author: DUNAGAN, Chief Justice.

text:
    UNIVERSAL HOME BUILDERS, INC., et al., Appellants, v. W. E. FARMER, et ux., Appellees.
    No. 22.
    Court of Civil Appeals of Texas. Tyler.
    Feb. 13, 1964.

      Jay M. Goltz, Weinberg & Sandoloski, Arnold N. Sweet, Dallas, for appellants.
    Wm. Andress, Jr., Dallas, for appellees.
   DUNAGAN, Chief Justice.

This is a suit brought by appellees (plaintiffs) in trespass to try title. Appellants (defendants) answered by plea of not guilty and other defensive pleas not involved on this appeal. The case was tried to the court without the aid of a jury. Judgment was entered for the plaintiffs. No findings of fact or conclusions of law were filed, and no request for such filing was made. There is a stipulation in the record by and between the attorneys for the parties that this case was heard before the court, no jury having been demanded, all parties agreed that there were no issues of fact in this cause and that the same should be submitted to the court upon written instruments and copies thereof, and that the court would try only the questions of law in the case. The stipulation further states that various deeds, copies of deeds, certified copies of deeds, plats and surveys, were submitted to the court to aid the court in its decision as to the law of the case. The parties agreed in open court that said deeds, copies of deeds, plats and surveys could be used in lieu of originals and were accepted as true and correct. The stipulation further recites that a list of said instruments, prepared by Miss Edith C. Davis, Court Reporter, is attached hereto and made a part hereof. A list of the exhibits introduced was made a part of the stipulation.

By a stipulation and agreement of the parties at the time of the trial of this case in the court below, the sole evidence submitted to the court consisted entirely of various deeds, copies of deeds, certified copies of deeds, plats and surveys, which are now shown to be before the court as a part of the record in this case. There was no oral testimony or any other character of evidence offered, except that above mentioned. All of the exhibits that were submitted to the court are now before this court as original exhibits pursuant to an order of the Trial Court. There is no statement of facts on file in this case with this court.

Appellants’ points of error one and two are:

“First Point of Error
“APPELLANTS, HAVING PROVED A PRIMA FACIE CASE BY SHOWING TITLE FROM A COMMON SOURCE, AND HAVING SHOWN SUPERIOR TITLE, WERE ENTITLED TO JUDGMENT.
“Second Point of Error
“THE SOURCE OF APPELLEE’S TITLE TO THE DISPUTED TRACT WAS GRADY WALL, A SOURCE INDEPENDENT FROM THE COMMON SOURCE OF THE PARTIES’ TITLES, AND THERE WAS NO EVIDENCE AS TO THE SUPERIORITY OF SUCH SOURCE.”

W. Alexander Scott, Sr., owner of Tract F-K-L-C-H-G-F, is the common source of title, both appellants and appellees having obtained their chain of title from him. Ap-pellees’ chain of title is through conveyances from Scott, et al. to Grady Wall, and Grady Wall to W. E. Farmer and wife, appellees. The deed into appellees, being the last deed in their chain of title from the common source, allegedly creates a conflict involving a triangle of land 1,000 feet long and 30 feet wide along appellants’ north line (triangle K-O-X), which is the area in dispute. Appellants contend that the question is one of title rather than boundary and ap-pellees contend that it is a question of boundary rather than title. Be that as it may, we think this question is not important to a proper disposition of this case.

Grady Wall, the immediate grantor of appellees, deeded a part of his original tract to appellees, W. E. Farmer and wife, Ora Jane. There was a call for parallelism in such deed from Wall to the Farmers for the first time which gives rise to appellees’ claim to the land in dispute. Appellees contend that the parallel call in the Farmer deed would make Farmers’ south boundary run North 89° 38' East rather than the actual call in the Farmer deed of North 88° 45' East. The Trial Court held that appel-lees’ true south boundary, being appellants’ north boundary, ran South 89° 38’ East. The call in the description of the land in the deed from Wall to the Farmers, which has brought about the dispute between the parties to the land in question, is “THENCE N. 88 deg. 45 min. E. and parallel with the S. line of said J. F. Nelson 5 acre tract, 1000 ft.” (Emphasis supplied). The south line of the Nelson tract calls for a course of North 89° 38' East. If the parallel call in the deed from Wall to the Farmers controls over the call for course and distance as contended by appellees, it would include the land in controversy. The deeds from the parties’ common source in their respective chains of title, with the exception of the Wall to the Farmers deed, describe the north boundary of appellants’ tract and the south boundary of appellees’ tract as being South 88° 45' West, or conversely, North 88° 45' East without reference to any other muniment. Appellants say “there being no conflict in the first deeds from the common source, a fortiori, appellants have title to the land below line K-L (area in controversy). The deed from appellees’ immediate grantor, Grady Wall, described the boundary line in question in a different manner. Appellants, having assumed and met the burden of showing title deraigned from a common source, are entitled to judgment for title and possession.” With this contention, we agree. The rule as to a common source of title is that, where a party has proved that he and the other party claim title to land from a common source and that he has superior title, he shows a prima facie right to recover. Howard v. Masterson, 77 Tex. 41, 13 S.W. 635; Rice v. St. Louis, A. & T. Railway Co., 87 Tex. 90, 26 S.W. 1047; Temple Lumber Company v. Arnold, Tex. Civ.App., 14 S.W.2d 926; Roberts v. Blount, Tex.Civ.App., 120 S.W. 933.

Appellees’ claim to the disputed tract springs from a description in their deed from Grady Wall whereby a call for parallelism, if the call for course and distance is disregarded, brings the southern line down to include the disputed tract. It is clear that if Grady Wall had superior title to the disputed area, it was from an independent source. The transcript and original exhibits filed herein constitute the entire record of the case and there is no evidence in the record making Grady Wall a superior titleholder to the disputed tract. The deed from the common source to Wall conveyed only property above line K-L as shown on plat. For appellees to prevail they must show outstanding superior title to the disputed tract into Wall deraigning from the State. No such evidence is in the record to overcome the presumption that the common source held all previous titles.

Once a party has made proof of a common source of title a presumption is raised that the common source owns the title of all previous owners. Temple Lumber Co. v. Arnold, supra. The appellees having not shown that there is a superior outstanding title and that they are the holders of that title, the appellants are entitled to judgment for title and possession of the disputed tract. Pondrum v. Gray (Tex.Comm.App.) 298 S.W. 409 on re-hearing, 1 S.W.2d 278; Plummer v. Marshall, 59 Tex.Civ.App. 650, 126 S.W. 1162, err. ref.; Scott v. Washburn, Tex.Civ.App., 324 S.W.2d 957, err. ref. n. r. e.

The land conveyed from the common source of title into the appellants as reflected by the descriptions in the various deeds is contained within the area of K-M— I-L-K.

The description contained in the deed from Scott, et al. to Grady Wall does not embrace the portion of land that appellees claimed in this lawsuit as being conveyed to the Farmers in a deed from Wall. It is apparent that Wall did not acquire title to the disputed land through the deed of conveyance from Scott, et al. to Wall. Therefore, title to the land in question, not being vested in Grady Wall at the time of his deed of conveyance to the Farmers, could not convey same to the Farmers. In the case of Cockrell et al. v. Texas Gulf Sulphur Co., 157 Tex. 10, 299 S.W.2d 672 it says:

“We take it that no authority need he cited for the proposition that a deed can pass no greater estate than that owned by the grantor.”

As hereinabove indicated, appellees now contend that a boundary question only is involved, although appellees brought suit in trespass to try title. Their position is that a conflict exists between the call for “N. 88 deg. 45 min. E.” and the language immediately following "and parallel with the S. line of said J. F. Nelson 5 acre tract”. (Emphasis supplied). Appellees claim that the south line of said J. F. Nelson tract, as called for in the deed, is a superior call to course and distance and therefore the latter must be rej ected. It is clear that the burden of proof was upon appellees to prove the actual location of such south line upon the ground before the call for course and distance could be ignored. Stein v. Roberts, Tex.Civ.App., 217 S.W. 166 (no writ); Fagan v. Stoner, 67 Tex. 286, 3 S.W. 44. Proof of the actual location of the line on the ground may in fact disclose no conflict at all.

In applying rules of construction for the ascertainment of the boundaries of a grant, the primary question to be determined is the intention of the parties apparent from the face of the instrument. Huff v. Crawford, 89 Tex. 214, 34 S.W. 606. There is no evidence before us as to the location on the ground of any line or corner of any tract described in the various exhibits. No attempt was made to “trace the footsteps” of any surveyor of the surveys involved. We are left to ascertain the intention of the parties from the language used in the grant. Blackwell v. Coleman County, 94 Tex. 216, 59 S.W. 530. Where a conflict appears that construction should be adopted which more nearly harmonizes all of the calls of the grant; and when calls cannot be harmonized, effect should be given to those calls that will result in the least conflict. Sweats v. Southern Pine Lumber Co., Tex.Civ.App., 361 S.W.2d 214 (n. r. e.).

An examination of appellees’ deed from Wall fails to disclose upon its face a conflict or inconsistency in the description. It cannot be said that the description is uncertain or inadequately identifies the tract conveyed. There is no patent ambiguity discernible from the language used. But appellees insist that the language “and parallel with the S. line of said J. F. Nelson 5 acre tract” creates a conflict because the south line of the Nelson tract is “North 89 deg. 38 min. Bast”, whereas, the call in appellees’ deed is “N. 88 deg. 45 min. E.”. (Emphasis supplied). If such is in fact a conflict the same is a latent ambiguity, and resort may be had to rules of construction and to extrinsic evidence in order to interpret properly the description in appellees’ deed and to give such effect to the whole and to the parts of that description as will accomplish, rather than defeat, the intention of the parties. Humble Oil & Refining Co. v. Ellison, 134 Tex. 140, 132 S.W.2d 395; Thomson v. Langdon, 87 Tex. 254, 28 S.W. 931. No extrinsic evidence was offered by appellees to establish the location on the ground of any line or corner of any tract upon which they rely as creating a conflict in the description of the deed. We are thus left to speculate as to the actual location on the ground of the lines and corners of the tracts in the survey.

Appellees argue that under the rules of priority for conflicting calls, one for course and distance must yield to a call for parallelism. If so applied here, the course and distance call of “N. 88 deg. 45 min. E.” must be ignored and the remainder “and parallel with the S. line of said J. F. Nelson 5 acre tract” must be adopted as the true course of the south line described in appellees’ deed.

The rules of priority for conflicting calls are merely rules of evidence and courts are not in all situations under the necessity of giving preference to calls in the order of dignity. State v. Jones, Tex.Civ.App., 184 S.W.2d 510 (no writ). While some calls are preferred to others, the rule is not inflexible and the courts will adopt the rule which is most consistent with the intention apparent upon the face of the instrument. Stafford v. King, 30 Tex. 257. As set out hereinabove, W. Alexander Scott, Sr. is the common source of title. In the deed from Scott, et al. to Grady Wall, under whom appellees claim, the call for the south line is as follows: “THENCE NORTH 88 deg 45 min East”. This line is shown as K-L on the plat. In the deed from Scott, et al. to Chambers, under whom by mesne conveyances appellants hold, the north line of the tract, which is also the south line of the Wall tract referred to above, is called "THENCE North 88 deg. 45 min. East”. (Emphasis supplied). Thus, this line precisely coincides with line K-L. It is significant that in neither of these deeds appears any calls for parallelism with any other tract. There is no evidence in either deed of an intention to create a system of parallels with any other portion of the survey.

The instrument upon which this lawsuit is based is the deed from Grady Wall to ap-pellees. The south line of this tract is called "THENCE N. 88 deg. 45 min. E.”, which coincides with the Wall’s south line K-L, but the additional language “and parallel with the S. line of said J. F. Nelson 5 acre tract” is added. (Emphasis supplied). Ap-pellees argue that the call for the north boundary in the deed from Scott to Wall as “THENCE SOUTH 88 deg 45 min West” must be rejected because this line runs from the northeast corner of the Scott tract which line appellees say is “already fixed as North 88 deg. 38 min. West”. This argument ignores the absence of any evidence in the record that the true line from the northeast corner of the Scott tract to the Hulquist (Nelson) northeast corner is North 89 deg. 38 min. West. The true course of the line between those corners has not been shown.

Moreover, the true course and distance between the northeast corner of the Scott tract and the northeast corner of the Hul-quist (Nelson) tract is immaterial in ascertaining the intention of the parties tó appellees’ deed. No reference to either corner or the line joining them is made in appellees’ deed. If the line between those two corners is North 89 deg. 38 min. West this would not necessarily render incorrect-the call for the south line described by Scott as South 88 deg. 45 min. West. The' same grantor, Scott, conveyed to Chamber (under whom appellants hold) and fixed the north line to coincide with the south line of the Wall tract with the call “South 88 deg. 45 min. West”. The lines and corners of appellees’ deed are not tied in with either the northeast corner of the Scott tract or the northeast corner of the Hul-quist (Nelson) tract.

From these facts and circumstances it appears that by the use of the language ‘‘and parallel with the S. line of said J. F. Nelson 5 acre tract” the parties did not intend a course that was geometrically and’ mathematically equidistance at every point with the south line of the Nelson tract, but rather intended the language to convey a meaning of “with like direction or tendency” or “running side by side”. The word “parallel” has been so defined. Valente v. Atlantic City Electric Co., 28 N.J.Super. 476, 101 A.2d 106; East St. Louis Connecting Ry. Co. v. Jarvis, 7 Cir., 92 F. 735; Postal Tel. Cable Co. v. Farmville & P. R. Co., 96 Va. 661, 32 S.E. 468. The language simply denoted lines which were not straight, as stated in Fratt v. Woodward, 32 Cal. 219, 91 Am.Dec. 573:

“By definition, parallel lines are undoubtedly straight lines; but in common speech about boundaries, or in a geographical sense, the words, as we all know, are often used to represent lines which are not straight, but are the photographs of each other. The term is used for the want of a better, and not because it in all respects fits the use to which it is applied. * * * It is so used to avoid a circumlocution, and while such use is not technically exact, it is not obscure, and there is no difficulty in understanding what is meant. Nothing is more common than to speak of boundaries which are not straight as being parallel.”

To adopt this construction is to give effect to the whole of the language used in the description and harmonizes all of its calls; to ignore the course and distance calls, as appellees suggest, would create a conflict where none truly exists and results in a party conveying a parcel of land which it does not own and did not acquire. We cannot ascribe that intention to grantor Wall in his deed to appellees.

It is our opinion that appellees failed to discharge the burden of establishing the existence of a conflict in the description of their deed; and if a conflict does in fact exist, failed to demonstrate that the intention of the parties to the grant was such that the call for course and distance was inferior to the call for parallelism.

The judgment of the Trial Court is reversed and rendered for appellants for title and possession of the tract in dispute.

      . “BEING part of the JOHN R FOND-REN SURVEY ABSTRACT NO 476 and being part of the 73.5 acre tract conveyed to W. ALEXANDER SCOTT SR be deed from REBECCA WEBB a widow dated August 13 1942 recorded in Vol. 2371 page 19 Deed Records of Dallas County Texas and being more particularly described by metes and bounds as follows to-wit:
      “BEGINNING at a point 30 feet East and 210 South of the Northwest corner of said W. ALEXANDER SCOTT SR. 73.5 acre tract same also being the Southwest corner of that certain 5 acre tract conveyed by Deed dated August 12, 1942 from REBECCA WEBB a widow to E. M. HULQUIST recorded in Vol. 2364 page 601 Deed Records of Dallas County Texas;
      “THENCE SOUTH 380.36 feet to a stake for corner;

        "THENOE NORTH 88 deg 1,5 min East 2630 feet to point for corner in the center of Prairie Creek;
      “THENCE NORTH and Northwesterly with meanderings of the center line of said Creek to the Northeast corner of said W. Alexander Scott Sr. 73.5 acre tract;
      “THENCE SOUTH 88 deg 45 min West 1465.1 feet to a stake for corner being the northeast corner of said E. M. HULQUIST 5 acre tract;
      “THENCE SOUTH along the East line of said Hulquist 5 acre tract 210 feet to a stake for corner being the Southeast corner of said Hulquist tract;
      “THENCE SOUTH 88 deg 45 min West along the South line of said Hul-quist tract 1038 feet to the place of beginning and containing 29.621 acres of land net according to the survey made by J. R. JOHN CIVIL ENGINEER on June 5 1945.” (Emphasis supplied).

      . “Tract of land situated in Dallas County, Texas. A tract of land, a part of the John R. Fondren Survey, Abst. No. 476, and out of the 73½ acre tract conveyed by Emily Maxwell, et al to Mrs. Rebecca Webb, a widow, by deed recorded June 13, 1942 in the deed records of Dallas County, Texas. BEGINNING at a point in the east right of way line of Dowdy’s Ferry Road, said point being 270' S. 0 deg. 15 min. E. and 30' N. 88 deg. 45 min. E. from the N.W. corner of said Rebecca Webb 73½ acre tract, and being 60' S. 0 deg. 15 min. E. from the S.W. corner of a 5 acre tract conveyed by Hattie Longchart, a widow, to J. F. Nelson, et ux., JESSIE, by deed dated March 27th, 1945 and recorded April 13, 1945, in the deed records of Dallas County, Texad-THENCE S. 0 deg. 15 min. E. along the E. right of way of Dowdy’s Ferry Road, 32036'

        "THENOE N. 88 deg. 1,5 min. E. and parallel with the 8. line of said J. F. Nelson 5 aere tract, 1000 ft.;

      “THENCE N. 0 deg. 15 min. W. and parallel with Dowdy’s Ferri Road 320.36' to a point that is 60' So. deg. 15 min. E. from said Nelson’s S. line;
      “THENCE S. 88 deg. 45 min. W. and parallel with Nelson’s S. line 1000' to the place of beginning, and containing 7.360 acres of land.” (Emphasis supplied).


source: Caselaw Access Project

license: Public Domain

text:
    The STATE of Texas et al., Appellants, v. Mrs. Earl HELVEY, a Widow, Appellee.
    No. 19.
    Court of Civil Appeals of Texas. Tyler.
    Feb. 6, 1964.
    Rehearing Denied Feb. 27, 1964.

      Charles E. Hughes, Sherman, for appellants.
    Roy G. Baker, Baker & Bryant, Slagle & Kennedy, Sherman, for appellee.
   DUNAGAN, Chief Justice.

This is a condemnation suit in which the State of Texas and County of Grayson (appellants) acquired a right of way easement for highway purposes from Mrs. Earl Hel-vey, a widow (appellee) for State Highway No. 75; and being unable to purchase same, filed petition for condemnation in the County Court at Law, Grayson County, Texas.

Condemnee, being dissatisfied with the award of the special commissioners in the sum of $2,004.00, appealed to the County Court at Law.

Upon a trial before a jury, judgment was entered in accordance with the verdict of the jury that appellee recover from appellants $5,908.75. The jury’s verdict found the value of the 9.649 acres taken to be $4,824.50; the remaining 4.337 acres prior to the taking to be $2,168.50, and after the taking to be $1,084.25.

Appellants, by way of assignments of error 1 to 4, inclusive, claimed the Trial Court erred in overruling appellants’ motion for new trial based upon evidence of an unaccepted offer before the jury from the witness, Mrs. Earl Helvey, appellee. The complaint is based upon the testimony of Mrs. Helvey wherein she testified in part on direct examination as follows:

# ⅝ ⅜ * ⅜ ⅝
“Q. Well, what would you say would be the market value?
“A. Oh, the market value—
“Q. Now, bearing in mind the price at which—
“A. We turned down $500.00 once for it.
“MR. HUGHES : As counsel knows, that is not admissible.
“MR. BAKER: I’ll ask the witness again—
“THE COURT: I’ll sustain the objection and instruct the jury not to consider any offers made for the property.
⅜ ⅝ ⅜ ⅝ sfc ⅜
“MR. HUGHES: If you’ll excuse me, Your Honor, we have an objection that possibly should be made out of the presence of the jury.
“THE COURT: Gentlemen of the jury, will you pass into the jury room, please?
“(JURY OUT)
“MR. HUGHES: Before this line of questioning goes further, Your Honor, at this time we move for a mistrial on the basis of an offer that was placed into the record. We had no chance to object to it in advance, in that she did not respond to the attorney’s question, and we didn’t expect it any more than Mr. Baker did, but we feel that it would prejudice this jury.
“THE COURT: When you rose to' your feet I understood that an objection was made to it then. That’s the reason I sustained the objection.
“MR. HUGHES: I made the objection then, but I was not able to make it before she answered the question. In other words, it got to the jury before I could do anything about it, and I’m afraid that on that basis this jury could not clearly consider—
“MR. SLAGLE; Judge, we think the Court could instruct the jury. It is not grounds for mistrial when the Court instructs the jury not to consider it for any purpose whatsoever, and she has testified to what she thinks the value is, and it’s more than that.
“THE COURT: I overrule the motion for mistrial. I’m of the opinion that my instruction took care of it all right.
“MR. HUGHES: Your Honor, we wanted to be very clear that we made this motion. We feel that it was such a matter that the jury could not remove it from their minds. We have made our objection and we properly except to the Court’s ruling.
“THE COURT: All right.”

Subsequently, Mrs. Helvey continued to testify on direct examination as follows:

“Q. Well, can you give us any figure as to what you think the reasonable cash market value of this remaining tract was immediately after the taking in your best judgment?
“A. Well, it would have to be $300.-00 or more, anyway. Would that answer it ?
“Q. Well, do I understand you now to say that it would be worth $300.00 an acre less after the taking?

Objection here was made by Mr. Hughes that it was a leading question and the Court sustained the objection. Continuing:

“MR. BAKER: I’ll try to get at it another way. Now, let me go at it this way again, because I know this is difficult for you to follow. It is even for us lawyers. We established by your testimony what in your judgment was the value of, in your opinion, valuation of land is an opinion. What in your opinion was the value of this particular 4 acre tract immediately before the taking. Now, immediately after the taking what do you think was the reasonable market value of this tract of land that was left to you ?
“A. Well, we refused $500.00 for all of that tract.”

At this point the judge sent the jury to the jury room and out of the presence and hearing of the jury Mr. Hughes again presented his motion for mistrial for the same reason that he previously gave and further that such error would prejudice the jury regardless of the judge’s instruction. The court stated that when the jury returned he would instruct them again not to consider this evidence and stated further that he would like for counsel to instruct his witness not to testify concerning any offer and the witness answered “I’m sorry.” Mr. Baker, in addressing himself to his client, Mrs. Helvey, said “That’s all right. You just don’t know. We can’t talk about offer * * *. Now, we’re just talking about your opinion. * * * ” The Court said “let’s don’t go any further than to instruct her not to testify concerning any offer.” Mr. Baker replied “Well, I’m trying to save further trouble.” The jury returned to the jury box and the court instructed them as follows:

“Gentlemen of the jury, you’re instructed not to consider for any purpose in your deliberation any question made as to any offer and counsel for condemnee as well as counsel for con-demnor join in asking the Court to instruct the jury concerning that so that you will be sure to eliminate any such answer from your mind of your consideration during your deliberation. The condemnee has asked for a ten minute recess. If you’ll bear in mind the previous instruction the Court has given you, I’m going to excuse you for ten minutes and if you will remain in the hall until the bailiff calls, please.”

During this proceeding, Mr. Hughes stated “Your Honor, we would be glad to agree to a ten minute recess if he wants to talk to his witness.” From the record, we would presume that this ten minutes recess was granted for the purpose of Mr. Baker talking to his client in regard to this matter and that he did so. On cross-examination of this witness, Mr. Hughes propounded the following question:

“Q. Has it ever been used for any other purpose except farm land?
“A. Well, like I said, they tried to buy it off of us.”

Mr. Hughes then said: “Your Honor, we are going to have to make the same motion” and the court again sent the jury to their room and the witness answered “What can I say?” Now with the jury out, Mr. Hughes again moved for mistrial for the reason that an offer had again been drawn to the attention of the jury.

“THE COURT: I instructed counsel to instruct his witness not to make any reference to offers for any purpose.
“MR. SLAGLE: We both told her not to talk about any offer for purchase. All she said in response to his question was they tried to buy it off us and we have told her not to talk about any offers for sale.”

The court overruled appellants’ motion for mistrial and instructed the jury again not to consider for any purpose during deliberation any offer to buy the land in question.

Six witnesses testified in the trial as to the value of the subject property. The appellants used two expert witnesses, Stanley Joe Hayes and Steve Gremmels. The ap-pellee and owner, Mrs. Earl Helvey, testified, as did her son, Cleo Giles. In addition, the appellee used two expert witnesses, T. G. McGraw and M. O. Belden.

The appellants based their case upon the premises that the highest and best use for the subject land, and the use for which it was adapted, was for agricultural purposes and that its value was limited to that use. Testimony was received supporting this premise.

It was appellee’s contention that the highest and best use for the subject land was either industrial or residential development and that it was adapted to either or both such uses and there were witnesses who so testified. The testimony of the witnesses as to the value of the strip taken was from $173.00 per acre to $800.00 per acre. Ap-pellee’s two expert witnesses, McGraw and Belden, testified that the value of the strip taken was $500.00 per acre and Mrs. Helvey and her son placed the value at $800.00 per acre. Appellants’ expert witness, Hayes, testified to a value of $173.00 per acre and expert' witness, Gremmels, testified to a value of $235.00 per acre.

It is settled that evidence of unaccepted offers to buy the land involved is not admissible in a condemnation suit. Lower Nueces River Water Supply District v. Sellers, et ux, Tex.Civ.App., 323 S.W.2d 324; Hanks v. Gulf, Colorado & Santa Fe Railway Company, 159 Tex. 311, 320 S.W.2d 333.

Appellee does not question that rule, but contends that the error became harmless because of the instruction of the Trial Court. Appellants contend that, by virtue of the repeated testimony of offer of sale in the face of the court’s ruling and instruction to the jury, same was impressed in the jury’s mind to such extent that it could not be cured by the court’s instructions.

The question of whether or not this error was calculated to cause and probably did cause the rendition of an improper judgment in the case is a matter for the court to determine upon the whole record in the case. Rule 434, Texas Rules of Civil Procedure. Lower Nueces River Water Supply District v. Sellers, et ux, supra; Walker v. Texas Employers’ Insurance Association, 155 Tex. 617, 291 S.W.2d 298.

Before an error may be made the basis of reversing a Trial Court judgment the appellate court must be satisfied that the error complained of “was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case.” Reversal may not be predicated upon a simple showing that error occurred and that the jury returned a verdict in some respects favorable to the party which the error was reasonably calculated to help. If it could, the further provision of Rule 434 and 503 of the Rules of Civil Procedure that it must also appear that the error “probably did cause the rendition of an improper judgment” would be meaningless and pointless. Walker v. Texas Employers’ Insurance Association, supra.

In the case of The State of Texas v. Girdner, et ux, Tex.Civ.App., 287 S.W.2d 706, which also was a condemnation suit and which also originated from the Gray-son County Court at Law, wherein error was claimed by appellant in the overruling of its motion for mistrial based on evidence of the unaccepted offer placed before the jury by counsel for condemnees. Mrs. Girdner, on direct examination, testified that she knew Mr. Estes and that he offered her in excess of $220.00 per acre for the place. Appellant objected and the court sustained the objection and instructed the jury not to “consider any specific offer testified to by the witness for any purpose in your deliberations.” At the instance of appellant the jury was then sent out and appellant moved “for a mistrial, because of the highly prejudicial and inflammatory nature of the testimony of an unaccepted offer, denying the counsel for the State of Texas the right of cross examination”, etc. Such motion was overruled and an exception taken.

In discussing this point the court said:

“The only question is whether the instruction cured the error. There is a presumption that the jury obeyed the instruction and the only question is whether the evidence is of such a nature that it was clearly calculated to inflame the minds of the jury, and is of such a character as to suggest the impossibility of withdrawing the impression produced thereby on the minds of the jurors.” (Citing authority for such holding.)

The court held it was their opinion that the error was cured by the instruction.

The case of Lower Nueces River Water Supply District v. Sellers, supra, merits discussion as the court there was faced with a similar record that we are faced with in this case. However, we think that the cases are distinguishable. The “Nueces case”, as we will hereafter refer to it, was also a condemnation case involving land located in Live Oak County, Texas. Appellant in that case complained of the testimony of appellees’ witness, Alvin McNair; that he had offered appellees $400.00 per acre for the land in question, which was refused. Appellant objected on the ground that the testimony related to an unaccepted offer to purchase. The court overruled appellant’s objection, and the witness referred to the offer three times during the morning, and each time appellant objected thereto. During the afternoon, after much argument, the court instructed the jury not to consider the testimony. The record further reflects that appellee’s counsel in the closing argument to the jury referred to this excluded testimony and called attention to the fact that this offer had been made and refused, at which time appellant moved for a mistrial. The court again, after considerable argument of counsel, instructed the jury not to consider such offer by the witness, McNair. In discussing this point the court said:

“We are not unmindful of the fact that other witnesses of appellees valued the land higher than did McNair, and that the verdict of the jury is within the range of such witnesses, nevertheless, the undue prominence and importance McNair’s testimony was given in having it brought to the attention of the jury in the closing argument, thus forcing appellant to renew its objection, and by the court’s retiring the jury for another argument thereon before again instructing the jury, we think, the matter was impressed at least upon the minds of the jury that it would be most unlikely that they could remove it from their consideration. Therefore, considering the record as a whole, we have reached the conclusion that the error complained of was harmful to appellant within the meaning of Rules 434 and 503, T.R.C.P.”

In the “Nueces case”, the testimony as to an unaccepted offer went before the jury on four different occasions and was even argued before the jury; where the Trial Court allowed such evidence to go before the jury on three different times “during the morning”, over the appellant’s objection, and where “during the afternoon”, after much argument, the court finally instructed the jury not to consider the testimony; where after all of this, the con-■demnee’s counsel referred to the offer in his argument to the jury and the court, instead of promptly instructing the jury not to consider such argument, retired it, heard considerable argument, and then finally brought the jury back and instructed them not to consider such offer.

In the “Nueces case,” we have a situation where the testimony as to an unaccepted offer was given by the very person who made the offer and was definite, where such testimony was purposely and premeditatedly given by the witness and was encouraged to do so by the condemnee’s counsel.

In the case at bar, each time the witness testified to the unaccepted offer the court promptly excluded the testimony upon appellants’ objection and each time instructed the jury not to consider this testimony for any purpose in their deliberation. The attorneys for the appellee not only did not refer to this testimony in the argument before the jury, but they joined the appellants’ attorney in asking the court to instruct the jury not to consider such testimony. Further, Mrs. Helvey did not testify that she had been offered $500.00 per acre for this land. She first said “We turned down $500.00 once for it” and the second time she mentioned it she testified that “we refused $500.00 for all of that tract.” The offer Mrs. Helvey testified about would be considerably under the value the jury found it to be.

There was competent evidence from other witnesses as to value to support the jury’s findings. Considering the record as a whole, we cannot say that this testimony, in view of the prompt action of the court, “probably did cause the rendition of an improper judgment” by influencing the jury to return a verdict it probably would not otherwise have returned. We indulge in the presumption that the jury obeyed the instruction of the court, joined in by attorneys for all parties, not to consider this testimony for any purpose during this deliberation.

Appellants’ assignments of error 1 through 4 are respectively overruled.

Appellants’ fifth point is without merit. Appellants contend that the court erred in admitting over condemnors’ (appellants) objection evidence of the sale price of a tract of land from Dee Patterson to Fox-worth-Galbraith Company. Appellants contend that the Patterson sale was not a comparable sale. The Helvey tract of land that is involved in this lawsuit had a frontage of 1,631.9 feet on U. S. Highway 75 which the evidence shows to be the second busiest stretch of highway in Grayson County with the daily traffic count in excess of 5,000 vehicles. This was unimproved land which was located about half way between Sherman and Howe and about one and one-half ■miles north of the Patterson property and the testimony shows it to be cow pasture. In the past it has been used as farm land.

The record contains evidence of sales of two other properties which the court permitted as evidence of the sales of property comparable to the subject property. One of these tracts is what is known as the Patterson property which was located prior to the sale about one and one-half miles south of the subject property, and which sold for $1,000.00 per acre for residential development. The evidence shows in reference to the Patterson tract that, at the time of the sale of this tract to Foxworth-Galbraith Company, Mr. Patterson owned a farm about one mile south of the subject property which fronted on Highway 75; that Mr. Patterson had a brick home on it and that he had sold a number of acres to Foxworth-Galbraith Company; that the tract he sold to Foxworth-Galbraith Company did not have any improvements on it; that prior to the sale, it was open pasture land, also about one-half' mile north of the city limits of Howe; that it had no utilities on it except the electric line that runs along Highway 75.

The rule has been well stated in 16 Tex. Jur., page 589, Section 258:

“Where testimony is given showing that other land is so similarly situated as to afford a fair basis of comparison the values of other land in the vicinity, as they appear from the prices obtained for it, may be deposed to in order to show that the witness’ estimate of the value of the property in controversy is fair and reasonable.”

Appellants argue that the two tracts are not comparable, in that the Patterson tract of land was off an improved farm; however, the evidence shows that the tract itself that was sold was unimproved. Appellants further point out the lack of similarity between the Patterson tract and. the Helvey tract. (1) The Patterson land was close enough to the city of Howe for city utilities while the subject land was not. (2) The Patterson land was capable of being annexed and in fact was annexed while the subject land could not be. (3) The two properties were not subject to the same type of development. Appellee offered two expert witnesses on land value and they testified that the Dee Patterson tract that was sold was comparable to the Helvey tract. Mr. Hayes, one of appellants’ expert witnesses as to value, testified that the Patterson tract was not comparable to the subject property because the Patterson land was closer to Howe. The following question was propounded to him:

“All right. The land was the same, was it not?”

The witness Hayes answered:

“Well, I think most of the land between here (Sherman) and Howe is all the same, yes sir.”

It is appellee’s position that the Patterson tract and the subject land were comparable. (1) The two tracts were located on Highway 75 between Sherman and Howe and within less than a mile or mile and a half of each other. (2) At the time the Patterson tract was sold, it had no improvements on it. (3) That at the time it was sold, the Patterson tract, like the subject property, was not in the city limits. (4) That at the time it was sold, the Patterson tract was just pasture land. (5) That at the time it was sold, the Patterson tract, like the subject property, did not have any city utilities.

It is the general rule that an expert witness, having testified to an opinion, is permitted to give in evidence, either on direct or cross-examination, an account of the basis upon which he founded his opinion. If this testimony happens to be competent for that purpose, it is admissible as independent evidence upon the issues in the case but even if not so competent, it is still admissible as giving the basis for the previous opinion testified to and thereby enabling the jury to test the value of the opinion evidence. Hays v. State, Tex.Civ.App., 342 S.W.2d 167.

An expert value-witness, having been qualified to express an opinion as to value of land being condemned, should be permitted to give details of sales upon which he bases such opinion after he has stated that the sales are of property sufficiently comparable to the property involved for appraisal purposes. Hays v. State, supra.

It may safely be said that no two tracts of land are exactly alike. The question of whether or not they are sufficiently similar to afford a fair and reasonable basis for consideration, or shedding light on the value of the land in question, is a matter within the sound discretion of the Trial Court.

Therefore, having examined the entire record in this case, it is our opinion that appellants’ objections go to the weight, rather than the admissibility, of the evidence objected to. State of Texas v. Morse, Tex.Civ.App., 342 S.W.2d 165.

In our opinion, the testimony with reference to the Patterson property being closer to Howe and its utilities did not affect the comparability between it and the subject property, except as to value; and we think it is apparent that the jury carefully and fairly weighed this evidence, because the verdict was based upon the finding that the subject property had only one-half the value per acre as that of the Patterson property.

We do not understand that it is required that two tracts of land must have identical value to be comparable. If such were the law, for all practical purposes, it would be difficult to prove the value of the land by the sale of other property, no matter how similar they might be, because very few tracts have identical values, there always being some facts making one tract of land a little more or a little less desirable or valuable than the adjoining property. We think the testimony as to the sale of the Patterson property meets the tests of similarity required for admissibility as substantive evidence of the value of the Helvey property as well as to show the factual basis upon which the expert value witnesses founded their opinions.

The judgment is affirmed.


author: BELL, Chief Justice.

text:
    PALESTINE CONTRACTORS, INC., Appellant, v. Mrs. Lois PERKINS et al., Appellees.
    No. 14284.
    Court of Civil Appeals of Texas. Houston.
    Feb. 13, 1964.
    Rehearing Denied March 5, 1964.

      B. R. Reeves, Palestine, and Garrison, Renfrow, Zeleskey, Cornelius & Rogers, Lufkin, attorneys, and Ralph M. Zeleskey, Lufkin, of counsel, for appellant.
    Luther C. Johnston, Johnston & Johnston, Palestine, Shirley M. Helm, Helm, Jones & Pletcher, and Mabel Grey Howell, Houston, for appellees Mrs. Lois Perkins and another.
    John B. McDonald, Palestine, for appellee Herman C. Conoway.
   BELL, Chief Justice.

F. Perkins and his wife, Mrs. Lois Perkins, recovered judgment against appellant for $26,500.00 because of personal injuries received by Mrs. Perkins when a truck belonging to appellant collided with an automobile in which Mrs. Perkins was riding. The judgment gave appellant recovery over against Herman C. Conoway for $13,250.00, he having been brought into the suit on appellant’s petition. The jury found Conoway guilty of one act of negligence which was a proximate cause of the collision between the truck of appellant and the automobile occupied by Mrs. Perkins.

We need notice the facts of the case only briefly.

On December 8, 1961, Mrs. Perkins was riding in an automobile in Palestine, Texas, that was proceeding in a southerly direction on West Palestine Avenue. This automobile was being driven on its proper side of the road. The truck of appellant was on the same street proceeding in a northerly direction. About 150 or 175 feet north of the intersection of Palestine Avenue with West Stearn Street the truck of appellant collided with the Perkins automobile on the automobile’s proper side of the street. The automobile driven by Herman Conoway was, very shortly before the collision, proceeding in a westerly direction on West Stearn. He brought his automobile to a stop at a stop sign which was about two car lengths or more east of the intersection of West Stearn with West Palestine. There was also a flashing traffic control signal at the intersection of these two streets, the red part of the signal controlled traffic on West Stearn and the amber part of it controlled traffic proceeding on West Palestine. After stopping at the stop sign Conoway, without stopping at the intersection of the two streets in obedience to the flashing red signal, proceeded into the east lane of West Palestine and turned on the east lane and moved in a northerly direction. The streets were wet. The driver of the truck, when he saw the light on the rear of Conoway’s car after the Conoway automobile had entered West Palestine, put on his brakes abruptly when he was about 150 feet south of the intersection. He was unable to stop his truck, lost control of it, went on Mrs. Perkins’ side of the road, hit her automobile, and then hit the rear of Conoway’s automobile.

The jury convicted appellant’s driver of negligence in failing to keep his truck under proper control, in failing to keep a proper lookout, in operating the truck at an excessive rate of speed, and in failing to make proper application of brakes. Each act was found to be a proximate cause of the collision. It convicted Conoway of negligence in failing to stop, in obedience to the flashing red light, before entering West Palestine and found this was a proximate cause of the collision.

Sometime after the collision the Perkinses gave Conoway a covenant not to sue. The recited consideration was $10.00 but this was not actually paid. The covenant not to sue was just that and was not a release of the Perkins’ cause of action. They expressly reserved their cause of action against appellant.

After the Perkinses sued appellant, appellant filed a third party action against Cono-way asserting that Conoway’s negligent acts were the sole proximate cause of the collision, or, alternatively, they were contributing causes and prayed for indemnity, or, alternatively, contribution from Cono-way. Appellant contended the covenant not to sue given Conoway was in fact a release and therefore was a bar to any recovery against it, or, alternatively, it released Cono-way so that only one-half of the damages suffered by Mrs. Perkins could be recovered against it.

Appellant makes no complaint of the jury findings of liability against it. Complaint is of the jury finding of $16,500.00 for medical expenses, past and in the future, the fact the court rendered judgment against it for the full amount of the judgment instead of only one-half thereof, and of certain procedures at trial.

Appellant complains that since the Perk-inses under the covenant not to sue gave up their right to pursue their cause of action against Conoway they could recover only one-half of their damages against it. In the covenant not to sue the Perkinses merely agreed they would not directly or indirectly sue Conoway but expressly reserved their right to proceed against appellant on their cause of action. The covenant contained no agreement by the Perkinses to indemnify Conoway against any suit over by appellant.

Appellant’s position is that the Perkinses, by asserting full damages against it, are indirectly suing Conoway because it is entitled to contribution from Conoway for one-half of the damages if judgment is rendered against it for the full amount of damages found. It relies on dictum contained in Gattegno v. The Parisian, 53 S.W.2d 1005 (Com.App.). The statement there made and here relied on is as follows: “Therefore, if it be found that Gattegno and Muir are both active tortfeasors as between each other, the release having discharged Muir as to all liability to The Parisian, has at least discharged one-half its damages.” See also “Contribution and Indemnity among Tort-feasors” by Professor Gus M. Hodges, 26 Texas Law Review 150.

No case has been cited us and in our independent search we have been unable to find a case that has applied the rule contended for by appellant. All cases cited and which we have found hold that a person injured by the acts of joint tort-feasors is entitled to full compensation for his injuries from any one of the joint tort-feasors. The liability of joint tortfeasors is joint and several. The injured party is not entitled to more than one satisfaction but he is entitled to full compensation for his injury. The effect of the cases is not to hold that the covenant not to sue discharges one-half the damages as stated in Gattegno v. The Parisian, supra, but rather that the injured party can assert its cause of action against the other joint tortfeasors and recover the full amount of her damages less whatever amount has been already received. The basis of the holding is that an injured party is entitled to full payment of her damages. She is entitled to receive but one satisfaction but she is entitled to full compensation. A covenant not to sue given to one joint tortfeasor that does not release the cause of action but reserves the right to pursue the cause of action against the other joint tortfeasors operates to the benefit, in the usual case, of the other joint tortfeasors because it assures them of a definite credit on the judgment that may be rendered against them. The policy of the law is to encourage settlements and thus avoid litigation. If it is held that an injured party by agreeing not to sue one of the joint tortfeasors thereby releases one-half of his damages, regardless of whether the amount received equals one-half of the damages, then you drive all parties to the courthouse because you discourage compromises and settlements. The covenant not to sue cannot affect the other tortfeasors’ rights. They are still entitled to indemnity or contribution, depending on the facts of the particular case and they are entitled to credit on the judgment for the amount already paid. Robertson v. Trammell, 98 Tex. 364, 83 S.W. 1098 (S.Ct.); Eckel v. First Nat’l Bank of Fort Worth, 165 S.W.2d 776 (C.C.A.), writ ref.; Gillette Motor Transport Co. v. Whitfield, 186 S.W.2d 90 (C.C.A.), ref., w. m.; Friedman v. Martini Tile & Terrazzo Co., 298 S.W.2d 221 (C.C.A.), no writ hist.; Austin Road Co. v. Pope, 147 Tex. 430, 216 S.W.2d 563 (S.Ct.); Lottman v. Cuilla, 288 S.W. 123 (Com.App.); El Paso & S. R. Co. v. Darr, 93 S.W. 166 (C.C.A.); Lone Star State Life Ins. Co. v. Foster, 250 S.W.2d 949 (C.C.A.), ref., n. r. e.

Appellant also relies on the case of Panhandle Gravel Co., Inc. v. Wilson, 248 S.W.2d 779 (C.C.A.), writ ref., n. r. e. That case differs from this case. There two joint tortfeasors and their insurer received a covenant not to sue but also received an express agreement of indemnity under the terms of which the injured party would pay off any judgment procured by anyone as a result of the occurrence which was the basis of the covenant not to sue. Under such agreement if the injured party recovered damages against the other joint tortfeasor and the joint tortfeasor recovered judgment against those holding the covenant not to sue, if the non-settling tort-feasor pays the injured party and then collects what he pays from the other joint tortfeasors or their insurer, then the injured party would have to reimburse the settling tortfeasors or their insurer. The reason is not, however, the covenant not to sue but the express indemnity agreement. Where there is a mere covenant not to sue, the injured party merely agrees she will not pursue her claim against the tort-feasor who pays. And, as here, she expressly reserves the right to assert the liability of the other tortfeasors. The covenantee knows that the covenantor may obtain judgment for an additional amount against the other tortfeasor and .such other tortfeasor may sue for indemnity or contribution. If the covenantee wishes protection against such he should obtain an indemnity agreement.

Appellee Conoway, against whom contribution was awarded, contends, as do the Perkinses, that this is a case where Conoway is entitled to indemnity and no judgment should have been awarded against him. We are of the view that the findings of the jury show Conoway and Appellant were in pari delicto with each other and therefore Conoway is not entitled to indemnity.

The further complaint is made that counsel for the Perkinses and Conoway combined at trial and cooperated in seeking to cast all blame on appellant. We see no error in this, but evep if it were there has been no harm shown because the jury also convicted Conoway of an act of negligence which was a proximate cause of the collision. While no specific point is made, there is, in the argument concerning the unfairness of allowing counsel to combine against appellant, complaint that the trial court allowed Conoway six peremptory challenges. This was proper because appellant had sued Conoway contending Cono-way’s acts were the sole proximate cause of the collision and also seeking indemnity or contribution. There was antagonism between them on issues of fact. Retail Credit Co. v. Hyman, 316 S.W.2d 769 (C.C.A.), writ ref.

Appellant was not deprived of a fair trial, nor was he deprived of six challenges by reason of the court’s ruling that Mrs. Emmons, a member of the jury panel, was not disqualified. There is serious doubt the appellant has properly brought the matter before us. Assuming that it is properly before us, no error is reflected. She did not serve on the jury, her name having been stricken from the jury list by appellant. There is nothing reflecting that appellant sought an additional peremptory challenge. Neither is there anything reflecting that appellant was required to take any juror who was subject to objection by appellant. Texas Employers’ Ins. Ass’n v. Shropshire, 343 S.W.2d 772 (C.C.A.), ref., n. r. e.

Next appellant contends that the effect of certain proceedings was to inform the jury that Conoway had no insurance and that appellant did and that this was reversible error.

Appellant had plead as a defense that the Perkinses had released Conoway and had, therefore, released it. Testimony was introduced, as it may be, going to show there was no release but there was merely a •covenant not to sue. In this connection it was shown, without objection, that the real reason for giving the covenant not to sue was to prevent Conoway from losing 'his driver’s license which the State of Texas was threatening to suspend because •of the collision here involved. It was before the jury that Conoway was a 65 year old negro, living in a rented house, ■drawing a pension of about $78.00 per month, who at the time of the accident was driving his son’s automobile and who at that time was employed as a school bus driver. He had farmed most of his life. Also, it was in evidence the license was not taken away because of the covenant not to sue. Mr. McDonald, Conoway’s attorney, 'was called by plaintiff’s attorney. The ■plaintiff’s attorney asked him if there were -100 people in a wreck and 99 of them were ■as innocent as new driven snow whether they wouldn’t lose their license if. they did not have proper security on their automobile. The witness answered “Yes.” The objection was made that it was hearsay and immaterial to any issue. This was overruled. Again the attorney was asked if Conoway was threatened with loss of his license. Objection was that this called for hearsay. The witness answered he knew Conoway was threatened with criminal prosecution and he knew as. a matter of course certain things would occur relating to his right to drive and to have a car registered in his name. Then the witness was asked about what could be done to forestall such. Objection was made this went to the mental processes of the lawyer and what he and Conoway did out of the presence of the appellant was hearsay. The witness then explained when a person was unable to meet the financial security required by the State when he was in an accident whether he was negligent or not he was required to furnish financial responsibility and if he was unable to do so he would have his driver’s license suspended. He then explained he could have filed suit to prevent suspension of the license and stated the cost of doing so. Some more questions followed. Then appellant moved for a mistrial, because of the testimony ■with regard to financial responsibility because it implied that appellant could meet the financial responsibility and was, therefore, indemnified by some form of insurance. It was urged that an instruction could not remove the harm. The motion was overruled. Alternatively, it was moved that the court instruct the jury not to consider the witness’s testimony and to instruct counsel to adduce no evidence about financial responsibility.

While the effect was probably to show Conoway had no insurance, it was material because of appellant’s contention that the Perkinses had given a complete release. Evidence to show what the facts were and that there was no release was proper. Certainly if nothing had been paid it was proper to show why a covenant not to sue was given. It would, we think, in the light of the facts of this case, take a rather tortured construction to imply that the appellant had insurance. Financial responsibility may exist wholly independent of insurance. Appellant was a construction company that was shown to have been in business at least four years and part of its work was hauling oilfield equipment. The truck involved which belonged to it was a 1958 Chevrolet 4-ton one with a trailer. It is most reasonable to infer that such a company was by way of its own assets financially responsible.

If we be in error in this conclusion, we are of the view there is no reversible error. The evidence, in the light of the facts of this case, was not such as was reasonably calculated to cause and probably did cause the rendition of an improper judgment. Rule 434, Texas Rules of Civil Procedure. Appellant doesn’t attack the jury’s findings of liability against it either as being without evidence to support them or as being so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong. We do not mean to imply it must in order to show harm, but the fact it does not supports our view that the overwhelming weight and preponderance of the evidence shows its liability. Further, the jury convicted Conoway of negligence which was a proximate cause of the injury in conformity with appellant’s contention.

Appellant complains the court erred in rendering judgment based on the jury finding $16,500.00 past and future medical and hospital services because the finding is without support in the evidence and demonstrates the jury was actuated by bias, prejudice or passion in answering. Further, it says there was no evidence of what hospital services were or might be rendered and the reasonable cost thereof, and the trial court erred in submitting the issue to the jury over appellant’s objection that there was no evidence calling for its submission. We construe these points as “no evidence” points and not “insufficient evidence” points. There is no point that these damages found were excessive. Too, it complains the trial court erred in allowing the jury to speculate as to the meaning of “medical services.”

There was a waiver of any complaint as to the failure to define medical services because there was no tender of a substantially correctly worded definition. Rule 279, T.R.C.P.

We need not review the evidence but it will suffice to say there was evidence of probative force to support the submission of the issue as to what hospital and medical expenses had been incurred and would probably be incurred in the future and there was evidence of probative force showing what was the reasonable cost thereof.

All points, even though not discussed, have been examined by us and found to be without merit.

The judgment of the trial court gave appellant judgment against Conoway for $13,250.00, without regard to whether it pays the full amount of the judgment. It is entitled to judgment for contribution only to the extent that it pays more than one-half of the judgment. Strakos v. Gehring, 360 S.W.2d 787 (S.Ct.). The judgment is therefore, reformed so as to provide: “Palestine Contractors, Inc. shall have and recover of Herman C. Conoway any and all sums in excess of one-half of the amount of the judgment here rendered against it in favor of Plaintiffs that it may pay to Plaintiffs.”

As reformed the judgment of the trial court is affirmed.


author: BARROW, Justice.

text:
    PARKING, INC., Appellant, v. Clyde DALRYMPLE et ux., Appellees.
    No. 14202.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 29, 1964.
    Rehearing Denied Feb. 20, 1964.

      Matthews, Nowlin, Macfarlane & Barrett, James D. Baskin, Jr., San Antonio, for appellant.
    Rudy Rice, San Antonio, Walter L. Tandy, Waco, for appellees.
   BARROW, Justice.

This suit was filed by appellees, Clyde Dalrymple and wife, Edith Dalrymple, parents and legal representatives and as next friend of their deceased minor son, Danny Dalrymple, to recover damages for personal injuries to and the death of Danny, from Parking, Inc., Zaragosa Amusement Company, and the City of San Antonio. Danny is alleged to have fallen into the San Pedro Creek from a public parking lot operated by Parking, Inc., and drowned on July 22, 1961. The City was granted an instructed verdict. Judgment was rendered on a jury verdict against Parking, Inc., for $1,295.00 for funeral expenses, $5,000.00 for loss sustained by the parents as a result of the death of Danny, and $10,000 for pain and mental anguish suffered by Danny. A take-nothing judgment was entered as to the Zaragosa Company. Only Parking, Inc., has perfected this appeal.

The cause of action arose from an unusual factual situation which is accentuated by appellees’ lack of direct evidence. On July 22, 1961, Zaragosa Amusement Company owned two tracts of land located at the southwest corner of the intersection of Houston and Camarón Streets in the City of San Antonio. The tract closest to the intersection had been leased, for many years, to appellant who had constructed and operated a public parking lot on it. This tract was about seventy-five feet wide on Houston Street and about two hundred and twenty-five feet deep. Zaragosa Company operated the Alameda Theatre on the tract to the west of the parking lot, but these two tracts were separated by the San Pedro Creek, which flows from north to south in an artificial creek bed created by eighteen-inch concrete retaining walls, about ten to fifteen feet deep and about twenty feet wide, along the east-west division of appellant’s parking lot from the theatre property.

In 1947 Zaragosa erected a new theatre building, and at that time secured permission from the City to construct a sidewalk on the east side of its building by erecting it ten feet over the creek bed. This sidewalk is 155 feet long, and at the south end there is a footbridge extending over the creek to the parking lot. Another footbridge is located at the north end of these tracts, as a part of the sidewalk along the south side of Houston Street. With the exception of these two bridges, about ten feet of the creek bed is open between these two tracts.

The parking lot was designed and operated by appellant in the following manner: telephone poles were placed on the ground along the west property line, and the rear wheels of cars were hacked up to them; there were spaces for a double row of cars on the west side of the lot, separated by a drive-way in the center, and then parking spaces for a single row of cars along the east line; a small attendant’s shack was placed in the seventh space south of Houston Street and about twenty-five feet west of the creek; there was no fence or other barrier along the west property line, and when rear wheels were backed up to the post about two or three feet of the car extended out over the creek bed; there were no exits specifically designated for pedestrians.

Appellees asserted that on this occasion Danny and his uncle, B. J. Dalrymple, had parked on the lot prior to 7:45 p. m., with the intention of going to the theatre. A hard rain was falling, and it is asserted that Danny and his uncle, in attempting to run from the parking lot to the theatre, did not see the creek and both fell into it.

The jury’s verdict, as pertinent to this appeal, is substantially as follows: (1) Danny went into the creek from the parking lot east of the theatre; (2) appellant negligently failed to place a barricade, railing, fence or other device along the creek, and this was a proximate cause of the accident; (8) the sidewalk lights operated by Zaragosa Company on the west side of the creek created an appearance of a walkway east of the lights, but Zaragosa was not negligent in maintaining and operating the lights; (11) appellant negligently parked the cars so as to obstruct the view of the creek, and this was a proximate cause of the death of Danny; (14) the creek under circumstances existing at the time of the accident constituted a dangerous and hazardous condition to persons using the parking lot; (15) appellant knew, or should have known, of this condition and negligently failed to warn deceased of same, which negligence was a proximate cause of the accident; (19) Zaragosa should have known of the hazardous and dangerous condition, but was not negligent in failing to warn deceased; (23) Danny did not fail to keep a proper lookout; (25) Danny’s failure to use the Houston Street exit from the parking lot was not negligence; and (29) the death of Danny was not the result of an unavoidable accident.

Appellant asserts four assignments of error; (1) that as a matter of law appellant violated no duty to deceased on the occasion in question; (2) that the death of deceased was not foreseeable and therefore appellant is not liable; (3) that the trial court erred in admitting hearsay testimony; (4) that the jury’s finding of $10,000 damages for Danny’s pain and mental anguish has no support in the evidence.

There is no direct evidence of Danny’s fall into the creek. Danny, age 16, and his adult uncle, B. J. Dalrymple, had come to San Antonio from their home in Waco to visit Danny’s brother who was in the Air Force and stationed near San Antonio. Danny’s body was recovered two days later, about ten or twelve miles downstream. B. J. was rescued by unidentified persons on a bridge two blocks south of appellant’s lot. B. J. was subsequently killed in a truck accident, after this suit was filed, but before the taking of his deposition. The parking lot attendant, Leon Salazar, denied seeing anyone fall in the creek. He testified that B. J. parked his car on the east side of the lot, and, after waiting in the car about thirty minutes for the rain to let up, came to the attendant’s shack, paid the fee, and then started running towards Houston Street. Salazar was facing south and did not see B. J. after he left the shack. Salazar denied that anyone was with B. J., although, on cross-examination, he used plural terms, such as “they” in describing the actions of B. J. B. J.’s car was found on the lot the next morning by Danny’s father.

The trial court permitted, over appellant’s objections, B. J.’s story to be told as related by him to a San Antonio Police Patrolman, Ronald Mullen, an ambulance operator, Frank Cortez, and Danny’s father, Clyde Dalrymple. Appellees urge that this evidence is admissible under the res gestae exception to the hearsay rule.

It is well settled that the death or unavailability for other reasons of the declarant will not render hearsay evidence admissible. The decision as to whether the statement was res gestae does not depend on the after effect of the declarant’s death. It was either res gestae or not at the time that it was uttered. Truck Ins. Exchange v. Michling, Tex., 364 S.W.2d 172; Pacific Mutual Life Ins. Co. of Cal. v. Schlakzug, 143 Tex. 264, 183 S.W.2d 709; Texas Law of Evidence, McCormick & Ray, § 783.

The res gestae exception to the hearsay rule was reviewed recently by the Supreme Court in Truck Ins. Exchange v. Michling, supra, and no useful purpose would be gained by restating the requirements for admissibility. Suffice it to say, a hearsay statement as res gestae is admitted as an exception to the hearsay rule, because it is made under circumstances which raise a reasonable presumption that it is the spontaneous utterance of thought created by or springing out of the occurrence itself, and, so to speak, becomes a part of the occurrence. Knapik v. Edison Bros. Inc., Tex.Civ.App., 313 S.W.2d 335. The burden is upon the party seeking to •offer the hearsay evidence to clearly show that it is admissible as an exception to the general rule. Skillern & Sons, Inc. v. Rosen, Tex., 359 S.W.2d 298. It is generally held that the trial court has considerable discretion in passing upon the admissibility of a statement offered as a part of the res gestae.

Officer Mullen testified that he was patrolling the downtown area when he was notified that someone had fallen into the creek. He arrived at the Dolorosa Street bridge after B. J. had been rescued and talked to him in the patrol car while waiting for an ambulance to arrive. About two hours later, Officer Mullen went to the hospital and got the “whole story” from B. J. No further circumstances concerning the first conversation were shown, and it was not shown what the officer learned in that conversation, or what was learned from the whole story. Officer Mullen testified that B. J. related the following: Danny and B. J. parked at this lot to go to the theatre, but sat in the car for some time because of the heavy rain; they decided to make a run for the theatre, paid the attendant, and ran across the parking lot; they jumped the telephone pole and fell into the creek which looked like a walkway; both caught onto the Commerce Street bridge (one block south of the lot), but Danny was unable to hold on and was last seen going down the creek with his head bobbing in the water.

Frank Cortez, who operates an ambulance service, testified, that he went to the Dolorosa Street bridge about 8:00 p. m. in response to an emergency call from the fire department to pick up a man who had been pulled from the creek; he took B. J. to the hospital and stayed with him until about 10:00 p. m.; after about 45 minutes he interviewed B. J. and learned the following: B. J. and Danny were strangers in San Antonio, and they decided to go to the theatre; they parked in a lot east of the theatre, paid the parking fee, and since it was raining they started running toward the theatre building and fell in the creek; B. J. caught the Commerce Street bridge and held Danny until the water broke his grip and Danny was washed down the creek.

Clyde Dalrymple testified that he was notified in Waco about 9:00 p. m. of the accident, and he and other relatives drove to San Antonio. Upon arrival, they were unable to talk to B. J. until about 2:00 A.M. Later that morning he went to the scene with B. J. and B. J. reenacted the accident. Clyde testified as follows: B. J. said that he and Danny waited in his car on the parking lot until the rain slackened; they paid the parking fee at the attendant’s shack and ran towards an overhang on the north-east wall of the theatre; B. J. said they fell in the creek before they passed the rear of the parked cars.

It is apparent that the hearsay statements made by B. J. in the interviews at the hospital with Officer Mullen, Frank Cortez and Clyde Dalrymple, from one to seven hours after the occurrence do not meet the requirements for admissibility as a part of the res gestae. Insofar as the interview with Officer Mullen at the scene of B. J.’s rescue, proper predicate was not laid to show that these declarations were admissible as res gestae. It is our opinion, therefore, that the trial court erred in admitting this hearsay testimony. There is no question of the prejudicial harm to appellant by the improper admission of this testimony, as there is no other evidence to show that Danny fell from appellant’s premises. We can not now say that upon another trial appellees will be unable to lay sufficient predicate for the introduction of the declarations to Officer Mullen at the creek. This error therefore requires a reversal and remand of the case. Rule 434, Texas Rules of Civil Procedure.

Appellant urges that judgment should be rendered because it did not violate any duty it owed to Danny, and the accident was not foreseeable. Under its “no duty” point, appellant questions the legal status of Danny since he was a passenger in the car parked on the lot by his uncle. Appellant asserts that even if Danny were an invitee, there was no invitation for him to leave by the rear of the parked cars when there was a safe way out at either the Houston or Camarón Street exit. Appellant urges that the alleged dangerous condition was not on its premises and was created by the creek which was a natural condition. Finally, appellant says that there was no duty on it to erect a barrier or give warning of the creek.

We have been unable to find a Texas case directly in point, but the general rule is that an invitee of a parking lot includes not only those directly invited to use the premises, but those, such as children, wives, or friends, who might be reasonably expected to accompany the primary invitee. 14 A.L.R.2d 780; Nary v. Parking Authority, etc., 58 N.J.Super. 222, 156 A.2d 42; Goldsmith v. Cody, 351 Mich. 380, 88 N.W.2d 268. This rule would appear to be in harmony with the holding of Carlisle v. J. Weingarten, Inc., 137 Tex. 220, 152 S.W.2d 1073, where a minor child accompanying her mother to a grocery store was held to be an invitee. Our record supports an implied finding that Danny was an invitee on the premises of appellant.

Appellant owed the duty to Danny as an invitee to keep the premises in a reasonably safe condition. This included the duty to inspect and to discover dangerous conditions. Its duty was to protect its invitees from dangers of which it, the occupier knew, or (because of its duty to inspect) should have known, in the exercise of ordinary care. Halepeska v. Callihan Interests, Inc., Tex., 371 S.W.2d 368; Genell, Inc. v. Flynn, 163 Tex. 632, 358 S.W.2d 543; Robert E. McKee, General Contractor v. Patterson, 153 Tex. 517, 271 S.W.2d 391; Smith v. Henger, 148 Tex. 456, 226 S.W.2d 425, 20 A.L.R.2d 853. This duty to keep the premises in a reasonably safe condition was not limited to the parking lot alone, but extended to the entrances and exits from same. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 23 A.L.R.2d 1114; Chapman v. Parking, Inc., Tex.Civ.App., 329 S.W.2d 439.

Here it could be reasonably anticipated that the facilities of the parking lot would be used by persons who were going to the theatre on the adjoining lot. In fact, the sign on attendant’s shack advertises free parking for the theatre. There are unattacked findings by the jury that the creek was obstructed by the manner in which appellant parked the cars. This condition was created by the parking of cars so as to extend out over the creek. Under these circumstances, we cannot say as a matter of law that appellant did not owe its invitees the duty to either erect a barrier •or give proper warning of the dangerous condition.

Cases from other jurisdictions have held a breach of duty to invitees in closely related situations. In Falen v. Monessen Amusement Co., 363 Pa. 168, 69 A.2d 65, 14 A.L.R.2d 775 decided by the Supreme Court of Pennsylvania, a woman was injured in leaving a parking lot when she mistook the top of a retaining wall for the curb of a sidewalk and fell. In Great Atlantic & Pacific Tea Co. v. Pederson, 1 Cir., 247 F.2d 4, a man was injured when he fell over a retaining wall into a ramp which ran into the basement of a building adjoining the parking lot. See also, Smigielski v. Nowak, 124 N.J.L. 235, 11 A.2d 251; Underhill v. Shactman, 337 Mass. 730, 151 N.E.2d 287; Goldsmith v. Cody, supra; Gray v. Watson, 54 Ga.App. 885, 189 S.E. 616; 14 A.L.R.2d 786.

Foreseeability is an indispensable element of tort liability. Houston Lighting & Power Co. v. Brooks, 161 Tex. 32, 336 S.W.2d 603. The legal test required was recently restated by the Supreme Court in Motsenbocker v. Wyatt, Tex., 369 S.W.2d 319, 323, as follows: “For a result to be legally foreseeable, however, it is not ‘required that the particular accident complained of should have been foreseen. All that is required is “that the injury be of such a general character as might reasonably have been anticipated; and that the injured party should be so situated with relation to the wrongful act that injury to him or to one similarly situated might reasonably have been foreseen.” ’ Carey v. Pure Distributing Corporation, 133 Tex. 31, 124 S.W.2d 847.” The issue of foreseeability is submitted to the jury as a part of the definition of “proximate cause.”

Appellant showed that for the fourteen years it had operated the lot no one had ever fallen into the creek or had attempted to take a short-cut to the theatre. The creek usually had only a small flow of water, except during a heavy rainfall. We cannot say, as a matter of law, that appellant could not reasonably anticipate that someone would fall into the creek if it was obscured, and suffer some type of injury. It is undisputed that the visibility was obscured on this night because of the heavy rain and there is some evidence that the rainfall was unprecedented. Such an issue was not requested or submitted to the jury. Certainly, a heavy rain could be reasonably anticipated to occur, and the jury by its findings rejected the defense of new and intervening cause and unavoidable accident. In our opinion, there' is some evidence to support these findings. We overrule appellant’s point that the accident was not foreseeable as a matter of law.

The judgment of the trial court is reversed and the cause remanded as to appellant, Parking, Inc.