author: WALKER, Justice. SMITH, Justice

text:
    Jim C. McKELVY, Petitioner, v. Dr. Forrest C. BARBER, Respondent.
    No. A-9683.
    Supreme Court of Texas.
    July 8, 1964.
    Rehearing Denied July 29, 1964.

      1 John W. Herrick, Massie Tillman, Fort Worth, for petitioner*. ■
    Cantey, . Hanger, Gooch, Cravens & Scarborough, Sloan B. Blair, Fort Wprth, for respondent.
   WALKER, Justice.

Our opinion delivered in this cause on March 4, 1964, is withdrawn and the following is substituted therefor:

Jim C.’ McKelvy, petitioner, brought this suit again Dr. Forrest C. Barber, respondent, to recover damages alleged to have resulted from negligent medical treatment. Respondent’s motion for instructed verdict at the conclusion of all the evidence was granted by the trial court, and the Court of Civil Appeals affirmed. 368 S.W.2d 38. As the case reaches us, the appeal presents two procedural problems and two questions of substantive law. We have concluded that respondent was not entitled to a peremptory instruction on any of the grounds asserted in his motion, and the cause will be remanded for a new trial.

Petitioner injured his finger in the course of his employment by American Manufacturing Company. He was taken by the Personnel Director to the office of respondent, who treated the injury. Petitioner later developed tetanus and was totally and permanently disabled at the time of trial. He settled with Pacific Employers Insurance Company, the compensation carrier for American, prior to the institution of this suit.

While respondent’s motion for instructed verdict contains twenty numbered paragraphs, it actually asserts two basic and independent grounds for granting a peremptory instruction in his favor. These are: (1) that there is no evidence to support a finding that the tetanus was proximately caused by any negligence on respondent’s part; and (2) that since the undisputed evidence shows that respondent was acting as the agent, servant or employee of American and its compensation carrier in treating petitioner, he is immune from liability by virtue of the provisions of Article 8306, § 3, Vernon’s Ann.Tex.Civ. Stat. The judgment of the trial court merely recites that specific grounds were set forth in the motion for instructed verdict, and that the court was of the opinion that the motion was well taken and should be granted. To reverse the judgment of the trial court under these circumstances, it was necessary for petitioner to assume the appellate burden of establishing that the peremptory instruction cannot be supported on either of the grounds set out in the motion. If he has waived the right to question either of such grounds or if either is sound, the judgment of the trial court must be affirmed.

Petitioner was not required to file a motion for new trial as a prerequisite to an appellate attack on the action of the trial court in granting a peremptory instruction. Rule 324, Texas Rules of Civil Procedure. His brief as appellant in the Court of Civil Appeals contains three points of error which assert that there is evidence to support findings that the tetanus was proximately caused by respondent’s negligence. Since he did not have a point of error complaining of the action of the trial court in sustaining the motion for instructed verdict on the second ground mentioned above, respondent says that petitioner has waived any complaint he might have had with respect thereto. We do not agree.

In the introduction to his brief as appellee in the Court of Civil Appeals, respondent stated that he presumed petitioner was not contesting the motion for peremptory instruction on any grounds other than as stated in the three points of error. By his Counterpoint No. 16 and the argument thereunder, however, respondent sought to uphold the instructed verdict on the statutory immunity ground urged in the trial court. Petitioner responded with an extended discussion of the question in his reply brief, and respondent then filed an additional reply dealing only with that issue. The Court of Civil Appeals did not affirm on the theory that petitioner had waived the right to complain of any error on the part of the trial court in granting a peremptory instruction on the second ground stated in the motion for instructed verdict. On the contrary, it considered the question on the merits, concluded that the position taken by respondent was sound, and accordingly affirmed the judgment of the trial court without considering the three points of error set out in petitioner’s original brief. After a point of law has thus been briefed by all parties and decided by the Court of Civil Appeals, we think it should be treated as having been properly presented for decision at the intermediate court level even though not raised by a formal point of error in the appellant’s brief.

Section 3 of Article 8306 provides that the employees of a subscriber shall have no right of action against their employer or against any agent, servant or employee of said employer for damages for personal injuries. An agent, servant or employee within the meaning of this statute is ordinarily one for whose conduct the employer would, aside from the Workmen’s Compensation Act, be legally responsible under the doctrine of respondeat superior. The statutory immunity does not extend, for example, to an independent contractor. See Haynes v. Taylor, Com.App., 35 S.W.2d 104, 38 S.W.2d 1101; Cotton v. Henger, Tex.Civ.App., 312 S.W.2d 299 (modified and affirmed, 159 Tex. 139, 316 S.W.2d 719). The injured claimant may thus be entitled to recover in a third-party action even though the defendant would be regarded as the employer’s agent for some purposes. An important consideration in such cases is whether the employer had that right to control the physical details as to manner of performance which is characteristic of the relationship of master and servant. See American Nat. Ins. Co. v. Denke, 128 Tex. 229, 95 S.W.2d 370, 107 A.L.R. 409.

As pointed out by the Court of Civil Appeals, it is undisputed that respondent was the doctor for American Manufacturing Company. Petitioner so testified, as did respondent and a representative of the company. Respondent says that when all parties have thus conceded that he was engaged in work for the employer, a presumption arises that the relationship of master and servant existed between them. He contends that the courts below were required to give effect to such presumption because no evidence tending to show the existence of any other relationship was introduced.

It is unnecessary to decide here whether there are circumstances under which a medical practitioner who treats a patient would he regarded as the servant of another. In the ordinary case, however, where an industrial employer or its compensation carrier arranges for and pays a particular physician or surgeon to care for employees injured in the course of their employment, the parties do not contemplate that the relation of master and servant will arise between the employer or carrier on the one hand and the physician or surgeon on the other. The doctor is generally expected to exercise and rely entirely upon his own professional knowledge and skill without interference from either the employer or the insurance carrier. There is no presumption then of a master and servant relationship where the proof merely shows that an ordinary employer or insurance company has arranged for a doctor to treat another person. See 41 Am. Jur. Physicians and Surgeons § 116; Annotation, 19 A.L.R. 1168, 1183; Annotation, 69 A.L.R.2d 305, 320; Restatement, Second, Agency § 223, Comment a; Mechem, Outlines of the Law of Agency, 4th ed. 1952, § 432 et seq.

It appears from the evidence in this case that respondent is engaged in the general practice of medicine. Only about fifteen or twenty per cent of his practice is of an industrial nature. He is not on a retainer with American Manufacturing Company, but is paid for his services as they are rendered. His charges for treating injured workmen are paid by Pacific Employers, while American pays his fees for making physical examinations. The details of his relationship with the company are not fully developed, but the mere fact that he is generally regarded as the “company doctor” and is paid by Pacific Employers does not conclusively establish that he is subject to the ultimate control of either in his treatment of industrial injuries. In our opinion the evidence fails to show as a matter of law that respondent is the agent, servant or employee of American Manufacturing Company or its compensation carrier in rendering such services, and the instructed verdict cannot rest upon the second ground stated above. See Pedigo & Pedigo v. Croom, Tex.Civ.App., 37 S.W.2d 1074 (wr. ref.); Hoffman v. Houston Clinic, Tex.Civ.App., 41 S.W.2d 134 (wr. dis.). This brings us to the second procedural question raised by respondent

As indicated above, the Court of Civil Appeals did not pass upon petitioner’s three points of error which attacked the first ground set out in the motion for instructed verdict. The failure of the intermediate court to consider and sustain such points was not assigned as error in petitioner’s motion for rehearing in the Court of Civil Appeals or in his application for writ' of error here. Respondent says that in this situation the judgment of the trial court must he affirmed in any event because it rests upon an independent ground which cannot now be questioned. He thus seeks to invoke the rule that applies when the intermediate court has overruled points of ferror attacking an independent ground .upon which the judgment of the trial court rests and its action in that respect is not brought forward for review. See City of Deer Park v. State, 154 Tex. 174, 275 S.W.2d 77.

“[I]t seems to be the definitely settled rulé that the party' who' prevailed in the Court of Civil Appeals.-is-entitled to have his assignments, -which' were properly presented in that court, 'considered by the Supreme Court in so far as may be necessary to • determine what judgment should have been rendered by the Court of Civil Appeals.” Holland v. Nimitz, 111 Tex. 419, 232 S.W. 298, 239 S.W. 185. This refers to assignments or points 'of error that were not passed- on by the Court of Civil 'Appeals. ’ We have also .said on several occasions that “when it is determined that the Court of Civil Appeals. erred in basing its- judgment on a particular ground, the Supreme Court is authorized to consid-er the briefs filed in that court, not for the purpose of reversing its judgment, but for th.e purpose only .of determining -whether, by.-considering .other assignments' therein, fit'could affirm such" judgment.” See Texas Employers Ins. Ass’n v. Kennedy, 135 Tex. 486, 143 S.W.2d 583; Driver v. Worth Construction Co., 154 Tex. 66, 273 S.W.2d 603; Garcia v. Moncada, 127 Tex. 453, 94 S.W.2d 123.

These “ground rules” which have •evolved through the years aré-usually applied in’the' ordinary case where each of several points of error in the Court of Civil Appeals, if sustained, would require that the judgment of the trial court be reversed. All complaints of that nature must be considered and overruled-before the intermediate court can properly affirm.. If it does affirm and the appellant brings forward only some of the points in his application for writ of error, his other points in the Court of Civil Appeals are -deemed to be waived, whether passed on by that court or not. This is so because the intermediate court plainly errs when it affirms- without considering a contention that might lead to a reversal, arid the burden is on the ■ losing party to complain of the error if he wishes us to pass on the question.

When the Court of Civil Appeals reverses in the ordinary case mentioned above, it will either .render or remand as may be required by the point or points of error which are sustained. The losing party must then bring forward for review all rulings of the intermediate court which .led to a reversal. If we decide that its holdings on these, questions are unsound, the brief of the prevailing party in the Court .of Civil Appeals may be examined to'determine whether there are other points of error which warrant an affirmance of its judgment on a ground hot" considered by the intermediate court. See Meyer v. Great American Indemnity Co., 154 Tex. 408, 279 S.W.2d 575. We may 'also remand, the cause to the Court of Civil Appeals to enable it to pass on points of the prevailing party there which were1 rendered immaterial under its initial holding, even though the sustaining' of such points would le'ad to a judgment different from that originally entered-by the - intermediate court. See Wood v. Kane Boiler Works, 150 Tex. 191, 238 S.W.2d 172; Ritchie v. American Surerty Co., 145 Tex. 422, 198 S.W.2d 85; Baker v. Baker, 143 Tex. 191, 183 S.W.2d 724; Block v. Aetna Casualty & Surety Co., 138 Tex. 420, 159 S.W.2d 470; McKenzie Construction Co. v. City of San Antonio, 131 Tex. 474, 115 S.W.2d 617.

• This is not one of the ordinary cases, and •in our opinion is not governed by the general rules, discussed above. The judgment of the trial court can rest upon two independent grounds, and both rulings of that court were brought to the Court of Civil Appeals for review. After overruling the -attack on one of such grounds, the intermediate court was not required to and did not pass on the appellant’s points of error •which challenged the other ground. .The .appellant then came to us with an-application for writ of error .which asserts that the holding of the Court of Civil Appeals on the question decided there is erroneous hut does not mention the negligence and causation points that were not considered, and we have concluded that the points of error brought forward in the application should be sustained.

There appear to be only two previous cases in which this situation has arisen. In one of them the procedural problem with which we are now concerned was not raised, and the Commission of Appeals took the position that it was under a duty to pass on the question not considered by the Court of Civil Appeals. Elliott v. Wallace, Tex.Com.App., 59 S.W.2d 109. In the other case, the defendants in error argued at length, as respondent does here, that the judgment of the trial court should be affirmed because it could rest on a ruling not considered by the Court of Civil Appeals and not brought forward in the application for writ of error. This practice question was not decided, because the assignment of error was treated by the Supreme Court as being sufficiently broad to embrace all rulings made by the trial court. Independent Eastern Torpedo Co. v. Herrington, 128 Tex. 17, 95 S.W.2d 377.

A careful and seasoned appellate practitioner would have included in his application for writ of error a point asserting that the Court of Civil Appeals erred in failing to consider and sustain the points of error dealing with negligence and causation. Respondent says, in effect, that the failure to do so here requires us to affirm the judgment of the trial court no matter how erroneous it may be. That approach might save the Supreme Court some time, but it is also calculated to entrap the inexperienced appellate advocate. The attack in this Court is upon the judgment of the Court of Civil Appeals. That judgment rests squarely upon a single holding, which has been brought forward for review. When it is determined, as we have in this instance, that the conclusion reached by the intermediate court is unsound, it would certainly be proper to remand the cause to that court for a ruling on the points of error not previously considered by it. Since these points present only law questions, however, we can and do dispose of them now instead of requiring the parties to go back to the Court of Civil Appeals-and then possibly return here with a second application for writ of error. In our opinion the evidence raises issues of negligence and causation that can be resolved only by the trier of fact, and the trial court erred in granting respondents’ motion for instructed verdict.

In Jecker v. Western Alliance Ins. Co., Tex.Sup., 369 S.W.2d 776, and Rogers v. Winters, 161 Tex. 451, 341 S.W.2d 417, the Court of Civil Appeals reversed and rendered judgment for the appellant. After concluding that the holding of the intermediate court on the question considered by it was unsound, we refused to pass on other points of the appellant in that court which might have entitled the appellant to a reversal and remand or modification of the trial court’s judgment. It was reasoned that such complaints would, if sustained, result in an alteration of the judgment of the Court of Civil Appeals, and therefore could not be considered unless brought to this Court by crosspoint. These holdings of Jecker and Rogers are not consistent with the line of cases represented by Wood v. Kane Boiler Works, supra, and will not be followed in the future.

The judgments of the courts below are reversed, and the cause is remanded to the district court for a new trial.

ON MOTION FOR REHEARING

SMITH, Justice

(dissenting).

I respectfully dissent. The judgment of the trial court can and should be sustained on either of two procedural grounds.

In the trial of this cause the defendant Barber moved for an instructed verdict and asserted two separate and independent grounds in support of his motion. The trial court granted defendant’s motion which, as noted above, could be based on either of two grounds, hereafter referred to as Ground A and Ground B.

On appeal to the Court of Civil Appeals, plaintiff-appellant brought forward points of-error attacking only Ground B. He did not bring forward in his appellants’ brief a point of error complaining of Ground A. This being so, the defendant-appellee pointed out in his brief before the Court of Civil Appeals that Ground A had not been challenged. Notwithstanding his failure to attack Ground A in the Court of Civil Appeals, this court now holds that the plaintiff-appellant did not waive any complaint he may have had with respect to this independent ground which would support the trial court’s judgment. In support of its holding, this court reasons as follows:

“In the introduction to his brief as appellee in the Court of Civil Appeals, respondent stated that he presumed petitioner was not contesting the motion for peremptory instruction on any grounds other than [Ground B], By his Counterpoint No. 16 and the argument thereunder, however, respondent sought to uphold the instructed verdict on [Ground A], Petitioner responded with an extended discussion of the question in his reply brief, and respondent then filed an additional, reply dealing only with that issue. The Court of Civil Appeals did not affirm on the theory that petitioner had waived the right to complain of any error on the part of the trial court in granting a peremptory instruction on [Ground A]. On the contrary, it considered [Ground A] on the merits, concluded that the position taken by respondent was sound, and accordingly affirmed the judgment of the trial court without considering [Ground B], After a point of law has thus been briefed by all parties and decided by the Court of Civil Appeals, we think it should be treated as having been properly presented for decision at the intermediate court level even though not raised by a formal point of error in the appellant's brief.”

The above quoted language, in its simplest terms, necessarily means that the appellant-petitioner has reaped a windfall due to the thoroughness of the appellee-respondent’s attorney. While the appellee-respondent pointed out to the Court of Civil Appeals in his appellee’s brief that there was an unchallenged, independent ground (Ground B) upon which the trial court judgment could rest, this should not supply for the appellant-petitioner a point of error which was not brought forward to that court.

The necessary result of this court’s holding is that by arguing Ground A, in addition to showing it was unchallenged, the appel-lee-respondent lost the right to assert that the appellant-petitioner had waived any complaint as to that ground. On the other hand, had the appellee-respondent not pointed out this unchallenged, independent ground, there would have been nothing to bring the question before the Court of Civil Appeals. Inasmuch as the appellant-petitioner did not bring forward to the Court of Civil Appeals a point of error attacking Ground A, he has waived his right to complain of this independent ground upon which the trial court judgment could rest.

Next, assuming arguendo, that points of error challenging both grounds were properly before the Court of Civil Appeals, then the ultimate procedural question to be decided is: When a Court of Civil Appeals has affirmed a trial court judgment, does the losing party in the Court of Civil Appeals have a duty to challenge in his motion for rehearing and in his application for writ of error all independent grounds upon which the trial court judgment can rest ? This responsibility should rest upon such a party; and if he does not challenge all independent grounds upon which the trial court judgment may rest, this court should affirm that judgment.

The Court of Civil Appeals held that the instructed verdict for appellee-respondent could rest on Ground A. It did not mention nor make any holding as to Ground B.

Plaintiff-petitioner then filed his application for writ of error attacking the Court of Civil Appeals’ holding that Ground A was sufficient to grant the defendant-respondent an instructed verdict. The plaintiff-petitioner did not assign as error, in his motion for rehearing or in his application for writ of error, the failure of the Court of Civil Appeals to consider and sustain his points challenging Ground B.

This court has held that the Court of Civil Appeals erred in sustaining the trial court’s judgment on the basis of Ground A. The Court then goes further and holds that since the Court of Civil Appeals did not consider and pass on Ground B, it is proper for this court to examine the plaintiff-appellant’s brief in that court and to sustain his points of error attacking Ground B, even though this leads to a reversal of the lower courts’ judgments. In my opinion, the Court has erred in so considering the plaintiff’s brief in the Court of Civil Appeals.

First, I recognize and fully agree with the well-settled rule that when a Court of Civil Appeals has reversed a trial court judgment and this court concludes that its holding is unsound, we will still examine the prevailing party’s brief in the Court of Civil Appeals to determine whether its judgment can be affirmed on another ground, even though that other ground has not been considered by the Court of Civil Appeals. As stated by this court in Texas Employers Ins. Ass’n v. Kennedy, 135 Tex. 486, 143 S.W.2d 583 (1940):

“when it is determined that the Court of Civil Appeals erred in basing its judgment on a particular ground, the Supreme Court is authorized to consider the briefs filed in that court, not for the purpose of reversing its judgment, but for the purpose only of determining whether, by considering other assignments therein, it could affirm such judgment.” (Emphasis' added.)

In Holland v. Nimitz, 111 Tex. 419, 232 S.W. 298, 239 S.W. 185 (1922), this court stated:

“ * * * it seems to be the definitely settled rule that the party who prevailed in the Court of Civil Appeals is entitled to have his assignments, which were properly presented in that court, considered by the Supreme Court in so far as may be necessary to determine what judgment should have been rendered by the Court of Civil Appeals.” (Emphasis added.)

It has been said that the above statement “appears much too broad. What the court actually did in Holland v. Nimitz was to consider other assignments in the Court of Civil Appeals to see if the judgment of the Court of Civil Appeals should be affirmed.” (Emphasis added.) See Calvert, Some Problems of Supreme Court Review, 21 Texas Bar Journal 75 (1958). I agree with the now Chief Justice Calvert’s analysis of the Holland case and am in full accord with both it and the Kennedy decisions, supra. However, these cases did not present the problem we have here inasmuch as the Court has examined the brief of the losing party in the Court of Civil Appeals and sustained a point of error therein for the purpose of reversing rather than affirming the judgments of the lower courts.

The procedural question under discussion has never been directly passed on by this court. Clearly, the decision of Wood v. Kane Boiler Works, 150 Tex. 191, 238 S.W.2d 172 (1951), does not support the holding of this court in the present case. That was a suit for wrongful death in which the trial court rendered judgment on the verdict for the plaintiff. On appeal, the Court of Civil Appeals reversed and rendered such judgment, holding that the defendant had breached no duty to the deceased. This court granted plaintiff’s application for writ of error and held that the Court of Civil Appeals’ holding was erroneous. It was then stated that:

“There were numerous points presented in the Court of Civil Appeals which were rendered immaterial under its conclusion and as to some of which this court has no jurisdiction, for example, excessiveness of the verdict. So we are obliged to remand the cause to that court to pass on all those points. Ritchie v. American Surety Co. of New York, 145 Tex. 422, 198 S.W.2d 85.”

However, the points of error which the Court of Civil Appeals was to consider on the remand were not included in the parties’ briefs filed in this court. As noted above, the Court cited the case of Ritchie v. American Surety Co. of New York, 145 Tex. 422, 198 S.W.2d 85 (1946), as authority for its action in the Kane case.

In Ritchie v. American Surety Co., supra, the trial court had rendered judgment on the verdict for the plaintiff. On appeal, the Court of Civil Appeals reversed the cause with instructions to grant the defendant’s petition for removal to the federal court. This court, after holding that the cause was not removable to the federal court, stated:

“Having decided that the judgment of the court of civil appeals cannot be affirmed we have inspected the briefs filed by respondent as appellant in that court to determine what disposition should be made of the cause. Such inspection reveals that there is at least one assignment of error challenging the sufficiency of the evidence to support the finding of the jury in answer to a special issue. This court has no jurisdiction to determine that assignment and we therefore order that the judgment of the court of civil appeals be reversed and the cause remanded to that court for consideration by it of all assignments except those relating to the removal of the cause to the federal court.” (Emphasis added.)

The parties’ briefs in this court did not point out that there were other assignments of error which the Court of Civil Appeals should have considered.

Neither of the above cases held that it was proper for this court to examine the briefs of the losing party in the Court of Civil Appeals and sustain points of error presented there for the purpose of reversing the lower courts’ judgments. Instead, this court examined the prevailing parties’ briefs in the Court of Civil Appeals and picked up points which would entitle them to less relief than they were granted in that court.

The recent case of Rogers v. Winters, 161 Tex. 451, 341 S.W.2d 417 (1960), holds that this court cannot even look to the prevailing parties’ brief in the Court of Civil Appeals as was done in the Kane and Ritchie cases. In Rogers v. Winters, supra, the plaintiff had obtained a judgment against the defendant. The defendant brought forward to the Court of Civil Appeals two points of error, one of which would entitle him to a reversal and rendition — the other to a reversal and remand. The intermediate court sustained the rendition point, and accordingly reversed and rendered. No consideration was given to the remand point. The plaintiff then appealed to this court, challenging the Court of Civil Appeals’ holding on the rendition point, and we held that the Court of Civil Appeals had erred in sustaining this point.

Such holding would normally result in a reversal of the intermediate court’s judgment and an affirmance of the trial court’s judgment. However, the defendant contended that since he was the prevailing party in the Court of Civil Appeals, we should consider and sustain his remand point in that court. In refusing to so examine the defendant’s brief in the Court of Civil Appeals, this court held as follows:

“He did have before the Court of Civil Appeals points of error which, if sustained, would result in a reversal of the trial court’s judgment and a remand of the case to the trial court for re-trial or for otherwise altering the judgment of the trial court, but none of those points are brought forward as crosspoints in this court and they are, therefore, waived.” (Emphasis added.)

Thus, under the Rogers decision, a prevailing party in the Court of Civil Appeals must bring forward a crosspoint before this court can consider a contention he made in the intermediate court which, if sustained, would merely alter that court’s judgment. On the other hand, the Court holds in the present case that the losing party in the Court of Civil Appeals does not have to bring forward a point of error before this court can consider a contention he made in the intermediate court which, if sustained, leads to a reversal and rendition of the judgment of he courts below. I fail to see why a petitioner, who seeks to reverse the lower courts’ judgments, should be treated more favorably than a respondent who merely wants this court to alter the lower court’s judgment.

Both the opinion of the Court, and this dissent, recognize that the procedural question at hand has never been directly passed on. However, the Court apparently feels that the decision of Wood v. Kane Boiler Works, supra, is authority for its present holding. In order to follow the Wood decision, the Court expressly overrules both the Rogers case, supra, and the latest expression on the subject in Jecker v. Western Alliance Insurance Company, Sup.Ct., 369 S.W.2d 776 (1963). As noted above, it is my opinion that even if this court follows the Wood decision, it is not authority for the present holding. However, if a disposition of the present case does compel our choosing between the Wood decision or the Rogers decision, I would follow the latter. The rationale of the Rogers case is sound and well reasoned, and necessarily leads to the conclusion that the Court has erred in its disposition of the procedural question at hand.

Furthermore, I am convinced that this court’s disposition of the procedural question under discussion conflicts with the holding in City of Deer Park v. State ex rel. Shell Oil Co., 154 Tex. 174, 275 S.W.2d 77 (1954). Under the authority of that case, if a Court of Civil Appeals overrules two or more points of error and each ruling will independently support its judgment, the petitioner must bring forward to this court points of error challenging the ruling on each point. If he does not, this court will allow the judgment of the Court of Civil Appeals to stand without even investigating the merits of the points brought forward by the petitioner in his application. This is so because even if the points included in the application are meritorious, the intermediate court’s judgment can be affirmed by that court’s ruling to which no error had been assigned.

The court now by implication says that the Deer Park case is to be distinguished because in that case the intermediate court expressly overruled both points before it, whereas in the present case, the intermediate court did not pass upon both points before it. In my opinion, this is a distinction without a difference.

In the kind of situation here presented, where plaintiff-appellant initially had the appellate burden of establishing that both grounds for the instructed verdict were unsound, he is in precisely the same position when the Court of Civil Appeals refuses to decide one of his assignments as he would be if the intermediate court, as in the Deer Park case, had overruled it. In either event, he has not sustained his appellate burden, and there is no basis for holding that where the Court of Civil Appeals has overruled his assignment there, he must raise it here to have it reviewed, but that when the Court of Civil Appeals has not decided it (and hence has not sustained it), he is in effect relieved of his appellate burden on that point and may sit back confident that this court will review and sustain it without assignment of error.

In this kind of situation, the error, if error it be, originated in the trial court and not in the Court of Civil Appeals. Plaintiff-appellant’s burden in the Court of Civil Appeals was not merely to raise and present the point attacking Ground B. His burden was to get the point sustained. That he did not do; and there is no more basis in logic why he should be entitled to have this court review, without assignment of error, an essential point that the Court of Civil Appeals did not sustain than a point that the Court of Civil Appeals overruled.

It is elementary that the points of error to be relied upon by a party in this court shall be assigned as error in the motion for rehearing in the Court of Civil Appeals. Rule 469(c), Texas Rules of Civil Procedure. Furthermore, it has always been recognized that causes in this court shall be only upon the questions of law raised by points of error in the application for writ of error. Rule 476, Texas Rules of Civil Procedure.

I am in sympathetic understanding with the “inexperienced appellate advocate” who fails to properly preserve his assignments of error. However, I do not believe that our Rules of Civil Procedure are similarly inclined.

When a party has lost in the Court of Civil Appeals and applies to this court for relief, it is not this court’s responsibility to investigate his briefs in the intermediate court in order to grant such relief. To the contrary, the above rules, as well as countless decisions, place the responsibility upon a party who petitions this court to reverse’ the lower courts’ judgments to present in his motion for rehearing and his application for writ of error all questions which must be considered if he is to be granted the relief prayed for. In the present case this responsibility has not been met.

The judgments of the trial court and the Court of Civil Appeals should be affirmed.

GRIFFIN and HAMILTON, JJ., join in this dissent.-


source: Caselaw Access Project

author: WOODLEY, Presiding Judge.

license: Public Domain

text:
    James Lee COLBURN, Appellant, v. The STATE of Texas, Appellee.
    No. 37039.
    Court of Criminal Appeals of Texas.
    June 27, 1964.
    No attorney of record on appeal for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is hunting deer at night; the punishment, a fine of $200 and 60 days in jail.

Trial was before the court on a plea of not guilty.

The document found in the record which purports to be a statement of facts on the trial and on motion for new trial in this cause and companion cause, Hodges v. State, Tex.Cr.App., 380 S.W.2d 631, has not been approved by the trial judge or agreed to by counsel for the state and cannot be considered.

There are no bills of exception and nothing is presented for review.

The judgment is affirmed.


author: PER CURIAM.

text:
    BEXAR COUNTY, Texas, Appellant, v. James E. BARLOW et al., Appellees.
    No. 14268.
    Court of Civil Appeals of Texas. San Antonio.
    June 10, 1964.
    Rehearing Denied July 15, 1964.
    Harvey L. Hardy, San Antonio, for appellant.
    Carl Wright Johnson and Franklin S. Spears, San Antonio, James E. Barlow, Baskin & Gilliland, Julius C. Grossenbacher, Jr., and George W. Krog, San Antonio, of counsel, for appellees.
   PER CURIAM.

Bexar County sued the members of the Bexar County Home Rule Charter Drafting Commission to obtain a declaratory judgment. It sought to determine whether it should call an election at a cost of $30,000 although, as it asserted, the required number of public hearings had not been held as. required by Section , 11(f), Article 1606a, Vernon’s Ann.Civ.St., and also numerous charter proposals were or might be unconstitutional. The Drafting Commission filed a plea in abatement and contended that the validity and constitutionality of the proposed charter presented political and not judicial questions. The trial court sustained the plea and abated the case.

Bexar County filed this cause on August 12, 1963. Two days later the members of the Charter Drafting Commission filed another suit and asked for a mandamus compelling Bexar County to call the election. Bexar County did not seek to abate that case, but it answered by stating the same reasons for not calling an election which it had asserted in its own suit for declaratory judgment. Both cases were heard on the same day. The evidence in both of them is the same. Thus, both suits, in different ways, raise the same questions, and basically that question is whether Bexar County must call an election.

Bexar County argues that it needs the declaratory judgment in aid of its decision about calling an election. Our decision in the mandamus case, Tex.Civ.App,, 381 S.W.2d 72, decided today, gives that answer. It need not call the election on the proposed charter because the public hearing requirements have not been met. Beyond that, to write on the matters presented by Bexar County’s brief concerning the validity of the proposal would be to write on theoretical matters which may -or may not arise under a subsequent proposal. Parks v. Francis, Tex.Civ.App., 202 S.W.2d 683, accord, California Products, Inc. v. Puretex Lemon Juice, Inc., 160 Tex. 586, 334 S.W.2d 780. Tlie case is -dismissed. Parks v. Francis, supra.


text:
    Charles W. ANDERSON et al., Appellants, v. J. C. GROSSENBACHER, Jr., Appellee.
    No. 14269.
    Court of Civil Appeals of Texas. San Antonio.
    June 10, 1964.
    Rehearing Denied July 15, 1964.
    Harvey L. Hardy, San Antonio, for appellants.
    Carl Wright Johnson, Baskin & Gil-liland, George W. Krog, J. C. Grossen-bacher, Jr., San Antonio, Franklin S. Spears, San Antonio, of counsel, for ap-pellee.
   PER CURIAM.

J. C. Grossenbacher, Jr., Chairman of the Bexar County Home Rule Charter Drafting Commission, filed suit seeking a mandamus to compel the County Commissioners to call an election on a proposed County Home Rule Charter. The trial court granted the mandamus and the Commissioners have appealed. Commissioners urge that the mandamus was not properly granted because (1) the Drafting Commission did not prove as a necessary condition precedent that it had complied with the mandatory quorum and hearing requirements of Sections 2, 11(a) and 11(f) of Article 1606a; (2) the proposed Charter contained provisions which are beyond and outside the field of the initiatory process which field is limited by Sec. 19, Art. 1606a, and (3) the statutory method of selecting one delegate from each county precinct to participate in a county convention, though followed, is unconstitutional because it is a disproportionate representation The appeal is determined by the first point, which is valid, and the mandamus will be dissolved.

The Commissioners refused to call the election and resisted the mandamus on the grounds that the Charter Drafting Commission had. not complied with a condition precedent which Art. 1606a made a necessary predicate for the call. Article 1606a, Vernon’s Ann.Civ.St., is the County Home Rule Statute. At the outset of that statute in Section 2, after reciting that its purpose is to implement Section 3 of Article IX of the Constitution of Texas, Vernon’s Ann.St, it states, “all to be done in keeping with the provision of said amendment and under the procedural safeguards by this Act provided.” Section 11(a) of the Home Rule Statute provides that the Drafting Commission selected by the County Commissioners, “may adopt all necessary reasonable rules to control notice of meetings and its procedure, save that, attendance of a majority of the commission’s membership shall be required to constitute a quorum for business, and all questions shall be decided by a majority vote of those members in attendance.” There were fifteen members of the Drafting Commission, and this meant that eight members were necessary for a quorum. No one disputes this. The Drafting Commission, in an early organizational meeting so provided and, absent some contrary rule or law, that. was the minimum number, as the statute stated, “required to constitute a quorum for business.” This was not a mere parliamentary rule, but was an express statutory procedural minimum requirement.

The Drafting Commission pursued its labors and in conformity to the law caused its proposed charter to be published, and gave public notice of the time and place for five public hearings on the proposal. Those hearing dates were set for July 11, 16, 18, 25 and 26, 1963. The five hearings also were express statutory requirements. Section 11(f) provides: “Said publication further shall provide for five (5) or more public hearings before the commission * *

Upon the mandamus trial, it was proved that there were only six members of the Drafting Commission present at the fourth called public hearing. This was not a quorum. Without a quorum there was no. hearing before the Commission, and it was powerless to transact any business. The result was that there were four hearings instead of the five required by statute.

Faced with this, the Commissioners’ Court refused to call the election because the minimum number of public hearings had not been held. It decided that when the Legislature said five public hearings, it would not call an election when there had been only four. Section 11(f), Art. 1606a, requires “five (5) or more public hearings before the commission,” not “five or less.” The Commissioners properly concluded that Sec. 2, Art. 1606a, requiring “all to be done * * * under the procedural safeguards by this Act provided,” had not been met, and therefore declined to call the election at an expense to the County of $30,000.

The contention in support of the mandamus is not grounded upon any argument that four, instead of the statutory minimum of five, hearings would suffice. The argu-. ment is that the Commissioners’ Court, could not inquire to determine if the pro--cedural requirements had been met. Spe--cifically, it is contended that the Commissioners’ Court may not go behind the Drafting Commission’s Report, which was approved by a majority, and which report recited that all five hearings had been “duly” held. The argument is that only members of the Drafting Commission could question its own legislative procedures. If the Legislature intended that the Drafting Commission could proceed at its own pleasure and in its own way, and that those charged with the duty of calling an election could make no inquiry, one wonders why the Legislature went to the trouble to write thirteen pages, carefully stating public safeguards of time, notice, hearing, quorum, journals and reports, and stated that all procedural safeguards must be followed.

We are not dealing with legislative rules made by the legislative body itself. A legislative body may waive, modify or disregard its own rules. South Georgia Power Co. v. Baumann, 169 Ga. 649, 151 S.E. 513; Rutherford v. City of Nashville, 168 Tenn. 499, 79 S.W.2d 581, 587; 1 Sutherland, Statutory Construction, § 604. We are instead dealing with statutory procedures under which the legislative body must proceed and which it is not free to ignore. The rule is stated in 67 C.J.S. Parliamentary Law § 6, P. 876:

“The courts will not disturb the ruling on a. parliamentary question made by a deliberative body having- all the necessary authority to make rules for its governance and acting within the scope of its powers. In so far as its judgment and direction are uncontrolled by the law of the land, it is free from the control of the courts; but, in so far as its acts are directed by law, it is subject to judicial authority.”

-• The fault with the argument in sup-'póft of the mandamus, therefore; is that we are -not faced with a parliamentary rule' made by the Drafting Commission which'it-could disregard, but we have .a •statutory rule which the Drafting Commission could not override or ignore. Without the quorum at the fourth called hearing there was no commission, and without a commission there was no hearing.

The Supreme Court in Glass v. Smith, 150 Tex. 632, 244 S.W.2d 645, approved a mandamus which ordered the City of Austin to call an election, though the City attacked the validity of the ordinance. In that case the Court, at the outset, stated, “It is conceded by petitioners that all procedural requirements for submission of the proposed ordinance have been met and no objection is made to its form.” In recognizing the cases which had refused to order an election, the Court explained them by saying, “In all the Texas cases called to our attention in which it has been held that the people of a municipality could not validly exercise a delegated legislative power through initiative proceedings, it will be found that authority to act was expressly conferred upon the municipal governing body exclusively, or there was some preliminary duty such as the holding of hearings, etc., impossible of performance by the people in an initiative proceeding, by statute or charter made a prerequisite to the exercise of the legislative power.”

In this case, all procedural requirements were not met; the preliminary duty to hold the required number of hearings was not followed. As stated in Turner v. Pruitt, 161 Tex. 532, 342 S.W.2d 422: “Writs of mandamus issue to control the conduct of an officer of government, judicial or administrative, only when the duty to do the act commanded is clear and definite and involves the exercise of no discretion — that is, when the act is ministerial. Wortham v. Walker, 133 Tex. 255, 128 S.W.2d 1138, 1150, 1151; United Production Corp. v. Hughes, 137 Tex. 21, 152 S.W.2d 327, 331; State Board of Insurance v. Betts, 158 Tex. 83, 308 S.W.2d 846, 848.” Mandamus will not lie until everything has been done that is necessary to make it the legal duty of the official to act. Metropolitan Life -Ins. Co. v. Love, 101 Tex. 444, 108 S.W. 821. In our opinion the call for the charter election was not a mere ministerial act so long as a statutory requirement for a public hearing had not been met. Sansom v. Mercer, 68 Tex. 488, 5 S.W. 62; Texas Power & Light Co. v. Brownwood Public Service Co., Tex.Civ.App., 111 S.W.2d 1225; State ex rel. Baughman v. Woodruff, Tex.Civ.App., 106 S.W.2d 1088; Boynton v. Brown, Tex.Civ.App., 164 S.W. 893; 5 McQuillin on Municipal Corporations, § 16.59.

The mandamus is dissolved.


author: CHADICK, Chief Justice.

text:
    J. L. PRINCE et al., Appellants, v. Stanley P. FLUKINGER et al., Appellees.
    No. 7528.
    Court of Civil Appeals of Texas. Texarkana.
    May 12, 1964.
    Eugene J. Pitman, DeLange, Hudspeth & Pitman, John H. Holloway, Houston,, for appellants.
    John Croom, Houston, for appellees.
   CHADICK, Chief Justice.

The initial action is in statutory Trespass to Try Title, with cross actions filed by certain defendants and intervenors. The first opinion herein dated February 11, 1964, is withdrawn. The judgment of the trial court is reversed and the case remanded for new trial.

Special issues ■ were submitted to and answered by a jury; judgment was entered awarding the plaintiffs, Stanley P. Flukin-ger, Rembert O. Smith and Doris C. Hautier a recovery of title from J. L. Prince and Houston Belt & Terminal Recreation Club, Inc.,- “as their interest may appear”, in a .684 of an acre tract of land. The Houston Belt & Terminal Recreation Club, Inc., was adjudged a recovery of $936.25 from J. L. .Prince, J. R. Prince, and their respective -wives for breach of warranty of title. A take nothing judgment was decreed on J. L. .Prince’s cross-action against Flukinger, Smith and Hautier, with the cost of the fenfire litigation adjudged against him.

Both the recreation club and the Princes’ have appealed from the judgment as a whole, but the recreation club limits the relief it seeks to an affirmance of its recovery of damages from J. F. Prince and wife, Cletia Prince, should the recovery of Flu-kinger, Smith and Hautier be sustained.

The appellees Flukinger, Smith and Hautier brief this as a trespass to try title suit involving the location of a boundary. They urge affirmance on the theory that the appellees proved a superior title from a common source and located the disputed .684 of an acre tract on the ground within the bounds of the land described in their title deed. A topical discussion of the appellants’ points is made for brevity’s sake.

Common Source

Flukinger, Smith and Hautier, on the one hand and the Club and the Princes on the other, claim title to their respective adjoining tracts of land under a chain of deeds emanating from J. A. Hautier, the owner of a 51.4 acre tract. The club is the remote vendee under J. L. Prince of a 3 acre tract out of J. L. Prince’s 10 acre tract; the Prince 10 acres' was carved out of the original 51.4 acre J. A. Hautier tract. (J. R. Prince and his wife acquired an undivided interest in the residue of the Prince 10 acre tract at a time subsequent to the date J. L. Prince deeded the three acres that eventually vested in the Club). The plaintiffs, Flukinger, Smith and Hautier, undertook to prove that the south boundary of the original 10 acre Prince tract and the south boundary of the Club’s 3 acre tract is a common boundary line, and that accurate establishment of this line located the disputed .684 strip outside the boundary of the original Prince 10 acres and within the boundary of the residue of the larger 51.4 acre J. A. Plautier tract now owned by Flukinger, Smith and Hautier.

The Princes and the club, each in their or its own behalf, offered as evidence of title, deeds connecting their respective tracts with the J. A. Hautier title. But the club insists that the evidence vests in it a title independent of the title emanating from J. A. Hau-tier. This independent title is evidenced by a judgment in a trespass to try title suit; the title recovered therein was from a source in nowise connected or linked in to the chain of title emanating out of J. A. Hautier. The club did not purport to rely solely upon the title acquired by this judgment, but as first mentioned, also claimed ownership by reason of the muniments that connected its title with J. A. Hautier. The evidence did not connect the judgment title into a chain of title connected with a patent from the state. Nor does the evidence show that title derived through judgment is superior to the title of J. A. Hautier. In “Trespass to Try Title”, 41-A, Tex.Juris. p. 720, the governing rule applicable, to-this factual situation is expressed in this language :

“Where a party sets up a title which has emanated from an individual other than the person who has been shown to be a common source of the litigants’ titles, in other words, an independent source, he must establish that such title * * * is valid and effectual, that it is superior to the title of the common source, and that he has acquired the independent title or that'it has not been acquired by the individual who is shown to have been the common source.”

Such being the factual background the club and the Princes are relegated to such title as they derive from the common source J. A. Hautier.

Both appellants contend that there is a hiatus in the appellees’ chain of title extending back to J. A. Hautier when a deed — • which they contend is inadmissible as evidence — is excluded from the proof. The deed is from D. C. Hautier, Leon Van Meldert and M. L. Hyman to Mrs. Doris Carlton Hautier. The deed contains recitals that the San Jacinto Royalty & Refining Corporation had been dissolved, and that the grantors comprised the entire board ■of directors at the time of dissolution and were acting as trustees to liquidate and distribute the assets of the dissolved corporation. It is urged that the recitals are hearsay as to the Princes’ and the Club, both being strangers to the transaction, and that the instrument is not admissible as an ancient document because it bears date of June 10, 1947. Texas Company v. Lee, 138 Tex. 167, 168, 157 S.W.2d 628 is cited as an authority sustaining their propositions.

Art. 3726b, Vernon’s Ann.Civ.St., provides that when an instrument subj ect to registration, purporting to be the act of a trustee, has actually been recorded for a period of ten years, as is the case here, it :shall be admissible as evidence, though the authority of such trustee to act or the verity of pertinent facts recited therein are not ■otherwise established, and the Article directs that the instrument shall be given effect as though the recited capacity, the authority of the trustee and the other pertinent facts recited were proven in the conventional -manner. The statute is intended to and does, in the absence of evidence to the contrary, create a presumption that the named trustee actually occupied such status and was authorized to execute the instrument. It creates a rebuttable presumption that the facts stated are true. In this instance, the •deed is admissible and constitutes a valid link in the common source chain. Texas Company v. Lee is not in point as the deed of a trustee is not there involved, and the provisions of the statute referable to trustees had no application in the case.

Evidence

Admission of Evidence. Points of error relative to the improper admission of evidence were considered and overruled in the original opinion. The basis of decision was that the error was not of such harmful nature as to have probably caused the rendition of an improper verdict. Rule 434, Vernon’s Ann.Texas Rules. Reversible error is re-urged in the motions for rehearing because of the admission in evidence of plaintiffs’ Exhibits 11, 12 and 13. These exhibits were offered to illustrate and explain the testimony of the appellees’ land surveyor. Each of the plats contained memoranda that was clearly hearsay and depicted lines and the location of markers and monuments based upon conclusions or speculations but having no foundation in the findings discovered upon the ground in the course of the witness’s surveys. Written on plats 11 and 12 are notations of corners found, lines run, and calls made by other surveyors whose work was known to the witness only by hearsay. Admission of the plats was erroneous. Matthews v. Thatcher, 33 Tex.Civ.App. 133, 76 S.W. 61; Reed v. Phillips, Tex.Civ.App., 33 S.W. 986; Randall v. Gill, 77 Tex. 351, 14 S.W. 134; Maxcy v. Norsworthy, Tex.Civ.App., 19 S.W.2d 926; Bryson v. Ferrill, Tex.Civ.App., 25 S.W.2d 1001; Jarbet Company v. Hengst, Tex.Civ.App., 260 S.W.2d 88; Kelley v. Fain, Tex.Civ.App., 168 S.W. 869.

The prominence of the plats and their aura of authenticity and the unsatisfactory state of the evidence in many respects, some phase of which is yet to be discussed, forces the conclusion that admission of this improper evidence probably did result in the rendition of an improper verdict.

Insufficiency of Evidence. Correlating the evidence of the witnesses in the statement of fact with1 the exhibits is a labor producing a product of uncertainty. The meaning of some of the testimony is clouded and doubtful because the specific plat referred to by the witness cannot be recognized.

The surveyor whose testimony the appellees Flukinger, Smith and Hautier rely on to locate the disputed tract on the ground is insufficient for their purpose. The following excerpt from the club’s brief presents the authorities controlling this question and a summary of its view of the evidence, to-wit:

“Stripped of the opinion testimony * * * presented orally and by * * notations on the plats * * * the record is devoid of evidence concerning the location of the disputed boundary. Neither the surveyor * * * nor any other witness testified to the location of any object or muniment from which the location of such boundary line could be ascertained, to any evidence of possession or fencing from which its location could be inferred, or to any ancient reputation tending to establish the location of such boundary. * * * Kirby Lumber Co. v. Adams (Bmt., 1927) [Tex.Civ.App.], 291 S.W. 279, writ dis. ; Southern Pine Lumber Co. v. Whiteman (Eastland, 1937) [Tex.Civ.App.], 104 S.W.2d 635, writ dis.; Olsen v. Gulf Production Co. (Texark., 1937) [Tex.Civ.App.], 111 S.W.2d 784, writ ref.; Kuechler v. Wilson (S.C., 1891), 82 Tex. 638, 18 S.W. 317; Fulcher v. White (Austin, 1899), 48 S.W. 881; Bugbee Land & Cattle Co. v. Brents (Ft. W., 1895), 35 S.W. 695; State v. Ohio Oil Co. (supra) [Tex.Civ.App., 173 S.W.2d 470].”

After careful effort to understand the evidence offered and considering the entire record, the conclusion has been reached that the evidence is insufficient to support the judgment. The motions for rehearing are granted and the appellants’ points challenging the sufficiency of the evidence are sustained. The judgment of the trial court is reversed and the case remanded for new trial.


author: PARKER, Justice.

text:
    EAST TEXAS PULP AND PAPER COMPANY et al., Appellants, v. S. N. COX et al., Appellees.
    No. 6582.
    Court of Civil Appeals of Texas. Beaumont.
    June 11, 1964.
    Rehearing Denied July 8, 1964.

      B. F. Whitworth, Jasper, Burton W. Morris, J. M. Slator, III, Houston, Wheat & Wheat, Woodville, for appellants.
    John T. Lindsey, Port Arthur, R. E. Biggs, Liberty, for appellees.
   PARKER, Justice.

This is a boundary suit. The parties .will be designated herein as they appeared in the' trial court. S. N. Cox and wife, Lillie Marsh Cox, were plaintiffs. Defendants were East Texas Pulp and Paper Company, Sinclair Oil and Gas Company, Republic Production Company, Atlantic Refining Company, W. L. Duff and wife, Viola Duff, and T. A. Duff and wife, Luzelle Duff.

It was stipulated: That plaintiffs do not own title to any part of E. T. R. R. Co. Section 13, Abstract No: 239, Tyler County; that plaintiffs own title to a certain tract designated as Lot No. 7, said to contain 50 acres, more or less, out of said Lindsey Survey, Section 2, conveyed by-J. O. Lindsey to Mrs. L. B. Marsh by deed dated February 21, 1911, SAVE AND EXCEPT such part of said Lot No. 7, if any, as may be located South of the South line of said Lindsey Survey; that the only issue in this case is the true location on the ground of the common boundary line between the Lindsey Survey (E. T. R. R. Co., Section 2) and E. T. R. R. Co., Section 13; and that defendants own title to all of said E. T. R. R. Section 13.

Plaintiffs sued for the title and possession of 1.69 acres of such 50 acres as being a part of Section 2. Defendants contended this 1.69 acres of such 50 acres was south of the Lindsey South line and was in Section 13.

The South line of Section 2 is coincident with the North line of Section 13. Supposedly, each Survey was in the form of a square with the lines running North and South, East and West, with Section 2 lying to the North, adjoining and contiguous to Section 13.

The jury found that the South line of Section 2 (known as the Lindsey Survey) as surveyed by the surveyor, John McBride, in 1870, was located upon the ground between Pts. 2 and 3 as shown on Plaintiffs’ Exhibit P-2. This was a finding that the 1.69 acre tract was a part of Section 2. Upon this verdict, judgment was entered for plaintiffs for the title to and possession of such 1.69 acres, being the land sued for by plaintiffs.

The only issue in this case is: “Where did John McBride locate the South line of E. T. R. R. Co. Section 2 in 1870? ”

Defendants’ points of error are presented ' and argued together. We do likewise. Defendants’ points of error attack the verdict of the jury as having no evidence to support it and that there is insufficient evidence to support it. They urge that the evidence is such that “reasonable minds could not differ as to the conclusion that the South line of E. T. R. R. Co. Section 2 is a line running from Red Pt. 2 to Red Pt. 3A on Plaintiffs’ Exhibit P-2.”

To understand the jury verdict and the evidence bearing upon defendants’ points relating to the location of the South line of E. T. R. R. Co. Section 2, an excerpt from Plaintiffs’ Exhibit P-2, omitting color designation of corners and points thereon, is set forth.

The above plat omits the lines of a 1911 partition of Section 2 except as to what is now a Coats 50 acre tract and the Marsh or Cox 50 acres.

McBride’s 1870 field notes are used in the patent covering E. T. R. R. Co. Section 2 issued J. O. Lindsey in 1905, to-wit:

“BEGINNING on the West boundary line of the Liberty County School League at the Southeast corner of Section No. 1, a stake from which a Pine 36 inches in diameter bears North 60 degrees East 3 varas dist. Another, 30 inches in diameter bears South 40 degrees East 2 varas dist;
“THENCE South on West line of said League 1900 varas, a stake from which a Pine 10 inches bears South 25 degrees East 2 varas dist. Another, 16 inches in diameter bears North 8 varas dist.;
“THENCE West 1900 varas, a stake from which a Pine 20 inches in diameter bears South 32 degrees East 5 varas dist. Another, 24 inches in diameter bears South 70 degrees West 1 varas dist.;
“THENCE North at 1900 varas Southwest corner of Section No. 1 a stake from which a Pine 18 inches in diameter bears North 10 degrees East 8 varas dist. and a Pin Oak 18 inches in diameter bears South 20 degrees East 4 varas dist.;
“THENCE East 1900 varas to the place of beginning.”

On said plat is a 50-acre tract in the Southeast corner of said Section 2. This 50-acre tract was conveyed by J. O. Lindsey to Mrs. L. B. Marsh by deed dated February 21, 1911, and the field notes are as follows:

“BEGINNING at the Southeast corner of said R. R. Co.’s 640 acres Survey, a stake for corner;
“THENCE West with the South line of said Section No. 2, at 1000 varas the Southeast corner of Lot No. 1, a stake, a Pine 30 inches marked X North 60Y2 degrees West 19 varas and Pine 22 inches marked X South 22}4 degrees East 15^4 varas;
“THENCE North, with East line of Lot No. 1, and at 282%o varas the Northeast corner of said Lot No. 1, a stake, a Pine 6 inches marked X North 6214 degrees East 17^4 varas and Pine 8 inches marked X South 44 degrees West 1 varas;
“THENCE East, at 1000 varas the East line of said Section No. 2, a stake, a Pine 9 inches marked X North 40 degrees East 9Ys varas and Pine 7 inches marked X North 75 degrees West 14 varas;
“THENCE South with said East line at 282%) varas the place of beginning, containing 50 acres of land, more or less.”

Mrs. L. B. Marsh is the same person as Mrs. D. W. Marsh and the plaintiff, Mrs. Cox.

The 1.69 acres of such 50 acres sued for by plaintiffs, the surveyor Coats, in 1961, found to be described by objects on the ground as follows:

“BEGINNING at the Southwest corner of this 50-acre tract as described in original sub-division of said Section No. 2, being also the southeast corner of the W. A. Coats 50 acres; stake for corner from which a Pine 30 inches in diameter marked X bears North 60 degrees 30 minutes West 19 varas, and a Pine stump hole bears South 22 degrees 30 minutes East 16.5 varas;
“THENCE North 0 degrees 25 minutes East, with middle division line of said subdivision of Section No. 2; 18.86 var-as to point in new yellow painted line, for the North line of said encroachment.
“THENCE North 89 degrees 55 minutes East, with said new yellow painted line, 797.29 varas to concrete monument
“THENCE South', with new painted line, 5.37 varas, to point in original South line of said Marsh 50-acre tract.
“THENCE South 88 degrees 32 minutes West with original line, 979.3 varas to the place of beginning; containing 1.69 acres of land, more or less.”

Such tract is shown on Plaintiffs’ Exhibit P-2 as Pt. AA to Pt. BB to Pt. C to Pt. D to Pt. AA.

The surveyor, Savage, witness for defendants, and the surveyor, Coats, witness for plaintiffs, did not find any of the bearing trees at any corner called for in McBride’s field notes to said Section 2. The surveyor Coats found the East line of said Section was 1935.76 varas in length; the North line to be 2004.79 varas in length; the West line to be 1950.01 varas in length; and the South line to be 1976.24 varas in length. The course of these lines was found by Coats to be as follows:

The East line: • South 0 degrees 54 minutes West;
The West line: North 0 degrees 3 minutes East;
The North line: South 89 degrees 40 minutes East;
The South line: North 89 degrees 21 minutes East as to West half; and North 88 degrees 32 minutes East as to East half.

The surveyor Savage found the East line of said Section to be 1937.60 varas in length; the North line to be 2019.88 varas in length (the two surveyors did not agree on the location on the Northwest corner of said Section); the West line to be 1966.18 varas in length (the two surveyors did not agree on the location of the Southwest corner of said Section) ; the South line to be 1979.68 varas in length.

Coats found the Southwest corner of said Section to be 29.8 varas South of the Southwest corner of said Section as located by defendants’ surveyor Savage. Coats and Savage agreed upon the location of the Northeast and Southeast corners of said Section.

From the Southeast corner of Section 2, Coats found only one old hacked surveyor’s line going West in 1954 which is the line indicated on Plaintiffs’ Exhibit P-2 as the line Pt. 2 to Pt. 3. Plaintiffs and defendants agree on the location of the East line, the Northeast and Southeast corners of Section 2.

Coats testified the old marked line was accepted by him in 1954 as the South line of Section 2; and as the “South line of the J. O. Lindsey Survey when it was patented”; that the South line of the Lindsey Survey and the South line of Mrs. Cox’s fifty (50) acres are one and the same line; that in 1954 he found a pine knot and newer witness trees indicating where the Southwest corner was generally accepted at the time, being Pt. 3, Plaintiffs’ Exhibit P-2.

J. O. Lindsey lived on Section 2 from some time prior to 1905 to 1915. In 1905 and prior to the issuance of the patent, J. O. Lindsey had the surveyor, Willie Neal, survey Section 2. The lines were definitely hacked. In the surveying crew was the witness, John T. Lindsey, a son of J. O. Lindsey. John T. Lindsey testified that all four lines of Section 2 were re-surveyed and the lines hacked in 1905 by Neal, and are in the same position as Pt. 1 to Pt. 2, Pt. 2 to Pt. 3, Pt. 3 to Pt. 4, and Pt. 4 to Pt. 1 on Plaintiffs’ Exhibit P-2, representing the boundary lines of Section 2 on the ground according to the surveyor Coats.

The survey of Willie Neal in 1905 was admissible as tending to locate and reestablish the original corners and boundary lines of Section 2 according to McBride’s 1870 notes. As his work was done only 35 years after the original work, the presumption arises that Willie Neal found McBride’s stakes, bearing trees, line of the Hardin County School Land Survey as contained in McBride’s notes, and the lines marked' by McBride in 1870. Thatcher v. Matthews, 101 Tex. 122, 105 S.W. 317. The boundary lines of Section 2 found and re-marked by Neal in 1905 and their location by the witness, John T. Lindsey, is evidence of the actual location of the lines by McBride, not evidence of a change in location. Kirby Lumber Co. v. Adams, 127 Tex. 376, 93 S.W.2d 382; Houston Oil Co. v. Choate, Tex.Civ.App., 215 S.W. 118, affirmed Tex.Com.App., 232 S.W. 285; 7 Tex.Jur. 226, Sec. 73; Barnes v. Wingate, 342 S.W.2d 352, Tex.C.C.A., Beaumont.

John T. Lindsey testified he continuously lived on the land from 1905 to 1915; that after 1915 he had been on the land at least once a year except during the years 1918 and 1919; that there were no lines marking Section 2 except those he saw with the survey- or Neal until 1960 or 1961 when the defendant Duff put a stock proof fence north of the old marked line John T. Lindsey said Neal, in 1905, found to be the South line of Section 2, the latter being line Pt. 2 to Pt. 3 on Plaintiffs’ Exhibit P-2. This new fence was along a new line painted yellow. On Plaintiffs’ Exhibit P-2, the new line is marked Pt. 2 to Pt. 3A.

In 1954 Coats found a fence running from Pt. 3 to Pt. 4, Plaintiffs’ Exhibit P — 2, along a marked line. This fence went across Pt. 3A.

Pt. 4 was considered to be the Northwest corner of Section 2 by Coats in 1960. Two old lines intersected at this Pt. 4. One line ran East and West; the other North and South, and continued on north as boundary line of another survey. Both lines were old, marked and hacked “a long time, rough wood, marked and hacked”. The bearing trees called for by McBride in 1870 were not standing. Coats found depressions and a “litered pine stump, one of the witness trees called for at that corner in very plain evidence” at the proper course and distances from Pt. 4 that could have been stump' holes of such other bearing trees. Coats did not consider stump holes of themselves to be conclusive evidence of a corner location. This corner, Pt. 4, Coats found to be accepted by adjacent landowners, and in harmony with corners set by adjacent owners evidenced by concrete monuments with brass tops inscribed with the designation of corner and Survey. Coats did not think such adjacent owners “were fooling around” in placing such concrete monuments with inscriptions on brass plates plainly stating what corner of what Survey same was claimed to be.

Mrs. Cox sold timber on her 50 acres in 1929 to Kirby Lumber Corporation. Her agent, Burns Gardner, had been familiar with her boundary lines for 40 years prior to date of trial. Kirby cut to her boundary lines including the old marked line Pt. 2 to Pt. 3.

In 1945 Mrs. Cox sold timber to Coats and Goolsby. They cut down to her old marked South line. There was no other line on the ground at that time. Again, in 1950, she sold timber to George Stanley, which was cut to same lines. No one, including defendants, protested the cutting of such timber to such old South line.

The jury found, from a preponderance of the evidence, that the surveyor John McBride at the time he made the survey of the E. T. R. R. Co. Section No. 2, known also as the J. O. Lindsey Survey, in the year 1870, located the South line thereof upon the ground between Pts. 2 and 3 as shown on Plaintiffs’ Exhibit P-2.

Defendants urge that the evidence, as a matter of law, locates said South line as a line running from Pt. 2 to Pt. 3A on Plaintiffs’ Exhibit P-2. To sustain this contention, defendants say:

(1) The only issue in this case is: “Where did John McBride locate the South line of E. T. R. R. Co. Section No. 2 (J. O. Lindsey Survey) in 1870?”; and

(2) Such original location being established and proven, it cannot, as a matter of law, be moved, changed or shifted by any Survey made at some date subsequent to 1870.

The jury could accept or reject the stump holes at Pt. 3A as being evidence of the former location of the bearing trees called for by McBride in 1870. Savage rejected the depressions at Pt. 4 as being evidence of the former location of bearing trees called for by McBride in 1870 at the Northwest corner of Section 2, even though old marked lines intersecting at that point supported the conclusion that same is the northwest corner of Section 2. Stump holes are not convincing or conclusive evidence of themselves that bearing trees called for by a surveyor stood in such places at the time of survey. Reasonable minds could well reject stump holes as evidence of a corner when no marked lines intersected at that point.

Neither surveyor witness found any stake for corner or any bearing tree at any corner called for by McBride in his field notes for Section 2. This is timbered land.

Until the contrary is made to appear, it is to be presumed the surveyor McBride performed his duties which included marking the lines, which could be done in timbered country, and to designate and call for -such artificial objects as he should make which would be sufficient to locate and identify the survey as actually made upon the ground. Finberg v. Gilbert (Nov. 29, 1911), 104 Tex. 539, 141 S.W. 82, 85. No party to this suit contends that the survey was not made upon the ground by McBride in 1870. The Supreme Court of Texas, at an early date, in Linney v. Wood, 66 Tex. 22, 17 S.W. 244, 246, held:

“In reference to such matters as boundaries of lands surveyed long ago, the signs of which have been destroyed, and the location of which is not within the memory or knowledge of living men, many facts, tending to solve the question as to their true location, are permitted to go to the jury which the rules of evidence would exclude in ’ other cases.”

The East line of Section 2 was marked by old blazes, one set of old hacks, all on or along an old fence to the accepted Southeast corner of Section 2.

Going West along the South line of Section 2 and the South line of Mrs. Cox’s 50 acres, as Coats accepted such line, Coats found an old wire fence, but little standing timber, for 200 varas. At 400 varas, he entered heavily timbered area with fairly old hacks following an old blazed line all the way to the Southwest corner of said 50-acre tract where he found the original witness trees called for in 1911, “Pine 30 inches, South 60 — 19 varas still standing there with the cross on it.” Going North from this corner, Coats found the West line of Mrs. Marsh’s 50 acres well marked, and. the bearing trees called for at her Northwest corner in her deed of 1911, still standing. Mrs. Marsh is now Mrs. Lillie M. Cox, plaintiff.

Coats surveyed three 50-acre blocks, which were part of Section 2 and owned by W. A. Coats in 1954. (The plat herein does not show two of said 50-acre blocks, but same are upon Plaintiffs’ Exhibit P-2.) His other surveying in this area was in 1961. Plaintiffs’ Exhibit P-2 shows the location of such lands, reflecting Coats’ work on the ground. The line DC and its extension to the South represents what Savage considered to be the location of the West line of Liberty County School Land Survey recently marked by the surveyor Savage, this line being 200 varas West of the Southeast corner of Section 2.

Savage found no marked line from his Pt. 3A on Plaintiffs’ Exhibit P-2 running East therefrom. His opinion that such point was the Southwest corner of Section 2 was based primarily on stump holes. The jury rejected his opinion.

Savage found no stump holes and no marked line running South or East from his Pt. 4A on Plaintiffs’ Exhibit P-2. It was Savage’s opinion such point was the Northwest corner of Section 2. Savage rejected the stump holes at Pt. 4, same exhibit, as not being conclusive in locating the Northwest corner of Section 2. The jury rejected the stump holes at Pt. 3A, same exhibit, as not being conclusive in locating the Southwest corner of Section 2.

The true location of the South line of Section 2 was a question of fact properly submitted to the jury.

There was evidence supporting the finding of the jury on the issue of the location of the South line of E. T. R. R. Co. Section 2. Defendants’ “no evidence” points are therefore overruled.

After considering all the evidence, both favorable to and contrary to the verdict of the jury, all of defendants’ other points of error are overruled.

The judgment of the trial court is affirmed.


author: BARROW, Justice.

text:
    A. G. MASON, Appellant, v. Julia B. BARNARD, Appellee.
    No. 14270.
    Court of Civil Appeals of Texas. San Antonio.
    June 10, 1964.
    Rehearing Denied July 15, 1964.
    John W. Claybrook, Petry & Fitzpatrick, Carrizo Springs, for appellant.
    Urban Farrow, Rufino Cabello, Carrizo Springs, Jackson & Jackson, Crystal City, for appellee.
   BARROW, Justice.

This is an appeal by A. G. Mason, a nephew of Julia B. Barnard, complaining of the judgment of the 49th District Court appointing E. C. Blackley, a non-relative, as guardian of the estate of Julia B. Barnard, who was adjudged a person of unsound mind.

This proceeding was commenced in the County Court of Dimmitt County by an application for guardianship filed January 21, 1961, by Mason, in accordance with Section 111 of the Probate Code, V.A.T.S., and included a prayer for his appointment as temporary guardian pending final hearing on the application. On the same date, Mason was appointed temporary guardian of the person and estate of Julia B. Barnard with very limited power. Notice was then posted and personal service had upon Mrs. Barnard as provided by Section 130 of the Probate Code. Mrs. Barnard contested the application and demanded a jury trial. The jury found that Mrs. Barnard was mentally incompetent to care for herself, her property or her financial affairs, and the County Court appointed Mason as guardian of her person and estate.

Mrs. Barnard appealed to the District Court where, after a full hearing, a jury again found that Mrs. Barnard was mentally incompetent. The District Court appointed Mason as guardian of her person, but, at the suggestion of Mrs. Barnard’s attorney, appointed Blackley as guardian of her estate. Blackley did not qualify pending the outcome of this appeal, and Mason has continued to serve as guardian of both her person and estate, under his appointment by the County Court. A suggestion of the death of Mrs. Barnard has been filed, showing her death on May 1, 1964, and this appeal is now moot insofar as the asserted error in the appointment of Blackley is concerned.

Mason has also complained of the findings contained in the judgment of the District Court, that the proceedings had in the County Court, declaring Julia B. Barnard a person of unsound mind and appointing a guardian for her, were “void ab initio,” and that all subsequent proceedings based upon the original appointment were void as a matter of law. These findings cast a cloud upon the appointment of Mason and his authority to act thereunder. Sec. 404 of the Probate Code directs that a guardianship of the person and estate of incompetents shall be settled and closed when the ward dies. We therefore must determine the validity of Mason’s appointment by the County Court.

The District Court’s conclusion that Mason’s appointment was void was apparently based upon Mrs. Barnard’s complaint that a temporary guardian was appointed by the County Court without notice to her and without the hearing of any evidence. Section 131 of the Probate Code authorizes the appointment of a temporary guardian without notice, and Mrs. Barnard urges that this section is unconstitutional under Amendments 4 and 7 of the United States Constitution and Art. 1, Sec. 19 of the Texas Constitution, Vernon’s Ann.St., as depriving her of rights without due process.

We do not find it necessary to determine the validity of the temporary appointment in that Mason is now serving under appointment made after a full trial before a jury, at which trial Mrs. Barnard appeared to contest the application after personal service was had upon her, and she was represented by her personal attorney who had represented her for nineteen years. Her adjudication by the County Court and the subsequent appointment of Mason as guardian of her person and estate were based upon jury findings that she was mentally incompetent. Similar findings were made by the jury in the District Court and these findings have not been attacked by Mrs. Barnard.

It is settled that an application for guardianship of a person alleged to be of unsound mind may be brought under the provisions of Section 111 et seq. (formerly Arts. 4113-4117, V.A.C.S.), without a prior adjudication under the provisions of Sections 415-417 of the Probate Code (formerly Arts. 4267-4284, V.A.C.S.). Bearden v. Texas Co., Comm.App., 60 S.W.2d 1031; Curan v. Garcia, Tex.Civ.App., 250 S.W.2d 929; Henderson v. Applegate, Tex.Civ.App., 203 S.W.2d 548.

The trial court erred in holding that the proceedings in the County Court declaring Julia B. Barnard a person of unsound mind and appointing a guardian for her were void, and in holding that all subsequent proceedings based upon the original appointment were likewise void.

All other errors complained of by appellant are moot by reason of the death of Julia B. Barnard and the judgment of the trial court is reversed and the cause remanded to the County Court of Dimmitt County for closing of the estate as provided by law.

Reversed and remanded.


text:
    The STATE of Texas, Appellant, v. Milton F. RUMERY, Appellee.
    No. 7579.
    Court of Civil Appeals of Texas. Texarkana.
    June 9, 1964.
    Rehearing Denied July 7, 1964.
    A. L. Vickers, W. G. Walley, Jr., Beaumont, for appellant.
    Frank M. Adams, Beaumont, for ap-pellee.
   CHADICK, Chief Justice.

This is an eminent domain case. The judgment of the trial court awarding $1500.00 to a land owner as compensation for land taken in a condemnation proceeding by the State of Texas is affirmed.

The land taken is a part of an abandoned easement that reverted to the fee owner. For many years — -the record does not furnish specific dates — the Texas & New Orleans Railroad’s 100 foot wide right-of-way was adjacent to and ran parallel in a generally north and south direction with Eleventh Street in the City of Beaumont, Texas. In more recent times, and at the time of the trial, Eleventh Street is the designated route of several major highways, U. S. 69, U. S. 96, and U. S. 287, and had an average daily traffic count of 15,000 vehicles. A short time before this litigation’s inception the Texas & New Orleans Railroad abandoned this strip of right-of-way, and the parties here agree that the east 50 feet of the right-of-way for a distance of 259 feet reverted to and became the- fee simple property of the ap-pellee, Milton F. Rumery, while the west 50 by 259 feet reverted to the King Estate, not a party to this proceeding.

Prior to abandonment of the right-of-way appellee Rumery’s home was located on a lot that.abutted the east edge of the railroad right-of-way. The Rumery house was built near the east side of his lot and faced eastward on Anderson Street. As the house' is' situated ' with the • reverted land to its rear the strip became a part of Rumery’s back lot, though it lay outside a chain link fence enclosing the original Rumery lot, and was marred by a ditch running its length that had served as a part of the railroad right-of-way drainage system. The strip was also burdened with a telegraph line easement ten feet wide for the length of the plot.

Considered as segregated land at the time of taking (January of 1963) Rumery’s reverted tract was separated from Eleventh Street by the west half of the right-of-way that vested in the King Estate, and the only access — without crossing the property of strangers — was from Anderson Street across the original Rumery lot. The strip lay in an area zoned for residential use. However, there was evidence that the zoning authorities had rezoned for commercial use every tract coming out of the reverted right-of-way when application was made therefor and had set a pattern, amounting to a policy, of doing so upon application.

The State offered the testimony of three land appraisers, and their qualifications are unquestioned. Their testimony in summary was that the highest use to which the condemned tract could be put was residential; that it might be assimilated into the owner’s homestead and used as a part thereof. One expressed the opinion, and the approach of the other two was in harmony, that the only permissible appraisal technique would be to consider the strip as residential property of the nature of that fronting on Anderson, a residential street in front of the Rumery house. As a basis for the appraisers’ opinions, testimony of sale price of numerous tracts the witnesses considered to be comparable was admitted. This familiarity with market price of real estate, and all other factors they considered relevant, led them to find the tract’s value ranged from $150.00 to $350.00.

The appellee’s one appraiser, whose qualification likewise is unquestioned, concluded that the highest and best use the 'condemned strip could be put to would be commercial because of the proximity (50 feet) to much traveled Eleventh Street. He considered the condemned strip had attributes of commercial use because the King Estate’s narrow fifty foot strip between the condemned tract and Eleventh Street would not support ordinary commercial development unless adjacent land was put with it to give it greater depth. The appraiser prepared to determine the value of the condemned strip by ascertaining the sale price of lots in the vicinity abutting upon Eleventh Street with a depth approximating the railroad right-of-way’s one hundred foot depth. One sale studied involved a strip of the abandoned right-of-way. On the basis of the price paid for land in several such transactions and considering the Rumery strip as having elements of similarity, and upon his knowledge of the value of real estate in the area, he appraised the condemned tract’s fair market value at $4,485.00. In explanation of his valuation opinion a part of his testimony is quoted, to-wit:

“Q. Now, would you explain to the jury how you arrived at the figure of forty-four hundred and eighty-five dollars as the value for this property? This property does not front on Eleventh Street, is that correct?
“A. That’s correct.
“Q. Would you tell the jury how you arrived at that conclusion of value ?
“A. Well, I have considered this from many angles, and I think the most probable explanation would be that if someone owned the fifty feet in front of this property then the fifty feet in question would have a value, because the fifty foot depth is not adequate, along Eleventh Street, so the demand would certainly be there for a second fifty feet. On the contrary, if these people owned the first fifty feet fronting on Eleventh Street, it would certainly enhance —.
* * * * *
“Q. All right. As I understand your testimony up to now, it’s your opinion that a tract of land such as the one that’s in front of this, fronting on Eleventh Street, that that does not have a one hundred dollar a front foot value, is that correct?
“A. That’s correct.
“Q. Because of its depth; it only has fifty feet?
“A. Lack a bit.
* Jj: * * * *
"Q. * * * In appraising property in any neighborhood, is it true or false that the value factor, the various buildings, the various enterprises that are in that neighborhood, affect the value of all the property in the neighborhood; is that correct?
“A. That’s very true.”

The State has briefed its four points of error, to-wit:

“Point of Error No. 1
“The trial court erred in admitting into evidence by the appellee’s witness * * * sales of property that physically fronted on an existing major highway facility where it was admitted that the subject property did not front on any highway on the date of taking, in that said sales were distinctly dissimilar to the subject property.
“Point of Error No. 2
“The trial court erred in admitting into evidence testimony as to what the value of the subject property would be when hypothetically combined or used with other property under separate ownership.
“Point of Error No. 3
“The trial court erred in admitting into evidence testimony as to the value of the property being acquired by condemnation as commercial property when subject property was not commercial property on the date of taking herein.
“Point of Error No. 4
“That there is no evidence to support the verdict of the jury herein.”

Common prudence would cause a buyer in a private deal to be influenced in the price that he would pay for the subject strip by the prices other parties had paid for land in its vicinity having some elements of the strip’s commercial potential. If the buyer knew of no sale of an exactly similar tract he would be influenced by sales of tracts containing an area in some part comparable to the strip, such as a tract facing Eleventh Street, the rear half of which was comparable in a high degree to the strip, and which rear half had comparable commercial or economic use. Knowledge of the arm length’s market price of such other lots would influence the price he would willingly pay. Sale prices of such other tracts probably would not be controlling with such buyer, but would be one of several factors he would consider in determining the price he would pay. From the evidence it appears the appraiser used the prices paid in transactions he relied upon as one of several factors influencing his opinion of value.

In the search for market value the information an appraiser might gain from sales here shown is worthy of note, though the tracts are dissimilar in very important respects. There are safeguards against these sales being accorded weight by the jury other than as a factor considered by the appraiser in arriving at his value conclusion. The court’s instruction limiting the purpose for which the evidence is admitted and cross examination that emphasizes the negative aspects of comparability are the protective shields of the party resisting the impact of the appraisers’ testimony. See The State of Texas v. Oakley, 163 Tex. 463, 356 S.W.2d 909 at 914, 95 A.L.R.2d 1207. The evidence was properly admitted. Houston v. Pillot, Tex.Com.App., 105 S.W.2d 870, op. adpt.; Hays v. State of Texas, Tex.Civ.App., 342 S.W.2d 167, N.R.E.; State v. Morse, Tex.Civ.App., 342 S.W.2d 165, N.R.E.; State v. Sides, Tex.Civ.App., 348 S.W.2d 446, N.R.E.

The conclusion stated makes it unnecessary to discuss each point of error in detail, and they are each overruled. The judgment of the trial court is affirmed.