text:
    Jack Elbert LAKE, Jr. v. The STATE of Texas, Appellee.
    No. 36007.
    Court of Criminal Appeals of Texas.
    Oct. 23, 1963.
    Rehearing Denied Dec. 4, 1963.
    No attorney on appeal for appellant.
    Henry Wade, Dist. Atty., Robert Ma-loney, Neill English, Frank Wright and Emmett Colvin, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for driving while intoxicated; the punishment, ninety days in jail and a fine of $300.

The state’s evidence shows that on the date alleged, the appellant, while driving an automobile upon Northwest Highway, a public street and highway in the city of Dallas, veered his vehicle over into the wrong traffic lane and collided with another vehicle approaching from the opposite direction. After the collision, appellant was found lying unconscious on the floorboard of his vehicle. A pint bottle labeledHavenhill Whisky, which was practically empty, was found on the front seat and there was a strong smell of alcohol in the automobile.

Appellant was taken from the scene to a hospital, where, he was observed by Accident Investigator E. E. Sawyer some two hours after the accident. Officer Sawyer testified that at such time the appellant was conscious, his speech was blurred, his eyes were bloodshot, his face was flushed, and that he had a strong odor of an alcoholic beverage on his breath. Based upon his observation, Officer Sawyer expressed the opinion that at such time appellant was in an intoxicated state.

Testifying as a witness in his own behalf, appellant admitted driving the automobile on the occasion in question and having consumed one drink of whisky when he got off from work about an hour prior to the collision and stated that the collision occurred when his glasses fell off and he was reaching down to the floorboard to pick them up.

Appellant also, called, as witnesses in his behalf, his mother, who testified that he had not been drinking when he came to her home approximately four hours before the accident, and two other witnesses, one of whom corroborated his testimony relative to having consumed the one drink of whisky and who stated that there was nothing unusual about appellant’s driving when he drove away from work, and the other who stated that he observed appellant when he left his place of employment a short time before the accident and that in his opinion he was at such time sober.

The jury by their verdict resolved the disputed issue of intoxication against the appellant, and we find the evidence sufficient to sustain their verdict.

There are no formal bills of exception or objection to the court’s charge and no brief has been filed on behalf of appellant.

We have examined the informal bills of exception appearing in the record and find no reversible error.

The judgment is affirmed.

Opinion approved by the court.


source: Caselaw Access Project

author: WOODLEY, Presiding Judge.

license: Public Domain

text:
    Mary Inez WEISINGER, Appellant, v. The STATE of Texas, Appellee.
    No. 36114.
    Court of Criminal Appeals of Texas.
    Oct. 30, 1963.
    Rehearing Denied Dec. 4, 1963.
    No attorney on appeal for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is murder; the punishment. 8 years.

No statement of facts has been filed in this Court.

In the absence of a statement of facts we are unable to appraise appellant’s exceptions relating to the charge of the court.

The only other bill of exception is one which relates to a ruling of the trial judge which was favorable to the appellant. The state’s complaint requires no consideration.

The judgment is affirmed.


author: TIREY, Justice. WILSON, Justice

text:
    COLLINS CONSTRUCTION COMPANY OF TEXAS, Appellant, v. Desha TAYLOR, Appellee.
    No. 4160.
    Court of Civil Appeals of Texas. Waco.
    Oct. 24, 1963.
    Rehearing Denied Nov. 21, 1963.

      Jones, Boyd, Westbrook & Lovelace, Waco, for appellant.
    Dunnam & Dunnam, Waco, for appellee.
   TIREY, Justice.

Plaintiff grounded his right to recover damages to his home resulting from blasting on a highway by virtue of the fact that he was a third party beneficiary under a contract defendant had made with the State Highway Department of the State of Texas on that portion on the highway. Plaintiff went to trial on his second amended petition, and pertinent to this discussion he alleged that in December 1958 or January 1959, defendant engaged in blasting operations with high explosives in the vicinity near his home, and that such blasting operations were conducted with an excessive and greater quantity of explosives than would have been used by an ordinarily prudent person under the same or similar circumstances, and that such acts constituted negligence and proximately caused the cracking of the walls of his home, and that such cracking decreased its market value from $20,000.00 to $10,000.00 immediately thereafter. He further alleged that defendant, prior to the beginning of such construction and building operations, entered into a written contract with the State of Texas, acting through the State Highway Department, obligating itself to pay all damages caused by the operations to private property of others, and that such contract provided that it was for the benefit of all citizens of Texas, and that plaintiff, by virtue of his damages sustained, is a third party beneficiary under the terms of such contract, and that he is entitled to enforce such contractual right to payment by defendant for the damages he sustained. The provisions of the contract expressly relied upon and tendered in evidence are paragraphs 7.9, 7.10 and 7.11, and they are listed under Item 7, Legal Relations and Responsibilities to the Public, and are:

“7.9. Use of Explosives. When the use of explosives is necessary for the prosecution of the work, the Contractor shall use the utmost care not to endanger life or property. * * *
“7.10. Protection of Adjoining Property. The contractor shall take proper measures to protect the adjacent or adjoining property which might be injured by any process of construction, and, in case of any injury or damage, he shall restore at his own expense the damaged property to a condition similar or equal to that existing before such injury or damage was done, or he shall make good such injury or damage in an acceptable manner. * *
“7.11. Responsibility for Damage Claims. * * * He shall be responsible for all damage or injury to property of any character occurring during the prosecution of the work resulting from any act, omission, neglect, or misconduct on his part in the manner or method of executing the work; or from his failure to properly execute the work; or from defective work or materials. He shall not be released from such responsibility until all claims have been settled and suitable evidence to that effect furnished the Commission.”

Plaintiff further alleged that he did not discover, and could not have discovered by the exercise of ordinary care, that the walls of his home were broken until July 1959, when ants started crawling through them. He prayed for appropriate relief. Defendant went to trial on its second amended answer. Pertinent to this discussion, defendant entered a general denial and further specially plead that if there were any cracks in the walls of plaintiff’s home through which ants crawled that such cracks were due to plaintiff’s own contributory negligence; that such was due to the defective manner in which plaintiff’s house was constructed and maintained, and that if such cracks, if they existed, are due to a shift in the soil under plaintiff’s home, and that this constitutes the sole cause of such condition. Defendant further averred that plaintiff’s asserted action is barred by the two year statute of limitations.

The jury found in answer to issue 7 that defendant conducted its blasting operation with an excessive quantity of explosives, and in issue 8, that such blasting proximately caused the cracking of the home of the plaintiff, and in issues 9 and 10 found respectively that the market value of plaintiff’s home immediately prior to the cracking was $19,000.00, and immediately after the cracking to be $10,000.00, and in the decree we find this recital:

“and the court having found from said pleadings, evidence and verdict of the jury that the defendant at all times material herein was acting in the performance of a written contract between it and the State of Texas under the terms of which defendant contracted for the benefit of the public (including plaintiff) to use the utmost care not to endanger property when using explosives and to make good any injury or damage that he might do in the use of same, that defendant used an excessive quantity of explosives in its said blasting operation and that said blasting operation proximately caused the cracking of plaintiff’s home to his damages in the sum of $9,000.00; * * * ”

and decreed accordingly.

The judgment is assailed on what defendant designates as 10 points. One is to the effect that the Court erred in failing to sustain defendant’s plea in bar of the two year statute of limitations, because plaintiff’s petition on which he went to trial showed on its face that any cause of action based on negligence occurred more than two years prior to the commencement of the suit. Points 2, 3 and 4 raise substantially the same point. We overrule each of the foregoing points for reasons hereinafter briefly stated. First of all, the four year limitation period provided for actions founded on instruments in writing (Art. 5527, Vernon’s Ann.Civ.St.Tex.) is controlling (and not the two year statute, Art. 5526) and is applicable to a written contract that is made for the benefit of third persons. See Butterworth v. Kinsey, 14 Tex. 495, 37 Tex.Jur.2d, p. 151; Davis v. Rush, Tex.Civ.App., 288 S.W. 504. We have previously stated that plaintiff pleaded the execution by defendant of a written contract with the State of Texas for the benefit of plaintiff as a third party beneficiary, and there being no verified denial of its execution it was established by Rule 93, Texas Rules of Civil Procedure, as well as by the undisputed evidence. We have previously set out each of the provisions of the contract relied on in the pleadings, and these provisions of the contract were tendered in evidence. It follows that defendant by its written contract expressly assumed a legal responsibility to the public, including plaintiff, for making good any injury or damage which it caused by negligent blasting. Our Supreme Court in the case of McCown v. Schrimpf, 21 Tex. 22, held that “where one person makes a promise to another for the benefit of a third person, that third person may maintain an action upon such promise”. Our Supreme Court has not seen fit to change that rule. The foregoing rule was applied by this Court in James Stewart & Co. v. Law, Tex.Civ.App., 228 S.W.2d 601, which decision was affirmed by our Supreme Court in 149 Tex. 392, 233 S.W.2d 558, 22 A.L.R.2d 639. See also Edds v. Mitchell, 143 Tex. 307, 184 S.W.2d 823, pt. 5, 158 A.L.R. 470, Supreme Court; Krueger v. Williams, 163 Tex. 545, 359 S.W.2d 48, Supreme Court, pt. 8, and cases cited in points 5 and 8 aforesaid. The obligations imposed upon the defendant in its contract with the state in paragraphs 7.9, 7.10 and 7.11, are clear and comprehensive. In Knox v. Ball, 144 Tex. 402, 191 S.W.2d 17, 164 A.L.R. 1453, (points 1, 2) our Supreme Court said:

"It is the rule that a person not a party to a contract may enforce it if it appears that it was made for his benefit; * * Citing Citizens Nat. Bank in Abilene v. Texas & P. Ry. Co., 136 Tex. 333, 150 S.W.2d 1003; 12 Amer.Jur. 833, Sec. 281; 17 C.J.S. Contracts § 519, p. 1131. See also Tex. Digest Vol. 9, Contracts,

Point 5 is to the effect that the Court erred in overruling defendant’s special exceptions set out in its second amended answer to the plaintiff’s allegations of a third party beneficiary contract, for the reason that such allegations were nothing more than a hold-harmless agreement on the part of the defendant by and with the State of Texas, which was not a contract to inure to the benefit of the plaintiff. It is obvious from what we have heretofore stated that we are not in accord with this view, and point 5 is overruled.

Our view with reference to such public contracts is consistent with the weight of authority in other jurisdictions. Freigy v. Gargaro Co., 223 Ind. 342, 60 N.E.2d 288; Louisville Gas & Electric Co. v. Longley & Co., 250 Ky. 324, 62 S.W.2d 1036; Coley v. Cohen, 289 N.Y. 365, 45 N.E.2d 913; Rigney v. New York Central etc. R. Co., 217 N.Y. 31, 111 N.E. 226; Smyth v. City of New York, 203 N.Y. 106, 96 N.E. 409; Bator v. Ford Motor Co., 269 Mich. 648, 257 N.W. 906; Keefer v. Lombardi, 376 Pa. 367, 102 A.2d 695, cert. den. 347 U.S. 1016, 74 S.Ct. 871, 98 L.Ed. 1139; City of University City ex rel. and to Use of Mackey v. Frank Miceli, etc., Mo., 347 S.W.2d 131, 134. See Am.Law Inst., Restatement, Contracts, Sec. 145.

Appellant’s point 8 is to the effect that the Court erred in overruling defendant’s motion for mistrial, because on two occasions plaintiff and his attorney deliberately injected into the case the question of insurance, for the reason that such injection into the case was harmful and prejudicial and caused the rendition of an improper verdict. While plaintiff, Taylor, was on the stand, the following occurred:

“Q. Do you recall when some one came around to see you prior to that blasting?
“A. I do.
"Q. And who was that man?
“A. Tandy Freeman is the only one that I know his name. And he was with Collins Construction Company.
“Q. Without stating anything about him, was there another man with him?
“A. There was. He said he was with the insurance company.”

As we understand the record, defendant’s counsel immediately asked the Court for the privilege of going into his chambers for presenting a motion for mistrial. This the Court permitted and after counsel had presented said motion he said: “I don’t want to argue it,” and the motion for mistrial was overruled. Counsel for plaintiff says in his brief that that part of the testimony ‘with the insurance company’, was instructed out by the cautious trial court * * This statement in appellee’s brief is not challenged, and there is no showing in the record that defendant’s counsel asked the Court to instruct the jury to disregard the statement, nor that the Court voluntarily did so. Defendant’s counsel in oral argument said their reason for not asking the Court to give such instruction to the jury was because they feared it would unduly “compound the error.” We have made a careful examination of the record as a whole with reference to the error complained- of, and we do not believe the appellant has carried its burden under Rules 434 and 503 T.R.C.P. In Walker v. Texas Employers’ Ins. Ass’n, 155 Tex. 617, 291 S.W.2d 298, we find this statement:

“The rule of ‘presumed prejudice’ has not prevailed in this state since the adoption of Rules 434 and 503, Texas Rules of Civil Procedure, *’ * Citing Aultman v. Dallas Ry. & Terminal Co., 152 Tex. 509, 260 S.W.2d 596, 600.

We think the pronouncements in the Walker case, supra, are peculiarly applicable to the factual situation here, because in the Walker case the question of insurance arose by the answer of the witness which was not responsive to the question asked. That is exactly the-factual situation here. It is true that in the Walker case the Trial Court instructed the jury to disregard the voluntary statement made; to this extent the Walker case differs from the case at bar, the defendant here having asked only for a mistrial, together with the statement that defendant’s counsel did not care to argue the question. In points 5 and 6 we find this statement by our Supreme Court:

“Considering the entire record, we are not satisfied that the unresponsive statement of the witness, Parnell, probably caused the jury to return a different verdict from what it would have returned if the statement had not been made. Moreover, the jury must be presumed to have obeyed the instruction of the trial court and to have disregarded the statement of the witness.”
* * *
“This court has held that prejudice flowing from this general type of statement is removable by instruction. King v. Federal Underwriters Exchange, 144 Tex. 531, 191 S.W.2d 855, 856.”

In the case at bar, with reference to the voluntary statement relating to insurance, plaintiff Taylor was being interrogated concerning the conversation he had with Tandy Freeman wherein the plaintiff sought to connect Freeman as acting in the capacity as agent for Collins Construction Company. It is true that in the jury’s verdict that they found that prior to the blasting Freeman told Taylor that if he would not bother said blasting operations the Collins Construction Company or its agents would come around when they completed the construction work and pay him whatever damages were caused by blasting; however, the jury also found that Freeman was not an agent of Collins Construction Company at the time that he made the statements to Taylor, and that Freeman was not acting within the scope of his authority nor in the apparent scope of his authority as agent of said company. It is true that defendant contends that there was no evidence and insufficient evidence to sustain the jury’s verdict, but appellant does not contend that the jury’s verdict is excessive nor that it is so against the great weight and preponderance of the evidence as to be unjust. That leads us to say that the voluntary statement regarding insurance by plaintiff did not cause the rendition of an improper judgment by influencing the jury to return a verdict it probably would not have otherwise returned, and this view is expressed from an examination of the record as a whole. See points 3 and 4. We have previously stated that the Court’s judgment here is grounded on the fact that the plaintiff was a third party beneficiary under the provisions of a written contract that the State Highway Department had with Collins Construction Company, and upon the jury’s answers to issues 7, 8, 9 and 10, wherein the jury found that defendant used an excessive quantity of explosives, and that such use proximately caused the cracking of Taylor’s home, and that the market value of his home, before the blasting was $19,-000.00, and after the blasting $10,000.00, and after considering the record as a whole we are of th.e view that the voluntary statement regarding insurance was without impact on any of the issues on which the judgment is grounded, and we are of the further view that if there was any prejudicial effect it could have been removed by an instruction of the trial court, under the authorities of Walker v. Tex. Employers’ Ins. Ass’n., supra. See also Cloud v. Zellers, 158 Tex. 253, 309 S.W.2d 806; Condra Funeral Home v. Rollin, 158 Tex. 478, 314 S.W.2d 277.

We have carefully considered the statement of facts, and think the evidence is sufficient to support the jury verdict, and the judgment of the Court rendered thereon. We have carefully considered each of appellant’s other points, and it is our view that none present reversible error, and each is overruled.

Accordingly, the judgment of the Trial Court is affirmed. •

WILSON, Justice

(dissenting on rehearing).

I concur in the .holding that appellee is a beneficiary under the contract in question, ;-and .that consequently his action is not barred by limitation.

I am not in accord with the holding that the erroneous injection of insurance in the trial of this case was not prejudicial, but harmless. Plaintiff admittedly did not rely for recovery on any oral promise of defendant to pay damages, in consideration of forbearance to sue, or otherwise. This, counsel for appellee conceded in argument, and the majority recognizes. Appellant first objected to the reading in evidence by appellee of the latter’s deposition testimony concerning appellant’s promise to pay damages and that “when we get through blasting over here and finish the job, we will be back around with an adjuster and make adjustments on your home”. Thereafter, its motion for mistrial because this portion of the deposition was read over objection, was overruled. This motion and the briefs reflect the court had previously instructed that no allusion be made to insurance. The deposition testimony was further. that another man accompanied appellant’s foreman when the promise testified to was made. Appellee thereafter took the stand and testified concerning the conversation, the foreman was “the only one that I know his name.” Then: “Q. Without stating anything about him, was there another man with him? A. There was. He said he was with the insurance company.” After appellant’s further motion for mistrial was overruled, appellee continued: Q. The foreman, Freeman, “and this other gentleman remained right there together during all your conversation with Freeman, didn’t they? A. Yes.” There was then repeated, over objection, testimony that the foreman said that if plaintiff was damaged, “we will come back and pay you for it,” and “some one will come back here and make adjustments.” Appellee’s counsel concede on argument that liability and damages were in sharp issue .during - the trial, and the record so reflects.

The total effect of this evidence is that appellant was insured; that the insurer agreed to pay appellant, and failed to do so. To say that appellant failed to carry its burden under Rule 434 is an anomaly. Just how is the burden to be carried ? An effort to ask jurors if this evidence affected their verdict would be to improperly probe their mental processes. Texas Employers’ Iris. Ass’n v. McCaslin, 159 Tex. 273, 317 S.W.2d 916, 920. As said in the cited case, the conclusion of probable injury must be drawn from “what was said and done”. Rule 434 does not require a showing of injury beyond a reasonable doubt, and “in estimating the probability of injury, the act of overt misconduct in itself may be the most compelling factor in establishing prejudice.” The burden here was met, prima facie, “by simply showing the improper act and nothing more”, id., 317 S.W.2d 921. It was not necessary to show a different judgment would necessarily have resulted. Pittman v. Baladez, 158 Tex. 372, 312 S.W.2d 210, 216. I think there is a prima facie showing of probable harm. See Dennis v. Hulse, Tex., 362 S.W.2d 308, 309.

If we are to make the matter of improper injection of insurance always a “wrist-slapping” matter in Texas, we should completely and plainly drop the barrier. If we are ever to enforce the rule, this is a case to do so.


author: DIXON, Chief Justice.

text:
    The HANOVER INSURANCE COMPANY, Appellant, v. Archie HOLLEMAN et al., Appellees.
    No. 16237.
    Court of Civil Appeals of Texas. Dallas.
    Oct. 25, 1963.
    Rehearing Denied Nov. 15, 1963.
    Brundidge, Fountain, Elliott & Churchill, L. E. Elliott, Dallas, for appellant.
    Bailey & Williams and Clifford S. Dillard, Dallas, for appellees.
   DIXON, Chief Justice.

Archie Holleman filed suit against American General Insurance Company, hereinafter called American, for workmen’s compensation; and in the alternative against Hanover Insurance Company, hereinafter called Hanover.

Holleman alleged that he was injured while working as an employee of R. W. Me-Kinney, a general contractor engaged in road construction; and that American carried workmen’s compensation insurance covering McKinney’s employees.

In his alternative plea Holleman alleged that if it should be found that he was not an employee of R. W. McKinney at the time of his injury, then he was an employee of Wallace & Riddle, a partnership composed of A. J. Wallace and Hugh Dean Riddle, subcontractors, who were engaged by McKinney to do certain bridge and concrete work; and that Hanover carried workmen’s compensation insurance covering Wallace & Riddle’s employees.

There is no controversy about Holleman’s injuries. He was injured August 14, 1958 on the job and his injuries are total and permanent. The question is: Which of the two insurance companies is liable for payment of Holleman’s workmen’s compensation?

Immediately following Holleman’s injury American, as McKinney’s insurer, began making weekly payments to Holleman and also paid large sums as medical and hospital expenses. The weekly payments by American continued for more than three years, but were discontinued in November 1961. American contends that Holleman was not McKinney’s employee, but was Wallace & Riddle’s employee, therefore American should not have made the weekly payments to Holleman, nor paid his medical and hospital bills, said payments being the legal obligations of Hanover as Wallace & Riddle’s insurance carrier.

A jury verdict included these findings: (1) Holleman was not an employee of McKinney; (2) he was an employee of Wallace & Riddle; (3) which partnership was engaged in work at the time as an independent contractor for R. W. McKinney; (4) American, McKinney’s insurance carrier, did not have ample opportunity to make a full investigation of the facts before it began making payments to Holleman; (5) American did not learn in 1958 of the terms and circumstances of Holleman’s employment in which he was engaged when he was injured; (6) American was paid a premium by R. W. McKinney for the workmen’s compensation policy issued by American based in part on wages paid by McKinney to Holleman for work done in the week ending August 16, 1958.

Based on the above findings the trial court rendered judgment in favor of Holle-man against Hanover for $14,251.27 as compensation for total permanent disability. Part of the above recovery was for past due weekly payments for 218 weeks, part was a lump sum recovery for future payments of 183 weeks less discount. Holleman’s attorney was allowed an attorney’s fee.

The judgment further provided that Hol-leman take nothing against American. American had not pled for judgment over against Hanover for the amount paid by American to Holleman.

Only Hanover has appealed. Holleman has not appealed. In his brief he asks that the judgment against Hanover be affirmed. However in the alternative he presents a cross-point which he asks that we consider only if his judgment against Hanover should be reversed by this court. In that event he asks that we render judgment in his favor against American on the grounds that (1) there was a common law contract of insurance between American and McKinney for the benefit of Holleman; and (2) American, having paid compensation to Holleman for three years, is estopped to deny its liability in the absence of liability on the part of Hanover.

The testimony shows that Wallace & Riddle were in business for themselves as concrete bridge builders. Their services were engaged at a fixed price to build a bridge for McKinney, who had a contract with the State of Texas to build a road in Grayson County. They were engaged through one Hudnall, who was himself apparently a subcontractor, though his exact status is not altogether clear. In any event it is not denied that Hudnall had authority to enter into an agreement with. Wallace & Riddle in behalf of McKinney.

For the partnership Wallace had charge of the office. Riddle was actively in charge of the work in the field. Holleman had worked for Wallace on at least one other occasion. He was thereafter hired by Riddle as a truck driver and general handyman on the Grayson County job. Wallace & Riddle owned their own equipment, including the truck which Holleman drove. They hired and fired the men working under them and had control of the details of their activities.

Wallace & Riddle, being of limited financial resources, were agreeable to an arrangement whereby McKinney paid the expenses of-Wallace & Riddle on the job, including the wages of Wallace & Riddle’s employees. Riddle himself was carried on McKinney’s books as “superintendent”. He was paid $125.00 per week. However, this payment as well as other expenses paid by McKinney are referred to by Tucker, McKinney’s office manager, as “advances” made by McKinney to Wallace & Riddle on the contract price and were charged against the partnership as such. The arrangement was that at the conclusion of the job McKinney would pay Wallace & Riddle the fixed price previously agreed on for building the bridge, less the total amount of the expenses which McKinney had advanced, the latter including the $125.00 paid each week to Riddle. However, the expenses so charged back against Wallace & Riddle did not include payroll premiums which McKinney paid to American on Wallace & Riddle’s employees.

Wallace & Riddle carried their own workmen’s compensation insurance with Hanover. They had paid the basic premium, though they did not thereafter pay additional premiums based on the weekly audits of their payrolls. At the beginning of the job Wallace & Riddle had furnished a certificate to McKinney, the general contractor, showing that they carried their own workmen’s compensation insurance with Hanover.

Riddle prepared the payroll reports in the field and sent them to the office of Wallace & Riddle where they were further processed under the supervision of Wallace. Then the reports were sent to the office of McKinney where McKinney’s checks signed by Tucker, the office manager, were issued payable to the employees of Wallace & Riddle, including Holleman. McKinney paid American the payroll premiums on Wallace & Riddle’s employees. American received the payroll premiums based on weekly payroll recapitulations which did not list the names of the individual employees.

Tucker occupied a dual position. He was McKinney’s office manager and he was also a recording agent for American.

Soon after Holleman sustained his injury American wrote to Hanover informing Hanover that American, as insurance carrier for McKinney, was starting compensation payments to Holleman. In this letter American further stated that it might look to Hanover as public liability insurance carrier for Wallace & Riddle should American’s investigation reveal there was any negligence on the part of Wallace & Riddle.

Not long thereafter some doubt seems to have arisen on American’s part as to whether Holleman was McKinney’s employee or Wallace & Riddle’s employee. This doubt is evidenced by a letter dated November 26, 1958 addressed to Henry Wilbourne, Hanover’s Branch Claims Manager, by Herbert M. Johnson, American’s Chief Supervisor, Claims Department. In this letter Johnson stated that from recent discussions between Hanover and American concerning responsibility for payment of workmen’s compensation to Holleman, there seemed to be some confusion on Hanover’s part as to whose employee Holleman was; that Hanover should state its position either that (1) Holleman was an employee of McKinney, or (2) was an employee of Wallace & Riddle ; that if Hanover answered No. (2) in the affirmative, then Hanover should reimburse American for the $3,757.41 which it had spent on Holleman; that it was obvious that Holleman was covered under Hanover’s policy or under American’s policy; and that if Hanover should fail to state its position in answer hereto, American would necessarily assume for all time as a matter of law that Hanover considered Holleman an employee of McKinney, otherwise Hanover would pay Holleman’s compensation under the policy Hanover wrote for Wallace & Riddle.

The above letter was not answered by Hanover. American continued to make compensation payments to Holleman until November 1961. Holleman, after the payments were discontinued, filed an amended claim with the Industrial Accident Board. Thereafter he filed this suit.

OPINION

In its first three points on appeal Hanover says that the trial court erred in not directing a verdict for Hanover on the undisputed evidence that (1) American issued its policy specifically to cover appellee Hol-leman; (2) McKinney agreed to carry the insurance on Wallace & Riddle employees and paid the premiums for carrying such risk to American and not to Hanover; and (3) American after'investigation of the injury and facts with respect to Holleman’s employment, and with knowledge of the facts, elected to accept the risk, received and retained premiums to which Hanover would otherwise have been entitled, and paid compensation for three years without further questioning its liability, and thereby estopped itself to deny liability to the prejudice of Hanover.

Hanover does not deny that Holleman was an employee of Wallace & Riddle at the time he was injured. It even concedes that he "was not technically an employee of McKinney”. There is no real controversy in regard to this phase of his employment, for the jury found that Holleman was not an employee of McKinney, but was an employee of Wallace & Riddle. There was ample evidence to support the findings. Shannon v. Western Indemnity Co., Tex.Com.App., 257 S.W. 522 (opinion adopted by S.C.) ; Halliburton v. Texas Indemnity Insurance Co., 147 Tex. 133, 213 S.W.2d 677.

The Workmen’s Compensation Act extends benefits only to employees. Texas Employers Ins. Association v. Inge, 146 Tex. 347, 208 S.W.2d 867, 869-870; Art. 8309, Sec. 1, Vernon’s Ann.Civ.St. It is established in this case that Hanover had issued a workmen’s compensation policy to Wallace & Riddle covering the partnership’s employees, that Hanover had received the basic premium when the policy was issued and that the policy was in full force and effect when Holleman was injured while in the course of his employment as an employee of Wallace & Riddle. Therefore we hold that Holleman was covered by the workmen’s compensation policy issued by Hanover to Wallace & Riddle.

The general rule is that a plea of estoppel cannot be used for the purpose of enabling the Industrial Accident Board to acquire jurisdiction over a case where no jurisdiction in fact exists. Neither can jurisdiction be conferred on the Board by agreement of the parties. Southern Surety Co. v. Inabnit, 119 Tex. 67, 24 S.W.2d 375, 377 (opinion adopted by S.C.); Hill v. Georgia Casualty Co., Tex.Com.App., 45 S.W.2d 566; Superior Ins. Co. v. Kling, 160 Tex. 155, 327 S.W.2d 422. Since this is an appeal from an award of the Industrial Accident Board, no judgment can be rendered here against American under the Workmen’s Compensation Act either on a plea of estoppel or on an alleged agreement of the parties.

Hanover seeks to apply the doctrine of estoppel here on the authority, among others, of Superior Insurance Co. v. Kling, 160 Tex. 155, 327 S.W.2d 422; Federal Underwriters Exchange v. Cupit, Tex.Civ.App., 172 S.W.2d 105; and Federal Underwriters Exchange v. Walker, Tex.Civ.App., 134 S.W.2d 388.

The holdings in the above three cite.d cases are not applicable here. In the Kling and Chpit cases judgment was-rendered iñ favor of- the named beneficiaries on the ground that the insurance policies, though not enforceable under the Workmen’s Compensation Act, would be enforced as common law contracts between the contracting parties for the benefit of third parties, the named beneficiaries. The named benéfi-ciaries in the Kling and Cupit cases did not have coverage under another policy, a workmen’s compensation policy, -as does Holleman in this case.

In the case now before ug.it, cannot seriously be contended that the policy issued by American to McKinney was a, third party .contract entered into between . American and McKinney for the benefit, of. Hanover. .The only person- who could plead estoppel as a. third, party beneficiary .under a common. law. contract in, this case .would be Holleman. And Holleman has not appealed from the judgment, in favor, of-American. He prays in the alternative.that his plea of estoppel- against American be considered only if we reverse his judgment against Hanover. Since we have concluded that Hanover is liable we need not consider Hol-leman’s alternative plea.

Moreover, we fail to see.'how Hanover may properly escape its liability under the -workmen’s compensation policy it issued 'to Wallace & Riddle even if Holleman had one or more common law policies of accident insurance naming him as a beneficiary.

The situation presented in this case is that Hanover does not ask .for any relief over against American. It seeks merely'to appeal from the judgment against it in favor of Holleman. As we see it, the judgment in favor of American that Holleman take nothing against American is a matter between Holleman and American. It cannot be set up by Hanover as a ground for relieving Hanover of its liability, no matter how much Hanover may think that judgment should have been rendered against American.

The Walker case, above cited, is not in point either. It holds simply that insurance company was estopped to deny its liability to Walker, the named beneficiary who was injured. The case does not sustain a plea of estoppel in behalf of another insurance company. Moreover, it points out that the fact that -Vincennes was only a nominal employer of Walker, could not affect the liability under - the policy, because at that time companies writing workmen’s compensation were not at liberty to select their risks and could not reject an application fo.r insurance. But the law in that particular case has been changed. As pointed out by this court in Cooper v. American Employers Insurance Co., Tex.Civ.App., 368 S.W. 2d 952, the Legislature in 1953 amended Art. 8309, Sec. 2, V.A.C.S. so" that now an insurance company is not.required to issue a policy to any applicant applying for coverage except-as provided under Art.-5.76 of the Insurance Code, V.A.T.S.

■ Appellant’s first three points, are overruled. ,

In its fourth point appellant asserts that the court erred in not disregarding Special Issues- Nos. 3, 4, and 4 — A because legally immaterial-; and Special Issues Nos. 1-7 and- 18 because -without support in the evidence.

The jury-, found that (3) Holleman was not an employee, of McKinney; (4) he was an employee of Wallace & Riddle; and (4 — A) was injured while in the course of his employment. For reasons heretofore stated we think these issues and answers were material.

The jury also found that (17) American did not have ample opportunity to make a full investigation of the facts surrounding the -nature, terms and circumstances of Holleman’s employment before American began paying weekly compensation benefits to Holleman; and (18) American in the year 1958 did not learn of the terms and circumstances of Holleman’s employment in which he was engaged at the time in question. We cannot say that there is no evidence to support these findings. In any event we believe they are immaterial in view of the law applicable to the case under other findings of the jury. Appellant’s fourth point is overruled.

The judgment of the trial court is affirmed.

Affirmed.

BATEMAN, J., not sitting.


author: MASSEY, Chief Justice.

text:
    TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellant, v. Olen H. DENNIS, Appellee.
    No. 16458.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 25, 1963.
    Rehearing Denied Nov. 22, 1963.

      Henderson &"Bryant- and James E. Henderson, Sherman, for appellant.
    Peery & Wilson and Bob L. Wilson, Wichita -Falls, for appellee.
   MASSEY, Chief Justice.

Olen H. Dennis, hereinafter termed plaintiff,, recovered a judgment for total and. permanent disability benefits under the Texas Workmen’s Compensation Act against the Texas Employers’ Insurance Association, hereinafter termed the Com7 pany, An appeal thereform has reached this court.

Judgment affirmed.

In view of the nature of the Company’s appeal we^domot have a question involving £he.:maf;tef:. of whether pr not.the plaintiff was-.entitled ,to..compensation... Hjs right thereto, is impliedly conceded....What. is.a question.is the.nature,and extent of plaintiff’s'injuries and the degree.-and permanence of the.disability resulting therefrom.

The injury was to plaintiff’s .back. ..On August 21, 1961, while pulling on a “swab” he felt 'a pain arid popping therein followed’ by a burning and stinging sensation. Three days thereafter he went to a doctor, who immediately caused him to be hospitalized in the .Medical &, Surgical Hospital, Gainesville, Texas. He remained there twenty-one' days. After being out of the hospital a short time' he was again hospitalized for three days, beginning November 7, 1961, in the Methodist Hospital of Dallas, Texas. Thereafter he .again entered a hospital in December of 1961. During or immediately after this third period of hospitalization the Company ceased to pay weekly compensation and refused to pay further medical bills.

‘ Claim procedure through the'Industrial Accident Board of Texas Was followed by trial before a jury-in the' District Court of Cooke County, arid after- judgment by the Company’s áppeal. The most material complaint on appeal relates to the-'-question -of whether certain portions of properly authenticated hospital records constituted improper “hearsay” evidence, not coming within the exception to the “hearsay rule” statutorily provided by Vernon’s Ann.Tex. St. Art. 3737e, “Memorandum or record of act, event or condition * *

The most authoritative decision relative to the admission of hospital records as an exception to the “hearsay rule” within the meaning of Art. 3737e, “Memorandum or record of act, event or condition * * * ”, is Travis Life Insurance Company v. Rodriguez, 1959 (Tex.Civ.App., Austin), 326 S.W.2d 256, approved by the Supreme Court of Texas in a per curiam opinion at 160 Tex. 182, 328 S.W.2d 434. Generally, the -holding óf the Austin Court of Civil Appeals 'affirriied the admissibility of the hospital records, including the entries thereon of diagnostic-recitations, upon the establishment of the authenticity of the records as prescribed by the statute. In the Rodriguez case '.the-'specific'part of the hospital records to which-an- objection was leveled was the entry (or entries).of the diagnosis of leukemia, or chronic leukemia. The objection-'was grounded on the contention that reception in evidence of the diagnosis would be in violation of the rule against admitting ^'hearsay”, that the exception to the “hearsay rule” provided by Art. 3737e did not embrace and'include diagnostic entries, and that if this form of “hearsay” be admitted its allowance would amount to the jury’s reception of inadmissible evidence which could not form the basis-of a judgment.

Skillern & Sons, Inc. v. Rosen, 1962, Tex., 359 S.W.2d 298, did not overrule nor cast doubt of -any kind upon the Rodriguez decision in relation to the matter in question. The Supreme Court, acknowledging the authority of Art. 3737e in respect to the reception of'hospital records generally, held that such authority did not extend to the statement made thereon relative to Mrs. Rosen, viz.: “ ‘The patient slipped- and fell ‘at '5 :30 p. m. while walking in- the slushy - snow in front- of a local drugstore.’ ” The ■ reason' why, said the Supreme Court, was because of the statutory provision' that those admissible portions of hospital records must have been entries made by the hospital’s employee or representative, in the regular course of its business, upon such agent’s personal knowledge of such act, event or condition. It is of interest to note that the court, though holding the aforesaid entry inadmissible under Art. 3737e, held the entry admissible because it.was offered by the defendant Skillern & Sons, Inc. and amounted to an admission against interest on the part of Mrs. Rosen,, the plaintiff, in .that it was inconsistent -.with .her .contention ■ that she had fallen .inside the- defendant’s store.

In a footnote at page .260 of the opinion of the Austin Court of Civil Appeals in the Rodriguez case (326 S.W.2d 256) the court stated that in a construction of Art. 3737e it did-'not appear (to the- court) where a trial court had any' authority to predicate a decision uppn„.the admissibility of record entries on - diagnostic findings, .as part of the hospital records, upon whether - the statement therein amounted to or consisted of something more or other than a mere opinion ¡or a conclusion or of a diagnosis based upon a medical examination or findings of. conditions not- obvious or patently observable to persons generally. This was the exact statement upon an interpretation of Art. 3737e by the Houston Court of Civil Appeals in the case of Martinez v. Williams, 1958, 312 S.W.2d 742, 749. In the footnote the Austin Court favorably referred to a discussion of the question appearing in § 1262, McCormick and Ray, Texas Law of Evidence, 2nd Ed., a part of which reads as follows: “'On the whole, however, it is believed that, even as to these controversial diagnoses, the majority view favoring admission is the more expedient one. It works for simplicity by making it unnecessary to draw a difficult line, itself provocative of doubt and dispute; it serves the modern policy of-the free-use of organizational records; and is not too burdensome on the adversary who may himself call the declar-ant and thus bring out, if he can, any weakness of the diagnosis.” (Emphasis supplied.) This .statement presupposes that such a declarant is alive and available for the purpose.

Of interest to a student of the question is an article by Roy M. Dies, Jr., in 38 Tex.Law Review 645, “Evidence—Admission-in Evidence- — Records—Hospitals — Diagnosis of Leukemia in Hospital Record Held Admissible Under Texas Business Records Act.”. At' page 649 the author states as follows: “To admit into evidence all- diagnoses contained in.properly qualified hospital records seems the clear mandate of the -Texas Business Records Act.” We: agree. We are of the opinion that- the Rodriguez case did effectively so hold, although .the-decision of the case had specific application to the diagnosis of leukemia. ' It is true that the opinion. states that the diagnosis of leukemia is not one about which physicians ordinarily differ, but a - court cannot know such a thing judicially. Certainly it could not become a' matter for evidence in any case where as prerequisite for the court’s decision upon admissibility, it would be called upon to resolve a fact question as to whether the tendered diagnostic entry in the -records was upon a noncontroversial diagnosis, for resourceful counsel would rarely be unable to present testimony to the contrary.

In the instant case the Company objected to three specific portions of the records of the two different hospitals. The objections were overruled and these specific portions were admitted into evidence. The whole of the hospital records tendered by the plaintiff was admitted. The objections adequately embraced the Company’s contention that the specific portions objected to were not admissible under Art. 3737e, and that despite the provisions of that statute amounted to “hearsay” and therefore inadmissible evidence. . Under.», our interpretation of the- holding in the Rodriguez case, already discussed, we are of the opinion that the whole of the hospital records tendered were properly admitted, and that the specific portions thereof to which the Company leveled objection were not subject to exclusion from evidence on the complaint made.

We take occasion to explain that it was not the recitations of the specific portions of the hospital records themselves which reflected statements causing- damage to the Company’s case (see footnotes , and ), but the damage to the Company’s case was rather the use thereof made by the plaintiff in making out his own case while his medical witness was testifying, — and the further use thereof made in the cross-examination of the Company’s medical witnesses — combined with the use made of an authoritative publication of orthopedic surgeons. We do not have occasion to write fully- in an explanation of the procedure for this would be immaterial if the admission of the questioned evidence was justified under the provisions of Art. 3737e. As we have already stated that is our holding in this case.

By several points the Company contends that reversible error occurred as the result of certain events during the period the jury was deliberating upon its verdict. Right to present the question or questions, was preserved by a bill of exceptions. After deliberating for a time, the jury requested the testimony of Dr. Driggs, a witness for the Company. The trial judge requested that the jury be more specific “ * * * in regard to what part of the doctor’s testimony you refer to”. To this the Company made np objection. The jury, after further deliberation, sent a message to the court reading as follows: “Would like to have Dr. Driggs finding of Mr. Dennis last exam and ans. to cross exam on same”. In reply, and over the objection of the Company’s attorney, the trial judge replied to the jury, as follows: “It will take some time for the reporter to look through his notes and find this particular examination on this subject matter. We have a non-jury docket set in Denton tomorrow and I will have to be in Court there to handle this Court business. We can have this testimony for you on Monday morning at 9:00 o’clock. Do you desire to continue your deliberations on this case further today or would you prefer to come back Monday morning and continue your deliberations on this case?” The objection of the Company’s attorney was that the language of the court in the above communication amounted to coercion of the jury to arrive at a verdict without benefit of the testimony it had requested. The objection was timely made before the communication was delivered to the jury. The objection was overruled. The jury returned its verdict, finding that plaintiff was totally and permanently disabled, about forty minutes later without having received the benefit of the testimony requested.

We overrule the Company’s contentions made on the point of error. We believe this is the correct conclusion on our part in view of the harmless error rule. Under either Texas Rules of Civil Procedure 327, “For Misconduct”, or under T.R. C.P. 434, “If Judgment Reversed”, and T.R.C.P. 503, “May Remand”, it seems to us that in order for the Company to discharge the burden incumbent upon it to sustain its complaint it would be obliged to make it reasonably appear that an injury to it probably resulted from the communication from the trial judge received by the jury, or because of the jury’s action in arriving at a verdict without the requested testimony. There is nothing in the record from any juror concerning the matter, and there was no testimony offered by the Company on the hearing of any motion for new trial, or for purposes of any bill of exceptions. The Company must be held to have failed to establish that the event complained of actually resulted to its prejudice. Furthermore, for like reasons the Company has failed to establish that the event even amounted to error on the part of either the court or the jury. We believe that the writer’s thinking in a situation having analogy is more fully expressed in Ambrose & Company v. Booth, 1957 (Tex.Civ.App., Fort Worth), 301 S.W.2d 223, writ ref., n. r. e.

By a final group of points the Company actually complains because of certain tactics on the part of counsel for the plaintiff, although the points relate to error in the admission of testimony. The complaint is in connection with testimony adduced from Kenneth Davey, an attorney who had a certain acquaintance with a Dr. Patterson, one of the Company’s medical witnesses. Summarized, the complaint is because the trial court permitted Davey to testify as to the amount of Dr. Patterson’s practice for various insurance companies, when he could have no valid basis for knowledge of such matters; permitted him to testify that he would not send claimants to the doctor if he could avoid it; and permitted him to testify as an alleged expert on matters that were .not properly a subject of expert testimony.

During his cross-examination Dr. Patterson had testified that he had found no disabling condition upon the examination he made of plaintiff at the request of the Company. He affirmed the fact that nine out of the ten insurance companies named to him were companies for which he had done work. He further agreed that he had testified for some of them. He was never asked whether he did work for insurance companies exclusively, nor as to what percentage of his practice was in behalf of such companies. He was never asked whether, in connection with such work, he ever examined a person who was or claimed to have been injured and then appeared upon a trial to testify in behalf of the insurance company.

Without any objection the witness Davey testified on direct examination by the plaintiff’s attorney that he was acquainted with the fact that Dr. Patterson, along with another with whom he was associated, worked for insurance companies “practically exclusively”. On cross-examination Davey’s testimony revealed that his testimony on direct examination amounted to a mere opinion and conclusion and was furthermore predicated upon a premise which had no proper foundation. Nevertheless, the Company’s attorney made no motion to strike Davey’s testimony which we believe to have been improper as constituting a mere opinion and conclusion he was incompetent to express.

The testimony could not have been for purposes of impeachment for no predicate therefor existed. It was not proper evidence, either original or rebuttal. Upon objection it should and probably would have been excluded. Upon the development by way of cross-examination it would have been properly stricken upon motion. There was no objection and there was no motion to strike. Under these circumstances any error existent under the circumstances must be treated as waived.

Over an objection that the testimony had no bearing or relevancy to any issue on trial Davey was permitted to testify on direct examination that he, personally, in connection with his practice as a plaintiff’s attorney, had in the past had clients whom he had sent to Dr. Patterson at the behest of adversely interested insurance companies; that thereafter Dr. Patterson had appeared upon the trial of the cases of some of such clients to testify “against them” in behalf of the insurance companies for whom he had examined them; and that he, Davey, would always try to avoid sending any client to be examined by Dr. Patterson or his partner at the behest of any insurance company if he could avoid so doing. The testimony should have been excluded, even under the objection made. It was improper, serving only to show the witness’ bias and prejudice generally against Dr. Patterson in connection with matters wholly unrelated to the issues on trial. Nevertheless, we arc of the opinion that the circumstances shown, standing alone, do not present a case of reversible error. The error must be held to be “harmless error” and the Company must be held to have failed to establish that the event complained of actually resulted to its prejudice. T.R.C.P. 434, “If Judgment Reversed”; Goforth v. Alvey, 1954, 153 Tex. 449, 271 S.W.2d 404.

Judgment is affirmed.

      . The first of the portions of hospital records as to which an objection yms leveled was in those of the Medical & Surgical Hospital, Gainesville, Texas. In August, 1961 an x-ray examination was ordered to be made by Dr. McLeroy, the plaintiff’s treating physician. X-ray was taken and a reading made thereof by a Dr. Edwin S. Péeke. (It is to be noted that the Company objects and points out that the fact that Peeke was a doctor, a roent-genologist, is nowhere established). The report of the x-ray reading was made a part of the hospital records. Under the “findings” of the report it is recited: “Lumbar-sacral spine series. In this study we note that there is an apparent depression in the superior end plate of the body of L2. If this can be confirmed we may well be dealing with a ruptured nucleus pulpossis. /s/ Dr. Edwin S. Peeke.”

      . After the plaintiff was a patient in the hospital at Gainesville he entered the Methodist Hospital of Dallas. While in this hospital a myelogram examination was directed, made, and a report of the findings therefrom was made a part of the records of the hospital. It read as follows: “11-8-61. Routine lumbar myelograms show no evidence of any lesion in the lower lumbar region except that the left nerve root sleeve at the lumbosacral joint does not fill. There is no obvious defect here so that this very, very minor variation must be interpreted in the light of clinical evidence. There is no evidence of any bony abnormality of the longer lumbar region.
      “IMPRESSION: 1. Failure of the left' nerve root sleeve to fill - at the lumbosacral joint as described above. Lumbar myelogram otherwise negative.. Significance of this minimal finding to depend entirely on clinical findings. /s/ R. H. Millwee, M. D. 11-8-61 Radiologist.”

      .A “discharge summary” was made a part of the hospital records of the Methodist , Hospital of Dallas. It read as follows: “DISCHARGE SUMMARY: Dennis, Mr. Olen H. 358389. This 30-year-old, white male was admitted to DMH on 11-7-61 with a two-month history of low back pain which began after lifting a heavy object in the oil field. He had been treated in Gainesville prior to the admission to this hospital for possible herniated lumbar disc.
      “Physical examination: The patient complained of low, back pain and had increased pain in the low back area on straight-leg-raising. The diagnosis on myelogram read ‘Failure of left nerve root sleeve to fill at the lumbosacral joint. Lumbar myelogram otherwise negative. Significance of this minimal finding depends entirely upon clinical findings.’
      “The patient was discharged on 11-10-61 with the diagnosis of low back strain. /s/ J. F. Hudnall, M. D. 1-6-62.”


author: •GRISSOM, Chief Justice.

text:
    Clyde DUNCAN, Appellant, v. Eunice DUNCAN, Appellee.
    No. 3786.
    Court of Civil Appeals of Texas. Eastland.
    Oct. 4, 1963.

      R. E. Murphey, Coleman, Mark Callaway, Brownwood, for appellant.
    O’Neal Dendy, San Angelo, for appellee.
   •GRISSOM, Chief Justice.

On February 15, 1963, we set aside our order permitting the filing of the transcript because the record affirmatively showed appellant could have filed it within sixty days after rendition of the judgment appealed from. We then affirmed the judgment on certificate. By its opinion published in 6 Texas Supreme Court Journal 666, the Supreme Court reversed that judgment and remanded the cause to this court to determine whether appellant’s motion for extension of time to file the transcript was timely filed and, if so, whether good cause existed, in the light of its opinion.

(In order that this opinion may be more ■easily understood, our former opinion is now ordered published.). [See Appendix].

The correspondence in this case, the affidavits of counsel, clerk and deputy clerk reveal the following: That on December 18, 1962, appellant’s counsel sent to the elerk of this court the statement of facts and transcript and a check and letter. The letter is dated December 18, 1962. It concluded with the statement that counsel thought that the facts recited were sufficient to authorize the clerk to file the record but, if not, he asked the clerk to so advise him and that he would then present a motion to file the record; that on December 19th, the clerk replied, acknowledging receipt of the transcript and statement of facts, but stating they had not been filed and suggesting that a motion for permission to file the transcript and statement of facts should be filed; that, on December 20th, appellant’s counsel wrote the clerk stating that, in accord with the clerk’s suggestion, he was enclosing a motion to file the transcript and statement of fact. The affidavits show that said motion was not received by the clerk on December 21st, as it ordinarily would have been, which probably was caused by the Christmas rush in the Post Offices; that the clerk’s office was closed on the 22nd and 23rd, Saturday and Sunday, and on December 24th and 25th, Christmas Eve and Christmas Day; that on December 26th, the envelope containing said motion was opened and the deputy clerk then marked said motion “filed” as of that date. There then being no reason apparent for keeping the envelope, it was discarded.

Texas R.C.P. 5, provides that if such a motion is sent to the clerk by first-class United States mail in an envelope properly addressed and stamped and deposited in the mail one day or more before the last day for filing same, and the envelope containing same bears a postmark showing such deposit, the same, if received by the clerk not more than ten days tardily, shall be filed and deemed filed in time. The envelope which contained said motion is not available to show such timely deposit in the mail, as it undoubtedly would have. Under the circumstances, the purpose of the rule should not be defeated and appellant deprived of his appeal by the mere absence of the envelope, for which he is not responsible. It is evident appellant complied with said rule. But for the Christmas rush in Post Offices and the most unusual occurrence of four consecutive holidays said motion would have been received and filed within the time allowed by Rule 386.

The fact that said motion was not physically filed by the deputy clerk until December 26th is not controlling. The motion was evidently in the Post Office at Eastland or it had been delivered to the Clerk’s office by the porter before December 24th. As shown by the affidavit of the deputy clerk, the mail was opened and said motion was marked filed on December 26th. The stamp machine was worn and it did not register the “6” in December 26, whereupon, she immediately wrote the word “6” with a pen. There was no erasure of any date. The pencil notations referred to by the Supreme Court were made by the writer of this opinion while attempting to decide the date the motion was required to be filed and when, under the circumstances, it probably' arrived in the Eastland Post Office or the Clerk’s Office. In accord with Rule S, 'we hold that the motion should be, and it is, deemed filed in-time.

In the light of said decision of the Supreme Court, we further hold that good carfse did exist.

Our judgment affirming the judgment of the trial court on certificate is set aside.

APPENDIX

Opinion of Feb. 15, 1963. Rehearing

Denied April 5, 1963.

This is an appeal from a judgment rendered on October 10, 1962. The transcript was presented to the clerk of this court for filing on December 19, 1962. This was after expiration of the 60 day period, but within the 15 days thereafter in which Texas R.C. P. 386 provides that a motion may be filed for an extension of time. We shall assume for present purposes that appellant’s motion for extension of time to file the transcript and a statement of facts was timely filed. This motion was granted on January 4, 1963. The appellee has filed a motion to set aside our order permitting the filing of the transcript and to affirm on certificate.

The only reason stated by appellant in its motion to file the record out of time is that the court reporter was unable to transcribe the testimony constituting the statement of facts within the time prescribed by the rules. The transcript shows it was delivered to appellant on November 29, 1962. It is thus apparent from the face of the record presented to us that appellant could have filed the transcript within 60 days after rendition of the final judgment appealed from. This 60 day period did not expire until December 10, 1962. Texas R.C.P. 386 provides that an appellant shall file the transcript and statement of facts in the Court of Civil Appeals within 60 days after rendition of final judgment. It provides, however, for an extension of time if a motion is filed within 15 days after expiration of said 60 day period “showing good cause to have existed within such sixty-day period why said transcript and statement of facts could not be so filed.” It is evident that appellant’s motion did not show good cause for his failure to file the transcript within 60 days, that is, by December 10th, since it was delivered to appellant on November 29th.

R.C.P. 371 provides that the record on appeal shall consist, of a transcript and, where necessary to an appeal, a statement of facts. R.C.P. 387 provides that “(a) If the appellant shall fail to file a transcript of the record in the proper time the appellee may upon motion have the case affirmed on certificate by filing in the appellate court a certified copy of the judgment and a certificate of the clerk of the trial court stating the time when and how such appeal * * was perfected, (b) If a copy of the bond accompanies such certificate, the judgment shall be affirmed against the sureties thereon.”

The appellee filed a motion for affirmance on certificate that strictly conforms to the rule. A copy of appellant’s supersedeas bond accompanies the certificate. Timely filing of a transcript is a prerequisite to jurisdiction of this court to pass upon the merits of the appeal. Walker v. Cleere, Tex.Civ.App., 171 S.W.2d 151; 141 Tex. 550, 174 S.W.2d 956; Newsfoto Publishing Co. v. Ezzell, Tex.Civ.App., 320 S.W.2d 711 (Writ Ref.); Armstrong v. West Texas Rig Company, Tex.Civ.App., 339 S.W.2d 69 (Ref. N.R.E.); Massey v. Brindley, Tex.Civ.App., 296 S.W.2d 296 (Writ Ref.). In Cocke v. Birr, 142 Tex. 432, 179 S.W.2d 958, our Supreme Court held that unless an appellant is entitled to file his transcript under the provisions of Rule 386 “he cannot file it at all.” In Klattenhoff v. Schriever, 131 Tex. 223, 113 S.W.2d 515, 516, it was held under a comparable situation that the right of the appellee to have its motion to affirm on certificate granted was absolute. In Matlock v. Matlock, 151 Tex. 308, 249 S.W.2d 587, 589, it was held that the provision for filing the transcript after expiration of 60 days from rendition of the judgment contained a restriction with respect to what might constitute “good cause” in that it provided that the appellant must show “good cause” why the transcript “could not” have been filed within the 60 day period.

We regret that under the law we cannot consider the appeal on its merits. Our order permitting filing of the transcript was not authorized by the rules and is now set aside. Good cause why it could not have been filed within the 60 day period is not shown. The judgment is affirmed on certificate and judgment rendered against the sureties on appellant’s supersedeas bond for the amount of the money judgment with interest.


author: WERLEIN, Justice.'

text:
    VELASCO DRAINAGE DISTRICT OF BRAZORIA COUNTY, Texas, also known as Brazoria County Drainage District No. 2, Appellant, v. Fred A. BROCK, Jr., et al., Appellees.
    No. 14206.
    Court of Civil Appeals of Texas. Houston.
    Nov. 14, 1963.

      Sam Bass, Freeport, and,Vinson, Elkins, Weems & Searls, Victor W. Bouldin, Houston, for appellant.
    • William'J. Knight, Jr., and'W.'David Evans, Angleton, for appellee.
   WERLEIN, Justice.'

Appellant, Velasco Drainage District of Brazoria County, Texas, also known as Brazoria County, Drainage. District No. 2, .brought suit • against appellees, Frpd A. Bro.ck, • Jr:, and’ Mrs.- Caroline. Adriance .Finch and her husband, Hubert Bruce Finch, Jr., to condemn an easement,, over and across appellees’ land in Brazoria County for the construction and maintenance of a flood protection levee.

On September 21, 1962 the trial court entered its judgment upon the jury verdict, condemning the easement and awarding the owners damages. No appeal was taken from such judgment. Thereafter, however, on the same day, the owners of the land, who are appellees on this appeal, filed what they denominated “Defendants’ Motion to Dismiss”, in which- motion they asserted that neither the Commissioners who had been appointed by the court nor the court ever acquired jurisdiction to hear and determine the condemnation proceedings for the reason that the description of the land over which appellant sought to acquire an easement in such proceedings, as contained in’ its condemnation complaint; was fatally defective-and did-not describe any land whatever. In such motion to dismiss the eminent domain proceedings in their entirety, appellees set out the description of the land, being the same description contained in appellant’s condemnation complaint, as follows:

“Said land being a part of the Hollie Bryan Perry 70 acre track out of the Jared E. Groce League, Abstract No. 66, and the 753 acre tract out of the S. F. Austin- League, Abstract No. 21, Brazoria County, Texas, described as follows:
“Being a strip of land 200 feet in width lying along the south side of and being parallel and adjacent to the south bank of Oyster Creek, extending from a point where the east line of .said 70 acre tract intersects the water’s edge at the south bank of Oyster Creek;
•“Thence upstream in a westerly and southwesterly direction a distance of approximately 4900 feet, more or less, along the said water’s edge of said Oyster Creek and with the meanders of said Oyster Creek to the west line of said 753 acre tract, said line also being the east line of a 10 acre tract of the Lawrence Dolly estate, said 200 feet wide easement remaining in its entire length parallel and adjacent to said Oyster Creek, containing 22.5 acres of land, more or less.”

Appellant duly filed its answer to appel-lees’ motion to dismiss. Thereafter, on-October 17, 1962, there came on to be heard before the trial court said motion to dismiss. No action, however, was taken by the court until January 15, 1963, when the court entered an order, the pertinent part-of which recites:

“ * * * and all parties announced ready and the court having read the pleadings, and understood the same, and having heard the evidence and argument of counsel, finds that neither the Commissioners heretofore appointed by this Court, nor this Court, ever-' acquired jurisdiction to hear and determine this eminent domain proceeding for the reason that-the description of the land over which Plaintiff seeks to acquire an easement in these eminent domain proceedings, as contained in Plaintiff’s condemnation complaint, and the judgment of this Court heretofore rendered thereon, is fatally defective and fails to describe any land whatsoever, and is insufficient as a legal description of any kind whatsoever. Therefore, it is the opinion of this Court that this eminent domain proceeding should be dismissed in its entirety.
“It is, therefore, ORDERED, ADJUDGED and DECREED by this Court that this eminent domain proceeding be and it is hereby dismissed in its entirety at Plaintiff’s cost.”

This appeal is from said order. In such order it is recited that the court heard evidence and argument of counsel. There is no statement of facts or findings of fact or conclusions of law filed by the court with respect to any hearing of said motion to dismiss the condemnation proceedings.

We have carefully considered the description of the easement sought to be condemned, and have concluded that the description as contained in the condemnation complaint and on the face of the record is not patently defective and that the judgment of the court entered September 21, 1962 is not void insofar as the record reflects. The fact that the court found it necessary to hear evidence, as recited in its order dismissing the proceedings, in order to decide whether the description was defective, is corroborative of the fact that insofar as the record reflects the description of the property is good. The trial court in entering its judgment of September 21, 1962, necessarily decided all issues before it, including the sufficiency of the description. Its jurisdiction would not have been- affected-., by a wrong decision since jurisdiction to decide includes the power to make a wrong, as well as a correct, decision. Martin v. Sheppard, 1947, 145 Tex. 639, 201 S.W.2d 810.

It follows that the record on its face does not show that neither the Commissioners nor the court had jurisdiction over the condemnation proceedings because of any defect or inadequacy in the description of the property sought to be condemned. The trial court had jurisdiction over the proceedings and the parties and had the judicial -power to pass upon the validity of the description and to determine whether or not the evidence introduced by appellees at the trial with respect to the changes in the water’s edge of Oyster Creek due to the rise and fall of the water line resulting from tides and rainfall, rendered the description of the property in question so uncertain that a surveyor could not go upon the land and identify the easement being condemned. The court rested its finding of the inadequacy of the description of the property, when hearing appellees’ motion; upon evidence adduced at such hearing, and not upon the validity vel non of the description as it appears on the face of the record.

We are of the opinion that under Rule 329-b, Texas Rules of Civil Procedure, and the interpretation thereof by our Supreme Court in McEwen v. Harrison, 1961, Tex., 345 S.W.2d 706, the trial court had no judicial power on January 15, 1963 to set aside its final judgment entered on September 21, 1962. Appellees do not contend that their motion to dismiss may be treated as a bill of review. At the time it was filed, the court’s judgment had not become final and a bill of review was not available. Moreover, the motion does not contain allegations denying lack of diligence and the existence of a meritorious defense, which are generally indispensable to a bill of review unless the judgment is void on the face of the record. 34 Tex.Jur.2d, p. 92, Judgments, §§ 226 and 227; Smith v. Hine Pontiac Co., Tex.Civ.App., 328 S.W.2d 919, writ ref.

If such motion may be treated as a motion for new trial, it was overruled by operation of law on November 5, 1962, which was the 45th day after its filing. Rule 329-b, T.R.C.P.; McEwen v. Harrison, supra; Riggs v. Bartlett, Tex.Civ.App., 286 S.W.2d 669, writ ref., n. r. e. Hence the judgment of September 21, 1962 became final on December 5, 1962, which was the 30th day after appellees’ motion was overruled by operation of law. Rule 329-b, Subsection 5; McEwen v. Harrison, supra; Starr County, Texas v. Guerra, Tex.Civ.App., 282 S.W.2d 304; Bradford v. Barnett, Tex.Civ.App., 285 S.W.2d 252, writ ref., n. r. e. Since the first judgment became final on December 5, 1962, the trial court lost jurisdiction on that date to take any further action with respect to the motion to dismiss. Hence its order entered on January 15, 1963, purporting to set aside the judgment of September 21, 1962 and to dismiss the condemnation proceedings, is totally void. Rule 329-b, T.R.C.P.; Lucchese v. Specia, Tex.Civ.App., 281 S.W. 2d 725, error ref.

The court, in the McEwen case, distinguishes such cases as Consolidated Underwriters v. McCauley, Tex.Civ.App., 320 S.W.2d 60, writ ref., n. r. e., where the record shows that the court had no jurisdiction whatever to render the judgment sought to be set aside. In the McCauley case the record showed that the state district court had no jurisdictional power to render the judgment because the case had been previously removed to a United States district court where it was pending at the time the state court undertook to enter its judgment.

We hold that the trial court had no judicial power or jurisdiction on January 15, 1963 to set aside its final judgment entered September 21, 1962. It follows, therefore, that the order entered by the trial court, from which this appeal is taken, is void and that the judgment entered by the court on September 21, 1962 remains in full force and effect

The judgment of the trial court entered" January 15, 1963 is reversed and the cause remanded with instructions that the trial court set aside and vacate such judgment and reinstate its judgment entered September 21, 1962.

Reversed and remanded with instructions.


author: BATEMAN, Justice.

text:
    George A. JACKSON, Appellant, v. Ruby D. HEXTER et al., Appellees.
    No. 16251.
    Court of Civil Appeals of Texas. Dallas.
    Nov. 8, 1963.

      Piranio & Fults, Dallas, for appellant.
    Wm. Andress, Jr., Dallas, for appellees.
   BATEMAN, Justice.

Appellees, suing as the shareholders of Monte Christo Development Company, a dissolved corporation, alleged that appellant, then a vice president of that corporation, received certain checks in the aggregate sum of $2,639.46, payable to and owned by the corporation, and endorsed each of them as follows:

“Pay to the order of Geo. A. Jackson Monte Christo Development Co. By Geo. A. Jackson Vice President,”

then by rubber stamp endorsed them “for deposit only” and deposited them in his own account in a Dallas bank, thus converting corporate funds to his own use and benefit.

Appellant answered that the amount in controversy here was compromised and settled by a written agreement dated August 27, 1955; that in January 1953 appellant, the appellee Louis J. Hexter, and one Harrell entered upon a joint adventure to acquire and develop a tract of land in Hidalgo County, Texas, in connection with which the said Monte Christo Development Company and Border Development Company were organized and incorporated; out of which dealings certain differences arose between the parties which appellant sought to resolve by suing the said Hexter and others, which suit was compromised and settled by the said agreement of August 27, 1955.

At the close of the evidence in this present suit, all parties agreed that the jury be discharged and the case decided by the trial judge. Judgment was rendered in favor of appellees for the full amount of the checks mentioned. We affirm.

By his one point of error on appeal appellant says the judgment against him was erroneous because of the said compromise settlement agreement. An examination of the entire record shows that this point is wholly without merit for. three reasons :

1. The agreement of August 27, 1955 is not signed by the corporation, Monte Christo Development Company, the owner of the cause of action herein asserted by appellees; neither does the agreement even purport to cover or dispose of any property, asset or cause of action of the corporation.

2. While in the said agreement of August 27, 1955 the appellant gives to the ap-pellees herein a full and general release, the agreement does not contain any such general release by the appellees of any and all claims which they may have against the appellant, and of course the particular liability or claim asserted in this suit is not even mentioned, much less released.

3. The evidence shows that the checks in question were dated and received and appropriated by appellant in the latter part of July, 1955 and the early part of August, 1955, shortly before the so-called compromise agreement, but that none of the appel-lees knew anything about the checks at the time the agreement was made.

Under this state of facts, there was nothing the trial court could have done except to render the judgment appealed from, and we accordingly affirm the same..

Appellees urge that we assess the damages provided for in Rule 438, Vernon’s Texas Rules of Civil Procedure against appellant as a penalty for prosecuting a frivolous appeal. While we find the appeal to be without merit, we are not willing to hold that it “has been taken for delay and that there was no sufficient cause for taking such appeal.” Hence, the penalty will not be added to the judgment.

Affirmed.


author: WERLEIN, Justice.

text:
    BOARD OF FIREMEN’S RELIEF AND RETIREMENT FUND TRUSTEES OF HARRIS COUNTY, Texas, Appellant, v. Huey STEVENS, Appellee.
    No. 14203.
    Court of Civil Appeals of Texas. Houston.
    Nov. 7, 1963.

      R. H. Burks, City Atty., G. Gordon Whitman, Sr., Asst. City Atty., Houston, for appellant.
    Lee Ducoff, Houston, for appellee.
   WERLEIN, Justice.

This is an appeal from a judgment of the trial court entered after an informal hearing by the court of the pleadings, and the unsworn oral statements of counsel of both appellant and appellee which do not appear in the record. Although appellee pleaded in the alternative that the court award him a disability retirement pension under the “Firemen’s Relief and Pension Laws of the State of Texas,” this is essentially a mandamus proceeding brought by appellee against said Board of Trustees praying that they be required forthwith to grant appellee a formal hearing before them to determine the question of his disability and the extent thereof, and to present evidence to substantiate his claim.

Although this Court does not judicially know that there is no board by the name of “Board of Firemen’s Relief and Retirement Fund Trustees of Harris County, Texas,” we do take judicial notice that there is no such board authorized or provided for under Article 6243e, Vernon’s Annotated Texas Statutes, which created the Firemen’s Relief and Retirement Fund and provides for a “Board of Firemen’s Relief and Retirement Fund Trustees of -, Texas.” It is clearly indicated in said Article that the name of the respective city or town where the Board is located should be inserted in the blank space immediately preceding the word “Texas.” This suit was defended by the City Attorney of Houston, who raises no issue with respect to the name of the Board, although the proper name of the Board which appellee presumably intended to sue appears nowhere in the record. An amended petition with proper citation or waiver thereof should correct this error upon a new trial.

The appeal is before us without a statement of facts or any separate findings of fact or conclusions of law although the trial court, after entry of judgment, was duly requested to make such findings and conclusions as provided by Rules 296 and 297, Texas Rules of Civil Procedure.

The law is well settled that the action of the court in refusing to make findings of fact and conclusions of law constitutes reversible error because harm will be presumed unless the contrary appears. Wagner v. Riske, 142 Tex. 337, 178 S.W.2d 117; Callaghan v. Grenet’s Estate, 66 Tex. 236, 18 S.W. 507; Galveston, H. & S. A. R. Co. v. Stewart & Threadgill, Tex.Com.App., 257 S.W. 526; Richie v. State, Tex.Civ.App.1955, 275 S.W.2d 723. Since the appellate court must presume that the trial court correctly found all fact issues having support in the evidence in favor of the judgment rendered if no findings of fact have been requested or filed, it is ordinarily important to an appellant that the court make its findings and conclusions and especially so where there is no statement of facts. Bostwick v. Bucklin, Tex.Civ.App., 190 S.W.2d 814, aff’d S.Ct., 144 Tex. 375, 190 S.W.2d 818; Barnett v. Barnett, Tex.Civ.App., 356 S.W.2d 853; Petersen v. Robinson Oil & Gas Co., Tex.Civ.App., 356 S.W.2d 217; McDonald, Texas Civil Practice, Vol. 4, p. 1301, § 16.10, and authorities cited. In Duncan v. Willis, 1957, 157 Tex. 316, 302 S.W.2d 627, our Supreme Court said: “One of the advantages accruing to an appellant through a request for express findings and conclusions is the avoidance of findings that would otherwise be implied to support the judgment. Rule 296, Texas Rules of Civil Procedure, * *

Appellant asserts that the trial court erred in entering its judgment and order of mandamus for the reason there was neither pleading nor prayer seeking the relief awarded, and also because the court’s judgment requires appellant to perform an act beyond its jurisdiction and lawful authority. These assignments must be sustained. Appellee, in’"his prayer, sought a writ of mandamus commanding .appellant to grant him a hearing to determine the question of his disability and the .amount thereof, of, in the alternative, to award him a pension. There was no prayer for general relief. The court, however,. entered its judgment decreeing that appellant should grant a hearing solely to determine the question of appellee’s’status as a person possessing the qualifications required for a pension under Article 6243e, V.A.T.S., and to hear any and all facts and evidence relative thereto.

It is well settled that the court may not grant relief not supported by pleadings or prayer. Starr v. Ferguson, 140 Tex. 80, 166 S.W.2d 130; Radcliff v. Clemons, Tex.Civ.App., 265 S.W.2d 182, writ ref., n. r. e.; American General Insurance Co. v. Sessions, Tex.Civ.App., 331 S.W.2d 812.

Appellee’s alleged claim and right to a disability pension arises under Sec. 7B of Article 6243e,-V.A.T.S. His petition shows that he recognizes that a proper application for .retirement disability -was not timely .filed. He atterqpts, however, to allege facts which, if proven, might entitle him to an adjudication that the late filing of -his application was not due to his own fault but to misrepresentations made by certain officers, agents and .employees. of appellant. Both appellant and appellee recognize in their respective briefs that appellee had ceased to be a de facto fireman prior to the time he filed a correct and proper application for a retirement disability pension. Appellee in effect contends; however, that he was at least a de jure fireman and entitled to a disability pension because his filing of his application in the first instance on the wrong forms and his late filing thereafter were due to fraud and misrepresentations on the part of appellant.

It is our view that the question as to -whether- or- not appellee’s late filing of his application for a disability pension was due to fraud and misrepresentations of appellant is a judicial question and one which cannot be determined by the Board of Trustees, but must be determined by the court. The trial court did not hear evidence concerning such matter or make any decision with respect thereto, but instead entered its judgment without any trial of such issues and directed the Board of Trustees to proceed with a formal hearing to determine the question of appellee’s status as a person possessing the qualifications required for a pension under Article 6243e, V.A.T.S.

The appellant Board was created by said Article and can exercise only the powers which the Legislature has conferred upon it. It has the power and authority to hear and determine all applications for retirement, claims for disability, either partial or total, and to determine whether the applicant has become physically or mentally disabled while in, or in consequence of, the performance of his duties as a fireman. Board of Firemen’s Relief & Retirement Fund Trustees of Houston v. Marks, 1951, 150 Tex. 433, 242 S.W.2d 181, 27 A.L.R.2d 965. It has no judicial power to hear and determine whether appellee has been unlawfully deprived by appellant’of the legal right to make án application for retirement disability, or whether his status at the time he filed his application should be considered that of an active fireman because of fraud and misrepresentations on the part of appellant which kept him from timely applying for a disability pension. These are issues which should have been determined by the court before granting a writ of mandamus. It was the function of the court to determine whether appellee had pleaded and proved facts establishing his status as a person possessing the qualifications required for applying for and prosecuting his claim for a disability pension, and whether appellee was entitled to the writ of mandamus sought by him under liis pleadings and evidence.

Reversed and remanded.


text:
    SABINE RIVER AUTHORITY of Texas, Appellant, v. M. P. CRABB et ux., Appellees.
    No. 16272.
    Court of Civil Appeals of Texas. Dallas.
    Nov. 1, 1963.

      Allen Clark, Greenville, H. P. Kucera, City Atty., and N. Alex Bickley, First Asst. City Atty., Dallas, for appellant.
    Olin P. McWhirter and Bruce Graham, Greenville, for appellees.
   BATEMAN, Justice.

Our former opinion is withdrawn, and the following substituted therefor.

Appellant condemned 357 acres of land owned by appellees, and appeals from the judgment of the county court awarding the owners $53,550 for the surface rights and $17,850 as damages to the mineral interest in the property. The commissioners appointed by the county judge had awarded appellees $28,560 for “the fee simple title” to the land on March 10, 1958. On March 12, 1958 the appellees filed their objections to the award. In their answer appellees alleged that the mineral rights had a value of $100 per acre and that the surface was worth $150 per acre for pasture and farming purposes. This pleading was not amended, but on the day of trial, February 18, 1963, the parties entered into a written stipulation as follows:

“It is agreed and stipulated by and between the parties hereto that the Plaintiff, Sabine River Authority of Texas, will not seek to condemn or take any minerals or mineral rights in and under the land described in this proceeding, but that all such minerals and mineral rights shall be reserved to the Defendants, M. P. Crabb and wife, Kathryn Crabb, their heirs and assigns, and that any judgment, rendered herein shall be limited .to the sur-. face rights only in and to the property sought to - be condemned herein.
WITNESS OUR HANDS at Green-ville, Texas, this 18 day of February, A. D., 1963.
(s) Allen Clark
Attorney, for Plaintiff
(s) Bruce Graham
Attorney for Defendants”

The three special issues submitted to the jury and their answers thereto, upon which the judgment was based, are as follows:

“SPECIAL ISSUE NO. ONE:
“What do you find from a preponderance of the evidence was the market value of the surface rights of the 357 acres of land belonging to the defendant and taken by the plaintiff, Sabine River Authority of Texas, as of September 3rd,'1959?
“ANSWER: $150.00 Per Acre.
“SPECIAL ISSUE NO. TWO:
“What do you find from a preponderance of the evidence to have been the market value of the minerals in and under the 357 acres of land to be covered by and taken for lake and reservoir purposes, immediately before such taking ?
“ANSWER: $100.00 Per Acre.
“SPECIAL ISSUE NO. THREE:
“What do you find from a preponderance of the evidence to have been the market value of the minerals in and under the 357 acres of land to be covered by and taken for lake and reservoir purposes, immediately after such land was covered by water?
“ANSWER: $50.00 Per Acre.”

By its first point of error on appeal appellant asserts that the verdict is so contrary to the great weight and preppnderance of the evidence, as .to be manir festly unjust. This point is briefed together with the second, - to the effect that the verdict is the result of passion, bias and prejudice; and they will accordingly be considered together by us. In doing so we are required to weigh and consider all of the evidence, including that which supports the verdict as well as that which does not. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660. Such evidence may be summarized as follows:

The appellee Crabb, a chiropractor, first expressed the opinion that the 357 acres were worth $300 per acre, based upon other sales in the area at that time, and when asked about such sales of comparable land he told of three sales; one of 56.44 acres for $372 an acre, another of 69 acres for $216 an acre, and a third of 47 acres at $244.50 an acre, but admitted that they were above the “take line” of appellant and did not know whether they were bought for the purpose of development or whether they have been developed. By way of qualifying himself to give his opinion concerning the value of the minerals he said that he had had “quite a bit” of experience in drilling oil wells, having drilled “several” and having some “very small” production of his own. When asked by his attorney if he knew the market value of minerals in that area, he said: “I don’t see how you would put a market value on minerals exactly.” He added that he knew of only one royalty being sold in that territory and that was for $250 an acre. He then said he thought the minerals were damaged because the production in that country is deep and to drill a well “it definitely would be much more expense to whip it under the middle of that lake now than it would have been without the lake there.” Then, over appellant’s objection that it was hearsay, Dr. Crabb was permitted to testify that he had in his pocket a driller’s bid from Lowe Company in Midland with an estimate that it would cost from seventy-five to a hundred thousand dollars more money to drill a well directionally “like it would have to be” .than to drill, it on dry land. He then said he had assisted in drilling nine wells over a period of about seven years, and knows of the increase in the cost of drilling a well at a slant to get under a specific tract of land, and that he considers these estimates he received to be conservative. Upon returning to the stand after the lunch recess the witness confessed to having an opinion as to the values of the minerals under his land immediately prior to September 3, 1959, which was $250 an acre; that he had an opinion as to the value of the minerals under the land after it was covered by the lake or reservoir, and that it was $50 an acre; and on cross examination then said that the entire value of his farm was $550 an acre “before they took it,” but that he does not know of any land in Hunt County that sold for $550 an acre.

Appellees’ only other witness was a Mr. Tarpley, who was qualified as an expert and who said his opinion of the value of the surface of the tract in question was $150 per acre. He did not testify as to the value of the minerals. In telling of five sales of comparable land, ranging from $125 to $165 an acre, he did not disclose whether there were any mineral reservations in those sales.

Appellant produced two witnesses, B. B. Banner and Wayne Y. Anderson, both of whom qualified as experts. Banner testified that in his opinion the entire value of the land was $80 an acre, and Anderson said that in his opinion different parts of the farm had different values and that the total value was $21,380 (an average of $59.60 an acre) and that this includes the fee.

We are unable to say that the jury’s response to Special Issue No. 1 was so contrary to the overwhelming weight and preponderance of the evidence as to be manifestly wrong or unjust. In finding the value of the surface at $53,550 or $150 per acre, the jury followed the testimony of the expert witness, Tarpley, and declined to follow that of appellant’s expert witnesses or that of appellee Crabb. This they had a right to do, and we have no right to substitute our views for the jury’s finding.

This brings us to an appraisal of the uncorroborated testimony of Dr. Crabb, the only evidence offered as to damage to the minerals. He did not at any time testify that he knew what such values were, merely that he had an opinion as to what they were. The entire basis for this witness’ opinion consisted of (1) his having known of one sale “in that territory” for $250 an acre (without disclosing whether the royalty sold was under producing or speculative property, nor how near it was to his property, nor when nor under what circumstances the sale was made) and (2) his hearsay information as to increased drilling costs which would be made necessary by the inundation of the land. We hold that this opinion, based as it was on inadequate experience and hearsay information, was not sufficient evidence to support the jury findings in response to Special Issues Nos. 2 and 3, and that the findings are so contrary to the preponderance of the evidence as to be clearly wrong and unjust. The first point is therefore sustained as to the findings in response to Special Issues Nos. 2 and 3, purporting to establish the amount of damage to the minerals, but is overruled as to the finding of value of the surface in response to Special Issue No. 1.

We are unable to say that any of the jury findings were the result of passion, bias or prejudice. A careful search of the entire record reveals no evidence thereof. Appellant’s second point is therefore overruled in its entirety.

In its third and ninth points of error appellant submits that when the landowner agreed to the aforesaid stipulation permitting him to retain the mineral rights he did so subject to the rights of appellant, which had nearly four years previously condemned the surface for reservoir purposes, and that the mineral estate is therefore not the subject of any taking or damaging, it being a distinct interest in land separate and apart from the surface estate; and that it was therefore fundamental error for the court to submit Special Issues Nos. 2 and 3; also that since no part of the mineral estate was taken, under the Texas Constitution, Article 1, Sec. 17, Vernon’s Ann.St., there can be no damage to the remainder because there is no remainder. Quoting from appellant’s brief: “In order for damages to be recovered, at least some portion of the estate must be taken. The purpose of the stipulation was to eliminate this from the lawsuit.” We agree. The petition in condemnation and the award of the commissioners contemplated the condemnation of the entire fee in the land. Even so, appellant had the right at any time before trial to relinquish part of its legal power and condemn a lesser estate than the fee in order to minimize the cost to the condemnor as well as to avoid condemning property or rights in property for which there was no public need. Texas Power & Light Co. v. Cole, 158 Tex. 495, 313 S.W.2d 524. It is obvious that this was the intent and purpose of the stipulation the parties signed just prior to the trial. Appellees must be charged with notice that their farm would be largely if not entirely covered by water when they reserved their mineral rights by the stipulation. In fact, the evidence shows that at the very time of the stipulation all of the land but forty or fifty acres was already inundated.

Moreover, it appears from the record that appellant deposited the amount of the award into the registry of the court on September 3, 1959, at which time “the taking” occurred within the meaning of the statute. Appellant took the fee on that date, and thereafter, on February 18, 1963, by the stipulation surrendered to appellees an interest in the property taken, to-wit, the mineral estate; and appellees must be held to have taken that property right burdened as it was by the flooded condition of the surface. Accordingly, appellant’s third and ninth points are sustained.

We have carefully examined the remaining points of error contained in appellant’s brief and, finding them to be without merit, overrule them.

The jury finding of damages of $53,550 for the taking of the surface rights of ap-pellees’ farm being supported by competent evidence, that part of the judgment based thereon is affirmed. For the reasons here-inabove assigned, that part of the judgment awarding $17,850 as damages to the minerals is reversed and here rendered for appellant.

Affirmed in part and reversed and rendered in part.