author: DIXON, Chief Justice.

text:
    TEXAS POWER & LIGHT COMPANY, Appellant, v. Lavon E. LOVINGGOOD et ux., Appellees.
    No. 16456.
    Court of Civil Appeals of Texas. Dallas.
    March 26, 1965.
    Rehearing Denied April 23, 1965.

      Burford, Ryburn & Ford, Wayne Pearson and John L. Estes, Dallas, for appellant.
    Locke, Purnell, Boren, Laney & Neely, and Wayne O. Woodruff, Dallas, and Robert G. Scofield, Lewisville, for appellees.
   DIXON, Chief Justice.

Our former opinion in this case is withdrawn and the following is substituted therefor.

Texas Power & Light Company has appealed from a judgment of $38,525 in a condemnation proceeding wherein appellant acquired an easement over land owned by appellees Lavon E. Lovinggood and wife, Elaine Boren Lovinggood.

The parties stipulated that the only issue before the trial court was the amount of money due appellees as damages to appel-lees’ land as a result of appellant’s taking the easement rights.

The property owned by appellees prior to condemnation consisted of a tract of 158.18 acres used primarily for agricultural purposes. The easement obtained by appellant by condemnation running across appellees’ property is 250 feet wide and contains 14.915 acres.

Of the remainder of appellees’ property after the taking, approximately 42 acres lie north of the easement and approximately 102 acres south of the easement. The south 102-acre tract is traversed by Bear Creek, 42 of its acres being north of Bear Creek and 60 acres south of the creek.

There is evidence that the highest and best use for appellees’ property is for residential subdivision.

In its first two points appellant complains of the trial court’s submitting special instructions Nos. 2 and 3 under Special Issue No. 2 in the court’s charge; and of the court’s refusal to include in the charge appellant’s requested special instructions.

Special instructions 2 and 3 as submitted by the court were as follows:

“2. You are further instructed, that by the terms of the easement obtained by the plaintiff light company through said condemnation proceedings, all rights in, and to, said land, not inconsistent with the right of way easement granted to the plaintiff light company by said condemnation proceedings, are reserved by and to the defendant landowners.
“3. By the term ‘easement’, as used in this charge, is meant the right to use the 14.9 acres of land of the defendants, for the above specified purposes and none other; so that the title to the property covered by the easement right of way, as well as to the right to use, occupy, and enjoy the property, remains in the defendant landowners, provided, however, that such use, occupancy, and enjoyment of the 14.9 acres by the defendant landowners, does not interfere with the use of said 14.9 acres, for the specified purposes for which said easement and right of way has been acquired by the Texas Power & Light Company, through said condemnation proceedings.”

Appellant objected to the instructions given by the court in the above paragraphs 2 and 3 on the grounds that said instructions (a) informed the jury that appellant had the sole determination of the consistency of the use of the easement by appellees, and (b) failed to inform the jury that under the terms of the easement after any streets, alleys or tracks have been laid out along or upon the property taken by appel-lees or subsequent owners, appellant would have no right to interfere in any way with such streets, alleys or tracks so constructed even though the existence of such streets, alleys or tracks interfere with appellant’s rights of use, and even though such streets, alleys or tracks are inconsistent with appellant’s use of the easement taken.

The special instructions requested by appellant but refused by the court included the substance of the court’s instructions but also included additional instructions as follows:

“All wires other than guy wires shall be suspended at a height sufficient to insure a minimum clearance of 22 feet above the ground. * * * plaintiff * * * shall have no right to fence or enclose said land or to use it for any purpose other than as aforesaid, and the right of defendants and subsequent owners of said land to pass back and forth across said land on foot or in vehicles, to cultivate or landscape the same, to raise crops or gardens thereon, or use it for recreation or any other purpose not inconsistent with plaintiff’s use of the facilities above mentioned, shall not be obstructed or interfered with, except to the extent above stated.
“The right is reserved to defendants and subsequent owners of said land to lay out, dedicate, construct and maintain roads, streets, alleys, railroad tracks, underground communication conduits, and gas, water and sewer pipelines across said land at any angle of not less than 45 degrees to any electric line thereon, so long as such roads, streets, alleys, tracks, conduits, and gas, water and sewer pipelines do not interfere with any facilities theretofore constructed by plaintiff, * * *. Plaintiff shall have no right to erect or install any of its facilities within the traveled portion of any paved road, street, alley or track so constructed hereafter across said land by defendants or the subsequent owners of said land * * *.
“The right is also reserved to defendants and the subsequent owners of said land to erect fences not more than 8 feet high across and upon said land, provided all such fences shall have gates, openings, or removable sections at least 10 feet wide which will permit plaintiff reasonable access to all parts of said land.” (Emphasis supplied)

In easement condemnation cases the purposes, rights and limitations of the condemnors in the use of easements are of very great variety and must be clearly delineated. As stated in Texas Public Utilities Co. v. Bass, Tex.Civ.App., 297 S.W. 301, “It is a matter of law for the court to determine the nature and extent of the property condemned, and the jury should be instructed thereon in connection with the rule of compensation or damages applicable to the particular case.” (Emphasis supplied)

Our Supreme Court in an eminent domain case involving an easement has said:

“It was the function of the petition to describe the nature and extent of the easement required. * * * It thereupon became the duty of the judge of the that court to explain in detail the extent of the easement sought to be condemned in order that the jury might properly evaluate the value of both the fifty foot strip and the balance of the tract exclusive of the strip before the taking, as well as afterwards. Such instructions accurately describing the required easement and the incidents thereto can hardly be said to constitute a comment upon the weight of the evidence.” (Emphasis supplied) Texas Power & Light Co. v. Cole, 158 Tex. 495, 313 S.W.2d 524, 529.

Turning to appellant’s petition in the instant case we find that it describes not only the limitations and rights of the parties as set out in the court’s instructions but in addition describes in detail the limitations on appellant’s use as described in the requested instructions. .

The instructions given by the court are the instructions approved by the Houston Court of Civil Appeals, speaking through Chief Justice Bell, in Central Power & Light Co. v. Graddy, 318 S.W.2d 943, 947 and copied in Rayburn’s “Texas Law of Condemnation,” Sec. 178(2). No doubt the instructions were sufficient in the Graddy case and may well be sufficient in many light and power easement condemnation cases. But neither Chief Justice Bell in his opinion nor Judge Rayburn in his work says that the instructions will be sufficient in all light and power easement cases, and we shall not so construe their statements.

In this particular case we are of the opinion that the instructions submitted by the court were proper except that they did not go far enough. We have concluded that the court should have submitted the instructions requested by appellant in addition to the instructions which were submitted.

It is important to remember that there is evidence from Lovinggood himself among others that the highest and best use of ap-pellees’ property is for residential subdivision. If the property is to remain available for residential subdivision it is of the utmost importance that appellees and their successors have the right to construct roads, streets, storm sewers, underground conduits and water, gas and sewer lines on, over and under the easement. These roads, streets, etc. may not interfere with any facilities theretofore constructed by appellant, but appellant does not have the right to erect any of its facilities within the traveled portion of a road hereafter constructed by appellees, or any road now existing.

Appellees’ property is bounded on the North by Bear Creek Road, on the West by Houston School Road and on the South by Reindeer Road. All of these are hard-surfaced county roads. Bear Creek and appellant’s easement traverse the property and divide it into four parts. Access to the county roads from all parts of appel-lees’ property and the availability of facilities are important factors in evaluating the property for subdivision purposes. This is especially true of the 42 acres between the south line of the easement and the north line of Bear Creek.

Instructions concerning fencing and sewer have been held to be proper. Aycock v. Houston Lighting & Power Co., Tex.Civ.App., 175 S.W.2d 710; Holcomb v. City of Dallas, Tex.Civ.App., 315 S.W.2d 454.

Appellees argue that the instructions given by the court are broad enough to include the requested instructions, therefore it was not error to refuse the requested instructions. However, it seems to us that since the court undertook to describe in considerable detail the easement and incidents thereto it should have included all the material details and incidents affecting value, as set out in the requested instructions together with the instructions which the court did give.

Appellees also argue that appellant’s pleadings were read to the jury and the jury heard the evidence, therefore no harm could have resulted from the omission of the requested instructions. But the force and effect of pleadings and evidence on a jury are much less than the court’s instructions. A jury can hardly be expected to remember the details of the eondemnor’s petition read at the beginning of a trial; neither can the jury know that the rights and limitations of the condemnor in the use of the easement are determined by the petition. And of course the jury is not required to believe the testimony of the witnesses offered by a condemnor. On the other hand the court’s instructions become the law of the case and are to be accepted by the jury as the guide on which they must rely.

In Texas Power & Light Co. v. Hering, 148 Tex. 350, 224 S.W.2d 191 our Supreme Court held that any error of the court in failing to give the particular instructions requested in that case was harmless. However, in the Hering case the parties stipulated in the presence of the jury that the uses were as set out in the petition, and the petition was then re-read to the jury. Moreover, there was no claim of the ex-cessiveness of the verdict in the Hering case.

The situation here is quite different. As we shall later point out in sustaining appellant’s tenth and eleventh points, the amount of the damages found by the jury was excessive. In our opinion the refusal to submit appellant’s requested instructions probably caused the jury to return an improper verdict, which in turn led to an improper judgment. Appellant’s first point is sustained because the instruction given by the court though correct as far as it went, did not go far enough. The instruction requested by appellant should also have been given. Appellant’s second point is sustained.

Appellees’ witness Sherman, who qualified as an expert on land values, testified that in his opinion appellees’ 158 acres was of a value of $1,000 per acre. In support and explanation of the manner in which he arrived at such opinion he was permitted to testify over appellant’s objection that he had considered as comparable to ap-pellees’ land a 5-acre tract which sold for $750 per acre and a 3.21-acre tract which sold for $1,500 per acre. He had testified without objection of a tract of 29.045 acres which he had considered comparable and which sold for $750 per acre.

Appellees’ expert witness Levy testified that appellees’ 158-acre tract was of a value of $800 per acre. He also testified that in arriving at his opinion he had considered the 5-acre tract and the 3.21-acre tract as comparable.

In its third point appellant asserts that the court erred in admitting into evidence the testimony of Sherman and Levy as to the sale prices of the 5-acre tract and of the 3.21-acre tract as a basis in forming their opinions of the market value of ap-pellees’ land.

Though our deliberations on the point have not been free of doubts we have concluded that it was not error for the court to admit the challenged testimony. We believe our holding here is consistent with our earlier holdings in two cases: Hays v. State, Tex.Civ.App., 342 S.W.2d 167 and State v. Hays, Tex.Civ.App., 361 S.W.2d 401, 403-404. In the latter case we quoted from McCormick & Ray, “Texas Law of Evidence”, Vol. 1, page 610, Sec. 835. Without going into details we shall simply state that for the reasons stated in the above two cases we have reached our conclusion on appellant’s third point in this case. Appellant’s third point is overruled.

Appellant’s witness Rowan testified that as a basis for his opinion of the value of appellees’ property he considered as comparable to appellees’ property a tract of 194.67 acres. This property sold for $420 per acre but upon objection the witness was not permitted to inform the jury of the price. Also testimony of a tract of 121 acres which sold for $250 per acre was rejected as a comparable. Both tracts had improvements on them consisting of residence, shed, etc. People were living in the residence on the 194-acre tract. The witness did not know whether the house on the 121-acre tract was occupied. Objection was sustained on the ground that the tracts were improved property. For that reason the jury was instructed not to consider the sales. City of Austin v. Cannizzo, 153 Tex. 324, 267 S.W.2d 808. We cannot say that the court abused its discretion in rejecting the proffered testimony. Appellant’s fourth point is overruled.

Appellant’s witness Rowan also offered testimony that a tract of 64.63 acres which sold for $410 per acre was comparable to appellees’ property. The only objection made by appellees was that the sale occurred after right of way had been obtained for the transmission line across the tract. The objection was sustained. Testimony of appellees’ witness Sherman had already been admitted without objection concerning an adjoining tract of 29.045 acres which sold for $670 and had also been bisected by the same transmission line.

We think it was error to reject the offered testimony of Rowan in regard to the sale of the 64.63-acre tract as comparable. Without reiterating what we said in the two Hays cases we shall simply refer to our holdings there in support of our holding here.

And there is still another reason why we believe it was error to rej ect Rowan’s testimony. Objection to evidence is unavailing when similar evidence offered by the objecting party has been received without objection. City of Houston v. Howe & Wise, Tex.Civ.App., 323 S.W.2d 134, 138; City of Gladewater v. Dillard, Tex.Civ.App., 312 S.W.2d 530; Hooper v. Courtney, Tex.Civ.App., 256 S.W.2d 462, 465; Cole v. City of Dallas, Tex.Civ.App., 229 S.W.2d 192, 194; Booth v. Crosby, Tex.Civ.App., 248 S.W. 417, 419-420; Decatur Cotton Seed Oil Co. v. Taylor, Tex.Civ. App., 182 S.W. 401, 402; St. Louis & S. F. Ry. Co. v. Sizemore, 53 Tex.Civ.App. 491, 116 S.W. 403, 409; Porter v. Langley, Tex.Civ.App., 155 S.W. 1042, 1044; 56 Tex.Jur. 2d 499; 23 Tex.Jur.2d 210.

Appellees say that the sales are not comparable because the seller in the sale proposed by appellant was afflicted with cancer. However, it is not shown that this in any way affected the sale as free and open. Appellant’s fifth point is sustained.

Appellant’s sixth and seventh points are that the undisputed evidence shows that several acts of jury misconduct occurred during the jury’s deliberations, which acts caused harm. Appellees on the other hand assert that the evidence is conflicting as to whether the alleged acts occurred, therefore the court’s implied finding that they did not occur is binding on this court. Further, appellees contend that in any event no harm has been shown to have resulted. Since we have concluded that this cause must be remanded for another trial and it is unlikely that the acts complained of will occur again, we shall not extend this opinion by passing on appellant’s sixth and seventh points.

In its eighth and ninth points appellant says that the court should have sustained its amended motion for new trial because the verdict of the jury and the judgment of the court are so contrary to the great weight and preponderance of the evidence as to be manifestly wrong and unjust.

The testimony of the witnesses and the jury verdict were as follows:

Witness Value 14.9 acres before Value 14.9 acres after Value 143.280 acres before Value 143.280 acres after Total Damages

Lovinggood $14,900 $ 745 $143,280 $125,880 $31,555

Sherman 14,900 000 143,280 133,030 25,150

Levy 11,932 1,193 114,560 93,940 31,359

Rowan 9,000 500 77,450 75,650 10,300

Weiss 9,300 300 76,550 75,000 10,550

Jury 11,920 74S 114,560 87,210 38,525

From the above chart it will he seen that the jury’s finding of total damages is approximately $7,000 higher than the damages as testified to by the landowner Lov-inggood himself and his witness Levy. It is $13,000 higher than that of the landowner’s other witness, Sherman.

Appellees say that the verdict of the jury is well supported by the evidence since it is the province of the jury to accept in part and reject in part the testimony of any witness. Lee v. Briscoe Irrigation Co., Tex.Civ.App., 350 S.W.2d 894; McConnico v. Texas Power & Light Co., Tex.Civ.App., 335 S.W.2d 397; Varnado v. City of Groves, Tex.Civ.App., 329 S.W.2d 100; Houston Lighting & Power Co. v. Adams, Tex.Civ.App., 316 S.W.2d 461. In this connection appellees say that the jury verdict as to the value of the remainder of 143 acres before the taking is less than the value testified to by Lovinggood and Sherman, but more than the values as testified to by Levy, Weiss and Rowan. The chart further shows that the jury verdict as to the value of the remainder after the taking is more than the values testified to by Weiss and Rowan but less than the values testified to by Lovinggood, Sherman and Levy. Thus by accepting the highest of the values before the taking and the lowest after the taking, which the jury had a right to do, the damages found by the jury can be brought within the evidence.

We are not faced here with a "no evidence” situation. We are faced with this question: Are the verdict of the jury and the judgment entered so contrary to the overwhelming weight of the evidence as to be manifestly wrong? We faced a similar situation in the case of Roberts v. State, Tex.Civ.App., 350 S.W.2d 388. In an opinion in which Justice Williams spoke for the court we found that the verdict was contrary to the overwhelming weight of the evidence. After a careful study of the record as a whole we make the same finding here. Appellant’s eighth and ninth points are sustained.

The substance of appellant’s tenth and eleventh points is that the court erred in overruling appellant’s amended motion for new trial because (10) the verdict of the jury and (11) the judgment of the court are excessive and are not supported by the pleadings. We agree with appellant.

In their written objections to the decision of the Special Commissioners appel-lees allege the damage to their land as a result of the construction of the power lines to be $33,000. Their prayer asks that appellees “recover their just damages in the sum of $33,000.00” with costs and “such other and further relief to which they may be entitled * * *." Appellee Lavon E. Lovinggood testified that the damage to the 14.9 acres of land over which the easement was taken was $14,155 and the damage to the remainder was $17,400 — total damages of $31,555. The jury returned a verdict finding the damages to be $38,525.

In answer to appellant’s tenth and eleventh points appellees argue that Paragraph III of their objections could be construed as referring to the 14.9 acres covered by the easement and Paragraph IV could be construed as referring to the remaining 143.2 acres. In each of the paragraphs damages are alleged to be $33,00Q. Appel-lees would have us hold that they thus pled for total damages of $66,000 in the body of their written objections. As to their prayer for $33,000 they remind us of the rule stated in Cretien v. Kincaid, Tex.Civ.App., 84 S.W.2d 1094 and other cases, that the amount of damages sought by a pleader must be ascertained from the itemization thereof in the body of the pleadings rather than the general prayer.

Appellees’ Paragraphs III and IV are not as we view them susceptible of the construction appellees would have us put on them; nor does a study of the record give any indication that the parties tried this case on the theory of the pleadings now advanced by appellees. Certainly the testimony of appellee Lavon E. Lovinggood contains nothing to suggest he thought he was suing for $66,000 damages.

In Judge Rayburn’s fine work, “Texas Law of Condemnation,” Sec. 72(1) he calls attention to the rule that it is not necessary for a defendant in a condemnation case to particularize his damages in his objections, citing Southwestern Public Service Co. v. Goodwine, Tex.Civ.App., 228 S.W.2d 925. We do not disagree with the holding, but we believe that when a defendant elects to allege a specific amount as his damages, the condemnor is entitled to rely on such allegation as restricting the defendant to the amount so claimed. See also “Texas Law of Condemnation,” Sections 64(5) and 72(5). In the latter section Judge Rayburn states that when the pleading fails to fix definitely the damages claimed by defendant the evidence of the landowner does so.

Appellant’s tenth and eleventh points are sustained.

Since this appeal presents a case of prejudicial error in addition to ex-cessiveness of the judgment, the error cannot be cured by remittitur. Warlick Press, Inc. v. Lantex Construction Co., Tex.Civ.App., 375 S.W.2d 349; Allen v. Denk, Tex.Civ.App., 87 S.W.2d 303; Perkins v. Lightfoot, Tex.Civ.App., 10 S.W.2d 1030; Southland Life Ins. Co. v. Ballew, Tex.Civ.App., 268 S.W. 1027; Huggins v. Carey, 108 Tex. 358, 194 S.W. 133. Therefore the judgment is reversed and the cause remanded to the trial court for another trial.

Reversed and remanded.

      . Appellees in their brief say that Levy valued the 143.280 acres at $114,400 before the taking.

      . Material parts of Paragraphs III and IV were as follows:
      “III. Lavon E. Lovinggood and wife * * * feel compelled to perfect this appeal of such award, and in this connection would show the Court that if such electric power facilities are constructed over and across their property as planned, these owners will suffer damages to the market value of their land at least in the amount of $33,000.00.
      “IV. Further, Lovinggood and wife would show the Court that the highest and best use for sueh property is that of development for a high class country home residential area. However, if such high powered transmission line is installed across the entire tract as planned, much of the tract will be unsuited for such use and these owners will suffer damage in the amount of $33,000.00 as a consequence of the construction of such electric transmission line across their property.”


source: Caselaw Access Project

author: MURRAY, Chief Justice.

license: Public Domain

text:
    HARTFORD ACCIDENT AND INDEMNITY COMPANY, Appellant, v. Alvis HALE, Appellee.
    No. 14366.
    Court of Civil Appeals of Texas. San Antonio.
    April 7, 1965.
    Rehearing Denied May 5, 1965.

      Atlas, Freeland, Schwarz & Gurwitz, Gary Gurwitz, Morris Atlas, McAllen, for appellant.
    Gordon Wellborn, Rex Houston, Henderson, Arnulfo Guerra, Roma, Emilio Gutierrez, Rio Grande City, for appellee.
   MURRAY, Chief Justice.

This is a death action case brought under the Texas Workmen’s Compensation Law for the death of Otis O. Hale. Hale allegedly was injured on January 31, 1963, and died on February 16, 1963. Mrs. Alvis Hale, plaintiff below and appellee here, contends that her husband was accidentally injured when he was caught in some pumping equipment on the Perez Lease at well No. 6, while working for his employer, the Sun Oil Company, that such injuries were sustained in the course of his employment and caused his death. Hale was hospitalized on January 31, 1963, and discharged February 6, 1963; he was re-hospitalized on February 15, 1963, and died the following day of a heart attack, allegedly caused by the injury.

The trial was to a jury and, based upon the verdict of the jury, judgment was rendered in favor of Mrs. Hale in the total sum of $11,634.87, from which judgment the Hartford Accident and Indemnity Company, the insurance carrier for Sun Oi? Company, has prosecuted this appeal.

Appellant by its first eighteen points contends that appellee, Mrs. Alvis Hale, failed to establish by legal admissible evidence that her husband, Otis O. Hale, received an accidental injury in the course of his employment as an oil field maintenance mechanic on January 31, 1963, which caused his death on February 16, 1963, and that the court erred in not giving appellant an instructed verdict or a judgment non ob-stante veredicto.

The evidence shows that Hale did receive an injury on January 31, 1963, and that Hartford Accident and Indemnity Company, as insurance carrier for Sun Oil Company, began paying workmen’s compensation benefits to him before his death. In an abandoned pleading which was introduced in evidence appellant alleged that Hale did receive an accidental injury on January 31, 1963. After Hale died and Mrs. Hale filed suit for death benefits, appellant made no further payments of workmen’s compensation. The trial court admitted in evidence certain statements made by Hale to his foreman, L. E. Nix, and his superintendent, Robert G. Denyer, on the day he was injured. Unless these statements were admissible under the res gestae doctrine, they were hearsay and should have been excluded. Hale left home on the morning of January 31, 1963, at about 6:45 a. m., and should have arrived at the oil lease where he worked by 7:00 a. m. His working hours were from 7 a. m. to 3:30 p. m. Nobody saw Hale at work that day. Sometime before 12 o’clock noon on that day Hale appeared at the Company office and reported he had been injured. This report was made to L. E. Nix, who was Hale’s foreman. Nix was permitted to testify over appellant’s objection, that on January 31, 1963, sometime between ten and twelve in the morning, Hale walked into the office and began telling him what he had found wrong with Perez Well No. 6. He stated that he had found water in the crank-case, and that he had taken the plug out to release the water, and to keep it from getting on his clothes he stepped back and put the plug back in, and as he did so the counterweight came down and pinned him against the Sampson post and mashed him. Nix said he was reading a letter from his mother at the time, and had not looked at Hale, but when he said he had been mashed he turned and looked at Hale and asked him how badly he was hurt, and he said he didn’t know because he hadn’t looked. Nix had him go back into his office and pull down his pants. Nix then saw that Hale was hurt in his groin and his buttocks and suggested that he go to a doctor. Hale did not want to go to a doctor or a hospital, but finally consented to go. However, he insisted on going by his home and changing his clothes first. Hale did not tell Nix how long it had been from the time he got hurt until the time he got to the office, but he did tell Nix that he came to the office as soon as he got in his pickup, and that his pickup was right there. Under normal conditions the trip would take fifteen minutes. There is nothing to show when the accident occurred. It could have happened any time after Hale left home that morning and the time he arrived at Nix’s office. Hale was pinned between the counterweight and the Sampson post, and there is no evidence as to how he extricated himself from this trap. The above testimony was read from Nix’s deposition, and after appellant rested its case, Nix was called to the stand and testified in person. Nix stated that the first part of Hale’s conversation did not relate to his injury; that he talked three or four minutes before he mentioned being hurt; that Hale was talking naturally; that he was not excited or in a hurry, his talk was just normal. Nix testified that Hale appeared to him that he had been in an accident, and appeared to be in pain, but he did not want to go to a doctor or the hospital, and insisted on going by his home to change his clothes' before going to the doctor. Nix further stated that all of his testimony was based entirely upon what Hale told him.

We conclude the statements made by Hale to Nix were hearsay, and not admissible under the res gestae doctrine. The burden of proof was upon appellee to show that these statements were made under such circumstances as to bring them under the res gestae doctrine. Skillern & Sons, Inc. v. Rosen, 359 S.W.2d 298 (Tex.1962); Parking, Inc. v. Dalrymple, Tex.Civ.App., 375 S.W.2d 758; Myers v. Cliff Hyde Flying Service, Inc., Tex.Civ.App., 325 S.W.2d 841. This she has not done.

For statements to be admitted under the res gestae doctrine they must have been spontaneous exclamations as distinguished from a mere narrative of a past event made when the declarant’s condition was such that it need not be concluded that it was the transaction itself speaking. Spontaneity is a necessary and controlling factor. Pacific Mutual Life Ins. Co. of California v. Schlakzug, 143 Tex. 264, 183 S.W.2d 709. There was nothing spontaneous or impulsive about Hale’s statements. It would seem that he had an accident and was calmly reporting it to his foreman. Such a report is clearly hearsay as to appellant, and not admissible as res gestae. The accident might have happened several minutes or several hours before it was reported. Duncan v. Smith, Tex.Civ.App., 376 S.W.2d 877.

After Hale had reported to Nix he was taken into the office of Robert G. Den-yer, the superintendent, and about the same report was made to him. Denyer could not remember whether Nix or Hale did the talking. Clearly this testimony was hearsay and was not shown to come under the res gestae doctrine and should have been excluded.

There was evidence in the record that the insurer had paid $50.00 in compensation to Hale before his death on February 16, 1963. By making this payment appellant was not estopped to deny liability. Southern Underwriters v. Schoolcraft, 138 Tex. 323, 158 S.W.2d 991; Roach v. Continental Casualty, Tex.Civ.App., 336 S.W.2d 811; Lopez v. Associated Employers, Tex.Civ.App., 330 S.W.2d 522; Davis v. Texas Employers Ins. Ass’n., Tex.Civ.App., 257 S.W.2d 755. In explanation of this payment of $50.00 as compensation, appellant called as a witness Robert C. Frank, its claim manager for the Valley area, including Starr County where Hale was supposed to have been injured, and he testified that he delivered the $50.00 check payable to Otis Hale to the Sun Oil Company at its request, and at that time he had not completed his investigation of the claim, nor had he determined the facts or circumstances of the alleged accident. In the light of this explanation, the delivery of the check was little or no evidence that Hale had received an accidental injury on January 31, 1963, in the course of his employment by Sun Oil Company.

Appellee introduced in evidence abandoned pleadings in which appellant alleged that Hale had received an accidental injury, but such allegation did not amount to a judicial admission that Hale had received an accidental injury, and was no admission at all that the injury was received in the course of Hale’s employment. In view of the entire record, it is quite clear that the admission of this hearsay evidence on the all-important question of whether or not Hale had received an accidental injury in the course of his employment with Sun Oil Company was very prejudicial to appellant, and therefore the judgment will be reversed, and due to the fact that there is some evidence, to-wit, the allegation in the abandoned pleading and the payment of compensation to Hale by the insurer, judgment will not be here rendered but the cause will be remanded for a new trial.

In view of another trial, we will not discuss the other points presented by appellant.

Reversed and remanded.


author: BELL, Chief Justice.

text:
    Robert H. MARTIN, Appellant, v. FANNIN BANK, Appellee.
    No. 14517.
    Court of Civil Appeals of Texas. Houston.
    April 15, 1965.
    Lamar Carnes, Houston, for appellant.

      Joe H. Reynolds, David C. DuBose, Houston, Bracewell, Reynolds & Patterson, Houston, of counsel, for appellee.
   BELL, Chief Justice.

The opinion rendered by us on March 11, 1965, is withdrawn and the following is substituted as the opinion of the Court.

This is an appeal from a judgment rendered on motion for summary judgment against appellant who was an endorser of a note executed to appellee by Offshore Gas Co., Inc. and L. C. George. Judgment was in the amount of $14,388.00. This represents the principal of the note in the amount of $12,000.00 plus interest and attorney’s fees. Only Martin has appealed.

Suit was on a promissory note dated June 5, 1963, which was due September 3, 1963. It provided that “The makers and all endorsers, sureties and guarantors, hereby severally waive demand, notice, presentment, protest, suit, notice of dishonor, notice of non-payment and notice of protest upon or against any of the makers, endorsers, sureties or guarantors of this note; * * *."

Appellant filed an original answer, the terms of which we need not notice because it was superseded by a first amended original answer. However, before the filing of the amended answer, appellee filed its motion for summary judgment, in effect showing the suit was on a promissory note; that appellant’s original answer showed no defense, nor did anything on file in the case. An answer was filed to the motion for summary judgment and at the same time appellant filed his amended answer and his affidavit supporting his answer to the motion for summary judgment swore to the facts alleged in the first amended original answer.

The record shows without dispute that appellant was an accommodation endorser for the makers and that consideration for the note moved from appellee to the makers. Therefore, the pleaded defense that appellant was an accommodation endorser and there was no consideration fails. Drake v. Harris, Tex.Civ.App., 24 S.W.2d 445, n. w. h.; Otto v. Republic Nat’l Co., Tex.Civ.App., 173 S.W.2d 235, writ ref.; Culberson v. Hawkins, Tex.Civ.App., 321 S.W.2d 140, n. w. h.

The appellant’s contention that a fact issue was raised as to whether there was failure to give notice of non-payment after maturity until a time the makers were insolvent and delayed too long before filing suit and the makers became insolvent is without merit. This is not a defense here because the note expressly provides on its face for waiver of notice of non-payment and presentment. Article 5937, Sec. 82, and Article 5938, Secs. 108 and 110, Vernon’s Ann.Tex.Civ.St.; Blucher v. Eubank, 5 S.W.2d 972 (Tex.Com.App.); Delta Metals, Inc. v. Alfin Mfg. Co., Tex.Civ.App., 342 S.W.2d 599, writ ref.

We have determined, however, that when we resolve every doubt as to the existence of a material fact issue in favor of appellant against whom summary judgment was rendered, as we must do, a material fact issue is raised as below stated. The burden in a summary judgment proceeding is upon the movant to negative the existence of any fact issue. Gardner v. Martin, 162 Tex. 156, 345 S.W.2d 274; Winters v. Langdeau, Tex.Civ.App., 360 S.W.2d 515; Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929; Stewart v. Malek, Tex.Civ.App., 338 S.W.2d 501, ref., n. r. e.

From a very careful reading of appellant’s affidavit and his sworn first amended original answer, we divine the allegation of a valid agreement to forbear to sue to a time certain. The note sued upon was due in September, 1963. Appellant alleges that in January or February, 1964, representatives of appellee requested him to put up as security for this note, on which he was an endorser, and other notes of which he was maker, 100,600 shares of Power Oil Company stock, and appellee agreed if he did so appellee would allow him sufficient time prior to bringing suit to recoup “monies accruing to him from certain oil and gas production in Texas and Oklahoma and which were not being paid to this Defendant until such time as the same had been released by proper order of the Court in the District Court of the United States for the Eastern District of Texas, Tyler Division, in the matter of Trice Production Company, a debtor, in proceedings for reorganization of a corporation No. 3901.” He further alleges that in the very near future said revenue which was accruing should be released. He then alleges he deposited the stock, assigning it in blank, and that it was of the approximate value of $50,000.00. In the affidavit he alleges substantially the same except that he adds that the proceeds from the oil and gas properties were to be paid on this and other notes of appellant held by appellee and legal action was to be withheld until after these proceeds were received.

This is not an attempt to vary the terms of a written instrument by proving an oral agreement made before or contemporaneously with the written agreement, as contended by appellee. This is the allegation of an extension agreement made after the note has matured. The parol evidence rule precludes proof of prior or contemporaneous oral agreements. McCormick & Ray, Texas Law of Evidence, Sec. 1671.

The agreement is based on a sufficient consideration, that is, the deposit of the shares of stock. 11 Amer.Jur.2d § 303, p. 329.

For an extension of time for payment of a note to be binding, it must not only be supported by consideration but the extension must be to a time certain. While no certain date to which payment was postponed appears, it does appear that payment was postponed until a certain event occurred, that is, until a proper order should be signed by the United States District Court in a named proceeding then pending releasing the oil and gas proceeds that were alleged to be accruing to appellant. It is certain that in the case an order of release will be signed. Appellant alleges facts which if true will make certain that such an order will release the funds to him. In any event, however, it is certain that some order of release will be signed. While the date is not certain, the event to which postponement is granted is certain to occur. This suffices. Robson v. Brown et al., Tex.Civ.App., 57 S.W. 83, 686, writ ref.; Hancock v. Stacy, 103 Tex. 219, 125 S.W. 884 (S.Ct.); West Texas Loan Company v. Montgomery, 27 N.M. 296, 200 P. 681; Cummings v. Badger Lumber Co., 130 Mo.App. 557, 109 S.W. 68.

Appellant’s motion for rehearing is granted, and the case is reversed and remanded.


author: ARCHER, Chief Justice.

text:
    The NATIONAL LIFE AND ACCIDENT INSURANCE COMPANY, Appellant, v. Rufus D. SHERN, Appellee.
    No. 11285.
    Court of Civil Appeals of Texas. Austin.
    April 14, 1965.

      Heath & Davis, Dudley D. McCalla, Austin, for appellant.
    Niemann & Babb, J. Boone Baker, Austin, for appellee.
   ARCHER, Chief Justice.

This is a suit to recover on a life insurance policy issued by the defendant on October 1, 1962 upon the life of Colasco Taylor Shern, who died January 25, 1963, by Rufus D. Shern, beneficiary.

The defendant denied liability on the ground that Mrs. Shern was not in sound health on the effective date of the policy, because she was a lifelong asthmatic and was afflicted with the serious disease of emphysema, and that there had been no compliance with that paragraph of the policy which provided:

“This policy shall take effect on the date of issue, provided the insured is then alive and in sound health, but not otherwise.”

The case was tried with the aid of a jury and in answer to Special Issue No. 1 found that Mrs. Shern was in sound health on October 1, 1962.

The court defined “sound health” as follows:

“The term ‘sound health’ as used in this charge does not mean perfect health, nor absolute perfection, but, a state of health free from any disease or ailment that materially affects the general soundness and healthfulness of the system seriously, that is, that the insured be not affected with a disease or bodily infirmity of a substantial nature which affects the insured’s general health, and which clearly and materially increases the risk to be assumed by the insurer.”

The court, based on the jury verdict, entered judgment for plaintiff for the face of the policy, $1,500.00 with 12% damages, attorneys’ fees in the sum of $675.00 and for 6% interest.

The appeal is founded on four points and are that the court erred in overruling defendant’s motion non obstante veredicto, that there is no evidence to support the jury finding that the insured was in sound health on the effective date of the policy because the evidence is undisputed that she was a severe asthmatic and afflicted with the serious disease of emphysema at such time, that the finding of the jury is against the great weight and preponderance of the evidence and clearly wrong, and that the definition of sound health is contrary to the law of this State.

The term “no evidence” does not mean literally no evidence at all, it comprehends those situations wherein by the application of established principles of law, the evidence is deemed legally insufficient to establish an asserted proposition of fact.

Kirkpatrick v. Raggio, Tex.Civ.App., 319 S.W.2d 362, er. ref., n. r. e.

Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059.

In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 is a case defining “Against the great weight and preponderance of the evidence” most widely quoted.

There is no dispute but that Mrs. Shern was a severe asthmatic and had been all of her life, and was afflicted with the disease of emphysema, but there is dispute as to the effect of these conditions.

Dr. S. H. Dryden testified that he had treated Mrs. Shern for a number of years and that he saw her two days before the policy was issued and that she had asthma and emphysema then. The doctor described asthma and how it affects individuals, and that emphysema was a disease of the lungs, a stretching of the lung tissue, and results with all patients that have asthma over a period of time.

The following questions and answers were made:

“Q Now, Doctor, in this case there’s a very important question that turns on whether on October 1st, 1962, Mrs. Shern was in sound health. On the next day, next two days, October 1, she was issued a policy of insurance. And I believe you saw her on September the 29th, 1962. In your opinion, Doctor, on September 29th, when you saw her, was she in sound health ?
“MR. McCALLA: Just a moment, please, Doctor.
“Your Honor, I believe that’s an ultimate issue in this case upon which, and it involves an interpretation of the laws upon which the Court has not charged the Jury, so I fail to see how he can answer.
“THE COURT: I will overrule the objection. Of course, I think you can go into that his definition of it, or you can give a definition of what, but he’s an expert.
“MR. McCALLA: All right.
“THE COURT: I overrule the objection.
“Q Doctor I’m going to give you a definition of sound health. The Courts in Texas, Doctor, generally definte sound health this way— that it means a state of—
“THE COURT: Maybe it would be better if you would prefix, if, if the Court defines.
“Q Doctor, if the Court should define sound health in this manner, what would be your answer as to whether or not she was in sound health? If the Court defines it to mean a state of health free from any disease that affects the general soundness and healthfulness of the system seriously; that is that the insured be not afflicted with a disease of bodily infirmity of a substantial nature, which affects the insured’s general health and which clearly and materially increases the risk to be assumed by the in-suror. Assuming that definition, Doctor, would you say that Colas-co Shern when you saw her September 29th, 1962, was in sound health ?
“A Mr. Babb, I would say that this patient on the 29th of September, 1962, was, her physical condition was the same as it had been the previous years that I saw her. She was able to do her work. I believe that on this occasion she was doing work at the school. I don’t know whether she was a cook or salad, prepared the salads, or what, but she did her usual work. She was in sound health insofar as her usual duties were concerned. The fact remains—
“MR. McCALLA: Pardon me, Doctor.
“A Yes, sir.
“MR. McCALLA: Your Honor, I’m sorry. He is going far afield from the question. Now, he’s bringing in a lot of other things.
“THE COURT: All right. If you will just answer the question, Doctor.
“Q Doctor, wouldn’t your opinion based on that definition, would you say she was in sound health: Not perfect health; sound health?
“A May I ask him to read that again, please, Judge?
“THE COURT: You may.
“Q It means a state of health free from any disease that affects the general soundness and healthfulness of the system seriously; that is that the insured be not afflicted with a disease or bodily infirmity of a substantial nature which affects the insured’s general health and which clearly and materially increases the risk to be assumed by the insurer.
“A I would say she was not in sound health according to that definition.
“Q What part of it, Doctor, would you say—
“A Well, I think that she had a serious, I think emphysema even though this patient was able to carry on her usual duties of working, and actually she could have had emphysema for a number of years and existed and done her work. I still think that emphysema is a serious disease. It’s a chronic debilitating disease that a patient can have for many years, but I don’t think it can be taken lightly.
“Q Well, agreed that any disease to a certain extent is serious, isn’t it, Doctor?
“A Well, I think it depends on whether acute or chronic or whether or not it can be cured, Mr. Babb. I suppose any of them are serious.
“Q Let me ask you this. The fact that she had emphysema or asthma, and she apparently had both of them, would that substantially lessen the length of her life, her life expectancy?
“A Yes, sir.
“Q How much ?
“A I don’t know.
* * * * * *
“Q Doctor, I want to read you another definition. Assuming the Court gave this definition of sound health, what would be your opinion ? Being, sound health is being without any important or serious disease and free from any ailment that seriously affects the general soundness of the physical system.
“A I have to still say she had a serious disease, Mr. Babb.”

In the certificate of death of Mrs. Shern, Dr. Dryden gave as the immediate cause of death (a) ventricular fibrillation due to (b) emphysema.

The director of school cafeterias for Austin schools testified that Mrs. Shern worked as a cook. Mrs. Shern’s mother testified that Mrs. Shern was born with asthma, but was able to work. These witnesses were not qualified to give testimony as to the effect the disease of emphysema had on Mrs. Shern.

Only an expert can testify upon a matter of such a nature, scientific or otherwise, and the trier of facts is not competent to form an opinion.

Lincoln Income Life Insurance Company v. Mayberry, 162 Tex. 492, 347 S.W.2d 598.

In Texas Prudential Insurance Company v. Dillard, 158 Tex. 15, 307 S.W.2d 242, our Supreme Court discussed “in good health” and held as a matter of law that the insured was not in good health.

Since we have concluded that, as a matter of law and as a matter of fact according to the testimony of Dr. Dryden that Mrs. Shern was not in sound health, it is unnecessary to determine if the definition of sound health as given was proper.

There is no probative evidence to support the finding of the jury that the insured, Mrs. Shern, was in sound health on October 1, 1962, and the burden was on the plaintiff to prove this issue by a preponderance of the evidence.

The judgment of the trial court is reversed and judgment rendered that plaintiff take nothing.

Reversed and rendered.


author: BATEMAN, Justice.

text:
    Bobbye Lola HALL, Appellant, v. Clayton FOWLER, Appellee.
    No. 16483.
    Court of Civil Appeals of Texas. Dallas.
    April 16, 1965.

      Brans, Berryman, Higginbotham & Berry, Dallas, for appellant.
    Marvin G. Shwiff, Dallas, for appellee.
   BATEMAN, Justice.

This is an appeal from a summary judgment in favor of appellee Clayton Fowler against appellant Bobbye Lola Hall on a promissory note. In three points of error on appeal the appellant attacks the judgment because: (1) her affidavit and other documents filed in the case show that there are genuine issues of material fact; (2) the motion for summary judgment was not properly supported by affidavits made on personal knowledge of the affiant and a certified or sworn copy of the promissory note sued on was not attached to the motion; and (3) the appellee failed to overcome the burden of showing the absence of any genuine issue of material, fact.

Appellant in her answer did not deny, but admitted, the execution of the note. She denied owing any money thereon, saying there was a failure of consideration for the note, in that appellee had been employed as her attorney to represent her in a divorce suit and that he had already been “amply paid” for his services. She also alleged that she was induced to execute the note by duress, compulsion, acts of coercion and undue influence exercised by appellee upon her, in that her divorce suit had been brought to a conclusion, following which a property settlement between the parties was contemplated; that she was under a deadline to comply with the provisions of the purported property settlement agreement, and that appellee, who knew all of the facts and circumstances, threatened that if she did not execute or agree to execute the note he would delay final consummation of the settlement agreement, but for which threat she would not have signed the note.

Appellant’s affidavit in opposition to the motion for summary judgment, outlined her employment of appellee as her attorney, his statement to her that he would collect his fee from the defendant in the divorce case and that no fee would be due from her, although he did demand of her a $250 retainer fee, which she paid; stated that she could not get appellee “to abide by her directions and requests and recommendations with reference to property settlement and other matters,” and that she does not owe appellee any money because: (1) there was a failure of consideration concerning which there were material fact issues to be determined; (2) the divorce decree provided that appellee was paid a fee of $1,000 by appellant’s ex-husband; (3) the time limitations in connection with the property settlement left her no alternative but to execute the note, as otherwise she would lose valuable property rights, and but for such pressure and time limitation she would not have signed the note; and (4) in view of appellee’s agreement that he would secure his fee from her ex-husband and did in fact receive such fee, “there was no consideration for the note upon which this suit is based.” She also incorporated by reference all the allegations of her answer in the affidavit.

A review of the record before us, as summarized above, would indicate that there was no genuine issue as to any material fact to be tried in this case. In making this decision we view the evidence in the light most favorable to appellant, indulging in her favor every intendment reasonably deducible from the evidence, and resolving all doubts as to the existence of a genuine issue as to a material fact against appellee. Smith v. Bolin, 153 Tex. 486, 271 S.W.2d 93; Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929.

One cannot receive and accept the personal services of another, and thereafter execute a promissory note for the amount of the fee demanded by the one performing the services, and then defeat liability on that note by contending that the services were not worth the amount of the note. If there was a question as to the value of services already rendered, that question must be considered as resolved by the execution of the note. Crumpler v. Humphries, Tex.Civ.App., 218 S.W.2d 215, 217, wr. ref.

Appellant speaks of this defense in her answer, her affidavit and her brief as “failure of consideration,” but what she is really saying is that there was inadequate consideration for the note. “Mere inadequacy of consideration, except as a circumstance bearing on the question of fraud or undue influence, is not a defense to a negotiable instrument.” 9 Tex.Jur.2d, Bills and Notes, p. 167, § 144.

Likewise, appellant’s contention that the note was obtained from her by duress or coercion or undue influence must fail. She says in response to interrogatories propounded to her that she executed the note “under circumstances which practically amounted to mental coercion and duress in view of the fact that I was under a limitation of time within whieh to make a property settlement with my ex-husband and I was afraid Mr. Fowler might do something to cause my time to expire prior to my ability to arrange for financing.” She also said that she advised her attorney, the one who represents her in this case, that she would execute the note although she did not want to. There is no showing whatever that appellee did anything improper, unlawful, wrongful or oppressive to cause her to execute the note. Apparently he was not even present when she did so, for the record shows that she executed the note and mailed it to appellee with a letter addressed to him and dated December 4, 1961, which was 28 days after the divorce decree was entered. In that letter, after complaining rather bitterly of the manner in which the divorce suit had been handled, and asserting that- she did not feel that she owed him any more money, she said: “If you still actually feel that I do owe you this fee, I will pay it as agreed, but frankly I do not see how you could ask for it under the circumstances.”

“There can be no duress unless there is a threat to do some act which the party threatening has no legal right to- do.” Dale v. Simon, Tex.Com.App., 267 S.W. 467, 470. See also Ulmer v. Ulmer, 139 Tex. 326, 162 S.W.2d 944, 947; Cameron County W. Imp. Dist. No. 1 v. Cameron County, etc., Tex.Civ.App., 134 S.W.2d 491, no wr. hist.; Bute v. Stickney, Tex.Civ.App., 160 S.W.2d 302, wr. ref. w. m.

It is our opinion that, assuming the truth of all of the statements made in appellant’s answer, and her affidavit, no defense to the note was shown, and appellant’s first and third points of error are overruled.

Appellant points out that in neither his affidavit at the end of his petition nor his affidavit appended to his motion for summary judgment does appellee state that it was made on his personal knowledge or that the affiant is competent to testify to the matters stated, calling our attention to the requirement of subdivision (e) of Rule 166-A, T.R.C.P., that such affidavits “shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred t© in an affidavit shall be attached thereto or served therewith.” These deficiencies were not called to the attention of the trial court in any way.

In Youngstown Sheet & Tube Co. v. Penn, Tex.Sup., 1963, 363 S.W.2d 230, the affidavits filed in support of the summary judgment did not state that they were made on the personal knowledge of the affiants, did not show affirmatively that the affiants were competent to testify to the matters stated therein, and sworn or certified copies of the papers referred to in the affidavits were not attached thereto or served therewith. No objection was made in the trial court on any of these grounds, and the Supreme Court held that if the party against whom the summary judgment was rendered was in doubt as to any of these matters, or felt that he was prejudiced in any way by the defects in the affidavits, he should have excepted to the affidavits at or prior to the hearing; that the deficiencies appear to be purely formal, and that it may be assumed that they would have been corrected if proper exception had been made in the trial court; and that objections of this kind “may not be raised for the first time on appeal when it fairly appears from the record that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”

As we pointed out in Lotspeich v. Chance Vought Aircraft, Tex.Civ.App., 369 S.W.2d 705, 710-711, wr. ref. n. r. e., objections to the form of affidavits supporting or opposing motions for summary judgment should be raised in the trial court and an opportunity given for the correction of the defects, and failure to do so, as authorized by Rule 90, T.R.C.P., constitutes a waiver of the objections. See also Employers Mutual Casualty Co. v. Lee, Tex.Civ.App., 352 S.W.2d 155, 157, no wr. hist.

Appellee’s petition, containing a copy of the note sued on and reciting its execution and delivery and that appellee was the legal owner and holder of it, was sworn to by appellee. This, we think, may properly be considered an affidavit as to the facts stated, Ragsdale v. McLaughlin, Tex.Civ.App., 285 S.W.2d 467, wr. dism., and distinguishes this case from Alexander v. Houston Oil Field Material Co., Tex.Civ.App., 386 S.W.2d 540, which held that the defendant’s general denial put the plaintiff to proof that it was the owner and holder of the note. Appellant’s second point is overruled.

The summary judgment was correct and should be, and is.

Affirmed.


author: BARROW, Justice.

text:
    Olivia VILLARREAL et al., Appellants, v. Viviana R. VILLARREAL, a Widow, Appellee.
    No. 1437.
    Court of Civil Appeals of Texas. San Antonio.
    April 14, 1965.
    Fidencio G. Garza, Jr., Falfurrias, John L. Campos, Alice, for appellants.
    Max Luther, III, Corpus Christi, for ap-pellee.
   BARROW, Justice.

This suit was filed by appellee, Viviana R. Villarreal, on July 23, 1963, to set aside and cancel a deed to her son, Conrado Villarreal, executed by her on May 7, 1953, upon the theory of false representations made by grantee to her. Conrado died intestate in 1962, and suit was brought against appellants, the widow and two children of Conrado, as heirs at law of his estate. After a non-jury trial, judgment was rendered setting the deed aside and holding it null and void. Findings of fact were filed wherein the trial court found substantially that Conrado knowingly made false representations to appellee which induced her to execute said deed.

Appellants assert that the judgment is so contrary to the overwhelming preponderance of the evidence as to be manifestly unjust. They further assert that the judgment is manifestly unjust in that the findings of fact are supported only by evidence violative of Art. 3716, Vernon’s Ann.Civ.St., the Dead Man’s Statute. A complaint that the judgment is manifestly unjust is an “insufficient evidence” point and requires us to examine the entire record and, if sustained, to remand the case. Fisher Construction Co. v. Riggs, 160 Tex. 23, 325 S.W.2d 126 (1959); Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex.Law Rev. 361.

Appellee was the first witness and upon being interrogated by her attorney concerning representations made to her by deceased, appellants’ attorney promptly objected and asserted that this testimony would be in violation of the Dead Man’s Statute. At the suggestion of appellee’s counsel, it was agreed by the Court that appellants would have their objection to any such testimony and that evidence which violated the statute would not be considered by the court. The appellants therefore properly preserved their objection to testimony which constituted a transaction with deceased. See Hoffman v. Tolbert, Tex.Civ.App., 327 S.W.2d 604, no wr. hist.

The deed in controversy conveyed the surface estate to sixty acres out of a seventy-eight acre tract of land owned by appel-lee. The other eighteen acres was separately fenced off and appellee’s house was located thereon. She remained in possession of the entire tract until shortly before this suit was filed and had leased the sixty acres for grazing cattle. The deed was executed at her home in the presence of grantee and Elmiro Perez, a notary public, and recited consideration of love and affection for her son, Conrado. The deed was promptly and properly recorded.

Mrs. Villarreal testified that she did not intend to give this land away, but was told that something bad was going to happen if she didn’t sign the deed. Further, that she was intimidated by Conrado and signed because he asked her to sign. She testified that there was no consideration for the execution of this deed; she executed the instrument because of Conrado’s representations to her. She neither read nor spoke English and she testified that the instrument was not read to her or explained in Spanish. It is seen that her testimony in regard to representations by Conrado is in violation of the Dead Man’s Statute and can not be considered. Dakoff v. National Bank of Commerce, Tex.Civ.App., 254 S.W.2d 550, wr.ref.; Potier v. Cook, Tex.Civ.App., 158 S.W.2d 582, wr.ref., w.o.m.

The other witnesses called hy appellee were the notary, Elmiro Perez, her son-in-law, David Gomez, and her son, Baltazar Villarreal. Perez testified that he went to appellee’s house with Conrado and that on arrival there Conrado went to the kitchen and got his mother. He admitted Conrado could have talked with her privately at this time. Appellee came to the living room where Perez was waiting and at that time he read the deed to her in Spanish and explained it to her. David Gomez testified that appellee asked him to check into the deed, after she was advised in August, 1962, of the claim of appellants. He went to Perez’s house with his brother-in-law, Bal-tazar. He testified, over appellants’ hearsay objection, that Perez admitted he did not explain the deed to appellee before she executed same. Baltazar Villarreal confirmed going to see Perez with Gomez, but did not testify as to what was said by either of them.

It is our opinion from an examination of the entire record that, after the testimony which violates the Dead Man’s Statute is deleted, the finding of the trial court that the deed was signed by appellee because of false representations made by grantee is so contrary to the overwhelming preponderance of the evidence as to be manifestly unjust.

The judgment is reversed and the cause remanded.


author: MASSEY, Chief Justice.

text:
    Alan T. STRONG, Appellant, v. Joe CAUDILL, Appellee.
    No. 16622.
    Court of Civil Appeals of Texas. Fort Worth.
    April 9, 1965.
    Rehearing Denied May 7, 1965.

      Fillmore, Schaeffer & Fillmore and Roy Schaeffer, Wichita Falls, for appellant.
    Jennings, Montgomery & Dies and Elton M. Montgomery, Graham, for appellee.
   MASSEY, Chief Justice.

Plaintiff Joe Caudill had a grazing lease on certain premises in Young County, Texas. Defendant Alan T. Strong had an oil and gas lease on the same property. Four of plaintiff’s cows sickened and died and plaintiff sued for damages, alleging that the defendant had or kept poisonous substances on the premises; that he negligently left unattended containers in which the substances were to be found; and that plaintiff’s cattle had access thereto and did consume lethal amounts thereof, — all as proximate result of the defendant’s negligence.

By its verdict the jury found that the death of the cattle was caused by poisoning; that the defendant had or kept poisonous substances on the lease, which he failed to place where the plaintiff’s cattle would not have access thereto, constituting negligence, and that such failure was a proximate cause of the death of the cattle.

Judgment based on the verdict was for the plaintiff for damages and attorney’s fees. The defendant appealed.

We have examined the whole record. Therefrom we have concluded that the judgment rendered by the trial court should be reversed. There was no evidence which established a causal connection between the negligence alleged and the damage alleged to have resulted therefrom. No authority is necessary to be cited for the proposition that such is essential. Although there was evidence from which the jury was entitled to conclude that the cattle had died from “heavy metal poison”, there was no evidence that the substance which the plaintiff believed and “presumed” to have been ingested by the cattle was such character of poison, or indeed poisonous at all. The substance in question was in the form of residue found in several five-gallon buckets on the leased premises in the vicinity of the defendant’s “dog-house”. There was no direct evidence to the effect that the defendant was responsible for the presence of the buckets, or that they belonged to him. A presumption of fact cannot rest upon a fact presumed. The fact relied upon to support the presumption must be proved. See Ft. Worth Belt Ry. Co. v. Jones, 106 Tex. 345, 166 S.W. 1130 (1914); Rounsaville v. Bullard, 154 Tex. 260, 276 S.W.2d 791 (1955). This, we believe, is the circumstance of the instant situation.

Further, we have concluded that there was no evidence that the defendant had any reason to anticipate injury to the plaintiff’s cattle. Primary negligence depends upon such, plus a failure to perform the duty arising on account of that anticipation. 40 Tex.Jur.2d 452, “Negligence”, § 10, “Knowledge of danger; Apprehension of injury”. Even so, in order to warrant a finding that negligence was the proximate cause of an injury, injury must have been foreseeable by the wrongdoer at the instant of the wrong. There was no evidence which established such in this case. 40 Tex.Jur.2d 472, “Negligence”, § 20, “Foreseen or foreseeable consequences”.

In view of the foregoing we would be disposed in the usual instance to remand the cause for another trial rather than render a judgment contrary to that of the trial court. It does not appear that the case was fully developed. There might be evidence available to plaintiff which he could and would introduce upon the occasion of another trial in remedy of the want and insufficiency remarked.

The defendant, however, insists that judgment should be rendered in his favor under authority of several cases cited, in particular Warren Petroleum Corp. v. Martin, 153 Tex. 465, 271 S.W.2d 410(1954). The same contention was made by the defendant against whom judgment had been rendered in a very similar case. See Weaver v. Reed, 303 S.W.2d 808, 810 (Eastland Civ.App., 1957, no writ hist.). Therein the plaintiff believed the defendant had caused the death of certain livestock by leaving open a bucket of pipe lubricant from which the stock had eaten lethal amounts.

The Eastland Court gave its interpretation of the decision in Warren Petroleum Corp. v. Martin. (In General Crude Oil Company v. Aiken, 162 Tex. 104, 344 S.W.2d 668, 671 (1961), Justice Norvell of the Supreme Court said that the analysis by the Eastland Court was accurate.) Chief Justice Grissom stated that the question was upon the defendant’s negligent breach of some duty to the plaintiff whereby he was injured; that when he has failed to establish negligence by his evidence he may nevertheless be allowed to recover by (pleading and) proving that the defendant used a greater area in conducting operations necessary for effectuating the purposes of his lease than was reasonably necessary, or that he intentionally, wilfully, or wantonly injured plaintiff. It does not follow, said Judge Grissom, that the defendant who has used no more land than is reasonably necessary is not liable for damages to others proximately resulting from his negligence.

In the instant case plaintiff’s sole theory of recovery is that defendant was negligent and that his negligence proximately caused and resulted in damages for which he brought his suit. Absent therefrom is any question of whether more land than necessary was used by the defendant. As in Weaver v. Reed, supra, plaintiff has alleged but failed to prove that the defendant negligently left available to be consumed by his livestock can or cans of poisonous substances,- — that the stock did consume it, and as proximate result thereof died. Having alleged no more his proof has failed m no other respect. Neither could it be said that there is any evidence in the case which would entitle the defendant to have judgment rendered in his favor.

Judgment reversed and cause remanded.


author: DIXON, Chief Justice. DIXON, Chief Justice.

text:
    AUTOMATIC RADIO MANUFACTURING COMPANY OF TEXAS, Inc., Appellant, v. Alfred P. BRANDIMARTE, Appellee.
    No. 16470.
    Court of Civil Appeals of Texas. Dallas.
    March 5, 1965.
    Rehearing Denied April 16, 1965.

      Carrington, Johnson & Stephens, Dan McElroy and Hal M. Bateman, Dallas, for appellant.
    Farrar & Claunch, Fort Worth, for ap-pellee.
   DIXON, Chief Justice.

Automatic Radio Manufacturing Company of Texas, Inc., has appealed from a judgment awarding damages to appellee Alfred P. Brandimarte for alleged breach of an employment contract.

The statement of facts consists of a stipulation entered into by the parties. Ap-pellee was employed by appellant pursuant to a written contract dated October IS, 1961 which was prepared by appellee’s attorney. During the eleven months of his employment appellee worked out of appellant’s office at 4814 Bengal Street in Dallas, Texas. His employment ceased on September 14, 1962 for the reason that appellant wanted appellee to work in Boston, Massachusetts and appellee refused to work elsewhere than in Texas. On or about the latter date appellant’s said office was closed. The difference between appellee’s actual earnings and what the written contract called for was $8,379.41 covering a period from September IS, 1962 until October 14, 1963.

Appellant levelled an exception to appel-lee’s petition and moved for dismissal on the grounds that the contract is unambiguous and does not by its terms contain any covenant or agreement that appellee, in the course of his duties would at all times be located in Texas. The case was tried before the court without a jury. Appellant’s exception and motion to dismiss were overruled. The court then rendered judgment in favor of appellee, holding the contract to be unambiguous and appellee to be entitled to damages in the amount stipulated.

We quote the material parts of the contract :

“This agreement made and entered into this the date of execution by and between the Automatic Radio Manufacturing Company of Texas¡ Inca Texas Corporation with offices at 4814 Bengal Street, Dallas, Texas, * * * and Alfred P. Brandimarte of 5604 Wessex, Fort Worth, Texas, * * * witnesseth:
“WHEREAS, the Corporation intends to manufacture various products in a plant in the State of Texas and desires to obtain the services of an Executive Vice-President for such Corporation, and whereas Alfred P. Brandimarte has expressed a willingness to assume the duties of Executive Vice-President of such corporation;
“Now, therefore, * * * the parties hereby covenant and agree as follows:
“Brandimarte shall act as Executive Vice-President of the Corporation to he established in the State of Texas for a period of two (2) years from the date of this agreement.
“Brandimarte shall he responsible for the design, development, and manufacture of products produced in the State of Texas.
“Brandimarte shall have an option to purchase 1,000 shares of Corporation upon the terms and conditions set forth by the Board of Directors for all other officers of the Corporation. This option will not be effected by the termination of this contract.
“Brandimarte is to receive a minimum salary of SEVENTEEN THOUSAND DOLLARS ($17,000.00) per year, commencing upon the effective date of this- agreement. Said salary to be paid in semi-monthly installments, equal to 1/24 of $17,000.00.” (Emphasis ours)

OPINION

In its first point on appeal appellant agrees with the court that the contract is unambiguous, but says that judgment should have been rendered in favor of appellant because the contract plainly does not obligate appellant to keep appellee employed only in the State of Texas during the duration of the contract. We overrule appellant’s first point. Our reasons will be apparent in our discussion of appellant’s second and third points.

In alternative points on appeal appellant says that if the contract is ambiguous the court erred (2) in refusing to consider any extrinsic evidence as to whether the parties intended that appellee, in the course of his duties, would at all times be located in Texas; and (3) in overruling appellant’s first motion for continuance so that the testimony of David Housman could be obtained to show the true intention of the parties when they entered into the contract.

Is the contract ambiguous? After a study of the contract as a whole we have concluded that it is. If, as appellee contends, the intention of the parties was to obligate appellant to allow appellee to remain in Texas, such intention is not stated by the language of the contract with that clarity which permits of only one interpretation. On the other hand, if it was the intention of the parties not so to obligate appellant we must say again that such intention is not stated with that clarity which permits of only one interpretation.

Appellee leans heavily on those provisions which we have emphasized in the contract as hereinbefore quoted. In our opinion the said provisions are susceptible of the interpretation which appellee puts on them: that it was contemplated and intended by the parties that appellant employed appellee to work only in Texas.

However, in our opinion the contract is also susceptible of the interpretation which appellant puts upon it: that the contract expresses merely an intention to establish a plant in Texas without legally obligating it to do so; and though the contract legally binds appellant to employ appellee for a period of two years it does not require appellant to allow appellee to stay in Texas to perform his duties. As appellant very pointedly asks: If it was the intention of the parties to obligate appellant to keep appellee in Texas, why does not the contract say so in express terms? The question cannot be ignored for it was appellee’s attorney, not appellant, who wrote the contract. It is a general rule of interpretation that ambiguous contracts are to be strongly construed against the author. Universal C. I. T. Credit Corp. v. Daniel, 150 Tex. 513, 243 S.W.2d 154; Ervay, Inc. v. Wood, Tex.Cix.App., 373 S.W.2d 380, 384.

In reaching our conclusion that the contract here is ambiguous we have been mindful that it is difficult to find cases in point since circumstances differ in nearly all cases and each case depends on its own facts. Brown v. Payne, 142 Tex. 102, 176 S.W.2d 306. However, certain principles have been well established in our law as guides in determining the question. Our Supreme Court in holding a contract ambiguous has said, in Skelly Oil Co. v. Archer, 163 Tex. 336, 356 S.W.2d 774, 778:

“We have concluded that the attachment of the rider makes the lease ambiguous. Not only is its meaning uncertain and doubtful, thus meeting the test of ambiguity announced in Neece v. A.A.A. Realty Company, 159 Tex. 403, 322 S.W.2d 597, our latest decision on the subject, but it is also subj ect to more than one reasonable meaning, unresolvable by rules of interpretation, thus meeting the stricter test of ambiguity laid down in Universal C.I.T. Credit Corp. v. Daniel, 150 Tex. 513, 243 S.W.2d 154. The primary object of courts in construing written contracts is to arrive at the intention of the parties. * * * Any one of these interpretations would be equally reasonable, or unreasonable, as the case may be, and the proper construction therefore becomes a fact question.”

Since we hold that the contract is ambiguous it follows that we believe the trial court should allow extrinsic evidence to be admitted to show the intention of the parties.

In view of the above holding we are also of the opinion that appellant’s first motion for continuance should have been sustained. In a sworn motion appellant stated that David Housman, a witness residing in Boston, Massachusetts, participated in the negotiations which led to the employment of appellee, was aware of the circumstances surrounding the inception and termination of the employment, would make himself available in Dallas, Texas, but cannot be summoned on such short notice due to the distance involved. The motion also stated that Housman would testify that no agreement was made assuring appellee that he would work only in Texas, and that such testimony could not be obtained from any other source.

Appellant’s second and third points are sustained.

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

Reversed and remanded.

BATEMAN, J., not sitting.

ON REHEARING

DIXON, Chief Justice.

Both appellant and appellee have filed motions for rehearing.

In appellee’s motion he cites the cases of Fritsch v. J. M. English Truck Line, 151 Tex. 168, 246 S.W.2d 856 (see also Tex.Civ.App., 243 S.W.2d 464 for additional facts) and Texas Employers Ins. Ass’n v. Locke, Tex.Civ.App., 224 S.W.2d 755 in support of his contention that appellant failed to use due diligence to procure the testimony of the witness Housman.

We do not disagree with the holdings in the above cited cases. Without giving a detailed statement of the facts presented in them we shall simply say that we are of the opinion that the factual situation in the cited cases distinguishes them from this case.

Housman participated in the negotiations which culminated in the contract before us. He resides in the State of Massachusetts. Appellant asked only for a postponement of two weeks to arrange for the presence of Housman. It did not ask, as did the appellant in the Fritsch case, for an indefinite adjournment of the trial until it could obtain the missing witness. There are other extenuating circumstances, but we shall not expand this opinion by further particularization.

Since we take the view that the contract in question is ambiguous, it was necessary for us to reverse the judgment regardless of any holding we might make in regard to appellant’s motion for continuance. The issue of the motion for continuance is only secondary under the circumstances. If no point were presented in regard to the motion for continuance it would still have been necessary for us to sustain appellant’s second point in view of our conclusion that the contract is ambiguous.

Furthermore, if appellant had acted with all the diligence which appellee would require it would have availed appellant nothing. For the trial court held that the contract is not ambiguous, therefore extrinsic testimony as to the intention of the parties would not have been admitted. If Housman had been present he would not have been allowed to testify. If his deposition had been taken and had been available it would not have been considered. Under such circumstances Housman’s presence in person or by deposition would have been a vain and useless thing.

In its motion for rehearing appellant reiterates its claim that the contract is not ambiguous, and does not contain any agreement by appellant, as alleged by appellee, that appellee in the course of the duties of his employment would at all times be located in Texas. We still believe the contract is ambiguous.

Both motions for rehearing are overruled.

Overruled.

BATEMAN, J., not sitting.


author: GREEN, Chief Justice.

text:
    Lee Baird AFFOLTER, Appellant, v. Hermelinda Camberos AFFOLTER, Appellee.
    No. 112.
    Court of Civil Appeals of Texas. Corpus Christi.
    April 22, 1965.

      Arthur A. Klein, Harlingen, for appellant.
    A. G. Betancourt, Joe W. Walsh, Brownsville, for appellee.
   GREEN, Chief Justice.

Following a non-jury trial, the district court of Cameron County, Texas, entered a judgment on June 11, 1964, granting to appellant, plaintiff below, a divorce, disposing of community property, and awarding custody of Terry Lee Affolter, 4 year old child of the parties, to appellant upon the following expressed conditions:

(1) The child is not to be taken out of Cameron County, Texas, until further orders of the Court.
(2) That Miss Sylvia Affolter, sister of the Plaintiff herein, remain in Cameron County and assist the Plaintiff in taking care of the child.
(3) That the Defendant be allowed to have visitation privileges with said child on Sunday of each week hereafter from 8:00 a. m. to 6:00 p. m.; Plaintiff is to deliver said child and return for him at the appointed time; and that Defendant shall not remove said child from the environs of Rio Hondo, Texas.

Shortly thereafter, and also on June 11, 1964, the court, on his own motion and without notice to the parties, entered a subsequent order wherein, after stating that it had been made known to him by counsel for the plaintiff that one of the conditions on which the award of custody was made is not being met, to wit, that plaintiff’s sister remain in Cameron County and assist in caring for the minor, the court

“* * * ordered, adjudged and decreed that the judgment of the court dated June 11, 1964, regarding the custody of'the minor child be and the same is hereby set aside until further hearing on the merits regarding the same.
“It is further ordered, adjudged and decreed that, pending hearing on the merits regarding custody of the said minor child, Terry Lee Affolter, his temporary custody is awarded to Plaintiff, Lee Baird Affolter, on Wednesday, Thursday and Friday and Saturday of each week, and temporary custody of said minor child is awarded to the Defendant, Hermelinda Cam-beras Affolter, on Sunday, Monday and Tuesday of each week, conditioned that neither party shall remove the said child from Cameron County, Texas, pending hearing on the merits, and Plaintiff will deliver the said child to Defendant at 8:00 o’clock a. m. on each Sunday morning and return for the said child on each Wednesday morning at 8 o’clock a. m.
“It is further ordered that the Court’s judgment regarding divorce and community property division will stand and shall be incorporated in the final order entered herein.”

This appeal is from that portion of the original judgment whereby the custody awarded appellant of his son was conditioned on the child not being taken out of Cameron County, Texas, and that the sister of appellant, a resident of Ohio, remain in Cameron County, Texas, to assist in caring for the child; and from the subsequent order setting aside the custody part of the judgment and awarding the divided custody as above set forth.

That the trial court had the authority and jurisdiction to enter the second order of June 11, 1964, is well settled. A district court has jurisdiction for 30 days following the rendition of a judgment to set aside, modify or amend same, without the necessity of a formal motion, and even upon his own motion. Rule 329b, Texas Rules of Civil Procedure; McDonald, Tex.Civ.Practice, Vol. 4, § 18.03; Whisenant v. Fidelity & Casualty Co. of New York, Tex.Civ.App., 354 S.W.2d 683, writ ref. n. r. e.; Payton v. Hurst Eye, Ear, Nose & Throat Hospital and Clinic, Tex.Civ.App., 318 S.W.2d 726, writ ref. n. r. e.; Gage v. Dallas Power & Light Co., Tex.Civ.App., 241 S.W.2d 196; St. John v. Archer, Tex.Civ.App., 147 S.W.2d 519, writ dism. Since the court set aside, in his second order, all of that portion of his first decree providing for custody of the child, appellant’s purported appeal from that part of the judgment is from something which no longer exists.

After the court entered his second order, no final judgment remained from which appeal could be taken. See opinion of this court delivered April 15, 1965, in Angerstein v. Angerstein, Tex.Civ.App., 389 S.W.2d 519. The order awarding the divided temporary custody of the child was expressly stated to be only temporary, pending further hearing on the merits concerning such custody. There is no provision in our laws for an appeal from an order of temporary custody. Goodman v. Goodman, Tex.Civ.App., 224 S.W. 207; Wardlaw v. Wardlaw, Tex.Civ.App., 267 S.W.2d 250; Morrow v. Gallant, Tex.Civ.App., 312 S.W.2d 526; Mendoza v. Baker, Tex.Civ.App., 319 S.W.2d 147.

The order expressly anticipated a further hearing on the issue of child custody, and the entry of final judgment covering all issues in the suit. It was an interlocutory order, from which no appeal could be had. Long v. Humble Oil & Refining Co., Tex.Sup., 380 S.W.2d 554; Lynn v. Hanna, 116 Tex. 652, 296 S.W. 280; Angerstein v. Angerstein, supra, and cases therein cited.

This court would be committing fundamental error in taking jurisdiction of this appeal for the purpose of deciding it on the merits, and we are not only authorized, but required to pass upon matters of our jurisdiction even though not raised by the parties. McCauley v. Consolidated Underwriters, 157 Tex. 475, 304 S.W.2d 265.

The trial court should proceed with the hearing on child custody, make his determination, and enter one final judgment in the case. Rule 301, T.R.C.P.

Appeal dismissed.