text:
    Frank ROYAL, Appellant, v. James Emett CAMERON, Appellee.
    No. 70.
    Court of Civil Appeals of Texas. Tyler.
    Sept. 17, 1964.
    Rehearing Denied Oct. 8, 1964.

      R. E. McDaniel, Winnie, Fairchild & Hunt, Center, for appellant.
    Herbert Boyland, Kenley, Ritter & Boy-land, Longview, for appellee.
   DUNAGAN, Chief Justice.

The judgment heretofore entered on July 23, 1964, is set aside and the original opinion is withdrawn. This opinion is substituted for the original.

This is a common law damage suit growing out of an automobile collision on June 15, 1961, in Gregg County, Texas. Appellant was riding in his own car, which was being driven by Willie Marshall, and the only other occupants in the car at the time of the accident were Willie Marshall’s daughter and the Plaintiff’s granddaughter.

Appellant instituted this suit against the Defendant in the 124th District Court of Gregg County, for damages to his automobile and for his personal injuries alleged to have resulted from the accident.

The collision in question was between two vehicles moving in the same direction. The car driven by the Appellee hit Appellant’s car from the rear. The Appellant’s vehicle was not damaged to the extent that it was disabled. There is no evidence the Appellant complained of injury the night of the accident to the investigating officers. The other occupants in the car at the time of the accident were not injured.

The injuries alleged by Appellant were largely established by subjective complaints. He was never hospitalized, save for the purpose of running a myelogram two years after the accident.

Upon the trial of the case, it was stipulated that Appellee was liable for all actual damages incurred by Frank Royal as a result of the collision. The Court did not submit to the jury the amount of property damage since this was undisputed. The Court submitted the usual damage issues in a personal injury suit in three separate issues, to-wit:

Issue No. 1 inquired of the jury what: would reasonably compensate Frank Royal for reasonable and necessary hospital expenses, if any, incurred by Frank Royal as a. result of the collision in question.

Issue No. 2 inquired of the jury what; would reasonably compensate Frank Royal, for reasonable and necessary doctor expenses, if any, incurred by him as a result of the-collision in question.

Issue No. 3 inquired of the jury what would reasonably compensate Frank Royal', for his injuries and actual damages, if any,, other than damages to his car, caused by the-collision in question.

To each Issue the jury answered “None.”

The judgment of the Court awarded to» Appellant $300.00 for damages to his automobile on the undisputed evidence, but based upon the findings of the jury to the issues submitted, the Court did not award any damages for his alleged personal injuries.. From this judgment the Appellant has duly-perfected his appeal to this Court.

The Appellant, by his Points 1 through 9,. complains that the Court erred in not granting his motion for a new trial because the-jury’s answer to each of the issues is contrary to the undisputed evidence, and so-against the overwhelming weight and preponderance of the evidence to be manifestly wrong and unjust. The Appellant on trial of this cause, testified that as a result of this collision, he received injuries that caused severe pain to his back and neck and was-not able to perform work as he had done-prior to the accident. In addition to several lay witnesses, who corroborated Appellant; in respect to his alleged injuries and his inability to perform manual labor, Appellant offered the testimony of Dr. V. M. Holland, who was the family physician and Dr. Heinz K. Faludi, a neurosurgeon from Shreveport, Louisiana, who testified as to Appellant suffering pain in his neck and back and in their opinion it was caused from the accident. However, Dr. Holland testified that Appellant’s condition may have resulted from some other cause.

Appellant did not go to a doctor until August 31, 1961, which was approximately 80 days after the accident, and then it was at the suggestion of an attorney for the purpose of an examination and report, and that was to his family physician, Dr. Holland of Carthage.

Dr. Holland did not x-ray the Plaintiff’s neck until February 16, 1962, and he then found severe arthritis, from which he said he would never recover and that it would cause limitation of motion of neck indefinitely. He further stated that the limitation of rotation in his neck could likely have been caused by disease as by injury and that he (Appellant) had tenderness of the mid-cervical vertebra, which could be from disease or injury.

Dr. Faludi, who saw the patient for the first time on June 26, 1963, also x-rayed the Plaintiff’s neck and found arthritis. He found the bone alignment and intervertebral spaces to be good. He noted the calcifica-tions in the ligamentum nuchae. He found Appellant was suffering with adhesive arachnoiditis. His impression of the Plaintiff’s complaint of his neck trouble was slight soreness of left side of neck.

The testimony of Dr. James H. Johnson, in substance, was that in his opinion Appellant’s condition was not caused from the accident in question, but it was from an arthritic condition and other conditions to be found in a person the age of the Appellant, who at the time of the accident was between 65 and 70 years of age.

The Plaintiff had shortness of breath, history of prior complaints of back and leg pain, and evidence of arteriosclerosis (arcus senilis). This was shown by the testimony of his own doctors.

Dr. Johnson testified that this osteoarthritis was an aging process and could by itself cause pain and disability. He further stated he did not believe adhesive arach-noiditis, which the Appellant was shown to have, could be caused or aggravated by the collision described by the Appellant. He was of the opinion hardening of the arteries could cause back and leg pain.

The x-rays failed to disclose any broken bones or any abnormality, such as displaced vertebra or mal-alignment of the spine. The only thing shown by the x-rays was arthritis, which Dr. Holland referred to as disease, and which he stated would cause permanent trouble in the Appellant’s neck. As to the low back condition, Dr. Johnson testified that in his opinion this could not have been caused by the accident, and the jury was entitled to believe him, rather than Dr. Faludi. Dr. Johnson testified in person (Dr. Holland and Dr. Faludi testified by deposition), and the jury had the opportunity to observe his demeanor on the stand. Dr. Faludi admitted the value of his testimony depended on the validity of his opinions. The testimony of a physician is evi-dentiary and never binding upon the trier of facts. In Reinke v. Thomas, (Tex.Civ.App.) 1963, 369 S.W.2d 692, writ ref., n. r. e., the Court held:

“ * * * The jury was in its province in rejecting all or any of the theories of each of the doctors concerning their respective views as to the pain and suffering sustained by appellant on account of his claimed injuries. * * * ”

The Appellant’s case largely rests upon Appellant’s complaints of pain and suffering. Matters of pain and suffering are necessarily speculative, and it is peculiarly within the province of the jury to resolve these matters. Harbuck v. Ramos, (Tex.Civ.App.) 1963, 371 S.W.2d 912, no writ history.

In the case of Murray v. Missouri, K. & T. R. Co., (Tex.Civ.App.) 1935, 79 S.W.2d 334, no writ history, the Court said:

“ * * * When we consider the other feature, that is, pain and suffering, these are matters which must be left largely to a jury’s discretion. They see the witnesses and hear them on the stand. What seems large in black and white may dwindle to insignificance in the larger picture which the jury sees in the trial court.”

There are certain fundamental rules of law which control the Court in deciding if the verdict of the jury is contrary to the overwhelming preponderance of the evidence:

(1) The burden is on the complaining party to show the verdict is contrary to the overwhelming preponderance of the evidence. Foran v. Smith, (Tex.Civ.App.) 1950, 228 S.W.2d 251, no writ history'; Wright v. Mack Motor Truck Corp., (Tex.Civ.App.) 1960, 336 S.W.2d 831, no writ history; United States Letter Carriers Mut. Ben. Ass’n v. Sypulski, (Tex. Civ.App.) 1963, 364 S.W.2d 840, no writ history; Marks v. Saul, (Tex. Civ.App.) 1959, 326 S.W.2d 24, writ ref., n. r. e.
(2) It is within the province of the jury to determine the credibility of the witnesses and the weight to be given their testimony. Ohlen v. Hagar, (Tex.Civ.App.) 1948, 212 S.W.2d 253, writ ref., n. r. e.; Heckathorn v. Tate, (Tex.Civ.App.) 1962, 355 S.W. 2d 845, no writ history; Reinke v. Thomas, supra; in the Court’s charge in the case at bar, the jury was told they were the exclusive judges of the credibility of the witnesses and the weight to be given their testimony. In this connection, the jury may accept or reject all or part of the testimony of any witnesses and the number of witnesses testifying to a certain fact is not controlling. Ohlen v. Hagar, supra.
(3)It is not enough to show the verdict is merely contrary to the evidence, but the record must clearly show the verdict is so contrary to the overwhelming preponderance of the evidence to indicate it is in fact the product of corruption, passion and prejudice and be so wrong as to be unconscionable. Quinn v. Wilkerson, (Tex.Civ.App.) 1946, 195 S.W.2d 399, no writ history; Advance Loan Service v. Mandik, (Tex.Civ.App.) 1957, 306 S.W.2d 754, no writ history. The Court does not simply place itself in the shoes of the jury and determine if it would have made the same finding. Bardwell v. Anderson, (Tex.Civ.App.) 1959, 325 S.W.2d 929, writ ref., n. r. e.

The jury could take into consideration: Appellant’s complaint regarding the permanency of his injuries which were not corroborated by his own medical testimony; no one else was hurt but him; he did not go see a doctor for some two and one-half months after the accident, and then it was because an attorney told him to. Beck v. Craven, (Tex.Civ.App.) 1962, 360 S.W.2d 827, no writ history; Brewer v. Dallas Ry. & Terminal Co., (Tex.Civ.App.) 1952, 247 S.W.2d 435, no writ history.

In the Beck case, the Court said:
“We are unable to say that either of the jury’s answers to the issues on damages were so contrary to the great weight and preponderance of the evidence as to be clearly wrong. While Plaintiff testified that she was injured in the collision made the basis of this suit, and there was no direct testimony that she was not injured, there were circumstances in evidence impeaching her testimony. The automobile in which the plaintiff was riding at the time of the collision was occupied by seven people. None of them, including the plaintiff, complained of injury at the scene. The plaintiff explained this by testifying that she did not realize she was hurt until her neck began to stiffen and she developed a headache about one hour after the collision. * * * The jury could believe from the evidence that she failed to seek medical attention until she was directed to an orthopedic surgeon by an attorney, j|í íjí »
In the Brewer case, the Court said:
“ * * * The burden of proof was upon the plaintiff, not only to prove the existence of justiciable facts in support of his cause of action, but must do so by the preponderance of the evidence, that is, the greater weight and degree of evidence. It is within the province of the jury to give weight and credibility to testimony; thus the jury, having witnesses before them, may attach a great deal more, or less, importance to evidence than would a person who merely reads it reduced to narrative form. The jury may well have taken into consideration, in arriving at the conclusion that the plaintiff did not suffer any personal injuries from the collision, and that whatever injuries he had as disclosed by himself and Dr. Fry were not reasonably and proximately caused by the collision; and, to, on the admitted facts that the plaintiff had had two suits theretofore for personal injuries and on each occasion reported the accidents to his lawyer before going to a doctor for a determination of the extent or seriousness of his injury and treatment, if any, therefor; * * ”

It is the rule of law equally well settled in Texas that an appellate court cannot substitute its judgment for that of a jury on disputed issues of fact. Disputed issues of fact are always matters or determination by jury, or Trial Court if no jury is taken in the trial. Holmes v. American General Ins. Co., (Tex.Civ.App.) 1953, 263 S.W.2d 615, no writ history, and the authorities therein cited. Heckathorn v. Tate, supra; Roach v. Continental Casualty Company, (Tex.Civ.App.) 1960, 336 S.W.2d 811, no writ history.

In the case at bar, it was the jury’s province to disregard the testimony offered by the Plaintiff as to whether he was injured as a result of the accident and to accept the testimony of Dr. Johnson offered by Appel-lee. It is apparent that the jury did so.

Here it became the duty of the jury to pass on the credibility of the witnesses and after having done so, they found Frank Royal did not receive an accidental injury on the date alleged. Roach v. Continental Casualty Company, supra.

By Point 10 Appellant alleges that the Court erred in not granting the Plaintiff a new trial because the verdict of the jury is tainted by, and is the result of, prejudice, bias, passion, corruption or some other improper motive; this complaint of Appellant is not supported by the record and is overruled.

Next, the Appellant contends that the Court erred in not granting him a new trial because the Trial Court had erred in admitting evidence showing Frank Royal, the Appellant, had a health and accident insurance policy from which benefit payments would be applied to his doctor bills while under treatment, or hospital bills if confined to a hospital; and in admitting evidence that the fact that Appellant was receiving a pension from the Veteran’s Administration in the sum of $90.00 per month. On direct examination, Appellant in response to questions propounded by his attorney, testified as follows:

“Q. What made you decide to go see a doctor on August 15 or 16?
“A. Why I didn’t go to see a doctor up until then, I didn’t have any finance to support myself to a doctor.
“* * *
"Q. All right. Now, was it sometime you.think in August before you did get to see a doctor ?
■“A. Yes, sir, somewhere around the 1st of August.
"Q. You don’t know the exact date ?
“A. I couldn’t definitely.
"Q. Tell this jury why you didn’t go to see a doctor before that.
■“A. Sir, your Honor, I say to the jury why I didn’t go to see a doctor simply was because I was financially disabled, I didn’t have the money.”

This testimony was offered by Appellant before any evidence had been offered by Appellee.

On cross-examination of Appellant, it was elicited from him that at the time of the accident he had a health and accident insurance policy from which benefit payments would be applied to his doctor bills while under treatment, or hospital bills if confined to a hospital, and that he was receiving a pension from the Veteran’s Administration in the sum of $90.00 per month.

On re-direct, the attorney for Appellant fully developed the nature and extent of the insurance policy. Later, the Appellant proved by Billy Langford that Appellant had a health and accident insurance policy with the company he represented that provided a small weekly benefit.

Further, the attorney for Appellant read from Dr. Faludi’s deposition a statement that Appellant could not afford medical care and therefore postponed seeing a doctor.

The Courts of this state have uniformly held that when one injects an improper issue into a lawsuit, he cannot be heard to complain when his testimony is rebutted by ■other improper evidence. National Life & Accident Ins. Co. v. Sanchez, (Tex.Civ. App.) 281 S.W. 891; Schwarte v. Bunting, (Tex.Civ.App.) 210 S.W.2d 655, (writ refused, n. r. e.); City State Bank in Wellington v. National Bank of Commerce of Altus, Okl., (Tex.Civ.App.) 261 S.W.2d 749, (writ refused, n. r. e.); Lubbock Bus Company v. Pearson, (Tex.Civ.App.) 277 S.W.2d 186 (writ refused, n. r. e.) ; Bolstad v. Egleson, (Tex.Civ.App.) 326 S.W.2d 506 (writ refused, n. r. e.). In the case of Lubbock Bus Company v. Pearson, supra, the Court held the Defendant could not complain of evidence concerning issuance of a ticket where it had gone into the matter itself.

The record also reveals there was no objection made to the testimony elicited from the Appellant on cross-examination complained of by Appellant at the time it was offered. Counsel for Appellant only asked that he be given a bill and the Court stated that he may have a full bill.

Even if the testimony complained of was improper, which, under the record we do not think it was, no error was committed by the Trial Court, because counsel for Appellant did not properly object, did not obtain a ruling by the Trial Court at the time it was offered, and did not ask the Court to instruct the jury not to consider the testimony. Texas Employers’ Ins. Ass’n v. Haywood, 153 Tex. 242, 266 S.W.2d 856.

The only objection ever made to this testimony by Appellant was in his Motion in Limine to exclude such testimony which was presented to the Court prior to the selection of the jury, on the grounds that said evidence would be prejudicial to the rights of the Appellant and immaterial and irrelevant to any issue in the case. Appellant by his Bill of Exception No. 1 shows that the Court stated “that the matters mentioned in the Motion in Limine would not be allowed in evidence unless said matters became admissible during the trial.” We think the objection was insufficient under the facts of this record. It has been held that such objection was too general to require consideration by the Court of Civil Appeals. Peerless Oil & Gas Co. v. Teas, 138 Tex. 301, 158 S.W.2d 758; Zeek v. Gaddy (Tex.Civ.App.) 1956, 287 S.W.2d 490, writ refused, n. r. e.; Traders & General Insurance Company v. Haney, (Tex.Civ.App.) 1958, 312 S.W.2d 690, writ refused, n. r. e.; City of Denison v. Corcoran, (Tex. Civ.App.) 1952, 253 S.W.2d 321, no writ history; Bridges v. City of Richardson, et al., 163 Tex. 292, 354 S.W.2d 366; Coates v. Moore, (Tex.Civ.App.) 1959, 325 S.W.2d 401, writ refused, n. r. e.

Furthermore, the testimony was offered for the limited purpose of impeachment. We think it was admissible for that limited purpose.

Although impeaching evidence on collateral matters which affect the credibility of a witness or a party are clearly admissible. The rule of admissibility of evidence of this nature should be liberal and the trial judge should have the discretion to receive any evidence which gives promise of exposing falsehood. McCormick & Ray, “Texas Laws of Evidence,” 2d Edition, Sections 684 and 685; Norvell Service Company v. Spell, (Tex.Civ.App.) 1956, 288 S.W.2d 133, writ refused, n. r. e.

In any event, in light of the whole record, we think that such testimony was not reasonably calculated to cause and probably did not cause the rendition of an improper judgment in the case. Rules 434 and 503, Texas Rules of Civil Procedure; Coates v. Moore, supra. Appellant’s Points 11 and 12 are overruled.

Appellant next contends the Court erred in not granting the Plaintiff a new trial because the Trial Court had erred in refusing to allow the Plaintiff to prove his good reputation for truth and veracity by witnesses J. B. Hunt and Mundy Hooker. This contention is untenable. The Appellant argues that he was entitled to prove Appellant’s good reputation for truth and veracity because the Appellee had placed in issue the truth and veracity of the Appellant when he (Appellee) introduced evidence of the insurance policy held by Appellant, that he was receiving a pension from the Veteran’s Administration and the prior diagnosis of arthritis.

The mere fact that cross-examination of the Appellant exposed inconsistencies in his testimony given on direct examination is not a sufficient predicate upon which to permit Appellee to offer character witnesses. It seems to be settled in this state that inconsistencies or contradictions in testimony created by cross-examination and by witnesses simply giving different versions of the same transaction are not sufficient predicate to authorize a party to bolster his witness by proof of his good reputation for truth and veracity,, or otherwise. Jones-O’Neal Furniture Co. v. Jones, (Tex.Civ.App.) 269 S.W. 180, writ dism., where Plaintiff and others testified she had been bed-ridden and complained of intense pain in her head, neck and back prior to the accident.

The Court said:
“We understand that it is the rule in this state that mere contradiction between witnesses, however sharp the contradiction may be, will not authorize the introduction of evidence showing the good reputation for truth and veracity of witnesses, and this rule applies to parties when they become witnesses.”

In support of this rule of law, we cite New Amsterdam Casualty Co. v. Parham, (Tex.Civ.App.) 2 S.W.2d 866, writ dism.; Shell Pipe Line Corporation v. Coston, (Tex.Civ.App.) 35 S.W.2d 1056, no writ history; Jenkins v. Pure Oil Co., (Tex.Civ. App.) 53 S.W.2d 497, no writ history; Fort Worth Hotel Co. v. Waggoman, (Tex.Civ.App.) 126 S.W.2d 578, dism.judgm.corr.; Radford v. Hill, (Tex.Civ.App.) 185 S.W. 2d 129, ref. w. m.; Coleman v. Texas & Pac. Ry. Co., (Tex.Civ.App.) 241 S.W.2d 308, writ ref.; the Coleman case is squarely in point. Finding no error in the Court’s action, we overrule Point 13.

Now we come to Appellant’s contention by his Points 14, 15, 16 and 17 that the Court erred in not granting the Plaintiff a new trial because of the alleged improper argument to the jury by the attorney for Appel-lee. By Appellant’s Bills of Exceptions Nos. 3 and 4, in which he alleges improper argument on the part of Appellee’s attorney, it is shown that no objection by the Appellant or his attorney was made at the time said argument was made or thereafter, and no request was made of the Court for an instruction to the jury to disregard said matter, nor did Plaintiff move for mistrial. The transcript contained argument of Appellant’s attorney in full. We have reviewed the argument complained of and do not believe it was improper, and if it was, it was not objected to. We do not find in the transcript of Appellee’s attorney’s argument to the jury, the alleged argument set forth in Point 16.

While it is true that in some cases jury argument requires a reversal, even though an objection is not made, the rule applies only when the argument is so vicious and so unwarranted that the minds of the jurors are foreclosed against returning a fair and impartial verdict. We do not find the argument to be such in this case. In this case, the argument was not improper in our opinion, but if it did in any manner exceed the bounds of propriety, which we think it did not, the transgression was slight and could have been cured by an instruction from the Trial Court. At the time the argument was made, counsel for Appellant did not object thereto, or request the Court to instruct the jury not to consider the argument, or move for a mistrial. The Court was not apprised that the argument was objectional to Appellant and gives an opportunity to withdraw same from consideration of the jury.

Appellant’s Points 14, 15, 16 and 17 are without merit and are overruled. Transcontinental Bus System, Inc. v. Scirratt, (Tex.Civ.App.) 1964, 376 S.W.2d 56, writ refused, n. r. e.

Furthermore, if the argument was improper, which we do not think it was, before a judgment is reversed because of argument of counsel, two things must appear: the argument must be improper, and it must be such as to satisfy the reviewing court that it was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment in the case. We do not think the nature of the argument was such as was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment. Aultman v. Dallas Railway & Terminal Co., 152 Tex. 509, 260 S.W.2d 596; Goforth v. Alvey, 153 Tex. 449, 271 S.W.2d 404; Texas Sand Company v. Shield, 381 S.W.2d 48, Sup.Ct.

After carefully reviewing the record and all the testimony, we are of the opinion that the answers to the special issues were supported by the evidence; and the jury’s verdict is not so contrary to the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust, and that such answers require that judgment be entered that Appellant take nothing.

Judgment of the Trial Court is affirmed.


source: Caselaw Access Project

author: SHARPE, Justice.

license: Public Domain

text:
    WOODS EXPLORATION & PRODUCING COMPANY, Inc., et al., Appellants, v. ALUMINUM COMPANY OF AMERICA et al., Appellees.
    No. 7.
    Court of Civil Appeals of Texas. Corpus Christi.
    Aug. 20, 1964.
    Rehearing Denied Oet. 8, 1964.

      Levert J. Able and Nick Nichols, Houston, for appellants.
    Leroy Jeffers, of Vinson, Elkins, Weems- & Searls, James W. Dilworth, of Andrews, Kurth, Campbell & Jones, Houston, C„ Kinnear Earl, El Campo, for appellees.
   SHARPE, Justice.

This appeal is from a judgment of the District Court of Calhoun County, Texas, sustaining pleas to the jurisdiction and in abatement filed by some of the appellees and dismissing the case.

Appellants, Woods Exploration & Producing Company, Inc., and Southeastern Pipe Line Company, sued appellees, Aluminum Company of America, Crown Central Petroleum Corporation, Carl E. Sieges-mund, Lavaca Pipe Line Company, Lumar ■Gas Corporation, F. E. Appling and Fred Wolcott, for damages allegedly due to violations of the Texas Antitrust Statutes involving a conspiracy and combination by appellees to eliminate appellants and small tract owners from competing in the production of gas from the Appling field located in Calhoun and Jackson counties, Texas, and to restrict production from appellants’ wells. The conspiracy was allegedly carried out by various means, one of which was the filing of false and fictitious nominations or Producers Forecasts with the Railroad Commission of Texas.

Appellants assert six points of error, in reply to which the appellees urge four counterpoints. We have concluded that appellants’ first five points present reversible error and that the case should be remanded to the lower court for trial.

The Appling field was discovered in 1953. The history of its development is set out in the opinions of the Supreme Court of Texas and the Austin Court of Civil Appeals in the case of Railroad Commission of Texas et al. v. Aluminum Company of America et al., decided by the Supreme Court of Texas on May 27, 1964, 380 S.W.2d 599, rehearing overruled, July 15, 1964, reversing the Austin Court of Civil Appeals opinion reported 368 S.W.2d 818, which case will be further referred to hereafter in this opinion.

The trial court findings herein may be summarized as follows:

1. The facts and the law on the pleas in abatement and to the jurisdiction are with the defendants (appellees).

2. That the sole and exclusive jurisdiction of the matters in issue and controversy herein is vested first in the Railroad Commission of Texas and that sole and exclusive jurisdiction for the judicial review or adjudication of said issues and the matters in controversy herein is vested in the district court of Travis County, Texas.

3. That a prior action' in which the Aluminum Company of America, Crown Central Petroleum Corporation, and Woods Exploration & Producing Company, Inc., are parties and involving substantially the same issues and matters in controversy herein is in fact pending in the district court of Travis County, Texas, in which a final judgment has been entered and is now on appeal by the said Woods Exploration and Production Company, Inc., to the Court of Civil Appeals for the Third Supreme Judicial District of Texas.

4. That the district court of Calhoun County is without jurisdiction of this action and that said pleas in abatement and to the jurisdiction should be in all things, sustained.

Based upon such findings and conclusions, the trial court dismissed this case.

We will first consider appellants’ points 2 and 4 concerning the alleged errors of the trial court in holding that exclusive jurisdiction of this case is vested first in the Railroad Commission of Texas, and, for review, in the district court of Travis County, Texas, (such findings appearing in paragraph 2 of the summary of the trial court findings hereinbefore set out), along with appellees’ counterpoint I which is urged in support of said rulings.

This case was determined by the trial court on the pleadings and evidence offered in support of appellees’ pleas to the jurisdiction and in abatement. Such evidence consisted only of certified copies of pleadings and orders of the court in a case pending in Travis County, Texas, which will be hereafter referred to in more detail, and copies of certain nominations or Producers Forecasts filed by appellees with the Railroad Commission of Texas.

The nature and character of this suit, as determined from the allegations contained in the pleadings, appear to be dispositive of the contentions now under consideration. Analysis of appellants’ petition reflects that the cause of action therein asserted is based upon alleged violations by appellees of the antitrust statutes of Texas and a conspiracy and scheme entered into by them to eliminate appellants as competitors and to restrict the free pursuit of their business and production. It is alleged that as a part of such conspiracy and antitrust violations the appellees have filed false nominations or Producers Forecasts with the Railroad Commission of Texas, causing a reduction in the amount of gas which appellants could produce. Appellants rely upon various antitrust statutes of Texas, particularly Art. 7426, subdivisions 1, 6, and 7, and Art. 7429, Vernon’s Ann.Civ.St.Tex. Appellants further point out that the statutes relating to the Railroad Commission and its functions specifically provide that the antitrust and monopoly statutes of Texas shall not be affected thereby.

We recognize, as appellees contend, that the Railroad Commission of Texas is an administrative body having broad powers and discretion in connection with the subjects of conservation and production of crude petroleum oil and natural gas as well as with production nominations and allowables in connection therewith, and that the orders, rules and regulations of said commission and the validity thereof are subject to review only by the district court of Travis County, Texas. However, the Railroad Commission is not a court and does not have jurisdiction to entertain and determine many matters which are within the jurisdiction of district courts, including a suit for damages brought under the antitrust laws of Texas. Under the allegations of appellants’ petition this is not a suit to test the validity of an order of the Railroad Commission, even though one phase of the case involves the alleged conduct of appellees in making false nominations to said commission as a part of the conspiracy, scheme and antitrust violations. Regardless of the outcome of this suit the orders of the Railroad Commission will remain unaffected.

The parties hereto are also involved in another case styled Woods Exploration & Producing Company, Inc. et al. v. Aluminum Company of America et al., Civil Action No. 14,699, 36 F.R.D. 107, in the United States District Court for the Southern District of Texas, Houston Division, which arises out of the same fact situation as is presented here hut is brought under federal antitrust statutes, particularly the Clayton Act (IS U.S.C.A. §§ 15, 26), which case will hereafter he referred to as the “Houston federal court case.” In passing upon a motion to dismiss filed by defendants (appellees here) in that case, based upon substantially the same grounds as are here urged under appellees points 2 and 4, Judge Ingraham, in an opinion dated August 2, 1963, 36 F.R.D. Ill, said:

“The defendants, in urging that this court is without jurisdiction, misconstrue the gravamen of the plaintiffs’ complaint. It is urged that plaintiffs are attacking the validity of an order of the Texas Railroad Commission and that this may be done only in accordance with Section 8 of Article 6049c, Vernon’s Annotated Texas Statutes. The plaintiffs, however, are attacking a conspiracy under the anti-trust laws, and are alleging that one of the manifestations of the conspiracy is the submission of false nominations to the Railroad Commission. The relief prayed for does not in any way challenge the validity of an order of the Commission. Rather, this court is asked to enjoin both the conspiracy and the further submission of false nominations and to award damages for injury sustained as a result of the conspiracy. If, after trial, the conspiracy were established and relief were granted, any order of the Texas Railroad Commission would still stand. This is purely an anti-trust action * * *. Jurisdiction is well founded.”

We believe the same reasoning is applicable in this case and that its nature and character require that it be tried by a district court in which it is properly filed and that the issues herein presented are not exclusively within the jurisdiction of the Railroad Commission or the district court of Travis County, Texas. We believe that the cases of Chenoweth v. Nordan & Morris, 171 S.W.2d 386 (Tex.Civ.App.1943, wr. ref. w. m.); Chenoweth v. Railroad Commission, 184 S.W.2d 711 (Tex.Civ.App.1945, wr. ref. w. m.); Deep South Oil Co. of Texas v. Texas Gas Corp., 328 S.W.2d 897 (Tex.Civ. App.1959, wr. ref. n. r. e.); or Superior Oil Co. v. El Paso Natural Gas Co., 377 S.W.2d 691 (Tex.Civ.App.1964), relied on by appel-lees, do not require a contrary holding. Appellants’ points 2 and 4 are sustained and appellees’ counterpoint I is overruled.

We will next consider appellants’ point 5 concerning the alleged error of the trial court in holding that it was without jurisdiction because of the pendency of a prior action in the district court of Travis County, Texas, in which, at the time of the trial court judgment herein, final judgment had been entered and appeal was pending (such findings appearing in paragraph 3 of the summary of the trial court findings herein-before set out), along with appellees’ counterpoint II which is urged in support of such ruling. The Travis County case referred to was No. 121,595, in the 126th Judicial District Court, styled Aluminum Company of America, et al. v. Railroad Commission of Texas et al., which said case has been recently decided by the Supreme Court of Texas, as heretofore mentioned.

The Travis County case was filed under Section 8 of Art. 6049c, V.A.T.S., for the purpose of testing the validity of the order of the Railroad Commission, dated April 24, 1961, allocating the allowable production of oil and gas in the Appling field. In order for the Travis County case to constitute a proper ground for abatement of the Calhoun County case it must have involved the same subject matter or issues; a judgment therein must have been res judicata of the issues in the Calhoun County case; and the relief obtainable must have been the same.

We have heretofore pointed out that the instant case is one for damages arising out of alleged violations of antitrust statutes, a conspiracy and anti-competitive scheme on the part of appellees. The pleas in abatement and to the jurisdiction herein did not meet the well established tests hereinabove mentioned. The record shows that the issues in the two cases are not the same and a judgment in the Travis County case would not be res judicata of those involved in this case. It is further apparent that appellants could not obtain all the relief in the Travis County case to which they might be entitled in the Calhoun County case.

Antitrust issues played no part in the decision of the Travis County case. The Austin Court of Civil Appeals approved the action of the trial court in sustaining special exceptions to allegations as to such matters made by Woods in that case, and specifically held “ * * * the anti-trust Act has no bearing on the validity of the order before us.” (368 S.W.2d 826). Such matter was not passed on by the Supreme Court when it reversed the decision of the Austin Court of Civil Appeals and upheld the Railroad Commission formula for the Appling field.

The trial court was in error in holding that it did not have jurisdiction of this, case and in sustaining the plea in abatement because of the pendency of the Travis County suit. Appellants’ point 5 is sustained and appellees’ counterpoint II is overruled.

Appellees contend by their counterpoint III that nominations or other representations made by them to the Railroad Commission of Texas, whether individually or in-concert, for the purpose of influencing the governmental action of such commission-in fixing gas production allowables, as ax matter of law, cannot constitute a violation of the Texas antitrust statutes or form the basis or subject matter of an antitrust damage action. This counterpoint is in reply to' all of appellants’ points.

Appellees place particular reliance upon-the cases of Eastern Railroads Presidents. Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464. and Okefenokee Rural Electric Membership Corp. v. Florida Power & Light Co., et al., 214 F.2d 413 (5 Cir. 1954). We do not believe that the said cases require us to reach the conclusion urged by appellee. Instead, we believe that this case falls within the rules announced in the cases of Pan American Petroleum Corp. v. Hardy, 370 S.W.2d 904 (Tex.Civ.App.1963, wr. ref. n. r. e.); Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 82 S.Ct. 1404, 8 L.Ed.2d 777 (1962); and Woods Exploration and Producing Company, Inc. v. Aluminum Company of America, Civil Action No. 14,699, 36 F.R.D. 107, United States District Court, Southern District of Texas, decided August 2, 1963, opinion by Judge Ingraham, heretofore mentioned.

In Pan American Petroleum Corp. v. Hardy, supra, the court held that the defendant-lessee was not as a matter of law entitled to rely upon a single reservoir classification which had been made by the Railroad Commission as a result of said defendant’s wilfully false representations, and that said defendant would not be allowed to benefit from its own wrong doing. That case, in effect, holds that a party who by false representations and concealment of material facts causes the Railroad Commission to make an erroneous classification cannot rely upon and benefit from the same, and that parties injured by such wrongful conduct may recover actual and exemplary damages upon a proper showing.

In Continental Ore Company v. Union Carbide and Carbon Company, supra, the Supreme Court of the United States distinguished the Noerr case, and held, in substance, that even though some of the acts in furtherance of a conspiracy involve a governmental agency, this would not insulate the wrongdoers from responsibility and liability to injured persons. The court pointed out, at 370 U.S. 707, at 82 S.Ct. 1414, that:

“ * * * it is well settled that acts which are in themselves legal lose that character when they become constituent elements of an unlawful scheme. Swift & Co. v. United States, 196 U.S. 375, 396, 25 S.Ct. 276, 279, 49 L.Ed. 518; American Tobacco Co. v. United States, 328 U.S. 781, 809, 66 S.Ct. 1125, 1138, 90 L.Ed. 1575; Steele v. Bulova Watch Co., 344 U.S. 280, 287, 73 S.Ct. 252, 256, 97 L.Ed. 252. See Georgia v. Pennsylvania R. Co., 324 U.S. 439, 457-458, 65 S.Ct. 716, 726, 89 L.Ed. 1051; Slick Airways v. American Airlines, 107 F.Supp. 199, 207 (D.C.N.J.).”

In the Houston federal court case, appellees urged the same contention as is presented here by their counterpoint III concerning the alleged insufficiency of false nominations to constitute a basis for an antitrust action in federal court. Judge Ingra-ham pointed out in his opinion that the case of Eastern Railroads Presidents Conference v. Noerr, supra, involved political activity outside the ban of the Sherman Act and that the case before the court at Houston involved business behavior. Judge Ingraham further held that even if it were assumed that submission of false nominations were political in nature and not within the ambit of antitrust legislation this would not be sufficient to dismiss the complaint because of other alleged activities which were commercial or economic in nature. We agree with such reasoning and believe it is equally applicable to the case now presented to this court.

The trial court erred in sustaining appel-lees’ plea to the jurisdiction and in abate-mcnc on account of the reasons included m appellees counterpoint III. We overrule the same.

Appellees’ counterpoint IV is, in substance, that appellants, as a matter of law, have sustained no injury or damage to constitute the basis of recovery in an attempted antitrust damage suit because it has been finally adjudicated that the one-third — two-thirds formula under which appellants have been granted their gas production allowables is discriminatory in favor of the appellants as small tract owners and confiscatory as to the appellees as large tract owners and has unlawfully permitted appellants to expropriate appellees’ gas and convert and appropriate it to appellants’ own use. This counterpoint is also in reply to all of appellants’ points.

Appellees’ said counterpoint IV was urged in its brief in this Court after Railroad Commission of Texas v. Aluminum Company of America, 368 S.W.2d 818, had been decided by the Austin Court of Civil Appeals a.nd before application for writ of error had been granted by the Supreme Court of Texas in said case. It is now apparent that appellees’ said contention is based upon an incorrect premise since the Supreme Court of Texas has reversed the decision of the Austin Court of Civil Appeals, and has held that the Railroad Commission formula for the Appling field is valid.

We are unable to say, in the state of the record herein, that appellants cannot show injury or damage as a matter of law. Such questions should be left for determination by the trier of the facts when the case is heard on the merits in the court below. Appellants’ counterpoint IV is overruled.

Appellants’ point 6 concerning judicial estoppel becomes immaterial in view of the foregoing discussion.

It follows from the above rulings that the trial court erred in sustaining appellees’ pleas to the jurisdiction and in abatement, in dismissing this case, and in refusing to hold that the district court of Calhoun County-had jurisdiction thereof, as appellants contend in their points 1 and 3. Such points are sustained.

The judgment of the trial court is reversed and the cause is remanded for trial.

      . “Art. 7426. ‘Trusts’
      “A ‘trust’ is a combination of capital, skill or acts by two or more persons, firms, corporations or associations of persons, or either two or more of them for either, any or all of the following purposes:
      “1. To create, or which may tend to create, or carry out restrictions in trade or commerce or aids to commerce or in the preparation of any product for market or transportation, or to create or carry out restrictions in the free pursuit of any business authorized or permitted by laws of this State.
      “6. To regulate, fix or limit the output of any article or commodity which may be manufactured, mined, produced or sold, or the amount of insurance which may be undertaken, or the amount of work that may be done in the preparation of any product for market or transportation.
      “7. To abstain from engaging in or continuing business, or from the purchase or sale of merchandise, produce or commodities partially or entirely within the State of Texas, or any portion thereof.”

      . “Art. 7429 (7799) : Acts illegal
      “Any and all trusts, monopolies and conspiracies in restraint of trade, as herein defined, are prohibited and declared to be illegal.”

      . Section 13 of Article 6049d, Y.A.T.S., provides as follows:
      “See. 13. It is especially provided that nothing herein shall in any manner affect, alter, diminish, change or modify the anti-trust and/or monopoly statutes of this State, and that no provision of this Act shall in any manner directly or indirectly authorize a violation of such antitrust and/or monopoly statutes, and in this connection it is hereby declared and especially provided by the Legislature of the State of Texas enacting this legislation that notwithstanding the provisions of Sections 10, 11 and 12, or any other sections of this Act, it is the legislative intent that no provision of this Act shall in any manner, affect, alter, diminish or amend any provision of the anti-trust and/or monopoly statutes of this State, or in any manner authorize a violation of such anti-trust and/or monopoly statutes; and it is further especially provided that if any provision of this Act shall be so construed by any court of this State as to in any manner affect, alter, diminish, or modify any provision of the anti-trust and/or monopoly statutes of this State, then in that event any such section, subsection, sentence or clause or any provision of this Act so construed as conflicting with said monopoly and/or anti-trust statutes, it is hereby declared null and void rather than the antitrust and/or monopoly statutes of this State. The legislative intent herein expressed is to prevail and take precedence over the provisions of Sections 10, 11 and 12, or any other section or sections of this Act, regardless of any statement therein to the contrary.”

      .Articles 6008, 6029, 6042, 6049c, V.A. T.S.; Gulf Land Co. v. Atlantic Refining Co., 134 Tex. 59, 131 S.W.2d 73 (1939); Thompson v. Consolidated Gas Utilities Corp., 300 U.S. 55, 57 S.Ct. 364, 81 L. Ed. 510 (1937).

      . Article 6049c, Section 8, V.A.T.S.

      . Gregg v. Delhi-Taylor Oil Corp., 162 Tex. 26, 344 S.W.2d 411, 419 (1961); Delhi-Taylor v. Holmes, 162 Tex. 39, 344 S.W.2d 420 (1961); Magnolia Petroleum Co. v. Railroad Commission, 141 Tex. 96, 170 S.W.2d 189 (1943); Lone Star Gas Go. v. Murchison, 353 S.W.2d 870 (Tex.Giv.App.1962, wr. ref. n. r. e.); Looney v. Sun Oil Co., 170 S.W.2d 297 (Tex.Civ.App.1943, wr. ref. w. m.); Articles 7426-7429, V.A.T.S.

      .Elliott v. Joseph, 163 Tex. 71, 351 S.W. 2d 879 (1961); Looney v. Sun Oil Co., 170 S.W.23 297 (Tex.Civ.App.1943, wr. ref. w. m.); Peurifoy v. Davis, 101 S.W. 2d 625 (Tex.Civ.App.1937, wr. dism.); 1 Tex.Jur.2d, Abatement & Revival, Sec. 31, pp. 53-54.

      . Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063 (1926); Northwest Engineering Co. v. Chadwick Machinery Co., 93 S.W. 2d 1223 (Tex.Civ.App.1936, wr. dism.).

      . McCall v. Owens, 68 S.W.2d 1089 (Tex. Civ.App.1934, wr. ref., opinion per Alexander, J.); 1 Tex.Jur.2d, Abatement and Revival, Sec. 35, pages 59-60).

      . In the Houston federal court case appellants (defendants there) contended that they had alleged a cause of action based upon conspiracy, combination and antitrust violations without reference to false nominations or the allowables by the Railroad Commission, and that they were entitled to also rely upon such other allegations. Examination of appellants petition in this case shows that such other allegations are also here relied' upon by appellants, who say that they stand ready to prove the same.


author: WILLIAMS, Justice.

text:
    Vivian Rhea NEWSOME, Appellant, v. B. B. CARPENTER, Jr., Independent Executor, Appellee.
    No. 16403.
    Court of Civil Appeals of Texas. Dallas.
    July 24, 1964.
    Rehearing Denied Sept. 25, 1964.

      Moses & Truett, McKinney, for appellant.
    J. E. Abernathy, McKinney, Stark & Davey, Gainsville, and Harvey L. Davis, Dallas, for appellee.
   WILLIAMS, Justice.

This is an appeal from a judgment of the District Court of Collin County, Texas admitting to probate the last will and testament of Capitola Barnett, deceased. On June 18, 1963 B. B. Carpenter, Jr. filed application in the County Court of Collin County, Texas to probate the last will and testament of Capitola Barnett, deceased, said will being dated May 27, 1955 and the codicil thereto being dated March 3, 1956. The application recited that Capitola Barnett died in Collin County on May 3, 1963 at the age of ninety-six years. Thereafter on May 6, 1963 the County Clerk of Collin County issued notice in probate, the pertinent portions of said notice and citation reading as follows:

“THE STATE OF TEXAS
“County of Collin
“To Any Sheriff or Any Constable Within the State of Texas, Greeting:
“YOU ARE HEREBY COMMANDED to cause to be posted for not less than ten days, exclusive of the day of posting, before the return day hereof, at the Court House door of said County or at the place in or near the Court House where public notices are customarily posted, a copy of the following citation:
“THE STATE OF TEXAS
“To all persons interested in the Estate of Capitola Barnett deceased:
“B. B. Carpenter, Jr. has on 6th day of May, A. D. 1963, filed in the County or Probate Court of Collin County, Texas, an application for the Probate of the last Will and Testament of said Capitola, deceased, and for Letters Testamentary, being cause No. 7216 in said Court, which application will be heard, considered, and acted upon by the Court at 10:00 o’clock, a. m., on Monday, the 20th day of May, A. D. 1963, at the Court House of said County, in McKinney, Texas, at which time and place all persons interested in said Estate shall appear and contest said application by filing opposition thereto in writing, should they desire to do so.”

The sheriff’s return on said citation ■states:

“Came to hand on the 6th day of May A. D. 1963, at 4:30 o’clock P.M., and executed on the 6th day of May A. D. 1963, at 4:30 o’clock P.M., by posting a copy of the within citation at the Court House door of Collin County or at the place in or near the Court House where public notices are customarily posted as herein directed.”

On June 18, 1963 Joe M. Barnett and Ava Miller filed their contest in the County 'Court of Collin County, Texas, wherein they opposed the application to probate said will on the grounds that the decedent was •of unsound mind and also that the will was •the product of undue influence. Prior to the hearing certain other contestants, not including appellant Vivian Rhea Newsome, -entered their appearance, joining Joe M. Barnett and Ava Miller in the contest of the application for probate. Following a hearing the County Court of Collin ■County overruled the contest of the ap-plication and admitted the last will and testament, together with its codicil, to probate. From this order the named contestants gave notice of appeal to the District Court of Collin County. However, only Joe Barnett and Ava Miller perfected their appeal to the district court by executing an appeal bond.

Thereafter, after the case reached the district court, Vivian Rhea Newsome filed an application to intervene as contestant, representing herself to be an heir at law of Capitola Barnett and further stating that the other contestants were abandoning their contest of said' application. The district court granted the application of Vivian Rhea Newsome to intervene and she thereupon filed her plea to the jurisdiction and plea in abatement, both being based upon her contention that the County Court of Collin County was without jurisdiction to enter the order of probate for the reason that citation issued by the county clerk was fatally defective and void and therefore any order issued by the county court based upon such void citation was of no force and effect. Subject to her plea to the jurisdiction and plea in abatement, intervenor contested the application for probate on the grounds that the decedent was of unsound mind and also acting under undue influence at the time she executed the will and codicil sought to be probated. The court overruled the plea to the jurisdiction and plea in abatement and proceeded on November 4, 1963 to try the matter in a de novo hearing. At this trial Vivian Rhea Newsome was the only contestant, the remaining contestants failing to appear and prosecute their appeal. Following the non-jury hearing the district judge admitted to probate the last will and testament, and codicil thereto, of Capitola Barnett, deceased and referred same back to the County Court of Collin County for further proceeding. From this judgment Vivian Rhea Newsome appeals contending, in two points of error, that the judgment should be reversed because (1) the citation in probate was fatally defective, and (2) the proof of will was inadequate and insufficient. We find both points to be without merit and affirm the judgment of the trial court.

Appellant’s first point is overruled for two reasons. First, appellant has waived any possible complaint relating to the citation by not only entering her appearance in the district court but affirmatively invoking the jurisdiction of the court by contesting the will. The trial in the district court was de novo and the jurisdiction of the district court was as comprehensive as that possessed by the county court in the first instance. In re Ramon’s Estate, Tex.Com.App., 42 S.W.2d 1010. The same question was presented in Ellison v. Patton, Tex.Civ.App., 303 S.W.2d 855, err. ref., and the court said that complaining parties who have come into court, answered and invoked the powers of the court, as contestants, thereby waived any and all complaints about the manner or kind of service had and are estopped to claim that the court was without jurisdiction. Section 35 of the Texas Probate Code, V.A.T.S. is explicit in its terms relating to waiver: “Any person who submits to the jurisdiction of the court in any hearing shall be deemed to have waived notice thereof.”

Secondly, in answer to appellant’s contention that citation in this character of proceeding is not a matter personal to any one individual, but is of a public nature and therefore any possible waiver of appellant would have no effect upon the validity of the citation, we hold that the notice in probate and citation in this case is in substantial' compliance with the provisions of the Probate Code and is not therefore fatally defective. Sec. 128(a) of the Probate Code of Texas provides that citation with respect to application for probate of a will shall be served by posting and shall state: (1) that such application has been filed, and the nature of it; (2) the name of the deceased and of the applicant; (3) the time when such application will be acted upon; and (4) that all persons interested in the estate should appear at the time named therein and contest said application, should they desire to do so.

The citation in this case states that notice is given to all persons interested in the Estate of Capitola Barnett, deceased, that B. B. Carpenter, Jr. has filed in the County or Probate Court of Collin County an application for the probate of the last will and testament of said “Capitola”, deceased, and requested letters testamentary, giving the style and number of the pending application in the county court, and stating the exact time and place when such application will be heard. It invites any persons interested in “said estate” to appear and contest said application should they desire to do so. The only possible technical defect in this notice is the fact that the word “Barnett” is omitted in one place but since the full name of the decedent is given immediately above we cannot conceive how anyone would be misled or' deceived by such omission. Not only is the full name of the decedent spelled out but the style and number of the proceedings is given to which any interested party may refer for a complete revelation of the contents and terms of the application.

Appellant contends that the words “last will and testament” are not sufficient to give notice that both the will and codicil are to be offered for probate. This is not a valid objection in that the law is well settled that a properly executed codicil has the effect of validating and republishing the prior will so that the will and codicil will then be considered as one instrument speaking from the date of the codicil. Hinson v. Hinson, 154 Tex. 561, 280 S.W.2d 731, 735; Everett v. Everett, Tex.Civ.App., 309 S.W.2d 893; and Wade v. Sherrod, Tex.Civ.App., 342 S.W.2d 17.

Neither is there any merit to appellant’s complaint concerning the sheriff’s return on the citation. The posting of the notice as described in the sheriff’s return follows the exact words of Sec. 33(f) (2) of the Probate Code of Texas relating to the method of serving citations by posting, and also Sec. 33(h) of the Probate Code relating to the sheriff’s return on such citation. We hold that the sheriff’s return was in substantial compliance with the provisions of the code. Shaffer v. Luby’s Estate, Tex.Civ.App., 297 S.W. 582.

Appellants second point complaining of lack of proof of the will and codicil is likewise without merit. The record reveals that in the county court Frank Beverly, one of the subscribing witnesses to the will dated May 27, 19SS testified that he witnessed the signing of said will by Capitola Barnett on that date and that she was “over the age of nineteen years.” He also testified that he witnessed the signing of the codicil of the will on March 3, 1956 and that on said date Capitola Barnett was over the age of nineteen years. Wallace Hughston, the other subscribing witness, was deceased at the time of the hearing. On the trial of the case, de novo, in the district court, Beverly testified that both on May 27, 1955, the date of signing of the will, and on March 3, 1956, the date of signing of the codicil, that Capitola Barnett was over the age of twenty-one years.

Appellant correctly states that at the time of the execution of the original will, May 27, 1955, the law provided that a person must be over twenty-one years of age to execute a will. It is also true that on March 3, 1956, at the time of the signing of the codicil to the will, the law had been changed so as to permit a person over nineteen years of age to execute a will (Sec. 57, Probate Code). As stated above, the legal effect of a properly executed codicil is to validate and republish the prior will, and the will and codicil are to be regarded as one instrument, speaking from the date of the codicil. We therefore hold that the proof of the codicil met the requirements of the law relative to proof of age of a qualified person to execute a will. Hinson v. Hinson, 154 Tex. 561, 280 S.W. 2d 731, 735; and Wade v. Sherrod, Tex. Civ.App., 342 S.W.2d 17, err.ref. n.r.e It has been well established that there is no hard and fast rule relating to the character or quantum of proof required to establish the proper execution of a will. Massey v. Allen, Tex.Com.App., 248 S.W. 1067. See also the opinion of this court in Bryant v. Hamlin, Tex.Civ.App., 373 S.W.2d 837. We find adequate proof m this record concerning the proper execution of the will, as it satisfied the county court and district court, as reflected in the judgments of those courts finding that the will and codicil had been properly executed.

The judgment of the trial court is

Affirmed.


author: BATEMAN, Justice.

text:
    George OWSLEY et ux., Appellants, v. George F. MIXON et al., Appellees.
    No. 16359.
    Court of Civil Appeals of Texas. Dallas.
    June 26, 1964.
    Rehearing Denied Sept. 25, 1964.

      Wynne, Jaffe & Tinsley, Dallas, and Parker & Williams, Irving, for appellants.
    Saner, Jack, Sallinger & Nichols, H. Louis Nichols and Tim Kirk, Dallas, for appellees.
   BATEMAN, Justice.

This is an appeal from a summary judgment in favor of the defendants in a suit filed by the appellants George Owsley and wife against the appellees George F. Mixon, Preston Forest Shopping Center, Inc. and Mixon Realty for mandatory injunction and actual and exemplary damages alleged to have been caused by fraudulent misrepresentations, breach of restrictive covenants, violation of city zoning ordinances and the creation and maintenance of a private nuisance. The appellants alleged the purchase by them of a home from Mixon and Mixon Realty Company, who represented among other things that no building would be erected in the neighborhood of more than one story in height, that no noxious or offensive trade or activity would be carried on and that nothing would be done to create an annoyance or nuisance to the neighborhood, that the proposed nearby shopping center would consist of a group of stores or buildings having not more than one story in height, separated from the dwellings by a “buffer zone” and a six-foot wall, etc.

The appellees specially pled waiver, estoppel and res judicata, then moved for summary judgment on the ground that a previous judgment rendered in the cause of Jacobson et al v. Preston Forest Shopping Center, Inc. was res judicata of the appellants’ right to recover in this case. This motion was sustained. In the Jacobson suit neighboring property owners (including appellants) appealed from a decision by the Board of Adjustment of the City of Dallas granting to the appellees a variance permitting the erection of the very buildings of which appellants complain in this suit.

By their first and second points of error on appeal the appellants contend that the judgment in the Jacobson case is not res judicata of this case, as held by the trial court, but that their petition in that case sought only a review of the order of the Board of Adjustment, and that since their claim for damages was not therein asserted by pleading, proof or prayer they have not yet had their day in court as to such claim. We agree.

The Jacobson case was determined by this court (Jacobson v. Preston Forest Shopping Center, Inc., 359 S.W.2d 156, err. ref. n. r. e.), and we have reviewed the entire record of that case in considering these points. It clearly shows that neither the appellants here nor any of the other twenty-six plaintiffs in that case made any effort whatever to present to the trial court anything other than their appeal from the order of the Board of Adjustment. We think it also clear from that record that the court did not attempt to adjudicate anything else and was not asked to do so.

Appellees assert with considerable vigor that the issue of damages was raised and adjudicated in the Jacobson case in that: (1) in the introductory paragraph of the petition was this language, “and file this their Original Petition requesting a Writ of Certiorari to review a decision of the Defendant, the Board of Adjustment, and seeking an injunction and damages and as grounds therefor would show the court, etc.” (italics ours) and (2) the prayer was for “such other and further relief, legal and equitable, general and special, to which they may be in any wise entitled,” and (3) the judgment recited that the plaintiffs “take nothing herein, and that all relief sought by the plaintiffs be, and the same is hereby, denied and that the decision of the Board of Adjustment * * * be, and the same is, in all things affirmed.”

Notwithstanding the general language used in the petition and in the judgment in the Jacobson case, as above quoted, such petition and judgment cannot be interpreted to mean that the plaintiffs in that case intentionally sought adjudication of any claim for damages or that the court intended to adjudicate any such claim.

It is also true that several of the plaintiffs (not including appellants here) testified-on the trial of the Jacobson case that their homes had been damaged by the acts of the defendants, and while several of them mentioned the amounts invested in such homes there was no attempt made to demonstrate how much such values had been reduced or how much damage had been suffered. This, of course, could not have had the effect of putting in issue the appellants’ claim for damages.

Appellees also point out that counsel for appellants stated in the Board of Adjustment hearing that certain of his clients were then trying to sell their homes in the area and were being offered less than one-third of the original price because of the fact that the building erected by appellees has damaged the neighborhood. This was obviously intended to demonstrate to the Board the intense interest of the plaintiffs in enforcement of the zoning ordinance, and could hardly be considered an attempt to prove damages, especially since it was made to an administrative board which had no authority to award damages.

Appellees contend that the failure of appellants to offer any evidence of their loss or damage in the trial of the Jacobson case did not preclude adjudication of that portion of their cause of action, arguing that the doctrine of res judicata is not restricted to matters actually adjudicated but extends also to matters that might have been litigated, and citing 34 Tex.Jur.2d JUDGMENTS, p. 564, § 501, and Freeman v. McAninch, 87 Tex. 132, 27 S.W. 97. This general rule is well recognized but does not require the joinder of all causes of action a plaintiff may have against a defendant merely because there is some connection between them.

“But the rule, although it requires the plaintiff to set up all the elements of his cause of action, does not require him to set up matters beyond the scope of a proper statement thereof or to join all other causes of action that may have a possible connection with the subject matter of the litigation.” 34 Tex.Jur.2d Judgments, p. 567, § 501.

As stated in 34 Tex.Jur.2d Judgments, p. 546, § 492, “ * * * in order for a judgment in one suit to bar the bringing of a subsequent one, there must be: identity in the thing sued for; identity of the cause of action; identity of persons and parties to the action; and identity of quality in the persons or parties.”

Having already demonstrated that the appellants did not intentionally put in issue in the Jacobson case their claim for damages, and that such claim was not actually adjudicated in that case, we now hold that the judgment in the Jacobson case did not bar the prosecution of the present suit for damages on the theory that that claim might have been litigated therein, for three reasons:

1.There is not that identity of parties required for operation of the rule relied on by appellees. The Jacobson case was a tripartite proceeding wherein one group of parties consisted of the Board of Adjustment of the City of Dallas, the City Building Inspector and the City of Dallas itself, representing the public interest; a second group of parties being the appellees herein, the owners of the involved property; and the third group of parties being the appellants and twenty-six others owning neighboring property, claiming a special interest in the enforcement of the zoning ordinance. The present suit is a common law action wherein the appellants are plaintiffs and the appellees defendants. If this controversy had been injected into the Jacobson case, the Board of Adjustment, the City of Dallas and the City Building Inspector, and the public interest represented by them, would have had no interest whatever in it. In fact they probably would have complained bitterly if the trial court had either permitted or required all of the twenty-eight plaintiffs in that case to prove the claimed damages to their fourteen homes. It has been said that in such a case the only question is the legality of the order of the Board of Adjustment. Jacobson v. Preston Forest Shopping Center, Inc., 359 S.W.2d 156, 159; City of San Angelo v. Boehme Bakery, 144 Tex. 281, 190 S.W.2d 67.

2. There was no identity of the causes of action; one being in the nature of an appeal from an administrative order and the other being a common law action for damages. The one involved the applicability and enforcement of a zoning ordinance ; the other involved a claim of fraudulent misrepresentations, nuisance and breach of restrictive covenants.

3. The standards and rules governing the proof of the two causes of action were entirely different. In the certiorari proceedings the substantial evidence rule prevailed, while in this suit for damages the plaintiffs must prove their case by a preponderance of the evidence.

Accordingly, we hold that in the situation presented by the record before us, the appellants were not required to present their claims for monetary damages in the certio-rari proceedings involved in the Jacobson case and did not do so, and that the doctrine of res judicata does not bar them from prosecuting those claims in this suit. Moore v. Snowball, 98 Tex. 16, 81 S.W. 5, 66 L.R.A. 745; Berry Bros. v. Fairbanks, Morse & Co., 51 Tex.Civ.App. 558, 112 S.W. 427, no wr. hist.; Estapa v. Saldana,. Tex.Civ.App., 218 S.W.2d 222, err. ref. n. r. e. Appellants’ first and second points-of error are sustained.

By their third point of error appellants assert that their verified reply to the appellees’ motion for summary judgment raised a genuine issue as to a material fact,, to wit, that appellees were estopped to raise the defense of res judicata. This is based upon the hypothesis that the appellees, having tried the Jacobson case with full knowledge that the present suit for damages was pending and had not been disposed of, and despite this knowledge made no attempt to consolidate the cases, by their silence consented to separate trials of the statutory appeal from the Board of Adjustment order and the damage suit Appellants assert that under this set of fácts they are entitled to invoke the doctrine of equitable estoppel, and that estoppel is a question of fact for the jury.

We fail to see the logic of this argument. The facts were undisputed. Appellees were under no duty to move for the consolidation of the cases or to warn appellants that unless they presented their damage claim in the Board of Adjustment certiorari proceedings they would later be faced with a plea of res judicata. This point is therefore overruled.

Because we feel that under all the facts and circumstances of this case the appellants have not had their day in court on their claim for damages, we reverse and remand the summary judgment against them.

Reversed and remanded.


author: SELLERS, Justice.

text:
    H. H. ALVORD, Jr., Appellant, v. TENNECO CORPORATION, Appellee.
    No. 69.
    Court of Civil Appeals of Texas. Tyler.
    July 16, 1964.
    Rehearing Denied Oct. S, 1964.
    Tom Bankhead, Carthage, for appellant.
    Patrick H. Rafferty, Rafferty, Taylor & Kepner, Houston, John Minton, Jr., Sprui-ell, Lowry, Potter, Lasater & Guinn, Murph Wilson, Wilson, Miller, Spivey & Steger, Tyler, J. E. Jackson, Long, Strong, Jackson & Strong, Carthage, for appellee.
   SELLERS, Justice.

On March 7, 1941, Natural Gas Production Company, Inc., was the owner of eight separate oil and gas leases located in Harrison and Panola Counties. On this date there were on these leases sixteen producing oil wells, one of which was producing from a depth of 4,704 feet. This was the deepest well producing at the time. On this date Natural Gas Production Company entered into an agreement with Midstates Oil Corporation to secure the drilling of an oil and gas well to 6,500 feet unless oil and gas in paying quantities was discovered at a lesser depth, but below 4,704 feet. In the event oil and gas in paying quantities was not discovered in the 6,500-foot well, then all rights provided for in this contract was to revert to Natural Gas Production Company. This contract provided that Natural Gas Production Company would assign the leases to Midstates Oil Corporation with certain reservations.

On April 24, 1941, Natural Gas Production Company executed the assignment in pursuance of the above-mentioned contract to Midstates Oil Corporation in which all of the rights in and to the leases were assigned to Midstates Oil Corporation subject to certain reservations therein contained.

After reciting that there were certain wells producing from said leases and giving their number and approximate depths, it is provided:

“Title to each of the wells presently producing and listed above shall remain in Natural and shall not pass under this agreement to Midstates, and the equipment and appurtances and all present and future production from said wells, together with the right to sell such production under existing gas purchase contracts applicable thereto, shall belong to Natural so long as said wells continue to produce from the horizons from which said wells are presently producing and until Natural elects to abandon same as hereinafter provided.”

It further provided for the abandonment of said wells, as follows:

“In the event Natural, at any time desires to abandon any well presently producing on any of said leases, it shall give Midstates thirty (30) days notice in writing of such intentions to abandon. Midstates shall within said thirty (30) day period either elect to take over such well or give notice of its acquiescence in such abandonment.
In the event Midstates takes over any such well it shall pay Natural the then salvage value of said well and Mid-states may rework or redrill or deepen said well, in its discretion, it being agreed, however, that Natural reserves no overriding royalty on the production from any such well derived from horizons from which the well is producing at the time Midstates takes same over. Midstates shall be obligated to pay overriding royalties only on the production from such well derived from deeper horizons.”

H. H. Alvord, Jr., plaintiff herein, acquired all of the interest in Natural Gas Production Company shortly after the above contract and assignment were executed. The well provided for in the contract and assignment was completed at 6,500 feet. The defendants acquired the rights of Midstates Oil Corporation in certain of the leases and the defendant, Tenneco Corporation, assigned certain rights in one of the leases to intervenors who drilled a well on said lease which is producing at a depth of 4,704 feet above which level plaintiff claims the leasehold estate. This suit was instituted by H. H. Alvord, Jr., against Ten-neco Corporation to have the assignment and contract interpreted and plaintiff’s petition contains the following prayer for relief:

“WHEREFORE, the Plaintiff being without adequate remedy in the premises, prays that the Court take jurisdiction of the parties and the subject matter in this cause; that the Court by its decree herein make a full and complete declaration with regard to the relative rights, liabilities, duties and legal relations of the parties with reference to the oil, gas and mineral leasehold estate rights from the surfaces to a depth of 4,704 feet, and that ■such contracts, assignments and agreements be construed and interpreted as they may affect such respective rights ■of the parties and that the Court declare that Plaintiff is the owner and holder of such shallow rights in said ■oil, gas and mineral leases, for general relief and such other relief as the Court may deem proper in law or in equity and for cost of suit.”

The defendant and intervenors filed an answer setting up a number of defenses not necessary here to mention in view of the disposition of this appeal.

In due time the defendant and interve-nors filed a motion for summary judgment, alleging that the wells on the leases under which they claim had been abandoned or they could find no evidence of any existing wells. This motion for summary judgment was resisted by the plaintiff and plaintiff denied that there had ever been any abandonment by plaintiff of the wells on this lease or any of the other leases in keeping with the provisions of the contract and assignment for the abandonment of the wells.

The trial court, after a hearing, granted ' the motion for summary judgment of defendant and intervenors and entered judgment for defendants and intervenors for title to the leasehold estate subject to an overriding royalty about which no controversy exists. From this judgment the plaintiff has duly prosecuted this appeal.

It is now settled that a summary judgment will not be sustained, unless the pleadings, depositions, and affidavits show that there is no genuine issue as to any material fact. Rule 166-A, Texas Rules of Civil Procedure.

We are of the opinion that this record presents an issue of fact as to whether there has been an abandonment of the wells on the lease by the plaintiff in keeping with the provisions for abandonment provided for in the contract and assignment. The question of abandonment is, as a rule, a question of fact. The mere non-use of an oil well does not constitute abandonment. Humble Oil & Refining Co. v. Cook et al., Tex.Civ.App., 215 S.W.2d 383.

The judgment of the trial court is reversed and the cause remanded.


author: DAVIS, Commissioner.

text:
    Joseph C. O’BRYAN, Appellant, v. CITY OF LOUISVILLE, Louisville Zoological Commission, Inc., et al., Appellees. Chester W. JENNINGS, Appellant, v. CITY OF LOUISVILLE, a Municipal Corp., et al., Appellees.
    Court of Appeals of Kentucky.
    June 26, 1964.
    Rehearing Denied Oct. 23, 1964.
    James B. Young, Louisville, for Jennings.
    James E. Thornberry, Louisville, for O’Bryan.

      Eugene H. Alvey, James W. Menefee, S. L. Greenebaum, Louisville, for appellees.
   DAVIS, Commissioner.

These appeals present the question whether the City of Louisville may operate a zoo pursuant to plans it has adopted. The Jefferson Circuit Court sustained the validity of the city’s proposed zoo operation. In these consolidated appeals, taxpayers challenge the judgment, asserting two bases for reversal: (1) Louisville is not authorized to operate a zoo; (2) even if it may operate a zoo, the method proposed is illegal as vio-lative of constitutional provisions.

The parties stipulated the facts. Pursuant to resolution of Louisville’s Board of Aldermen, dated January 23, 1963, the Mayor of Louisville was authorized to and did execute for the city an agreement with James Graham Brown Foundation, Inc. (herein referred to as Foundation). Since appellants premise 'much of their attack upon the modus operandi, we summarize the provisions of the January 23 agreement between the city and the Foundation: (1) The city and the Foundation agreed to cause to be formed a nonprofit corporation pursuant to KRS Ch. 273. The purposes of the corporation shall be “in general to establish and manage the zoo and those purposes, its specific powers and duties in connection therewith shall be as set out in its Articles of Incorporation which shall be in substantially the form attached * (Such corporation will be referred to as the Commission.)

(2)The city and the Foundation, acting through the Mayor and Mr. J. Graham Brown, or other nominees of theirs, shall constitute “The Committee,” whose duties and powers include selection of a zoo site, selection of architects, engineers and other qualified technicians whose duties shall include preparation of plans and specifications for construction of the zoo, arranging for and supervising the construction of the zoo and necessary facilities, and the installation of wildlife exhibits. The Committee w.as empowered to plan and prepare a suitable schedule- for- the construction, opening and development of the zoo, and to arrange for the Commission to employ a Director of the zoo as soon as feasible.

(3) As soon as a zoo site has been selected the city is to make the site available to the Commission for a zoo, by “license, lease or conveyance.”

(4) The city agreed to furnish, without cost to the zoo, the required surveys and maps, and to install sewers and' facilities for public utilities. The city agreed to construct the'needed walkways and roads to and in connection with the zoo.

• (5) The Foundation agreed that, upon compliance by the city with the foregoing conditions, the Foundation will contribute to the Commission $1,500,000 to defray costs of construction of the facilities for the zoo and to provide for acquisition of animals. Details as to payment, not necessary for consideration here, were provided.

(6) The city and the Commission shall provide all funds required for the operation of the zoo from its inception; the Foundation’s liability is expressly limited to the sum of $1,500,000.

The contemplated corporation (the Commission) was established February 1, 1963. The Mayor placed $5,000 from the Mayor’s contingent fund at the disposal of the Commission; disbursements were made from that fund by the city’s Director of Finance on order of the Mayor. It is clear that all such disbursements were for items relating to the ultimate establishment of a zoo.

The Board of Aldermen created an item in the city’s budget for 1963-1964 in the sum of $19,098.20, payable from the city’s general funds. The item was for the uses and purposes of the Commission; it is shown that the Director of Finance has disbursed money from that budgeted fund, on order of the Commission, for various expenses incidental to the establishment of the zoo. The regular salary of Dr. Ivo Poglayen, Director of the Zoo, has been paid from a city fund appropriated to the Commission by the Board of Aldermen since July 1, 1963. It is admitted that Dr. Pog-layen is not an employee of any recognized branch of the government of the City of Louisville. He was selected as Director of the Zoo by action of the Board of Commissioners of the Commission.

On July 31, 1963, after hearing recommendations from the Commission, the Board of Aldermen of Louisville authorized the Mayor and Director of Parks and Recreation to negotiate for the purchase of a zoo site; the proposed site was identified with particularity.

On September 11, 1963, the city enacted an ordinance amending a portion of the Master Plan of the city so as to permit the site area to be used for park purposes, including the establishment of a Zoological Garden.

On the same date the Board of Aldermen adopted an ordinance authorizing the Mayor and Director of Parks to enter into a “license agreement” with the Commission, to permit the Commission as agent for the city to install, operate and maintain a zoo and any facilities and enterprises reasonably customary and appropriate thereto.

The license agreement recites that the city proposes to acquire the zoo site, and promptly after such acquisition the license to the Commission shall become effective, subject to the city’s right to terminate it at will. The license agreement substantially incorporates the recitations of the January 23rd agreement between the city and the Foundation, and provides that “Subject always to the advice, approval and direction of the City acting by and through its Department of Parks and Recreation, and as the City’s agent, the Commission shall” manage the zoo.

The parties recognize the rule that a municipality possesses only those powers expressly granted by the Legislature, plus such powers as may be necessarily implied and properly incident to the granted powers. City of Harrodsburg v. Southern Ry. Co., Ky., 313 S.W.2d 864.

It remains then to ascertain whether Louisville, a city of the first class, has the power to establish and maintain a zoo. The chancellor found that it does possess such power, and we agree. Although there is no statute specifically authorizing zoo operation, it appears clear that KRS 97.010(1) affords ample statutory basis for the activity. We think it may not be doubted that a zoo qualifies for inclusion in the statute’s authorization of “parks, playgrounds and recreation centers.” McQuillin, Municipal Corporations, 3rd ed., § 28.51; 38 Am.Jur., Municipal Corporations, § 562; City of Cleveland v. Lausche, 71 Ohio App. 273, 49 N.E.2d 207. Since we conceive that KRS 97.010(1) accords ample authority for the operation of a zoo by a Kentucky city, we do not reach the question whether various other statutory provisions may also grant the authority.

As it is clear that Louisville may operate a zoo, the question is whether the proposed plan is a legal mode of so doing. Appellants contend that Kentucky Constitution, §§ 157, 162 and 179, are offended by the plan; we are unable to concur.

Section 157 prohibits a municipality’s becoming indebted to an amount exceeding, in any year, the income and revenue provided for such year, without the voted assent of two-thirds of the voters. Any contract violative of the section is void. Here there is no showing that Louisville has incurred or contracted to incur such a debt. Indeed, there is no showing whatever in this regard. Moreover, the city’s obligation to defray the expenses of the operation and maintenance of the zoo may be terminated at the will of the city. Under these circumstances, there is no merit in appellant’s argument on this point. Williams v. Estill County, 253 Ky. 417, 69 S.W.2d 683; City of Covington v. Moore, 218 Ky. 102, 290 S.W. 1066.

Section 162, Kentucky Constitution, prohibits payment by a municipality of any claim created against it by an agreement or contract made without express authority of law. Since the city is authorized to maintain a zoo, it is apparent that the cited constitutional provision is inapplicable.

Neither is § 179, Kentucky Constitution, contravened. By its terms, the constitutional provision deals with what the general assembly may authorize a city to do. No such question is presented. Additionally, the funds of Louisville are not being appropriated for the benefit of a private corporation; on the contrary, the funds are to be used for the city’s purpose in operating the zoo. The Commission, “subject always to the advice, approval and direction of the City,” is to supervise the expenditure of the city’s funds on behalf of the city. That it is appropriate for a municipal corporation to use others in the performance of certain administrative or ministerial functions is established. Jefferson County v. Jefferson County Fiscal Court, 220 Ky. 678, 299 S.W. 209; Board of Trustees of House of Reform v. City of Lexington, 112 Ky. 171, 65 S.W. 350.

We hold that there is no illegal delegation of authority. The last cases just cited above clearly recognize the power of a municipal corporation to use others in the performance of administrative and ministerial duties; moreover, the tendency of this and other courts is to realistically recognize that even legislative power, in particular instances, may indeed be delegated. Commonwealth v. Associated Industries of Kentucky, Ky., 370 S.W.2d 584. It is to be noted that Moremen, J., speaking for the court in the Associated Industries opinion, said: “There is nothing wrong with this [delegation of legislative power] so long as the delegating authority retains the right to revoke the power.” 370 S.W.2d 588, op. cit.

Thus, even if it were assumed that the instant case presents a true delegation of .legislative power (which we do not believe it does), nevertheless, under the authority] just cited, such a delegation would not vitiate the plan — in light of the city’s unqualified right of revocation.

Appellants sought, in the trial court, ’ to make capital of the change in the Master Plan of zoning, which change so enlarges the permitted uses as to include a zoological garden. The point is not argued in appellants’ brief; we do not consider the point. RCA 1.210(a)2. We observe that the trial judge saw no significance in it; neither do we.

The judgment is affirmed in each appeal.


author: CLAY, Commissioner.

text:
    Albert E. HULBERT, Jr., et al., Appellants, v. BOARD OF EDUCATION OF LOUISVILLE, Kentucky, and Board of Education of Jefferson County, Kentucky, Appellees.
    Court of Appeals of Kentucky.
    Sept. 22, 1964.

      Alex P. Humphrey, Booth, Walker & Humphrey, Louisville, for appellants.
    Henry A. Triplett, Hogan, Taylor, Den-zer & Bennett, Lucian L. Johnson, Jack Q. Heath, Louisville, for appellees.
   CLAY, Commissioner.

This declaratory judgment action questions the validity of two propositions to be submitted to the voters at an election initiated by the Boards of Education of the City of Louisville and Jefferson County. The Chancellor held the questions legally sufficient.

The questions which will appear on the respective ballots are:

“Are you for or against the following combined tax authorisation for public school purposes: (a) levying in the Louisville Independent School District each year an additional general ad valorem property tax at a rate not exceeding 32‡ on each $100.00 of property subject to local taxation in said district as authorized by KRS 157.440, and, (b) imposing an annual license fee on any business, trade, occupation or profession at a rate not to exceed %oths of 1% of wages and net profts from activities conducted in said school district, as authorized under KRS 160.-531 ?” (Our emphasis)
“Are you for or against both of the following combined tax authorisations for public school purposes: (a) levying in the Jefferson County School District each year an additional general ad valorem property tax at a rate not exceeding 32‡ on each $100.00 of property subject to local taxation in said district as authorized by KRS 157.440, in addition to the presently levied $1.50 property tax rate for general school purposes, and in addition to the 50¡á Special Voted School Building Tax rate, and also (b) imposing an annual license fee on any business, trade, occupation or profession at a rate not to exceed %oths of 1% of wages and net profits from activities conducted in said school district, as authorized under KRS 160.-531 ?” (Our emphasis)

The principal contention is that each question presents two separate propositions and the combining of two or more different objectives in a single question is illegal on the ground the voter is not given a fair choice. See 29 C.J.S. Elections § 170, page 246. The rule condemns the practice of inducing the voter to favor an objectionable or odious proposition by coupling it with an unrelated meritorious one, thereby'denying him the right to accept the good and reject the bad. See 43 Am.Jur., Public Securities, section 91 (page 344); 4 A.L.R.2d 626. The courts will not countenance what would constitute a “legal fraud”. Hart v. Board of Education, 299 Mo. 36, 252 S.W. 441.

Combining related objectives in a single question is not, however, necessarily improper or invalid. City of Louisville v. Board of Park Com’rs, 112 Ky. 409, 65 S.W. 860; Swann v. City of Murray, 146 Ky. 148, 142 S.W. 244. These cases involved a vote on bond issues, the proceeds of which could be used for multiple purposes. Conversely, a propostion which designates a single general purpose with multiple sources of revenue may similarly present a fair question to the voter. City of Raytown, Mo., 349 S.W.2d 363.

The problem is a practical one, and the important consideration is whether the parts of a proposal are reasonably related. See 4 A.L.R.2d 621. Here the proposing authorities had apparently concluded that their objective (public school purposes) could only be achieved by the imposition of both of two different types of additional taxes. Multiple sources of revenue are reasonably related in and to the plan. No valid reason appears why the voter should have a right to reject part of a program which the proposing authorities deemed essential to the whole. The Boards of Education take the risk that their single objective may fail if the voter does not favor one phase of the project. Certainly the voter is not misled, unfairly dealt with, or improperly influenced by the form of the question.

Since each proposition before us presented an essentially unified scheme, all parts of which are reasonably related, we can find nothing in the question which does not afford the voter a free and fair choice in determining the merits of the proposal. The questions to appear on the ballot are proper both as to form and substance..-.,

Appellants complain that' the ■ question proposed by the City Board, unlike that proposed by the County Board, did not recite that the new taxes would be in addition to certain others specified. No law requires the listing of existing taxes in the proposal for a new tax. The question recites that the ad valorem tax will be an “additional” one. Even without this it would seem clear that a proposition upon which a vote is requested must necessarily be for something other than that which was then in existence. The voter could not be misled or deceived in this respect.

The judgment is affirmed.


author: FAUST Y. SIMPSON, Special Commissioner.

text:
    E. C. ELLIS et al., Appellants, v. Ivan KNIGHT, Appellee.
    Court of Appeals of Kentucky.
    Sept. 25, 1964.

      L. M. Ackman, Williamstown, for appellants.
    William F. Threlkeld, Williamstown, for appellee.
   FAUST Y. SIMPSON, Special Commissioner.

Appellee, Ivan Knight, filed this action against appellants, E. C. Ellis and his wife Naomi Ellis, to recover damages for the: alleged breach of a contract for the building of a house by appellee for the appellants. A judgment was entered on a jury verdict for the appellee.

Appellants are the owners of a lot located on Kentucky Highway No. 22 near Dry Ridge, Kentucky. They contracted with appellee to build a house on this lot according to plans and specifications outlined in the contract. Under the terms of the contract appellee was to be paid $4,000 when the basement was completed, $5,000 when the house was under roof and the balance of $4,000 when the house was completed.

According to the plans and specifications, the depth of the basement was to be 7 feet 6 inches. After the basement had been dug, the footings poured and the concrete walls poured, which extended 22 inches above the ground, and center beam installed, a dispute arose between the parties as to how high above ground level the top of the basement wall would extend. Appellants contended the parties agreed the top of the basement walls should be level with the ground. Appellee denied such agreement. The parties were unable to solve their differences and appellants ordered appellee to stop all work and not to return to the premises. Appellee then filed this action to recover the sum of $4,000 under the contract for completing the basement, and $750 in damages for being prohibited from completing the contract. During the course of the trial, appellee testified all he wanted to recover was the amount expended to date for completing the basement, which was $2,364.65, and $750 in damages for being prohibited from fulfilling his contract, or a total of $3,114.-65. The jury returned a verdict for appel-lee for this amount. Following the trial and before judgment was entered, appellee filed an amended complaint to conform the pleadings to the proof by alleging that in carrying out the terms of his contract with appellants he expended the sum of $2,364.65 for goods, wares, merchandise, labor, etc. ,

Appellee urges the Court to strike appellants’ brief from the record and affirm the judgment on the ground appellants failed to comply with RCA 1.210 in that they failed, in their brief, to designate a statement of the questions presented.

While it is unnecessary to pass on this question as the case must be affirmed on other grounds, counsel should be admonished that this rule is clear in its meaning and is designed to assist the Court in evaluating a litigant’s position and a failure to comply with the rule could result in jeopardizing the litigant’s rights in this Court.

Since appellants did not m their brief designate a statement of the questions presented, it is difficult to determine their contention, but we conclude from their brief that their only complaint is the appellee sued on an express contract but recovered on an implied contract and this cannot be done, and cite as authority Moore v. Stanfill, 235 Ky. 372, 31 S.W.2d 610; King v. Ohio Valley Terminix Co., 309 Ky. 35, 214 S.W.2d 993. We agree with the principles laid down in these cases, but they have no application to the instant case. We cannot agree with appellants that ap-pellee recovered on an implied contract. The allegation in the complaint is that ap-pellee was entitled to recover as damages $4,000 for work done under the contract, later amended to $2,364.65, and in addition, the sum of $750 for loss of profits on the entire contract. Appellee’s proof adequately sustained these allegations. We have heretofore held that this is the proper measure of damages where the contractor is wrongfully prohibited from completing his contract. Western v. Sharp, 53 Ky. (14 BMon) 177; Standard Const. Co. v. Jeunesse, 140 Ky. 833, 131 S.W. 1028; and Johnson v. Tackitt, 173 Ky. 406, 191 S.W. 117.

We might also add that the trial court instructed the jury on this theory and the appellants made no objections to the instructions, nor offered any instructions submitting any other theory. Having made no objections nor offered any to the contrary, they are not now in a position to claim error. See Blankenship v. Staton, Ky., 348 S.W.2d 925.

The panel recommends that the judgment of the lower court be affirmed.

The opinion is approved by the Court and the judgment is affirmed;