquired any interest in the carpets and drapes which were sold by it to Frieden and Mrs. Pullen. The deeds of trust in favor of Chase were executed by FB & D. Frieden testified that he had never resold the carpeting and drapes to FB & D. It is fundamental that only the owner of personal property, or someone authorized by him, may execute and deliver an enforceable chattel mortgage. Southwest Security Co. v. Jacques, 42 S.W.2d 232 (Tex.Comm’n App.1931); Maberry v. First Nat. Bank of Littlefield, Tex.Civ.App., 351 S.W.2d 96, no writ; Walker v. Security Loan Inv. Co., Tex.Civ.App., 259 S.W.2d 599, writ ref’d n. r. e.

The trial court concluded, however, that Frieden and Mrs. Pullen, by their guaranty agreements and by placing the furnishings in the Tradewinds Apartments under the exclusive possession of FB & D, vested it with requisite ownership. This finding is supported by the evidence. The plans and specifications for the Trade-winds Apartments called for installation of carpeting in the apartments. The March 6, 1963, deed of trust to Chase expressly covered “carpeting” and “furnishings” as well as other personal property in the apartments, and this was agreed to by Frieden and Mrs. Pullen in their guaranty agreements. The “lease agreement” recognized that the carpeting and drapes were being cut to fit the dimensions of the Tradewinds Apartments and would be of little value if removed. This lease agreement did not prohibit a transfer by Frieden and Mrs. Pullen.

This evidence supports a finding that as between FB & D and Frieden and Mrs. Pullen, the two individuals agreed that FB & D was to be the owner of such property, and that it was to be mortgaged to Chase by FB & D. This chattel mortgage was recorded by Chase before the recording of Finger’s chattel mortgage on the carpeting and drapes, and before Chase had any notice of same. Insofar as Chase’s rights are concerned, it is immaterial that Finger had no notice of this transfer to FB & D. FB & D exercised a degree of possession and control over the furnishings so as to acquire such an interest as to give effect to the chattel mortgage executed to Chase. Maberry v. First National Bank of Littlefield, supra.

Finger also complains that the descriptions contained in the deeds of trust executed by FB & D to secure the loans by Chase are inadequate to describe the carpeting and drapes and same are therefore unenforceable as a chattel mortgage. Only the March 6, 1963, deed of trust is material, in that Chase asserts its rights under this deed of trust which was recorded prior to Finger’s recording of the “lease agreement” as a chattel mortgage. The final $100,000 was advanced under this deed of trust on September 17, 1963, after a certificate was filed to the effect that the carpeting had been installed.

This deed of trust which was filed in the deed records and as a chattel mortgage on April 8, 1963, conveys to the Trustee the “land described in Schedule A annexed hereto and made a part hereof. Together with all the improvements now on said land or which may be placed thereon during the existence of this lien; * * Attached as “Schedule A” is a legal description of the land and another paragraph entitled “Chattels Being Mortgaged.” Thereafter a full description of all types of fixtures, equipment and personalty for use in an apartment complex, including “carpeting,” “fittings” and “furnishings” is given. The deed of trust recites that it is executed and delivered not only as a deed of trust but also as a chattel mortgage.

It is significant that Finger does not claim to be an innocent purchaser without notice of Chase’s chattel mortgage, but rather is a prior mortgagee that failed to record its mortgage before the time Chase’s mortgage attached to the property. Clearly, the chattel mortgage was adequate as to the parties thereto. As between the mortgagee and third parties, it is not essential that the description be so specific that the property may be identified by it alone, if such description suggests inquiries or means of identification which, if pursued, will disclose the property covered by the mortgage. Anderson-Dunham, Inc. v. Lee Rubber & Tire Corp., Tex.Civ.App., 378 S.W.2d 99, writ ref’d n. r. e.; Highland Park State Bank v. Continental Nat. Bank of Fort Worth, Tex.Civ.App., 300 S.W.2d 304, writ ref’d n. r. e.; Trinity State Bank v. Bowie Contracting Co., Tex.Civ.App., 232 S.W.2d 863, writ dism’d; Plains Tractor & Equipment Co. v. Great West Mill & Elevator Co., Tex.Civ.App., 60 S.W.2d 856, writ ref’d.

Here Finger was charged with notice that the carpeting and drapes w'ere specially made for use in Tradewinds Apartments. The deed of trust plainly stated it covered both realty and personalty. The schedule attached to same included these items. Such instrument was notice of the intent to secure a chattel mortgage on the personalty as well as a deed of trust on the realty and the description was sufficient.

Finger’s other points, complaining of the alleged conversion by Chase of Finger’s carpeting and drapes, and of the trial court’s finding that Finger waived its right to foreclose on its furniture chattel mortgage because of the default in payment of the carpeting debt, are immaterial in view of our holding that Chase had a valid mortgage on said furnishings and that they were not covered under the dragnet clause of the furniture mortgage.

The judgment of the trial court that Finger’s chattel mortgage lien on the carpeting and drapes is inferior to Chase’s advancement of $100,000 under its 1963 deed of trust is affirmed.

OLMOS BUILDING MATERIALS COMPANY AND HICKS COMPANY, INC., APPEALS

Both of these appeals involve the proper interpretation and application of the “relation back” theory of mechanics’ and ma-terialmen’s liens as established in the landmark case of Oriental Hotel Co. v. Griffiths, 88 Tex. 574, 33 S.W. 652, 30 L.R.A. 765 (1895). It is urged by Olmos and Hicks that their liens had their inception on August 15, 1962, when the genera] contract between FB & D and Frieden was executed, under which the Tradewinds Apartments were constructed. The evidence is undisputed that substantial work was performed under this contract with the knowledge of Chase prior to the execution and recording of the deed of trust to Chase. The trial court found that Olmos and Hicks each had valid constitutional and statutory liens, but that same were inferior to the deed of trust of Chase which was recorded on September 18, 1962, to secure the $1,000,000 loan to FB & D.

On September 17, 1962, Olmos contracted in writing with FB & D to furnish brick and other materials to be used in constructing the Tradewinds Apartments. The first materials were delivered on October 15,1962, and deliveries continued periodically until August 3, 1963. The trial court found that FB & D is indebted to Olmos in the principal sum of $9,595.85.

On November 19, 1962, Hicks contracted in writing with FB & D to furnish and install tile baths and other materials in the Tradewinds Apartments. The first work was performed under this contract on November 30, 1962. The trial court found that FB & D is indebted to Hicks in the principal sum of $9,588.54.

In Oriental Hotel Co. v. Griffiths, supra, the Supreme Court, after reviewing the amendment of the statutes relative to the time that a mechanics’ and materialmen’s lien becomes affixed, adopted what is known as the “relation back” rule as follows: “When the building has been projected, and construction of it entered upon, — that is, contracted for, — the circumstances exist out of which all future contracts for labor and material necessary to its completion may arise, and for all such labor and material a common lien is given by the statute; and in this state of circumstances the lien to secure each has its ‘inception.’ ” In Sullivan v. Texas Briquette & Coal Co., 94 Tex. 541, 63 S.W. 307, the Supreme Court clarified the Oriental Hotel Co. rule and restricted its application to the situation where a building has been projected and a contract for its construction executed by the owner and a contractor.

In McConnell v. Mortgage Investment Co. of El Paso, 157 Tex. 572, 305 S.W.2d 280 (1957), the Supreme Court reaffirmed the “relation back” rule for the time of inception of mechanics’ and materialmen’s liens, providing that there is a general construction contract between the owner and contractor in existence calling for construction of the projected building. If there is such a general construction contract, the liens incurred in construction of the projected building are on a parity with each other and have their inception on the date such contract was executed. See also Lubbock National Bank v. Hinkle, Tex.Civ.App., 397 S.W.2d 285, writ ref’d n. r. e.; Newman v. Coker, Tex.Civ.App., 310 S.W.2d 354, no writ; McConnell v. Frost, Tex.Civ.App., 45 S.W.2d 777, writ ref’d.

The primary difficulty in determining the application of this rule here is that although Frieden was obligated under his general contract with FB & D to furnish all materials and to complete the project in accordance with the plans and specifications, FB & D, for reasons not established by this record, contracted directly with Olmos and Hicks for their work. Thus Olmos and Hicks assert their claims as “original contractors” from the owner, FB & D, although the labor and materials furnished by them were within the contractual obligation of Frieden. It is noted that two of the lien claimants in Oriental Hotel Co. had entered into contracts directly with the hotel company rather than the general contractor and were held on a parity with other mechanics’ lien claimants. This holding has not been modified by the Supreme Court, and in our opinion controls this case. Contra: Regold Mfg. Co. v. Maccabees, Tex. Civ.App., 348 S.W.2d 864, writ ref’d n. r. e.

An additional question is presented as to the effect of the statutory payment filed under the provisions of Art. 5472d Vernon’s Ann.Civ.St. Olmos and Hicks assert no claim under this bond, but Chase urges it prevents them from securing a valid lien. Under the terms of this statute, when a proper bond is furnished by an original contractor, it constitutes claimant’s only statutory security for claims arising under the contract filed with the payment bond. Barlite, Inc. v. Trinity Universal Ins. Co., 400 S.W.2d 405, writ ref’d n. r. e. Obviously, this statute would not affect the constitutional lien of Olmos and Hicks.

The record in this case establishes that, a general construction contract was executed between FB & D and Frieden, and work was performed thereunder prior to the execution and recording of the deed of trust to Chase. The constitutional liens of Olmos and Hicks arose in performance of work and furnishing of materials clearly contemplated by the plans and specifications of this general contract. Therefore, under the “relation back” rule of Oriental Hotel Co. v. Griffiths, supra, these liens had their inception prior to and are therefore superior to the deed of trust lien of Chase.

Chase urges as a cross-point that in the event the lien of Olmos or Hicks is found superior to its deed of trust lien, Chase is entitled to assert claim over against Trinity Universal Insurance Company under the terms of the statutory performance bond and/or the dual-obligee bond. Both Trinity and Chase agree that to do so this phase of the case must be severed and remanded to the trial court for determination of their respective rights.

DOOR UNIT MANUFACTURING COMPANY APPEAL

The principal question presented by this appeal is the correctness of the trial court’s finding that Door Unit did not perfect a valid lien. On August 27, 1962, Door Unit entered into an oral contract with Alvin Frieden to furnish windows and screens for the Tradewinds Apartments. The sum of $25,382.00 is due and owing under that contract. The controlling finding of the court is that the lien affidavit was not timely filed hy Door Unit, in that it was filed on September 24, 1964, some ten months after delivery of the last materials under its contract.

Door Unit introduced an invoice showing delivery and receipt by the apartment manager on August 11, 1964, of half-screens of the value of $87.00. Chase urged and the trial court found that this delivery was not shown to be referable to the terms of the contract as required by Art. 5467(3) Vernon’s Ann.Civ.St.

It is our opinion that this finding is supported by the evidence and therefore Door Unit’s lien was not timely perfected. There was no evidence as to the purpose of these half-screens or who had ordered them. The only other work performed, or material furnished, by Door Unit after September or October, 1963, was to replace windows which were broken by vandals in May, 1964. All other evidence indicates that the apartment complex was substantially completed by September or October of 1963. All other lien claimants completed their work by the fall of 1963. A certificate of completion was filed on September 17, 1963, by Chase’s supervising engineer. The City of San Antonio issued its Certificate of Occupancy on September 16, 1963. In June, 1964, the management of these apartments was taken over by Naylor Realty Company and there was testimony from its manager that the screens were not ordered by Naylor or with its knowledge. Under this evidence the trial court was justified in finding that the screens delivered in August, 1964, were not referable to the contract and therefore the lien was not timely filed.

Door Unit’s other points have reference to the priority of its lien and are therefore immaterial.

The judgment of the trial court is affirmed insofar as appellants Finger Furniture Company and Door Unit Manufacturing Company are concerned; insofar as appellants Olmos Building Materials Company and Hicks Company, Inc., are concerned the judgment is reformed to provide that their liens are superior to the deed of trust lien of Chase Manhattan Bank; the claim of Chase Manhattan Bank against Trinity Universal Insurance Company, growing out of the liens of Olmos Building Materials Company and Hicks Company, Inc., is hereby severed and remanded to the trial court. The costs are taxed one-third against appellant Finger Furniture Company, one-third against appellant Door Unit Manufacturing Company, and one-third against appellee, Chase Manhattan Bank.

KLINGEMAN, J., not participating.


text:
    SWIFT AND COMPANY, Appellant, v. POSTON FARMS, INC., Appellee.
    No. 4110.
    Court of Civil Appeals of Texas. Eastland.
    March 3, 1967.
    Rehearing Denied March 24, 1967.

      C. O. McMillan, Stephenville, for appellant.
    Joseph A. Chandler, Stephenville, for ap-pellee.
   GRISSOM, Chief Justice.

Poston Farms, Inc., obtained a judgment against Swift and Company for breach of a contract to buy eggs laid by turkey poults that it purchased from Swift. Swift and Company has appealed.

A jury found (1) that Poston and Swift had a contract that Poston would purchase Swift’s turkey poults at a premium price and Swift would purchase at a premium price the eggs they laid; (2) that it was not a part of the agreement that Poston’s flock had to meet the standards of the National Turkey Improvement Plan “by being, in the trade, a disease free flock”; (3) that Clausen, Swift’s representative, told Berry, Poston’s manager, that Swift would purchase the eggs, even if the flock was infected, provided Poston moved his chicks from their location adjacent to the turkeys and (4) that Poston did move the chicks within a reasonable time.

It is undisputed that for several years Poston Farms, Inc., purchased poults from Swift and Company under an agreement that Swift would purchase the eggs laid by them. In April 1962, Swift again proposed to Poston Farms that it buy poults from Swift, as it had on previous occasions, for the purpose of producing turkey eggs to sell to Swift. It was agreed that Poston would pay Swift twice the price then being paid for poults bought for growth and sale as meat and that, although Poston had recently bought some “meat” poults from Swift for 450, it paid 950 each for these poults. It was further agreed that Poston would buy its turkey feed from Swift, first a “turkey starter” and later “turkey grower”, and that, if the poults and turkey feed were bought from Swift, it would purchase Poston’s eggs at a premum price, as it had on previous occasions. It was undisputed that, after the poults had been purchased by and delivered to Poston, a representative of a turkey improvement organization found that baby chicks were being kept near the turkeys and notified both Poston and Swift that the turkeys would for that reason not qualify; that Poston’s representative immediately contacted Swift’s representative and the manager of Poston specifically asked Swift’s agent what would happen if the chickens were moved, but, nevertheless, the turkeys did not pass the tests. Whereupon, Swift’s agent said “You move the chickens and we will take the eggs from the turkeys.” That, relying on this promise, Poston moved the chickens to a different farm and hired another caretaker; that, thereafter, Clausen, acting for Swift, came to Poston Farms and culled its turkey flock, leaving 1083-hens and 132 toms, the culls being then sold on the market for meat. It was undisputed that after the chickens were moved the turkeys were culled by Swift and Poston continued to feed the remaining turkeys the feed required by Swift and that Poston Farms was damaged $7,103.16 by the refusal of Swift to purchase the eggs.

Appellant’s first three points are, in effect, that the court erred in rendering judgment for Poston because the testimony of plaintiff’s agent, Berry, was insufficient to form an enforceable contract. That is the gist of appellant’s contention. In an excellent brief, Swift contends that the agreement between the manager of Poston Farms and Clausen that, if Poston move the chickens, regardless of the results of tests thereafter, Swift would buy the eggs ; that this was not a binding contract; that Swift’s liability was limited by a written guaranty which stated that it authorized no one to assume any other liability in connection with the sale of its poults and that Poston had accepted delivery under the terms of said guaranty. Swift contends that it participated in the P.P.L.O. testing program of the Poultry Improvement Board of the Texas Poultry Improvement Association and a State agency designed to cooperate with the United States Department of Agriculture in administering the National Turkey Improvement Plan and that such Board was authorized to establish and promulgate regulations and supervise and carry out the approved plan by Article 165-7; that Draper, a supervisor of said organization found the turkeys penned close to a brooder house containing baby chicks and notified Swift and Poston that, for that reason, he could not certify the turkeys were free from “P.P.L.O.”; that to obtain such a certificate all chickens must be moved from the premises, a test of at least 10 percent of the turkeys must be made within 30 days thereafter and found negative and that after 60 days another negative test of at least 10 percent must be made; whereupon, the Turkey Plan Agency would then certify that Pos-ton’s turkeys were free from P.P.L.O.

We agree with appellee that neither the written guaranty, nor the action of the Turkey Improvement Board and its rules and regulations control the decision. The controlling question is: was there a contract for Swift to purchase the eggs. The jury found there was. There was ample evidence to support that finding. The terms of the original contract were undisputed. When the agent for the Improvement Association wrote the parties that he would not certify the eggs because chicks were penned near by, Poston contacted Swift and Swift then agreed that if the chickens were removed, and the jury found they were, that Swift would buy Poston’s eggs, regardless of the results of future tests. This constituted a valid contract. There was consideration therefor. Poston Farms could have sold the turkeys at a profit for meat and would have done so but for Swift’s promise to buy the eggs regardless of the results of future tests. Pos-ton continued to carry out its contract, it moved the chicks to another farm and hired another handler for them, it continued to feed Swift’s feed and had the turkeys culled by Swift for the production of eggs to be purchased by Swift at a premium price. The court did not err in rendering judgment for Poston, based, at least, in part on the evidence that Clausen, the manager of Swift’s Hatchery Department and its representative in dealing with Poston, had supervised the dealings between these parties on two previous occasions, when Poston had bought Swift’s poults, fed Swift’s feed and sold Swift the eggs produced. Clausen had acted and spoken for Swift on matters concerning the turkeys on these former occasions, as on this occa sion. He acted for Swift in accomplishing the end results of its turkey hatching program. Clausen, the agent for Swift who made the promise that induced Poston to take the action that caused its damages, knew Poston well; they had been the actors for said companies in carrying out this and two other like contracts. Plaintiff’s pleadings and testimony was to the effect that but for the promise of Clausen that, if the chickens were moved, the eggs would be purchased regardless of the results of future tests the turkeys would have been sold for meat and its loss avoided. There was evidence that, acting on this agreement, Poston did not make the profit it could have made by selling turkeys for meat but kept them to produce eggs for sale to Swift under their contract. Reverting again to the gist of appellant’s contention, this is not a suit on Swift’s guaranty. This is a suit for breach of contract, based on Poston’s reliance on the promise of Clausen to purchase Poston’s eggs. We cannot agree with appellant that the requirements of the National Turkey Plan Agency constitute a defense. The jury found, as it had a right to do under the evidence, that its requirements were not a part of the contract. The authorities cited by appellant have been properly distinguished in appel-lee’s brief. They do not require a different conclusion. Appellant cannot successfully contend that the agreement of Clausen to take the eggs was merely a statement of future intention for which Swift could not be held responsible. His statement was an offer which was accepted and acted upon by Poston to its detriment. A binding contract followed. 13 Tex.Jur.2d 186.

All of appellant’s points have been considered and are overruled. The judgment is affirmed.


author: WERLEIN, Justice.

text:
    R. E. CROUCH, a Widow, Appellant, v. The STATE of Texas, Appellee.
    No. 14979.
    Court of Civil Appeals of Texas. Houston.
    March 23, 1967.
    Oldham & Lorance, Houston, for appellant, Beatty Oldham, Houston, of counsel.
    Crawford Martin, Atty. Gen., Hawthorne Phillips, T. B. Wright, Carroll R. Graham, Robert D. McGee, Albert L. Derden, Asst. Attys. Gen., Austin, for appellee.
   WERLEIN, Justice.

Appellee, The State of Texas, brought this suit to condemn 17.768 acres of land out of the center of a rectangular tract containing 106.302 acres of land in the Sealy Subdivision, San Felipe de Austin Town Tract 5 League Grant, Abstract 5, in Austin County, Texas, located southwest ■of the town of Sealy. The jury, in answer to special issues, awarded the sum of $6,-216.80 for the land taken consisting of 17.768 acres, and found that the cash market value of the remaining land before and after the taking was respectively $30,-986.90 and $29,936.90, thus resulting in a loss of $1,050.00 in the value of the remaining land. Appellant asserts that the trial court erred in failing to grant her a new trial because the verdict of the jury was so contrary to the overwhelming weight and preponderance of the evidence as to be manifestly unjust and unfair, and also that the court erred in excluding evidence of certain sales offered by appellant and in admitting evidence of certain sales offered by appellee, as being comparable to the land condemned.

The evidence shows that the west boundary of appellant’s 106.302 acres was a county road some 40 feet in width. The tract had no frontage upon any other road or highway. In connection with the construction of Interstate Highway No. 10, which runs in approximately an easterly and westerly direction across appellant’s tract of land, appellee constructed an elevated bridge or overpass some 17 or 18 feet above the ground level on said county road over Highway 10 with the necessary elevated grade approaches along and over said road to such bridge, thus cutting off appellant’s access to such road with the exception of some 385 feet on the county road remaining at the ground level at the northwest corner ■of appellant’s land and a similar 385 feet at the ground level at the southwest corner of appellant’s tract. The bridge and its approaches cut off approximately 700 feet bf the frontage appellant’s land formerly had on the county road.

Interstate Highway 10 is a controlled access highway. There are no frontage or service roads constructed or contemplated on either side of Interstate 10 across appellant’s land. Such highway, therefore, cuts appellant’s tract of land into two separate tracts, the northern tract consisting of some 36.834 acres and the southern tract of some 50.7 acres. There is no way in which appellant can get from one of such tracts to the other without going out on the county road and traveling along and over the approaches and bridge thereon. In order to get onto Interstate 10 appellant would have to go from one or the other of the remaining tracts to the county road and on it to Highway 90 or some other road. The distance from appellant’s remaining tracts to the nearest interchange where she could go on or leave Interstate 10 is approximately a mile.

We have read the entire statement of facts with the exception of the exhibits which have not been brought up to this Court, and have concluded that we cannot say that the jury’s answers to the special issues submitted are so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. The jury evidently believed appellee’s witnesses and felt that the opinions expressed by them with respect to market values were more reliable than the opinions of appellant herself and of her witness, Mr. Marik.

Appellant testified that she was convinced that her land was worth no less than $700.00 per acre. She also testified that her land overlooked the City of Sealy and was very desirable for residential use, which was coming her way; that she “would certainly not put a value of less than $700.00 an acre in five, three, four, five, six, whatever a person wanted in each tract.” She also testified she had no immediate plans for a subdivision of the property but was waiting to see what the Highway was going to do; that she leased it for grazing rather than have it vacant and that she was hoping for a better price for it in the future; and that the land was bought with the intention of the development of the city in the future.

Appellant’s witness, Charles Marik, a landowner in Austin County, and a buyer of oil and gas leases and dealer in real estate and ranches, and a licensed real estate broker, testified that he would put a value o£ $600.00 an acre on appellant’s entire acreage; that in his opinion the value of the remaining tract of 50.7 acres south of Highway 10 would be worth only $400.00 an acre after the taking, and the 36.834 acre tract north of the highway would be worth only $500.00 an acre after the taking. He also testified that he had considered appellant’s land for residential property for a subdivision or town lots, and that he considered its highest and best use was for a subdivision or town or residential lots, and that the value he placed on it was for a piece of property suited for a subdivision for town lots. His opinion was based upon certain tracts of land which he considered comparable.

Appellant offered in evidence in connection with the testimony of Mr. Marik two pieces of property near the property in question, consisting of approximately one and two acre tracts. The court sustained the objections of appellee that such sales were not comparable to the property in question. The court did permit such witness, however, to testify that he knew of a sale of a five acre tract which sold for $800.00 an acre, and a sale of an undivided interest out of 80 acres, or approximately 66 acres, which sold for $500.00 an acre. The latter sale was of two remaining tracts across the county road from appellant’s property.

Appellee’s witness, Mr. Wylie Houston, who was well qualified as an appraiser, after testifying to certain tracts he considered comparable, placed a value of $350.00 an acre on appellant’s entire tract. He testified that he was familiar with the sale of the two remainders directly across the county road from the subject land lying on both sides of Interstate 10, and that such sale convinced him that the remaining portion of Mrs. Crouch’s land had suffered no damage by reason of the taking, other than the cost to refence the north and south right of way lines.

Mr. Charles Osenbaugh, called by appel-lee, also a well qualified realtor and appraiser, after testifying to certain tracts which he considered comparable, placed a value of $350.00 an acre on the land condemned and also a value of $350.00 per acre for the land in the remaining tracts both before and after the taking, thus finding that no damage resulted to the remaining tracts, other than the cost of fencing the north and south right of way line of Highway 10. The highest value placed on the fencing was $1,050.00, which also represents the difference in the value of the remaining portions of land before and after the taking as found by the jury. Appellant objected to the court permitting appellee’s two appraisal witnesses to testify to certain comparable sales as the basis for their expert opinion of the value of the land in question.

We cannot say that the court abused its discretion in refusing to permit appellant to introduce evidence of a 1½ acre tract and of a two acre tract, since such small tracts were located on Highway 90 adjacent to the city limits of the town of Sealy, and in a subdivision thereof, with water and electric light available, and apparently not in any way comparable to appellant’s tract of land. Nor can we say that the court abused its discretion in permitting appellee’s witnesses to testify to certain comparable sales in the vicinity of the town of Sealy, consisting of 45.033 acres, 50.381 acres, and 116 acres, testified to by Mr. Houston, and four sales of 90 acres, 45 acres, 45 acres, and 50 acres, respectively, testified to by Mr. Osenbaugh. In connection with the admission of such sales the jury was instructed that the testimony was offered for the limited purpose of showing the basis of the witnesses’ conclusions as to value of appellant’s property. State v. Oakley, 1962, 163 Tex. 463, 356 S.W.2d 909.

In City of Austin v. Cannizzo, 1954, 153 Tex. 324, 267 S.W.2d 808, the court held that recent sales of comparable property should not be restricted to the narrow area west of Kinney Avenue and south of Barton Springs Road, but that recent sales of other property in the City of Austin meeting the test of similarity should be admitted. The court, in State v. Curtis, Tex.Civ.App. 1953, 361 S.W.2d 448, ref. n. r. e., held with respect to comparable sales that it is sufficient if it can be shown as a predicate that the lands involved in prior sales are similar to those taken.

The trial court has great discretion in determining whether sales offered in evidence are comparable to the land condemned, and as to the admissibility of testimony relating to market value of the property. Bruner v. State, 391 S.W.2d 149, Tex.Civ.App.1965, ref., n. r. e.; State v. Evans, 340 S.W.2d 99, Tex.Civ.App.1960, ref., n. r. e.; State v. Childress, 331 S.W. 2d 230, Tex.Civ.App.1959, ref., n. r. e.; Morgan v. State, 343 S.W.2d 738, Tex.Civ. App.1961, ref., n. r. e.; State v. Hamman, 377 S.W.2d 727, Tex.Civ.App. 1964, n. w. h.; Melton v. State, 395 S.W.2d 426, Tex.Civ. App.1965, ref., n. r. e. The court’s decision that there is sufficient similarity cannot be reviewed except to determine whether there has been an abuse of discretion. State v. Hamman, supra, and authorities there cited.

We have carefully considered the sales testified to by the witnesses of appellant and appellee, and the sales which were admitted in evidence, and those excluded, and have concluded that we cannot say that the court abused its discretion in connection with the admission or exclusion of the sales complained of by appellant. We are further of the opinion, in light of the whole record, that appellant has failed to show harm or reversible error in the case. Rule 434, Texas Rules of Civil Procedure.

Judgment affirmed.

COLEMAN, J., not sitting.