text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Russell DARNELL et al., Appellees.
    Court of Appeals of Kentucky.
    March 4, 1966.

      Robert Matthews, Atty. Gen., William A. Lamkin, Jr., Frankfort, Deddo G. Lynn, Lexington, Richard G. Weisenberger, Pa-ducah, for appellant.
    W. Earl Dean, Harrodsburg, Walter Patrick, Lawrenceburg, for appellees.
   HILL, Judge.

This is an appeal in another highway condemnation case instituted pursuant to Section 242 of the Constitution of Kentucky and Sections 177.081 through 177.089 of KRS to condemn 16.08 acres from appellees’ 51-acre farm in Anderson County to be used in construction of the Central Kentucky Parkway. No improvements are disturbed unless perhaps some fencing.

Appellees were awarded $7,347 by the county court appointed commissioners and a verdict of $6,585 by the circuit court jury. We are asked by appellant to reverse the judgment because the verdict is excessive and not sustained by evidence of probative value.

After the taking, appellees’ farm is divided so that a 10.36-acre tract without improvements is left on the south side of the highway and a 24.56-acre tract with improvements is situated north of the turnpike.

Appellant’s two witnesses testified the difference in the market value of the farm before and after the taking was $3,525 and $3,420, respectively, while the landowners’ two witnesses fixed the difference between before and after values at $8,000 and $8,750. There is little conflict in the testimony for appellant and that for appellees insofar as the before value is concerned. Appellees’ witnesses were about $4,000 lower than were appellant’s on the after value.

The verdict is well within the range of the testimony; in fact, it amounts to less than $500 an acre and is not at all excessive. Commonwealth, Department of Highways v. Rankin, Ky., 346 S.W.2d 714 (1961).

Appellant’s argument that the verdict is unsupported by evidence of probative value, boiled down to essentials, is that the two witnesses for appellees did not assign any “basis for their appraisal of the after value.” These two witnesses testified they were familiar with local land values and the particular tract involved here, including the improvements and terrain. They referred to comparable sales. No objection was made by appellant to the testimony of appellees’ two valuation witnesses. Neither was there motion to strike their testimony. No effort was made to cross-examine them regarding the means by which they arrived at the “after” values they fixed. It is concluded these witnesses were qualified. Commonwealth, Department of Highways v. Rose, Ky., 384 S.W.2d 81 (1964). Hence, the verdict is abundantly supported by evidence of probative value.

The judgment is affirmed.


source: Caselaw Access Project

author: HILL, Judge.

license: Public Domain

text:
    Jean W. HISGEN, Appellant, v. Doris D. HISGEN, Appellee.
    Court of Appeals of Kentucky.
    March 4, 1966.

      Earle M. Nichols, Nichols & Nichols, Madisonville, for appellant.
    Carroll Morrow, Moore, Morrow & Fry-mire, Madisonville, for appellee.
   HILL, Judge.

Appellant, the husband, appeals from a judgment granting divorce to appellee and approving an agreement pertaining to the custody of two children of the parties and their property rights.

Appellee, the wife, filed suit on January 12, 1965, asking for divorce, custody of two children, alimony and support for the children.

On the same date the parties entered into a written agreement settling their property rights as well as the custody of their children. This agreement was supplemented on the following day. Summons was served on defendant January 13, 1965.

On January 12, 1965, appellant filed answer entering his appearance and agreeing that “depositions may be taken without notice to him” and consenting that “judgment may be made and judgment entered without notice to him.”

Appellee took depositions on January 13, 1965.

The following day appellant filed an amended answer in which he withdrew his original answer and sought to repudiate his agreement. The next day, January 15,1965, an agreed order was entered providing that, “By agreement of the parties the defendant is permitted to withdraw his amended answer. It will remain in the record.”

The parties herein have stipulated that the following endorsements appear on the back of the complaint:

“Plaintiff may have divorce and agreement made part of the judgment. January 19, 1965.
C. J. Waddih, Judge.
After the above endorsement had been made, Hon. Frederick Nichols handed .to the Judge of this Court a paper styled second amended answer. January 19, 1965.
C. J. Waddill, Judge.”

The judgment appealed from was entered January 21, 1965. To reverse the judgment, appellant contends it is void and was entered prematurely.

By résumé, let it be kept in mind three answers were filed by appellant: The first — entering appearance, waiving notice of further proceedings, and requesting approval of the agreement (January 12); the second — withdrawing the first, denying allegations of the complaint, and seeking to .avoid the agreement (January 14); and the third — reiterating substantially the allegations of the second (January 19). All three were filed within twenty days after service of summons as is required by CR 12.01.

As indicated above, the judgment was announced and a sufficient memorandum made thereof before the tender of his second amended answer on January 19. So, the question is whether the agreed order -of January 15 withdrawing appellant’s first amended answer operated to reinstate or reestablish his original answer. We think it was clearly the intention of the parties to do just that. Otherwise, there would have been no point in withdrawing the first amendment. This being the case, appellant was not entitled to the notices required by CR 5.01 or CR 7.02.

It is next insisted the judgment was prematurely entered. Appellant had a right “as a matter of course” to file one amendment to his answer under CR 15.01 without leave of court. However, having filed one amendment on January 14 (withdrawn by agreement), he had no right without permission of the court to file a second amendment. Permission to file the second amended answer, tendered to and filed by the clerk, was not requested of the court. At first impression, it may appear this is a harsh rule. This is not so. Any other interpretation of CR 15.01 would permit a litigant to withdraw and amend his pleadings time and time again without limitation except for the twenty day period of time therein provided. Appellant had a right under CR 15.01 to apply to the court for permission to file his second amendment, which he failed to do.

The judgment is found not to have been prematurely entered and is affirmed.


text:
    James E. JENNINGS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    March 4, 1966.
    James E. Jennings, pro se.
    Robert Matthews, Atty. Gen., John B. Browning, Frankfort, for appellee.
   HILL, Judge.

This is an appeal from a judgment overruling appellant’s motion to vacate his 1961 conviction for voluntary manslaughter under which he was sentenced to eighteen years in prison. He proceeds under RCr 11.42.

An appeal was prosecuted by Jennings from the original judgment of conviction which resulted in affirmance as reported in Ky., 349 S.W.2d 828 (1961).

In 1964 Jennings filed his first motion to vacate under RCr 11.42. The motion was overruled and an appeal prosecuted to this Court which was affirmed by opinion recorded in Ky., 380 S.W.2d 284 (1964).

Jennings again on March 10, 1965, made motion to vacate the judgment. This motion was overruled, and he prosecuted no appeal therefrom.

His present motion, setting up substantially the same grounds relied on in his two previous motions, was filed September 30, 1965. The lower court overruled this motion without a hearing.

The judgment appealed from is affirmed on the authority of Tipton v. Commonwealth, Ky., 398 S.W.2d 493 (decided January 21, 1966), and Warner v. Commonwealth, Ky., 398 S.W.2d 490 (decided January 21, 1966).


author: HAMILTON, Justice.

text:
    Ex parte Patricia G. MILLER.
    No. A-11034.
    Supreme Court of Texas.
    Jan. 12, 1966.
    Roger W. Wooldridge, San Antonio, for relator.
    Rudy Rice, San Antonio, for respondent.
   HAMILTON, Justice.

This is an original habeas corpus proceeding filed in this court by relator, Patricia G. Miller, wherein it is alleged that relator is illegally confined and restrained of her liberty in the county jail in and for the County of Bexar, State of Texas, by W. B. “Bill” Hauck, sheriff of said county.

It appears that relator was confined by virtue of a judgment of the 73rd District Court of Bexar County finding relator in contempt of court and assessing her punishment at three days’ imprisonment in the county jail from September 9, 1965. As a basis for said judgment the court recites therein that the relator, Patricia G. Miller, was by order dated the 10th day of February, 1965, ordered as follows:

“It is further ORDERED, ADJUDGED and DECREED that Pamela Ann Metzner be placed in St. Mary’s Hall beginning the fall semester of 1965, and shall continue attending all regular semesters of St. Mary’s Hall until graduation from high school, unless Petitioner, Wesley R. T. Metzner, approves of a change of a school from another than St. Mary’s Hall.”

The judgment further recites that the court finds that Patricia G. Miller has wholly failed and refused to comply with said order and wholly failed and refused to place Pamela Ann Metzner in St. Mary’s Hall beginning the fall semester of 1965 on the 8th day of September, 1965, at 8:30 a. m. Based on these findings, the trial court entered its order finding relator in contempt of court and assessing her punishment at three days in jail.

It appears that Wesley R. T. Metzner and relator Patricia G. Miller, then Patricia G. Metzner, were divorced in 1960. There were two minor children, a boy, Roland Carl Metzner, and a girl, Pamela Ann Metzner. Although the divorce decree is not in the record, it is apparent that the mother was given custody of the children and the father was to pay child support and certain house payments, as well as other payments. Apparently, however, their relationship was not good under the original arrangement and on February 10, 1965, the original divorce decree was modified and according to said judgment of February 10, 1965, the parties made certain agreements with reference to the schooling of the children, the payment of rent by Wesley R. T. Metzner, the furnishing of uniforms and the payment of tuition by Metzner in addition to the regular support payments. The relator, Mrs. Miller, agreed that she would place the daughter, Pamela Ann, in St. Mary’s Hall beginning the fall semester of 1965, and keep her there until she graduated. At that time the daughter was seven years old. Subsequent to that decree the relator entered into marriage with Lawrence James Miller. Instead of placing Pamela Ann in St. Mary’s Hall Mrs. Miller placed her in the Mt. Sacred Heart School, which was about two blocks from where the Millers lived.

It is relator’s contention that although the court’s judgment of February 10, 1965, ordered her to place Pamela Ann in St. Mary’s Hall for the fall semester term, said judgment was based on an agreement or contract with her former husband and without such agreement or contract the court was without authority in law to order her to place the child in any particular school, exclusive of all other schools. She argues that since the court, in the absence of the agreement, was without such authority, the order was not enforceable by contempt proceedings. We agree with the relator.

It appears from the face of the judgment of February 10, 1965, that that part of the judgment providing that the daughter, Pamela Ann, be placed in St. Mary’s Hall was based entirely upon the agreement between relator and her former husband, Wesley R. T. Metzner, and not upon any statutory authority contained in Article 4639a,. Section 1, Vernon’s Annotated Civil Statutes, wherein the court is given authority to enforce by contempt its judgments relating to the authority therein granted.

While the above statute gives the court authority to determine custody and the payments to be made by either or both parents in support of minor children, it does not authorize the court to select a particular school which a child or children must attend. We do not regard the order here involved as being pertinent to either custody or support.

The holding here made is supported by the reasoning in this court’s opinion in the case of Ex parte Jones, 163 Tex. 513, 358 S.W.2d 370 (1962), wherein the trial court’s judgment in a divorce case incorporated a, property settlement agreement of the parties as a part of the judgment and it was sought to enforce said judgment by contempt proceedings. We held there that the trial court was without jurisdiction to enforce its judgment by contempt proceedings. See also Mobley v. Mobley (Tex. Civ.App.), 221 S.W.2d 565, no writ history.

It follows that the 73rd District Court of Bexar County was without jurisdiction to enter the contempt judgment ordering relator to jail, and the order is void. Relator Mrs. Patricia G. Miller is discharged from custody.


author: SMITH, Justice.

text:
    HOUSTON LIGHTING & POWER COMPANY, Petitioner, v. TENN-TEX ALLOY & CHEMICAL CORPORATION, Respondent.
    No. A-10868.
    Supreme Court of Texas.
    March 2, 1966.
    Rehearing Denied March 30, 1966.

      Baker, Botts, Shepherd & Coates, Wm. R. Brown and Alvin Owsley, Jr., Houston, for petitioner.
    Butler, Binion, Rice, Cook & Knapp, John L. McConn, Jr., Houston, for respondent.
   SMITH, Justice.

Plaintiff Tenn-Tex Alloy & Chemical Corporation, hereinafter referred to as Tenn-Tex, brought this suit against defendant Houston Lighting & Power Company, hereinafter referred to as the electric company, to recover the amount of $26,143.00 in alleged overcharges for electric power furnished by the electric company to Tenn-Tex. The cause was tried before the trial court sitting without a jury, and judgment was rendered in Tenn-Tex’s favor for the full amount plus interest. This judgment was affirmed by the Court of Civil Appeals. 390 S.W.2d 328. We reverse the judgments of the trial court and the Court of Civil Appeals and render judgment that Tenn-Tex take nothing by its suit.

The controversy between the parties arises out of conflicting interpretations of a written contract dated August 31, 1956, under which the electric company agreed to furnish high voltage electricity to Tenn-Tex. Although the electric company has provided Tenn-Tex with power continuously since the date of the contract, and all bills have been paid as rendered, only the amounts of the charges for the months of August and December, 1960, and January, February and March, 1961, are in dispute. The sole question before this court is the proper interpretation of the provisions of this contract prescribing the method for calculating the minimum monthly charge for electric service.

This is a unique case in that neither party cites cases or authorities which analyze a contract similar to the one we have before us, nor have we found any by our independent search. Therefore, since there are no precedents on this precise question, we have been compelled to rely, in the main, on general principles of contract interpretation in reaching our decision.

General Background

By way of assistance to the Court the electric company, in its brief, discusses some of the underlying principles of supply and demand in the electrical industry. Although this information was not introduced in evidence in the trial court and has no effect on an interpretation of the contract before us, Tenn-Tex does not challenge its accuracy; therefore, since it appears to us that this background information is helpful to an understanding of the contractual relationship created between the parties, we include it herein. The electric company states that due to the fact that electricity cannot be stored, different considerations of supply and demand are involved in its production and sale as distinguished from the production and sale of water or gas. Since an electric company cannot run the generators of its plant at times when there is a relatively small demand from its customers so as to produce and retain a reserve of power which could then be released during a period when demand exceeds the full generating capacity of the plant, it must take into account the generating capacity each customer requires and then pre-empt and hold available a certain portion of the company’s generating capacity so as to provide for that customer’s future need. In effect, the customer is renting generating capacity. This demand factor, the customer’s requirement of generating capacity, is incorporated into the rate charged the customer for the service and is measured in kilovolt amperes (kva). One kva is roughly the equivalent of one horsepower.

Another factor which the electric company must consider in making its charges for service is the extent to which a customer actually makes use of the generating capacity available. If one customer uses the generation for only one hour per day and another uses the generation for twenty-four hours per day, obviously the latter will be and should be charged more. This usage factor is also incorporated into the rate and is measured in kilowatt hours (kwh). When the customer receives its electric bill, it is a combination of both the kva and kwh factors.

Thus, it is seen that in the electric business a company must have available at all times sufficient generating capacity to meet the maximum load which may be imposed on its system at any time. Otherwise, if the demand at times of peak load exceeds the available generating capacity, the company would have to terminate service to some customers until the load was reduced to a size commensurate with available generating capacity. This demonstrates the importance of the demand factor (kva) whereby a customer will be charged for that portion of the generating capacity preempted by past usage, subject to adjustment as the usage increases or decreases in future months. Therefore, under a provision in the contract, the customer sets its own minimum charge by the maximum load it imposes on the company’s system. This maximum load is to be carried forward as a minimum charge for the ensuing eleven months so as to assure to the company a return on the generating capacity pre-empted by the customer’s demand. It follows that this minimum charge would serve to deter the customer from imposing an infrequent and extraordinarily high demand on the generating facilities since to do so would raise its minimum monthly charge to a level considerably higher than the charge for the power which would actually be used each month during the next eleven months. This leveling of demand serves to minimize the reserve generating capacity which the company must have available for peak periods and which would be idle much of the time.

The electric company points out that in this area of the country an electric utility experiences its heaviest demand during the summer months because of air conditioning, and the peak load on the system comes during the daylight hours. The contract between the electric company and Tenn-Tex designates all twenty-four hours of the day during the period from October 15 to May 15 and the hours from 10 p. m. to 8 a. m. during the remaining portion of the year as “OFF PEAK” periods. Conversely, any usage of the generating facilities of the company between 8 a. m. and 10 p. m. during the period from May 15 to October 15 is designated as “ON PEAK.” The contract contains benefits to the customer which seek to induce use of electricity during the “OFF PEAK” periods, and the purpose of this encouragement is to promote more efficient full-time employment of the company’s facilities.

Pertinent Contractual Provisions

With this background information in mind, we now turn to a consideration of those portions of the contract which are relevant to the dispute between the parties;

“NET MONTHLY BILL “D. The amount of the net monthly bill shall be whichever is higher of the amounts determined under (i) and (ii) below subject in each case to the applicable adjustments stated under (in) below:
‘(i) Rate: Kva Charge $900.00 first 1,000 kva or less .80 per kva next 1,000 kva .60 per kva all additional kva, plus
[Not in dispute] Kwh Charge 5.5 mills per kwh first 200,000 kwh 4.5 mills per kwh next 200 kwh per kva 3.5 mills per kwh next 200 kwh per kva 3.0 mills per kwh all additional kwh
“(ii) Minimum: The sum of (a) the kva charge applicable to the highest kva established during the 12 months ending with the current month and
[Not in dispute] (b) the kwh charge applicable to 200 kwh for each kva of said highest kva and (c) the adjustments stated below. In no event shall the sum of (a) and (b) be less than $2,000.00.
“(iii) Adjustments: [Not in dispute]
⅜ * * *• * ⅜ *
“KVA USED IN CALCULATING THE NET MONTHLY BILL
“H. The KVA charge to be used in calculating the net monthly bill shall be determined in accordance with the following provisions:
“(1) If the highest KVA established in any month, whether it is the highest ON PEAK KVA or the highest OFF PEAK KVA, is equal to or less than the highest ON PEAK KVA established in any of the twelve months ending with and including the current' month, such highest KVA for the current month shall be deemed to be the KVA for billing purposes.
“(2) If the highest OFF PEAK KVA established in the current month exceeds 100% but not 150% of the highest ON PEAK KVA established in the twelve months ending with and including the current month, the customer shall be billed only for such highest ON PEAK KVA so established during said period.
“(3) Should the highest OFF PEAK KVA established in any month exceed 150% of the highest ON PEAK KVA established in the twelve months ending with and including the current month, then the excess above 150% shall be deemed for billing purposes to have been taken as additional ON PEAK KVA and shall be added to the highest ON PEAK KVA established in said twelve months period, which highest ON PEAK KVA, as increased by such excess, shall be the KVA for billing purposes for the current month. Such KVA so established for billing purposes shall also be deemed, for future billing purposes, as the highest ON PEAK KVA established in such current month.”

The real controversy here is over the amount to which the electric company was entitled under the terms of the contract as the minimum for each of the months in dispute. The parties agree that the minimum monthly charge to which the electric company was entitled for each of the months is fixed by D(i), (ii), and (iii). They agree on the actual usage kva rate to he charged under D(i), and kwh applicable under D(ii) (b), and the adjustments to be made under D(iii). The controversy between the parties involves the meaning of the language, “the kva charge applicable to the highest kva established during the 12 months ending with the current month,” in D(ii) (a) of the minimum bill provision. Both parties agree that the contract is unambiguous, that in arriving at the meaning of the quoted language we must consider the contract from its “four corners,” Southland Royalty Co. v. Pan American Petroleum Corp., 378 S.W.2d 50, 53 (Tex.1964) ; Spence & Howe Construction Co. v. Gulf Oil Corp., 365 S.W.2d 631 (Tex. 1963); Ohio Oil Company v. Smith, 365 S.W.2d 621, 627 (Tex.1963); and that eventually we must look to paragraph H to determine the correct charge for the month in question. The following schedule is helpful to a complete understanding of the controversy before us and will be referred to as our discussion of the contractual terms and calculations progresses.

TENN-TEX ALLOY & CHEMICAL CORPORATION

Established Kva Demands

(1) “[H]ighest kva established during the 12 months ending with” each month in dispute per the electric company’s contention.

(2) “[H]ighest [ON PEAK] kva established during 12 months” ending with August per Ten-Tex’s contention. '

(3) ON PEAK kva charge applicable to the 20,130 OFF PEAK kva under H (2) per the electric company’s contention.

Note: No on peak readings are shown for the months of November through April because in the contract these months are designated as off-peak.

Taking the first month in dispute, August, 1960, as illustrative, the schedule shows that the ON PEAK and OFF PEAK kva for that month was 7,080. As said above, both parties agree that first it is necessary to compute the actual usage charge and that 7,080 kva would be used for the calculation under D(i); next it is necessary to determine the minimum charge, and the calculation under D(ii) is made. Whichever of these two amounts is higher will be charged as the net monthly bill.

Contentions of the Parties

Tenn-Tex contends that before making any calculations of the minimum under D(ii) we must first analyze paragraph H which designates the kva to be used in calculating the net monthly bill and that when we do we will be forced to conclude that the quoted language really means “the kva charge applicable to the highest [ON PEAK] kva established during the 12 months.” Tenn-Tex’s construction of paragraph H is that the only kva which is established thereunder for the purpose of billing beyond the current month is ON PEAK kva, and, as seen on the schedule, the highest ON PEAK kva for any month during the 12 months ending with August was 12,540 for the month of June, 1960. Therefore, Tenn-Tex argues that its net monthly bill for August would have been calculated and rendered on the 7,080 kva actually used under D(i) and H(l) except that the contract gave the electric company the right to charge a minimum bill, as calculated under D(ii) for the month of August based on the 12,540 ON PEAK kva of June, 1960. By confining itself to ON PEAK readings for each of the months in dispute Tenn-Tex arrives at a lower minimum charge for each month than the electric company did. Tenn-Tex’s interpretation of the contract was adopted by the trial court in its findings of fact and conclusions of law.

The electric company agrees that the bill for August, 1960, was calculated at 7,080 kva and would have been rendered for that amount were it not for the higher minimum charge calculated under D(ii). However, in calculating the minimum charge, the electric company contends that the language in clause (a) is not confined to “the highest [ON PEAK] kva established during the 12 months” period but instead necessarily means “the highest kva [whether ON PEAK or OFF PEAK] established during the 12 months” period. The schedule shows that the highest kva for the 12-month period ending with August, 1960, is the OFF PEAK kva of 20,130 for the month of April, 1960. Next, the electric company argues, it is necessary under the contract to find the “kva charge applicable” to this highest kva and, to do this, we must look to paragraph H. Under H (2) it is seen that in April, 1960, the 20,-130 kva was more than 100% and less than 150% of the 16,650 ON PEAK kva for June, 1959, which was the highest kva for any month in the 12-month period ending with April. Therefore, under the terms of H(2), the “kva charge applicable” to 20,130 must be computed by using the 16,-650 kva figure as the established kva for the month of April, 1960, and it follows that under the contract the electric company ⅛ obligated to use 16,650 when figuring the minimum for August, 1960. We agree with the electric company’s interpretation of the meaning and the mechanics of the contract.

Conclusion

We have given careful consideration to paragraph H in view of Tenn-Tex’s contention that the only kva figures established for future billing purposes under its terms are ON PEAK kva. It is sufficient to say that, in extending the possibilities under each of the three sections of the paragraph to their logical conclusion, we have not found our understanding of the ultimate effect of paragraph H to be in harmony with that of Tenn-Tex. Furthermore, we can definitely say that we do not interpret the clause of D(ii) (a) as excluding OFF PEAK kva from consideration when looking for “the highest kva established” during the preceding 12 months, nor do we think such construction defeats the contractual inducements which seek to promote OFF PEAK use of electric power by the customer. There is nothing within the contract itself which would give rise to the implication that the language in D(ii) (a) must be limited to ON PEAK kva so as to give effect to all the provisions of the contract. See Steeger v. Beard Drilling, Inc., 371 S.W.2d 684 (Tex.1963). By its interpretation, the electric company is not using a kva established more than 12 months earlier but instead is merely applying the kva charge designated under the terms of paragraph H as applicable to the actual kva established during April, 1960, in making the monthly charge. Under our interpretation of D(ii) (a) as not excluding OFF PEAK kva, in the absence of the additional step required under H(2) the minimum would be calculated solely on the basis of 20,130 kva, with no adjustment to 16,650 kva, and such calculation would result in a higher minimum charge.

We have determined that Tenn-Tex’s contentions cannot be sustained. We therefore reverse the judgments of the trial court and the Court of Civil Appeals and. render judgment that Tenn-Tex take nothing by reason of its suit.

      . ^Residential customers are normally billed only on a usage basis (kwh) because of the complexities of measuring the demand; however, all commercial and industrial rates include a demand factor (kva). As further illustration, defendant draws an analogy between the electric business and an automobile rental business — the customer pays a daily rental for the vehicle itself whether it is actually driven or not (comparable to the kva charge) plus a use or mileage charge (comparable to the kwh charge).


author: PER CURIAM:

text:
    UNITED FINANCE & THRIFT CORP. et al., Petitioners, v. James BAIN, Respondent.
    No. A-11079.
    Supreme Court of Texas.
    Feb. 23, 1966.
    Rehearing Denied March 30, 1966.
    Bailey & Williams, Irion, Cain, Cocke & Magee, Burt Berry, Dallas, Dean Moorhead, Austin, for petitioners.
    Fritz & Vinson, Dallas, for respondent.
   PER CURIAM:

The Court of Civil Appeals in its opinion reported in 393 S.W.2d at page 429 cited and quoted from Moore v. Savage, Tex.Civ, App., 359 S.W.2d 95 (writ ref., n. r. e. 1962), but did not take cognizance of the per curiam opinion of this Court reported in 362 S.W.2d at page 298. Similar to the situation in Moore v. Savage, here there was no objection to the definition of “unreasonable collection efforts,” or to the special issue relating thereto, in the court’s charge. See Rule 272, Texas Rules of Civil Procedure.

The application for writ of error is refused, no reversible error.


author: WALKER, Justice.

text:
    Howard BOXWELL et al., Petitioners, v. Donald LADEHOFF, Respondent.
    No. A-10883.
    Supreme Court of Texas.
    March 2, 1966.
    Monning & Monning, Amarillo, for petitioners.
    Lumpkin, Watson, Dunlap & Smith, Amarillo, for respondent.
   WALKER, Justice.

Writ of error was granted in this venue case, but it is now our opinion that the application must be dismissed for want of jurisdiction. The suit was filed in the 108th District Court of Potter County by Howard E. Boxwell and Joe A. Allred, petitioners, against Donald Ladehoff, respondent. It is an action to enforce an alleged obligation in writing to deliver receipts from the sale of certain ensilage “to First National Bank at Amarillo, Texas.” Respondent’s plea of privilege to be sued in Oldham County, where he resides, was overruled by the trial court. The Court of Civil Appeals reversed such judgment and ordered the cause transferred to Oldham County. 390 S.W.2d 368.

The Court of Civil Appeals held that since Amarillo is situated in both Potter and Randall Counties, venue of the action cannot be sustained in Potter County under Subdivision 5 of Article 1995. Similar holdings were made in Shipley v. Southwestern Investment Co., Tex.Civ.App., 391 S.W.2d 457 (affirmed, Tex.Sup., 400 S.W. 2d 304), and Wood v. John Farrell Lumber Co., Tex.Civ.App., 389 S.W.2d 133 (wr. dis., Tex.Sup., 400 S.W.2d 307). Writs of error were granted in the three cases to enable us to consider them at the same time. For the reasons set out more fully in John Farrell Lumber Co., v. Wood, Tex. Sup., 400 S.W.2d 307, we have concluded that the Supreme Court has no jurisdiction of the present appeal.

Petitioners assert jurisdiction under Subdivision 2 of Article 1728, and say that the holding of the Court of Civil Appeals in this case conflicts with the decision in Knudsen v. J. I. Case Co., Tex.Civ.App., 86 S.W.2d 794 (no writ). The court there stated that it judicially knew “that Amarillo, a county seat, is in Potter county.”' On the basis of that fact, it held that venue of a suit on an obligation performable at Amarillo, Texas, might be maintained in Potter County under Subdivision 5 of Article 1995. In the present case the Court of Civil Appeals judicially noticed that Amarillo lies partly in Potter County and partly in Randall County, and on the basis of that fact held that venue cannot be sustained in Potter County under Subdivision 5 where the writing merely stipulates that the obligation is performable at Amarillo, Texas.

The two decisions are thus predicated on different facts, and on the face of the opinions there is no inconsistency in the holdings made. It is our understanding that Amarillo lay partly in Randall County when Knudsen was decided, but in determining the jurisdiction of- the Supreme Court under Subdivision 2 of Article 1728 we are confined to a consideration of the opinions in the cases alleged to be in conflict. We would have jurisdiction here if the court in Knudsen had pointed out in its opinion that Amarillo was situated in two counties and then held that despite this fact venue was properly laid in Potter County under Subdivision 5 of Article 1995.

Our order granting the application for writ of error is set aside, and the application is dismissed for want of jurisdiction.


text:
    SOUTHWESTERN INVESTMENT COMPANY, Petitioner, v. B. F. SHIPLEY, Respondent.
    No. A-10965.
    Supreme Court of Texas.
    March 2, 1966.

      Clayton, Kolander, Moser & Templeton, Amarillo, for petitioner.
    Huffaker & Green, Tahoka, for respondent.
   WALKER, Justice.

On the principal question presented by this appeal, we hold that a written contract explicitly performable in a named city which lies in two or more counties will not support venue in one of those counties under Subdivision 5 of Article 1995. The suit was filed in the 108th District Court of Potter County by Southwestern Investment Company, petitioner, against B. F. Shipley, respondent. Ship-ley’s plea of privilege to be sued in Terry County, where he resides, was overruled by the trial court. The Court of Civil Appeals, with one Justice dissenting, reversed such judgment and ordered the cause transferred to Terry County. 391 S.W.2d 457. We have jurisdiction under Subdivision 1 of Article 1728.

Shipley is engaged in the business of buying and selling automobiles. On September 16, 1958, he executed and delivered to Southwestern a so-called Dealer’s Protection Agreement. The relevant provisions of this instrument are set out in one of the opinions filed in the Court of Civil Appeals. It is introduced by a recital that Shipley proposed to sell Southwestern notes, chattel mortgages and other evidences of indebtedness acquired from purchasers of new or used automobiles, and that the notes would be endorsed to Southwestern without recourse. The contract then sets out Shipley’s agreement to purchase from Southwestern upon demand each repossessed car tendered at his place of business and, with certain exceptions not material here, to pay for such vehicles in cash an amount equal to the unpaid balance owing on the notes relating thereto. There is an express stipulation that such purchase price “shall be payable in Amarillo, Texas.”

On July 3, 1962, Shipley sold a Ford automobile to one A. W. Gaylor and received as part payment Gaylor’s note for $3,634.92, secured by a chattel mortgage on the automobile. The note by its terms is payable to Shipley’s order “at the office of Southwestern Investment Company in Amarillo, Potter County, Texas.” Ship-ley sold the note and mortgage to Southwestern, and at that time endorsed the same as follows:

“Pay to the order of Southwestern Investment Company without recourse, except that Undersigned agrees to repurchase the automobile or other collateral described herein upon repossession, and will pay therefor the unpaid portion of the purchase price, subject to any existing agreement between the undersigned and Southwestern Investment Company under which Southwestern Investment Company is purchasing obligations from undersigned * *

According to the allegations of Southwestern’s petition, Gaylor defaulted in the payment of his note. Southwestern thereupon repossessed and tendered the automobile to Shipley for purchase under the Dealer’s Protection Agreement. The balance then unpaid on the note was $2,780.66. Shipley refused to purchase the vehicle, and Southwestern sold the same to the highest bidder and realized $835.00 from the sale. Southwestern further alleged that the $835.00 has been credited on the note, that Shipley is liable to it for the balance of $1,945.66, and prays for the recovery of its “debt, damages, interest, costs of suit,” and for general relief.

Southwestern relies solely on Subdivision 5 of Article 1995 to maintain venue in Potter County. It is there provided that :

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

It should be noted at the outset that Shipley has not guaranteed or otherwise bound himself to pay the note according to its terms. The present action is for breach of his alleged obligation to purchase an automobile at a price measured by the balance unpaid on the note. This obligation arises from the contract of purchase set out in the Dealer’s Protection Agreement and not from any promise to pay the note. We are not concerned then with the line of cases represented by Cullum v. Commercial Credit Co., Tex.Civ. App., 134 S.W.2d 826 (no writ), holding that one who guarantees a note in writing thereby undertakes to discharge the same at the place of payment specified in the note. Since Southwestern is not attempting to enforce liability on the note as such, the place of payment designated therein is not material to our present inquiry. If venue lies in Potter County, it is by virtue of the stipulation in the Dealer’s Protection Agreement that the purchase price of the vehicle is payable in Amarillo, Texas.

Amarillo is the county seat of Potter County, but the parties have stipulated that it lies in both Randall and Potter Counties. For many years our courts have taken judicial notice of the subdivision of the State into counties, and also of the location of cities and towns which are county seats. In a number of cases involving obligations performable in a named city or town which was the seat of government for the county of suit, this judicial knowledge has enabled the plaintiff to maintain venue under Subdivision 5 without proving the location of the city or town designated in the contract as the place of performance. Thompson v. Republic Acceptance Corporation, Tex.Sup., 388 S.W.2d 404; Burtis v. Butler Bros., 148 Tex. 543, 226 S.W.2d 825. It has accordingly been held that venue of an action on a note payable in Amarillo, Texas, is properly laid in Potter County. Knudsen v. J. I. Case Co., Tex.Civ.App., 86 S.W.2d 794 (no writ).

These decisions may have been based, in some measure at least, upon a judicial assumption that the boundaries of any municipality which is the seat of government for a county lie wholly within such county. In Knudsen the court merely observed it judicially knew that “Amarillo, a county seat, is in Potter county,” but it is our understanding that even then the city lay partly in Randall County. See also Cullum v. Commercial Credit Co., supra. Be that as it may, the boundaries of judicial knowledge have now been extended to the point that courts may, in a civil case, judicially notice “the certain and indisputable fact of common knowledge” that a city is located entirely within a particular county even though the city in question is not the county seat. Harper v. Killion, 162 Tex. 481, 348 S.W.2d 521. See also Dormer v. Singleton Farm and Ranch, Tex.Civ.App., 351 S.W.2d 377 (no writ). By the same token and without considering the stipulation mentioned above, we judicially know that Amarillo is not situated wholly within Potter County. Cases in which the city designated as the place of performance was judicially known or assumed to be located entirely in the county of suit are thus not applicable here.

The parties to the present case further stipulated that the situs of Amarillo’s municipal government is in Potter County. Southwestern argues that where an obligation is performable in a designated city or town which lies in two counties, venue may be maintained under Subdivision 5 in the county where the municipal domicile is situated. We do not agree. Subdivision 5 was amended in 1935 to require that a particular county or a definite place therein be expressly named in the writing. As pointed out in Saigh v. Monteith, 147 Tex. 341, 215 S.W.2d 610:

“The intention of the Legislature in adding this amendment is obvious. Under Subsection 5 as it stood at the time of the amendment one might become a party to a contract which by implication obligated him to perform in a particular county, although the contract did not expressly name the county of performance and obligate the defendant to perform therein. By amendment the language of the subdivision was made so plain as to admit of no construction that would fix venue by implication. In order to sustain venue in Harris County in this case the contract must have expressly named that county or some definite place therein where relator was obligated to perform.” (Emphasis supplied.)

Here the contract simply provides that the purchase price shall be payable in Amarillo, Texas. Shipley contracted to perform at a definite place, but that place is located partly in one county and partly in another. There was no agreement to perform in a particular county, and venue cannot be sustained under the provisions of Subdivision 5. See Ladehoff v. Boxwell, Tex.Civ.App., 390 S.W.2d 368 (wr. dis., Tex.Sup., 400 S.W.2d 303); Wood v. John Farrell Lumber Co., Tex.Civ.App., 389 S. W.2d 133 (wr. dis., Tex.Sup., 400 S.W.2d 307); Great Western Loan and Trust Co. v. Montgomery, Tex.Civ.App., 376 S.W.2d 92 (wr. dis.); Albín v. Hughes, Tex.Civ. App., 304 S.W.2d 371 (no writ).

The judgment of the Court of Civil Appeals is affirmed.


text:
    JOHN FARRELL LUMBER COMPANY, Petitioner, v. J. Wesley WOOD, Respondent.
    No. A-10820.
    Supreme Court of Texas.
    March 2, 1966.

      Monning & Monning, Robert R. Bradshaw, Amarillo, for petitioner.
    Jay S. Fichtner, Dallas, for respondent.
   WALKER, Justice.

Writ of error was granted in this venue case, but it is now our opinion that the application must be dismissed for want of jurisdiction. The suit was filed in the 108th District Court of Potter County by John Farrell Lumber Company, petitioner, against J. Wesley Wood, respondent, to recover on a promissory note which by its terms is payable “to the order of the Amarillo National Bank at Amarillo, Texas.” Respondent’s plea of privilege to be sued in Smith County, where he resides, was overruled by the trial court. The Court of Civil Appeals reversed such judgment and ordered the cause transferred to Smith County. 389 S.W.2d 133.

Petitioner’s application for writ of error was originally dismissed for want of jurisdiction.. Thereafter we granted a writ of error in Shipley v. Southwestern Investment Co., Tex.Civ.App., 391 S.W.2d 457 (affirmed, Tex.Sup., 400 S.W.2d 304, a case involving the same basic question and which clearly is within our jurisdiction under Subdivision 1 of Article 1728. The mandate in the present cause was then recalled and petitioner’s application for writ of error was granted in order that the cases might be considered together. Further review of the record and the authorities has confirmed our original opinion that we have no jurisdiction of this appeal and that the order dismissing the application for writ of error was proper.

The judges of the Court of Civil Appeals did not disagree in this case, and our jurisdiction, if it exists at all, must rest upon conflict as provided in Subdivision 2 of Article 1728. See Articles 1728 and 1821, Vernon’s Ann.Tex.Civ.Stat.; International Harvester Co. v. Stedman, 159 Tex. 593, 324 S.W.2d 543; State v. Wynn, 157 Tex. 200, 301 S.W.2d 76. Petitioner asserts jurisdiction under Subdivision 2 and says that the holdings of the Court of Civil Appeals in the present case conflict with the following decisions: Knudsen v. J. I. Case Co., Tex.Civ.App., 86 S.W.2d 794 (no writ); and Pinkston-Hollar, Inc. v. Big Three Welding Supply Co., Tex.Civ. App., 378 S.W.2d 715 (no writ). When a conflict of decisions is made the basis of Supreme Court jurisdiction, the conflict must be such that one decision would operate to overrule the other in case they were both decided by the same court. International Harvester Co. v. Sted-man, supra. “An apparent inconsistency in the principles announced, or in the application of recognized principles, is not sufficient. The rulings must be so far upon the same state of facts that the decision of one case is necessarily conclusive of the de-cisión in the other. In other words, the rulings alleged to be in conflict must be upon the same question, and, unless this is so, there can be no conflict.” Garitty v. Rainey, 112 Tex. 369, 247 S.W. 825, 827. It is essential, moreover, that such conflict appear on the face of the opinions themselves and that the same be specifically pointed out in the application for writ of error. State v. Wynn, supra. In determining our jurisdiction then, the holdings of the Court of Civil Appeals in this case and the decisions said to be in conflict therewith must be considered in the light of these rules.

Here the suit is on a note payable at Amarillo, Texas. Amarillo is the county seat of Potter County, but the parties stipulated and our courts also judicially know that the City is situated partly in Potter County and partly in Randall County. The Court of Civil Appeals held that venue is not maintainable in Potter County under Subdivision 5 of Article 1995, and the reasons for this holding are stated in the opinion as follows:

“The agreement of appellant to make payment ‘at Amarillo, Texas’ did not designate a definite place in Potter County because it could be complied with by the performance of such promise in either Potter or Randall County. It was stipulated that portions of Amarillo are in Potter County, and portions thereof are in Randall County.”

Knudsen was decided in 1935, and it was held there that venue of an action on a note payable at Amarillo, Texas, could be maintained in Potter County under the provisions of Subdivision 5. We are informed that Amarillo then lay partly in Randall County, but no mention of this is made in the opinion. The court merely stated that it judicially knew “that Amarillo, a county seat, is in Potter County,” and said nothing to indicate that the city limits extended into another county. Although the court may have been mistaken as to the facts on which its decision was based, the opinion does not even suggest a holding that an obligation performable in a named city which lies in two counties will support venue in one of the counties under Subdivision 5 of Article 1995. .

Turning now to the other alleged conflict, no findings of fact, conclusions of law or statement of facts was brought forward on appeal in the present case. As pointed out by the Court of Civil Appeals, petitioner contended there that under these circumstances it should be presumed that the trial court found all facts necessary to support its judgment sustaining venue in Potter County. The intermediate court disposed of this counterpoint by saying:

“We cannot agree with that contention. The authorities cited by appellee have no application in this case because appellee’s pleadings setting out the note upon which the suit is based and the facts stipulated to by the parties are determinative of the disposition of the plea of privilege.”

In Pinkston-Hollar venue in the county of suit was sustained by the trial court under Subdivision 5 of Article 1995. The defendant contended on appeal that this judgment could not be supported by two invoices attached to the plaintiff’s pleadings. No findings of fact, conclusions of law or statement of facts appeared in the record, and the Court of Civil Appeals held that it would presume there was other and sufficient evidence to support the trial court’s judgment. While the opinion indicates that the plaintiff had alleged a contract in writing, it does not otherwise disclose the nature of the suit or the allegations of the petition and controverting affidavit. We are unable to say from an examination of the opinions, therefore, that the decision conflicts with the holding of the Court of Civil Appeals in the present case that the pleadings and the facts stipulated by the parties are determinative of the appeal.

Our order granting the application for writ of error is set aside, and the application is dismissed for want of jurisdiction.


author: CALVERT, Chief Justice.

text:
    HARTFORD ACCIDENT AND INDEMNITY COMPANY, Petitioners, v. Alvis HALE, Respondent.
    No. A-10840.
    Supreme Court of Texas.
    Feb. 9, 1966.
    Rehearing Denied March 23, 1966.
    Frank R. Nye, Jr., Rio Grande City, Atlas, Freeland, Schwarz & Gurwitz, Mc-Allen, for petitioners.
    Arnulfo Guerra, Roma, Emilio Guitierrez, Rio Grande City, Wellborn & Houston, Henderson, for respondent.
   CALVERT, Chief Justice.

Suit was brought by Mrs. Alvis Hale against Hartford Accident and Indemnity Company to recover benefits under the Texas Workmen’s Compensation Law for the death of her husband, Otis O. Hale. She alleged that her husband’s death resulted from injuries he sustained in the course of his employment with Sun Oil Company while working on some pumping equipment. The case was tried to a jury. Based upon the jury’s verdict, the trial court rendered judgment in favor of Mrs. Hale for the sum of $11,634.87. The Court of Civil Appeals reversed the judgment of the trial court and remanded the case for a new trial. 389 S.W.2d 720. Both parties applied for writ of error. Hartford’s application was granted on points of error asserting that the Court of Civil Appeals erred in not rendering judgment that the plaintiff take nothing. Mrs. Hale’s application was granted because of the granting of Hartford’s application. We reverse the judgments of the Court of Civil Appeals and trial court and render judgment that the plaintiff take nothing.

In answer to special issues the jury found that Hale sustained an accidental injury in the course of his employment and that the injury was a producing cause of his death. By proper points of error Hartford asserted in the Court of Civil Appeals, and asserts here, that the findings that Hale’s injury was accidental and was sustained in the course of his employment have no support in evidence of probative value. The Court of Civil Appeals impliedly overruled the points. We sustain the point that there is in the record no evidence of probative value to support the finding that Hale’s injury was sustained in the course of his employment.

As proof that Hale’s injury was accidental and was sustained in the course of his employment, the plaintiff was permitted by the trial court to introduce testimony of L. E. Nix as to what he was told by Hale concerning where and how he was injured. The contention of Hartford is that this testimony was not admissible even if the statements by Hale meet the time requirement of the res gestae exception to the hearsay rule, because there is no independent. proof of the incident or occurrence to which the statements relate. That there must be such proof to constitute statements made by an injured person a part of the res gestae is settled by our recent decision in Truck Insurance Exchange v. Michling, Tex.Sup., 364 S.W.2d 172 (1963). The rationale of the decision is that to be admissible as res gestae the statements must be shown to have been a spontaneous reaction to an exciting event, and the statements themselves cannot be used to prove the exciting event. In addition to the cases cited in Michling as authority for our holding, see cases cited in an annotation in 163 A.L.R. 15, at page 219, et seq. Evidence which establishes only that the event could have occurred does not satisfy the requirement; it must be sufficient to support a finding that it did occur. A fair summary of the competent evidence having any bearing on Hale’s injury follows.

Hale was a maintenance man for Sun Oil Company. His working hours were from 7:00 a. m. to 3:30 p. m. His immediate superior was L. E. Nix, a production foreman for Sun with certain of its leases under his supervision. Upon request, Nix would send Hale to leases where he was informed maintenance services were needed; but, by custom Hale would often make an independent check of pumping equipment and machinery at the various leases to see if repairs were needed.

Hale left home for work in a pickup furnished him by Sun at about 6:45 a. m. on January 31, 1963. Some time between 10:00 a. m. and 11:00 a. m. he arrived at the company’s office dressed in his work clothes and went to Nix’s office. He said he had been injured and he appeared to Nix to be in pain. Nix took him to another room and had him remove his pants to see how badly he was injured. When the examination revealed injuries to Hale’s groin, buttocks and lower ribs, Nix called in Robert G. Denyer, Sun’s area Superintendent, who also made an examination. The two concluded that Hale should see a doctor, and Nix took him to a doctor who hospitalized him at 12:05 p. m. Examination by the doctor disclosed a “pressing” or “crushing” type of injury from the lower rib cage to the crest of the pelvis on the left side, with moderately severe bruises, a bruised elbow, a scratched and bruised area on his left leg, and a broken rib. Hale remained in the hospital until February 6th when he was discharged and sent home. He re-entered the hospital on February 15th and died the next day from a heart attack.

The statements by Hale concerning his injury which Nix was permitted to testify to were made a few minutes after entering Nix’s office and were that he had been injured; that he was injured at well No. 6 on the F. G. Perez lease; that the clutch was thrown on the pumping unit and he set the brake and then pulled the plug and found water in the crankcase; that to keep oil and water from getting on his clothes, he put the plug back in and stepped back in the line of the counterbalancing weights and they came down and mashed him against the A-frame.

A photograph of the pumping unit is in the record. The testimonial description of it is rather meager. Early in the afternoon of January 31, Nix and Denyer visited Perez Well No. 6 to see if they could discover how Hale had been injured. Nix testified that the pumping unit was not running, the brake was not set, and that as best he remembered the counterbalances were all the way down. He found no traces of clothing, blood or skin. Denyer testified that the pumping unit was running. Both testified to seeing unidentifiable shoe prints at the unit. Denyer testified that the shoe prints were out of line with where Hale said he was when he was injured. Nix testified the tracks were found “under the counterbalance, or near it.” Asked if they were “in the right place where they would have been if a man had been caught between the counterbalance weights and the A frame,” Nix replied: “They were not plain enough really to tell. If there was any pushing or shoving — well, it was just shoe prints.” He testified he did not see “much scuff marking there.”

There is nothing in the evidence summarized, other than Hale’s statements to Nix, even tending to prove that Hale sustained an injury by being caught between the counterbalance weights and the A-frame of an oil well pumping unit except that he left home in a company pickup to go to work and was seen in his work clothes some three hours or more later with a pressing or crushing type of injury which could have been caused in that manner. This is not enough. The statements made to Nix by Hale were therefore not admissible in evidence as a part of the res gestae.

The plaintiff relies on Texas Employers Ins. Ass’n. v. Noel, Tex.Civ.App., 269 S. W.2d 835 (1954), writ refused, n. r. e.; Atkinson v. United States Fidelity & Guaranty Co., Tex.Civ.App., 235 S.W.2d 509 (1951), writ refused, n. r. e., and Texas Employers Ins. Ass’n. v. Shifflette, Tex.Civ. App., 91 S.W.2d 787 (1936), writ dismissed, as requiring a different holding. All of these cases antedated our decision in Truck Insurance Exchange v. Michling, Tex., 364 S.W.2d 172 (1963), and are examined and distinguished in our opinion in that case. They need no further analysis.

In spite of the absence of evidence to show where and how Hale was injured, the Court of Civil Appeals held that two items of proof constituted some evidence that he sustained an accidental injury in the course of his employment. The first item is a statement in a pleading which was filed in the case by Hartford but which was later abandoned. In the pleading, Hartford alleged that Hale’s death resulted from a heart attack caused solely by a pre-existing condition or disease “which existed for some time prior to the injuries he received on January 31, 1963"; that “the injuries that Otis 0. Hale received on January 31, 1963" did not cause Hale’s heart attack from which he died; and that Hale’s heart attack was the result of natural causes “and not the result of the injuries that he sustained on January 31, 1963." The second item is proof that after Hale’s death and at the request of Sun, Hartford delivered to Sun its check for $50.00 payable to Otis O. Hale in payment of compensation benefits accruing prior to Hale’s death. The payment was made before Hartford had investigated the circumstances surrounding the alleged injury. If either of the items has any probative value it is because it constitutes an admission by Hartford that Hale sustained an accidental injury in the course of his employment.

The quoted allegations from Hartford’s abandoned pleading may constitute an admission that Hale was injured on January 31, 1963, but they obviously do not constitute an admission that his injury was accidental or that it was sustained in the course of his employment. Neither, we conclude, can the payment by Hartford of the compensation benefits be taken as an admission of such facts. We held in Southern Underwriters v. Schoolcraft, 138 Tex. 323, 158 SW.2d 991 (1942), that voluntary payment of weekly compensation benefits would not estop an insurer from denying liability for weekly benefits in the amount so paid. See also Lopez v. Associated Employers Ins. Co., Tex.Civ.App., 330 S.W.2d 522 (1960), writ refused, in which it was held that voluntary payment of weekly benefits did not estop the insurer from denying that the employee had sustained an accidental injury. The reason given for the holding in Schoolcraft was that courts should encourage and not discourage prompt payment of weekly benefits to an injured employee, “and a holding that payments made pending the final investigation of the claim would be binding upon the insurer both as to liability and rate of compensation regardless of what that investigation should disclose would manifestly discourage prompt payments following injuries.” 158 S.W.2d 995. The rationale of that holding prompts us to hold here that voluntary payments of weekly compensation benefits to an injured employee is not an admission by the insurer that the injury was accidental and was sustained in the course of his employment, and has no probative value as such. We hold, therefore, that neither the allegations in the abandoned pleading nor the payment by Hartford of the compensation benefits con - stituted evidence of probative value that. Hale sustained an accidental injury in the course of his employment.

There are a number of cases in which it has been held that voluntary payment of weekly benefits by an insurer has probative force as an admission that the insurer’s policy had been issued and was in force at the time of the alleged injury. See Casualty Reciprocal Exchange v. Berry, Tex. Civ.App., 90 S.W.2d 595 (1935), writ refused ; Associated Employers’ Reciprocal v. Brown, Tex.Civ.App., 56 S.W.2d 483 (1933), writ dismissed, Texas Employer’s Ins. Ass’n. v. Varner, Tex.Civ.App., 20 S.W.2d 334 (1929), no writ history; Georgia Casualty Co. v. Ginn, Tex.Civ.App., 272 S.W 601 (1925), writ dismissed. The reason given for so holding is that the insurer is in possession of its own books and records and is in position to know without investigation whether it issued a policy to the employer and whether the policy is in force. The same reason does not exist for holding that voluntary payments has probative force as an admission that an employee sustained an injury in the course of his employment. Whether a reported injury was sustained in the course of employment often requires careful and extensive investigation, and a holding that payments made during investigation is evidence of all facts predicating liability would be a disservice to the laboring man who is usually in need of immediate assistance when he is injured. It has also been held that voluntary payments of weekly benefits constitute an admission which under some circumstances will furnish evi-dentiary support for a judgment awarding benefits in the amount so paid. See Traders & General Ins. Co. v. Harper, Tex.Civ. App., 140 S.W.2d 593 (1940), writ refused. That holding does not prompt us to a different conclusion on the issue before us. The soundness of the holding in Southern Underwriters v. Girard, Tex.Civ.App., 107 S.W.2d 775 (1937), no writ history, and in Texas Employers’ Ins. Ass’n. v. Bowen, Tex.Civ.App., 227 S.W.2d 846 (1950), writ refused, n. r. e., that voluntary payments is evidence that the claimant was at the time of his injury an employee of the insurer’s insured, need not be decided here. The question is not before us.

When the statements by Hale to Nix and the two items of proof discussed above are disregarded, we search the record in vain for evidence of probative force that Hale sustained an injury in the course of his employment.

The judgments of the Court of Civil Appeals and the trial court are reversed and judgment is here rendered that plaintiff take nothing.

      . Emphasis ours throughout.


text:
    FORT WORTH CONCRETE COMPANY, Petitioner, v. The STATE of Texas et al., Respondents.
    No. A-10961.
    Supreme Court of Texas.
    Feb. 9, 1966.
    Rehearing Denied March 30, 1966.

      Simon & Simon, Fort Worth, for petitioner,
    Brown, Herman, Scott & Young, Richard E. Miles, Pannell, Dean, Pannell & Kerry, Fort Worth, for respondent.
   SMITH, Justice.

Petitioner Fort Worth Concrete Company has appealed from a judgment of the Court of Civil Appeals, 391 S.W.2d 818, affirming an order of the County Court at Law of Tarrant County dismissing petitioner from a condemnation proceeding. We reverse the judgments of the courts below and remand the cause to the trial court with instructions.

On February 1, 1961, E. F. Abbott and E. E. Newman, as lessors, leased to Gif-ford-Hill Concrete Corporation, the parent company of petitioner Fort Worth Concrete Company, approximately ten acres of land in Tarrant County for a, period of two years, expiring on January 31, 1963, with an option to renew for an additional two years. The lease expressly provided that the lessors did not own the. buildings or improvements on the premises which were a brick veneer office building, a wash or “batch” plant, a railroad spur track, and a tin warehouse building.

During January, 1963, it was orally agreed between the lessors and the lessee that the option to renew the lease would not be exercised but that petitioner would continue in a month-to-month tenancy because the State was preparing to condemn the land. Thereafter petitioner occupied the premises from month to month and paid rent through the month of June, 1964.

On May 20, 1964, respondents, State of Texas and Tarrant County, instituted condemnation proceedings to acquire the land for highway purposes alleging that Abbott and Newman, Fort Worth Concrete Company, and several taxing authorities were owners of the property. The taxing authorities filed disclaimers as to any interest in the property sought to be condemned. There was a hearing before the special commissioners who then made an award of $15,000.00 on June 12, 1964. This award was deposited in the registry of the court by respondents on June 19, 1964, for the benefit of the petitioner and the other con-demnees. On this same date the district engineer for the State, by letter to Gifford-Hill Concrete Corporation, demanded the removal by petitioner of all its improvements from the land by July 20, 1964. The award was unsatisfactory to condemnees and objections to the award and notice of appeal were filed by Abbott and Newman and by petitioner. On July 22, 1964, respondents filed a petition for writ of possession which was granted by the court and, on the same day, petitioner was ordered to remove all of its property consisting of the buildings and railroad tracks from the condemned tract of land.

Petitioner, in compliance with the order, removed all of its property except the brick veneer office building. According to the testimony of the witness, Dobkins, at the hearing in the respondents’ motion for nonsuit referred to below, it was not economically feasible to move this building because it was affixed to the land by a solid concrete slab foundation. Petitioner, in its objections to the special commissioners’ award and in its amended objections, prayed for affirmative relief in the way of damages suffered by the taking of its property and for severance damages for the property removed. Apparently, condemnor destroyed the office building during construction of the highway.

On December 4, 1964, respondents moved to take a nonsuit as to petitioner, alleging that petitioner at no time during the pend-ency of the suit owned any interest in the land sought to be condemned and that petitioner had been given adequate notice to remove its “personal” property from the land. On December 11, 1964, this motion, after a hearing, was granted, and petitioner was dismissed over its objection from the suit. Thereafter, it was not allowed to participate in the trial. Abbott and Newman and respondents proceeded to a jury trial. The single issue submitted was the reasonable market value of the 9.889-acre tract of land on June 19, 1964, exclusive of all improvements and subject to the month-to-month lease of petitioner. The jury answered $35,000.00, and on the basis of this finding, judgment was awarded to Abbott and Newman for $35,000.00 plus interest. The court ordered that the judgment was to be partially satisfied by payment to Abbott and Newman of the $15,000.-00 on deposit in the registry of the court. Petitioner appealed from the order dismissing it from the case and from that portion of the judgment ordering the $15,-000.00 deposit to be paid to Abbott and Newman. By supersedeas bond petitioner prevented Abbott and Newman from being paid the amount deposited in the registry of the court. The Court of Civil Appeals affirmed, holding that the record does not establish that the petitioner had any interest, leasehold or otherwise, in the property and that petitioner had not been prejudiced by the order of dismissal. The Court of Civil Appeals further ordered petitioner to pay 6 per cent interest on the $15,000.00 that Abbott and Newman had been deprived of during the appeal.

Petitioner contends, in substance, that once a condemnor institutes proceedings, gains possession of condemned property by depositing the amount of the commissioners’ award in the registry of the court, applies the property to the purpose for which it was condemned, and is no longer in a position to restore the status quo, dismissal of any or all condemnees would be improper and prejudicial. We agree with this contention. In the case of Lower Nueces River Water Supply District v. Cartwright, 160 Tex. 239, 328 S.W. 2d 752 (1959) this principle was stated as follows:

“However, when the condemning authority gains possession of land under and by virtue of condemnation proceedings and cannot thereafter restore possession to the landowner and thus re-establish the status quo, such authority cannot dismiss the condemnation proceedings under which possession was obtained and seek to relitigate the matter of damages. Such action would result in obvious prejudice to the landowner and if permitted would allow the condemning authority to try the damage issue again and again until it received a favorable or acceptable award. This is the prejudice to the landowner upon which the rule of Brazos River Conservation & Reclamation District v. Allen, 141 Tex. 208, 171 S.W.2d 842, 844, is based.” at 757.

It is apparent from a reading of the Cartwright case and the Allen case cited therein that the specific prejudice to the condemnee there involved the possibility that the landowner would be deprived of a favorable commissioners’ award if the condemnor was allowed to dismiss the proceeding and relitigate the issue of damages in another suit. However, the prejudice referred to in the general statement of the rule in Cartwright is not restricted to this particular situation but instead embraces the fundamental right to possession or payment. Once possession is taken from the condemnee he is entitled to the security of the amount of the award placed in the registry of the court.

The facts of Thompson v. Janes, 151 Tex. 495, 251 S.W.2d 953 (1952), are strikingly close to the facts of the case before us. In the Janes case, the condemnor had taken possession of four acres of land by agreement with the condemnees after filing condemnation proceedings against them as owners of the land. Then, after a commissioners’ award, which was deposited with the court, a county court trial, an appeal to the Court of Civil Appeals, and a remand for a new trial, the condemnor sought to dismiss part of the land from the suit on the ground that he had ascertained that the condemnees did not own that part of the land. In upholding the county court’s refusal to allow condemnor to file his trial amendments and supplemental petition, this Court said that to do so would result in the condemnees neither having possession of the land which they had relinquished to the condemnor nor compensation therefor.

The fact that any or all of the parties to the condemnation are dissatisfied with the award at the time of the nonsuit or dismissal does not alone determine the prejudicial nature of such action. To deprive a condemnee of his right to possession without guaranteeing payment for the value of that right is prejudicial in itself. That guarantee is provided by compliance with Article 3268, Vernon’s Annotated Civil Statutes, requiring the condemnor if it should desire to enter upon and take possession of the property, to pay the con-demnee the amount of the damages awarded by the commissioners or to deposit an equal amount in the registry of the Court. Once an award is made and the amount thereof is placed in the registry of the court to the order of the condemnees, and the land is occupied by the condemning authority, the interest of each condemnee is established in and attaches to that fund as security for any possible damage suffered by reason of his dispossession. While we concede that the State of Texas and Tarrant County are entities with high credit ratings, the protection and guarantee for the condemnee is statutory, and those statutes are to be strictly complied with where prejudice might otherwise result. Furthermore, the County Court had no authority to award any portion of the deposit to Abbott and Newman to the exclusion of petitioner until there had been a final determination of petitioner’s compensable interest and damage, if any. However, this does not necessarily mean that there is or will be a question of title in this case.

The judgments of the Court of Civil Appeals and the County Court are reversed and the cause is remanded to the County Court with instructions to set aside the order dismissing petitioner and to proceed to a new trial.


author: PER CURIAM.

text:
    Donald R. LANG, Petitioner, v. Jack M. BASS, Jr., et al., Respondents.
    No. A-11227.
    Supreme Court of Texas.
    March 2, 1966.
    Rehearing Denied March 30, 1966.

      Gerald H. Fortney, Houston, for petitioner.
    Bracewell, Reynolds & Patterson, Houston, William Key Wilde, Houston, David J. Nagle, Houston, for respondents.
   PER CURIAM.

Petitioner, Donald R. Lang, went to trial upon pleadings which sought to hold Jack M. Bass, Jr., and others liable as guarantors on a promissory note, none of whom signed the note as maker, indorser, or guarantor. During trial, Lang amended his pleadings, abandoned the action on the note, and relied upon a suit in debt only. Lang, however, introduced the note in evidence as proof of the debt. All of the defendants were disclosed to plaintiff at the time he took the note. In First State Bank of Riesel v. Dyer, 151 Tex. 650, 254 S.W.2d 92 (1953), this Court held that one who abandons an action on a promissory note and proceeds directly against the defendants by an action in debt, but relies upon the note to evidence the debt, cannot establish liability on the debt by parol evidence in contradiction of the note. The trial-court in this case sustained objections to the evidence which contradicted the terms of the note, later admitted the evidence and then rendered judgment for the defendants notwithstanding the verdict. The Court of Civil Appeals has reached the right result in affirming the trial court’s judgment. 397 S.W.2d 918. The application for writ of error is refused, no reversible error. Rule 483, Texas Rules of Civil Procedure.