author: DUNAGAN, Chief Justice.

text:
    TEXAS POWER & LIGHT COMPANY, Appellant, v. Mack ADAMS et al., Appellees.
    No. 207.
    Court of Civil Appeals of Texas. Tyler.
    June 16, 1966.

      Damon D. Douglas, Athens, John L. Estes, Burford, Ryburn & Ford, Dallas, for appellant.
    Robert Fields, Fields, Fields & Hardee, Athens, for appellees.
   DUNAGAN, Chief Justice.

This is a condemnation case through which Texas Power & Light Company seeks to acquire an easement from the defendants for the construction of an electric transmission line. The defendants’ tract of land consists of 1359 acres and the easement traverses across the property 170 feet in width, containing 38.445 acres.

The parties stipulated that all of the jurisdictional requirements had been satisfied and trial was to the jury on the sole question of land values. The jury found the 38.445 acres within the easement sustained a reduction in value of $5,958.97 ($7,304.55 being the value before the easement was imposed and $1,345.58 being the value after the easement was imposed on a 38.445 acres). The jury also found the 1321.25 acres remaining to have sustained a reduction in value in the amount of $26,420.00 ($250,990.00 being the value of the remainder before and $224,570.00 being the value of the remainder after the easement was imposed).

The trial court accordingly rendered judgment on the jury verdict from which the plaintiff prosecutes this appeal. The parties will be referred to in this opinion as they were denominated in the trial court.

The plaintiff presents 14 Points of Error arranged in various groups, which grouping will be followed, in general, by this court. The first four Points of Error relate to the testimony of Mack Adams, T. N. Winn and Joe Browning, witnesses for the defendants, which read as follows:

“The trial court erred in admitting into evidence the consideration brought by the sale of Loosier to Syler.
“The trial court erred in admitting into evidence the consideration brought by the sale of Grimes to Holt.
“The trial court erred in admitting into evidence the consideration brought by the sale of Compton to Tyner.
“The trial court erred in failing to strike the evidence of the consideration brought by ‘a small tract across the road for $400.’”

Under these points, the plaintiff in its brief makes the following complaints of the courts action in admitting certain testimony of the three witnesses named above.

“1. Mack Adanas, one of the defendants, testified to a sale of ‘the small tract just across the road from this subject tract in question that sold for $400.00 an acre.’ No other data was elicited concerning this sale such as the grantor, grantee, date of sale, location, size, etc; in short, no attempt was made to show its comparability to the subject property and thus lay a predicate for its admissibility.” To this testimony, the plaintiff made the following objection:
“If Your Honor please, we move to strike the testimony of the witness as to what another piece of land sold for because it has not been shown to be comparable to the subject property. And furthermore for the reason that it’s not responsive to any question asked of the witness.”

Which objection the court overruled.

“2. Mack Adams was also permitted to testify about the Loosier to Syler sale and the consideration it brought of $210 per acre. On voir dire examination of the witness, prior to the admission of the sale price, the witness admitted he was not a party to the sale and his only knowledge was obtained from the deed records and a conversation with the buyer.”

To which testimony the plaintiff made the following objection:

“If Your Honor please, we object to the question as to the consideration of this sale for the reason that the witness is not shown to have personal knowledge and it would, therefore, be hearsay as to this Plaintiff and would deprive the Plaintiff of his right of cross examination. And we further object to the admission of the consideration of this sale for the reason that the witness has not shown to be in the real estate business as a business or profession.”

This objection was overruled by the court.

“T. N. Winn, another witness called by the Defendants, was also permitted to testify as to the consideration of this sale although he also stated on voir dire examination that he was not a party to the sale and his only knowledge of the consideration was obtained from the deed records and a conversation with the buyer. This testimony was offered and received into evidence for the jury to consider as direct evidence and without limitation, over the objection that each witness acquired his information by hearsay and therefore the Plaintiff was denied its right of cross examination.”

The record reflects that the plaintiff made the following objection to such complained of testimony:

“If Your Honor please, the objection to the question inquiring into a consideration that the sale of Loosier to Syler brought for the reason that the witness’s sole knowledge is hearsay and would deprive this Plaintiff of the right of cross examination, and further for the reason that it is not shown to be comparable as a matter of law.”

The objection was overruled by the court.

“3. Joe Browning, another of Defendants’ witnesses, was permitted to testify to the consideration brought by another sale: Grimes to Holt for $240.00 per acre. Again, the witness testified on voir dire examination that he had not been a party to this sale and had no personal knowledge other than that which was obtained from his conversations with the seller. The same objection as before was made and the court admitted the hearsay evidence from this witness for all purposes, without any limitation.”

The record shows the following objection by plaintiff to this testimony:

“If Your Honor please, we object to the testimony by this witness of the consideration brought by that sale for the reason that it is based on hearsay and would deprive the Plaintiff of his right of cross examination; in other words, if Your Honor please, the sole knowledge of this witness is hearsay from what he has determined from this conversation with another purpose.
« * * #
“MR. FIELDS: Your Honor, we withdraw the question at this time.”
“4. T. N. Winn was also allowed to testify to another sale, Compton to Tyner which brought $306.00 per acre. As before, Mr. Winn had no personal knowledge of the consideration which this sale brought other then that which he obtained by hearsay — a conversation with the purchaser and from the deed records. Another objection was made to the testimony as to the consideration of this sale because it was hearsay, same being overruled and the evidence being admitted for all purposes for the jury to consider as direct evidence that the sale, occurred at that price and as direct evidence on the value of the defendants property, all without any limitation.”

The following objection was lodged by the plaintiff to the complained of testimony:

“And, if Your Honor please, we object to the admission of the sales price of the Compton to Tyner sale for the reason that the witness’s knowledge is solely based on hearsay and would deprive of course the Plaintiff of his right of cross examination. And further, for the reason that it’s not shown to be comparable in location, size; it is located some distance from Mr. Adams’ tract of land, fifteen miles, I believe, according to this witness’s testimony, and we further object then for the reason that it’s not comparable as a matter of law.”

The objection was overruled by the court.

To support its contentions, the plaintiff relies principally on State v. Oakley, 163 Tex. 463, 356 S.W.2d 909, 95 A.L.R.2d 1207, 1962, and State v. Baker Bros. Nursery, 366 S.W.2d 212 (S.Ct.) 1963, wherein the court restated and reiterated its holding in the Oakley case.

To ascertain the primary basis for plaintiff’s contention, we quote from its brief the following:

“The trial court in the Oakley case had instructed the jury and limited the purpose which the jury could consider such evidence : not as evidence of what the properties sold for or the value of the subject property, but only as being information gathered by the witness in forming his opinion of the value of the subject property.
“Here, nowhere did the Defendants qualify their tender of evidence of the sale price of the other tracts and the trial court placed no limitation upon the reception of this evidence, but admitted it to be considered by the jury as direct, primary evidence of the price each brought and of the value of the subject property.”

In our opinion, the decision of the question here presented is governed by the case of Dyer v. State of Texas, 388 S.W.2d 226 (Tex.Civ.App.) 1965, n. w. h. As we deem this case to be controlling of the question before us, we therefore quote therefrom at length. In the Dyer case the complaint was made against the testimony by two of the state’s witnesses, alleging error in allowing the witnesses to testify on direct examination to the mental processes by which each witness arrived at his opinion or conclusion of the value of the property, when no limitation or purpose for which such testimony was offered; that such testimony involved the examination of deed records and revenue stamps and statements of third persons, all of which was hearsay, and also involved remote sales of improved property as compared to the unimproved property in this cause, all without limitation as to purpose. The court in passing upon this complaint said:

“A review of the record fails to reveal that any objection was made to the admission of the indicated testimony unless limited to the purpose for which it was admitted. The objections to the testimony seem to be confined to the fact that it involved hearsay or as to remoteness of comparable sales, together with the complaint that the witnesses were allowed on direct examination to reveal the details or mental processes by which each witness arrived at his conclusion as to the value of the land at issue. This last objection seems to be based upon certain language in the Supreme Court decision in City of Austin v. Cannizzo, 153 Tex. 324, 267 S.W.2d 808, 816: ‘ * * * but inquiry into the details or mental processes by which the witness arrives at his conclusion is only proper on cross examination for the purpose of testing the credibility of the witness or for laying a predicate for impeachment.’ This language in the Cannizzo case is, however, modified in the later Supreme Court decision in State v. Oakley, 163 Tex. 463, 356 S.W.2d 909, where, at page 914 [95 A.L.R.2d 1207], it is stated:
‘In a sense, of course, testimony of an expert witness concerning comparable sales which he has considered in reaching his opinion touching the value of the property under consideration involves an inquiry into the mental processes of the witness; the real question, however, is whether such testimony, which is inadmissible to prove the facts of such sales as evidence of the value of the property condemned, is likewise inadmissible in another capacity, that is, to show a basis of the opinion value stated by the expert witness and in which capacity the testimony is not hearsay in the true sense. The better reasoned view, in our opinion, is that the testimony is proper in such latter capacity, where, as in the case at bar, the testimony is given by a professionally qualified appraiser whose qualifications, and the comparability of the sales to which he testified, are not challenged. The discretion of the trial judge, particularly in these latter respects, together with the opportunity on cross-examination to bring' out facts contradictory to the statements and conclusions of the expert, and the instruction of the court limiting consideration by the jury of the testimony beyond the purposes for which it was admitted, are substantial safeguards against its misuse. Moreover, whatever facilitation of expert testimony in a condemnation proceeding there may be under our holding is available alike to the condemnor and con-demnee.’
“The same holding is found in a still later Supreme Court case: State v. Baker Bros. Nursery, * * * 366 S.W.2d 212, where such testimony was offered for the ‘limited purpose of showing what the appraiser considered in arriving at his opinion of the value’ and not as direct original evidence of the facts stated therein, and the court admitted such testimony for this limited purpose. See also the 1964 Civil Appeals case of State v. Rumery, 381 S.W.2d 87 (ref., n. r. e.), in which the court states, at pages 89 and 90:
‘In the search for market value the information an appraiser might gain from sales here shown is worthy of note, though the tracts are dissimilar in very important respects. These are safeguards against these sales being accorded weight by the jury other than as a factor considered by the appraiser in arriving at his value conclusion. The court’s instruction limiting the purpose for which the evidence is admitted and cross examination that emphasizes the negative aspects of comparability are the protective shields of the party resisting the impact of the appraisers’ testimony.’ * * *
“While we feel that on the basis of the above authorities the complained-of testimony of the two witnesses, Lomax and Rash * * * was probably not admissible without a limiting instruction by the court, if such limiting instruction had been requested, we fail to find in the record any request that the testimony be so limited to the purpose for which such testimony was admitted. (Citing cases) *■ * * ‘Had there been a request on the part of the defendant to limit the purpose for which the testimony might be considered it unquestionably would have been so limited by the trial court, but no such request was made’, * * *."

On the basis of the above authorities, we likewise feel that in the case at bar, the complained-of testimony of the three witnesses, Adams, Winn and Browning, was probably not admissible without a limited instruction by the court, if such limited instruction had been requested, we likewise fail to find in the record in this case any request that the testimony be so limited to the purpose for which such testimony was so admitted. Also as held in the Dyer case, we likewise hold had there been a request on the part of the defendants to limit the purpose for which the testimony might be considered, it unquestionably would have been so limited by the trial court but no such request was made. See Fisher Construction Company v. Riggs, 320 S.W.2d 200 (Tex.Civ.App.) 1959, reversed on other grounds, 160 Tex. 23, 325 S.W.2d 126; Travelers Insurance Company v. Barrett, 366 S.W.2d 692, at page 695, (Tex.Civ.App.) 1963, n. w. h.; 23 Tex.Jur.2d, page 173, Sec. 122.

Plaintiff, in its brief, mentions its challenge to the comparability of the property and sale involved in the Loosier to Syler transfer, and the Adams’ property in question, but plaintiff makes no serious argument in this regard. The testimony of the witness Winn reflects that he made a thorough investigation of the properties, and that they were more than comparable under the standards set in Hays v. State, 342 S.W.2d 167 (Tex.Civ.App.) 1960, writ ref., n. r. e. Moreover, the admissibility of the testimony as to comparability was within the discretion of the trial court under the standards in Holcombe v. City of Houston, 351 S.W.2d 69 (Tex.Civ.App.) 1961, n. w. h.; Melton v. State, 395 S.W.2d 426 (Tex.Civ.App.) 1965, writ ref., n. r. e.

In the trial court the plaintiff objected to the testimony of witness Browning concerning a sale of property and the consideration therein involved because it was not shown: (1) to be comparable; (2) nor was the location from the subject property or the accessibility shown; (3) nor was its size, improvements or topography shown; and (4) whether or not it had any improvements in the nature of houses, barns, et cetera. In the case of Holcombe v. City of Houston, supra, the court said:

"We are of the view that appellant would have had the trial court and would have us be more restricted than the settled law requires. As to comparability, appellant in effect urges there must be practical, if not absolute, identity in shape, area and environment. There is no such legal requirement. The law does require comparability but not that the tracts be identical. Comparability is a relative term and is used in cases of this kind more in the sense of similarity to such degree that the sales price of one will be an indication of the value of the other and will thus assist in determinat-ing the value of the tract in question.”

This court in State v. Helvey, 375 S.W.2d 744 (Tex.Civ.App.) 1964, n. w. h., said:

“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.” Also see Melton v. State, supra.

As to plaintiff’s complaint to witness Mack Adams testifying to the consideration of $400.00 being paid for a small tract just across the road from the subject tract in question, the record shows the following occurrence upon the trial of this case:

“Q * * * Have you been interested in the selling or the purchasing of any other farm land; whether you bought it or not, have you been interested in it?
“A Yes.
“Q You have appraised it from the standpoint of buying it?
“A Quite a few tracts.
“Q All right. Tell us about some of those that you have actually had experience with, of your dealing with it to the extent that it’s affected your opinion of market value one way or the other.
“A The small tract just across the road from this tract in question that sold for $400.00 an acre.”

At this point the plaintiff interposed the following objection to the last answer made by witness Mack Adams:

“If Your Honor please, we move to strike the testimony of the witness as to what another piece of land sold for because it has not been shown to be comparable to the subject property. And furthermore for the-reason that it’s not responsive to any question asked of the witness.
“Q (Mr. Fields) Mr. Adams, without telling any of the prices, just answer my question as best you can, without setting any price. We will have time to do that.
<< * ⅝ ⅜
“THE COURT: I overrule your objection.
* * *
“Q (Mr. Fields) Mr. Adams, without giving any price of sale, just tell us what experience you have had in keeping up with the value, market values of property in and around Henderson County.”

We think it is apparent that portion of witness Adams’ testimony as to what the tract sold for was strictly descriptive, not intended to show a comparable sale, not asked for as a sale price on a comparable sale. Without doubt, it was unresponsive. Even though we think the court erred in not striking that portion of the witness’s testimony, we also think it was harmless error since it is not shown to have prejudicial effect upon the jury verdict, which found the market value of defendants’ property to be around $190.00 per acre, and when considered in the light of other testimony as to the market value of defendants’ property, which is shown by the following chart:

Witnesses’ Comparable Sales Testimony Witnesses’ Opinion of Market Value Testimony on Adams’ Place Before Taking Witnesses’ Opinion of Market Value of Adams’ Remainder Before Taking Witnesses’ Opinion of Market Value of Remainder After Taking
APPELLEES’ WITNESSES
Adams $ 190/acre $250,990 $165,125
($125/acre avg.)
Loosier sale
($210/acre)
Jones $200/acre $264,200 $198,150
($150/acre avg.)
Deupree $200/acre $264,200 $198,150
($150/acre avg.)
Browning $215/acre $284,015 $184,940
($140/acre avg.)
Grimes sale ($240/acre)
Winn $200/acre $264,225 $211,380
($160/acre avg.)
Loosier sale
($210/acre)
Compton sale
($306/acre)
APPELLANT’S WITNESSES
Faulk $175/acre $231,000 $231,000
($175/acre avg.)
Anderson $175/acre $231,000 $231,000
($175/acre avg.)
Coates sale
($121.15/acre) '
JURY FINDINGS Market Value of Adams’ Place Before Taking Market Value of Adams’ Remainder Before Taking Market Value of Adams’ Remainder After Taking
$190/acre $250,990 $224,570
($170/acre avg.)

From the testimony of both the plaintiff’s and defendants’ witnesses as to the value of the property in controversy as reflected by the above chart, it is clear that the jury verdict was not based on any of the comparable sales mentioned, and that the jury found the value of defendants’ property to be less than that indicated by any of the comparable sales testimony being complained about; and further that the jury findings were well within the testimony of the witnesses as to the market value of the Adams’ property which ranged from a low of $175.00 an acre testified to by plaintiff’s witnesses, to a high of $215.00 per acre as testified to by defendants’ witness Browning. Since the jury verdict was not a reflection of any of the sales testimony objected to in plaintiff’s first four Points of Error, and since there was other competent testimony upon which the verdict might rest, if the court did err in admitting the testimony complained of, which we do not so hold, the admission did not constitute harmful error under Rule 434, Texas Rules of Civil Procedure. State v. Hamman, 377 S.W.2d 727 (Tex.Civ.App.) 1964, n. w. h.; State v. Powell, 376 S.W.2d 929 (Tex.Civ.App.) 1964, n. w. h.; and Panhandle Eastern Pipe Line Company v. Jackson, 306 S.W.2d 145, 149 (Tex.Civ.App.) 1957, n. w.h. Plaintiff’s Points 1-4 are overruled.

Plaintiff next contends that: (1) “The trial court erred in excluding evidence of the topography of the subject property.” (2) “The trial court erred in excluding a topographical map of the subject property, Plaintiff’s Exhibit No. 1.” (3) “The trial court erred in excluding evidence that the subject tract of land was not suitable and adaptable to a lake use.” These contentions are overruled.

On direct examination, Mack Adams, one of the land owners, was asked the following questions and gave the following answers:

“Q When you bought that property what were your intentions as far as improving it at the very time that you entered into this contract?
«# * *
“A We wanted to improve it to carry more cattle than were being carried on the place. We intended to build a landing strip and later on a shop for equipment, have all on one area. And, of course, in line with raising the cattle we wanted to — there was quite a bit of land that was in a waste state that we thought we could reclaim very cheap, and improve the carrying capacity so it would be a profitable cattle operation. And you could build over a 500-acre lake on the place very easily. We had that in the back of our mind on the value standpoint, that it might have more value with a lake on it since it is in a resort area, than it would be for the cattle. We started off with cattle but we were approached shortly after we bought it, a party interested in building a lake on it.
« * ⅜ *
“Q All right. Mr. Adams, in arriving at your market values, along with the other things that you have told us you took into consideration such as your experience in buying and selling property and appraising property, and your knowledge of actually improving the property and farming and ranching, did you take into consideration the uses that Texas Power & Light Company can actually put this 38 acres to under this easement?
“A Yes.
“Q Now, if you were to build this lake that you have planned, would any of these towers be in it?
“A Yes, they would.”
Again, on direct examination, defendants’ expert witness, T. N. Winn, testified as follows:
“Q (Mr. Fields) Mr. Winn, let me ask you this: what do you consider in your opinion as a real estate expert, to be the highest and best uses of Mr. Adams’ land, 1359 acres, before they hit him with this condemnation?
“A Well, the entire tract, it would be for cattle, farming, with some recreation and wild life, but for the frontage area you still have some possibility of selling rural farm-sites. And, in my opinion, there is a very definite possibility of a considerable sized lake and, if you wanted to turn the entire area into a recreation area.”

In rebuttal to the above testimony concerning the possibility of the construction of a lake on this property, the plaintiff sought to prove that the terrain and topography in fact were totally unsuitable for the construction of a lake. Two expert witnesses were called upon by the plaintiff to establish the truth of this contention.

The first of these witnesses was Richard Wiggins, a graduate civil engineer who was presently employed as an engineer for Texas Power & Light Company where he had been so employed for approximately three years. Mr. Wiggins testified that he had obtained a map of the topography of Mr. Adams’ property which was a reproduction, a blow-up, of a U.S. Coast and Geodetic Survey Map. • He also testified that he had been upon the Adams’ property and compared that piece of property to the map. And that the map appeared to be accurate in showing the topography of the Adams’ property. Witness Wiggins had drawn on this map (which was a reproduction, a blow-up, of a U.S. Coast and Geodetic Survey, not produced by the witness or its authenticity otherwise proven) with orange coloring the 320-foot elevation. Also shown thereon is the location of the Adams’ property by outlining its boundaries in red. It was plaintiff’s intention and purpose to show by the witness Wiggins that from the contour lines and elevations as shown on the map that it would be impossible to construct a lake on the property. He offered the map (Plaintiff’s Exhibit No. 1) into evidence for the purpose of showing that it accurately portrayed the relative elevation of the Adams’ tract of land and the contour lines and showing the hills, to which defendants objected and the objection was sustained by the court. This exhibit was offered in evidence for the limited purpose of showing the relative contour lines, the relative elevations, and not for the truth or accuracy of the exact sea-level elevation.

Defendants objected to the offer of plaintiff’s Exhibit No. 1 on the ground that it had not been proved to be accurate and that it was strictly hearsay by this witness.

On voir dire examination, Mr. Wiggins testified: that he had not surveyed the property; that he had no personal knowledge of any of the lines shown on the map that he was attempting to testify to before the jury. At this point, the defendants further objected that it was guesswork on the part of the witness Wiggins and had not been properly proved up.

Following these objections, Mr. Estes, attorney for plaintiff, stated to the court:

“If Your Honor please, the witness has testified that he has looked at the property and has inspected the property and has compared it with this map and says that it’s correct, and we think that it’s admissible.
“Mr. Fields: Let me have a little more voir dire, if it please the Court.
“Mr. Estes made the statement that you have been out on the ground and compared it with these elevations, and because you have been out there you know that these elevations are right; are you telling this jury that on your oath, Mr. Wiggins ?
“THE WITNESS: The undulations on the map—
“MR. FIELDS : Listen to my question, if you don’t mind. Are you telling this jury that these elevations you have drawn in, 320 elevation line on this map, that you did that by going out on the ground and inspecting the land?
“THE WITNESS: I merely colored in that contour line. It was there on the original map.
“MR. FIELDS: And you didn’t prepare the original map, did you?
“THE WITNESS: I say, it’s a U.S. Coast & Geodetic Survey map.
“MR. FIELDS: Answer my question. You did not prepare this map ?
“THE WITNESS: No sir.
“MR. FIELDS: Have you ever surveyed one inch of land on any elevation on the Adams’ property that is involved in this lawsuit?
“THE WITNESS: No.
“MR. FIELDS: Well, are you intending to tell this jury under oath that you know where any elevation line is on Mr. Adams’ property?
“THE WITNESS: This map—
“MR. FIELDS: I didn’t ask you anything about this map. I am asking you, are you trying to tell this jury that you personally know any elevation of any one inch of this 1359-acre ranch that is involved in this lawsuit?
“THE WITNESS: No.
“MR. FIELDS: All right, sir.
“MR. DOUGLAS: If Your Honor please, the witness has testified previously that he is a civil engineer. He testified just a moment ago that he took a U.S. Coast and—
“MR. FIELDS: Your Honor, we object to any U.S. Geodetic Survey map that is not in evidence here. There is no way he can prove it up. It is just wholly immaterial. And these lawyers, through this witness, are continuously trying to get some hearsay testimony in here. We object to it, ask the Court to instruct them to stop such questions. They’re immaterial. They’re trying to get some hearsay evidence before this jury through this witness, who has no knowledge whatsoever, and he’s testified that he doesn’t.”

The plaintiff in its brief complains that the court likewise excluded the evidence of the witness Wiggins as to the impossibility of constructing a lake on the property. This is based on the testimony of plaintiff offered on its Bill of Exception (S.F. 386-395). However, the record shows that the testimony complained of was based upon the contour and elevation lines on the very map (Plaintiff’s Exhibit No. 1) that the court had excluded pursuant to defendants’ objection thereto.

Plaintiff offered witness Wayne Y. Anderson, whose qualification as an expert land appraiser is undisputed, who testified without objection that the building of a lake on the Adams’ property was impractical and not feasible as shown by the following questions and answers on direct examination:

“Q Did it occur to you when you inspected that property that it would be possible or desirable for a landowner to build a lake on that property?
“A I considered it from the standpoint that it would be possible, the possibility of it.
“Q Did you make an investigation into the determination, or into the feasibility, practicality and so forth, of building a lake on that piece of property, maybe situating a dam somewhere down toward the southern portion of his property?
“A I did, sir.
“Q And what did you do in this investigation; what did you do?
“A Well, I did three things: first, I dicussed with Mr. Robbins whether he had ever contemplated such a thing and had any work, engineering work done on it; I secondly contacted the Soil Conservation Service, and this space was under contract with them when Mr. Robbins owned it; and I secured a map showing elevations and the whole area to ascertain the feasibility of a lake and. the area it would cover.
tt ⅜ * ⅜
“Q (Mr. Estes) Mr. Anderson, did you use this information, this information and the results of this investigation in forming your opinion of the market value of Mr. Adams’ property?
“A It was a consideration given to determine the highest and best use which, naturally, I would enter into the over-all appraisal.
“MR. ESTES: We offer into evidence this witness’s testimony as to his conclusion concerning the adaptability, feasibility and practicality of building a lake on this property as a basis of his opinion and of his appraisal of this subject property, And I will ask you these questions in that connection:
“Q (Mr. Estes) What did you determine, Mr. Anderson, to be the practicality and feasibility of erecting a lake on that property ?
“A I determined that it was impractical and not feasible for two reasons: number one, the clearing of all the hill land and the sprigging of it to grass would remove the scenic effect and cause the silting of the lake if built; and number two, all of the most fertile land on the unit would be covered by water and would destroy it as a beef cattle operation.
“Q You’re talking about the bottom?
“A Yes, sir.
“Q Now, what did you determine from your investigation that you used as a basis of your appraisal as to the feasibility or the adaptability of this tract of land for building a lake?
“A The maps, elevation maps, topography maps,—
“MR. FIELDS: Your Honor, we object to that at this time to this witness testifying to something that is strictly hearsay on his part, and ask that I take him at this time on voir dire and determine that he’s not.
“Mr. Anderson, I believe you stated that you had not been upon this property prior to March the 25th, 1964?
“THE WITNESS: ’65,
⅜ * *
“MR. FIELDS: On March the 25th or since then, have you made any survey upon the ground as far as establishing the elevations out there?
“THE WITNESS: By instruments, no sir.
“MR. FIELDS: This information that you are talking about, you’re basing these elevations upon, is that from something other than what you’re personally acquainted with?
“THE WITNESS: Yes.
“MR. FIELDS: You have personal knowledge of?
“THE WITNESS: It’s from the maps of the Soil Conservation—
“MR. FIELDS: Do you understand my question ? I say, do you have personal knowledge of that? I didn’t ask you where you got the map. Did you understand the question? I said do you have personal knowledge, Mr. Anderson, of any elevation out there on Mr. Adams’ property ?
“THE WITNESS: Not except from the maps, no, sir.
“MR. FIELDS: Your Honor, he certainly can’t express something he has no knowledge of whatsoever.
“You have no knowledge?
“THE WITNESS: No.
“MR. FIELDS: You are not a licensed surveyor or anything like that, are you?
“THE WITNESS: No, sir.
“MR. FIELDS: You went out there a couple of times and you eyeballed this valley and you know what the elevations are, is that right?
“THE WITNESS: No, sir. I looked at official maps that are approved maps.
“MR. FIELDS: Do you have something other than what somebody else gave you or told you to base this on?
“THE WITNESS: I believe that was the only way it was available, unless you hired engineers to go make a study.
“MR. FIELDS: And you did not do that ?.
“THE WITNESS: No, sir.
(( 5jí * ⅝
“MR. FIELDS: And you have no personal knowledge yourself of any elevation out there?
“THE WITNESS: Except from the maps.
“MR. FIELDS: Your honor, we say that this opinion that he’s expressing is based strictly on hearsay, something that is not in evidence. It’s just wholly inadmissible, it’s strictly based on hearsay. We say this witness cannot express any opinion as to any elevation out there.
“MR. ESTES: We do not offer this, if Your Honor please, for the truth of the matters asserted, but we offer it as a basis for his appraisal as a witness, which he stated he used this in appraising the property, and we offer it to show the jury what the witness used as a basis of forming his opinion on the value of Mr. Adams’ property. And we offer it to show the jury what the witness used as a basis of forming his opinion of the value of Mr. Adams’ property, not for the truth of the matters that he’s testifying to about these maps and so forth.
“MR. FIELDS: Your Honor, this is certainly hearsay, and there is no exception to that hearsay rule for them to admit it’s not offered to admit the truth of what he’s saying, and we think it’s inadmissible.
“THE COURT: Sustained.”

It is clear that plaintiff’s witnesses Wiggins and Anderson did not attempt to testify to relative elevations on the Adams’ property from their own knowledge, but attempted to rely upon a map made by third persons and the authenticity of which had not been established.

The foregoing testimony evidences a complete lack of proper authentication of the elevation map in question, and therefore was properly excluded from evidence. Smith v. Bunch, 31 Tex.Civ.App. 541, 73 S.W. 559, 562, 1903, writ ref.

With regard to the purpose for which plaintiff asserted its desire to introduce the topography map (which was to show that it was impossible to build a lake on defendants’ property), it seems to us that the topographic map itself and the related testimony do not establish the impossibility of such a venture, if proper damming and supporting artificial structures were constructed on the Adams’ property to compensate for the alleged unfavorable drop in elevation. However, even so, the defendant, Mack Adams, did not testify extensively with regard to changing their ranch operation into a resort lake and he did not testify that building a lake would provide a “higher or better use of the property” than as ranching property. Nor did any other witness. Defendant Mack Adams did mention that he had bought the property thinking it “might” have more value as a lake site. Plaintiff’s witnesses were allowed to give their independent opinions as to the flooding effects of a lake and its destructive results and impracticality. All of the comparable sales, upon which defendants’ witnesses based their opinions as to the market value of defendants’ property, dealt with similar ranching properties, and not resort or lake-site properties, and we think plaintiff has failed to show how the evidence from the topographic map in question would have reduced the ultimate jury verdict in this case. The plaintiff was permitted to offer evidence into the record that it was not practical and feasible to construct a lake upon the Adams’ property. Therefore, even if the exclusion of the evidence relating to the elevation lines on plaintiff’s Exhibit No. 1 was error on the part of the trial court, it was manifestly harmless. State v. Clarke, 383 S.W.2d 953 (Tex.Civ.App.) 1964, n. w. h.; City of Fort Worth v. Barlow, 313 S.W.2d 906 (Tex.Civ.App.) 1958, writ ref.

In the case of Mallow v. State of Texas ex rel. City of Denton, 356 S.W.2d 705 (Tex.Civ.App.) 1962, writ ref., n. r. e., we find this statement:

“Here the expert’s knowledge has in the main been obtained from the statements, reports, maps or instruments made by third persqns. Therefrom he makes the calculations upon which his testimony as to quantity is given, whether considered as factual or opinion evidence. In other words, his testimony is necessarily predicated upon evidence which is hearsay as to him, and to the case on hearing. As such it is inadmissible. Texas Law of Evidence, McCormick and Ray, Second Edition, sec. 1404, ‘Opinions Based on Statements and Reports of Other Persons’.”

The trial judge is accorded considerable discretion in ruling on the admission or exclusion of photographic evidence. McCormick and Ray, Texas Law of Evidence, Vol. 2, pp. 320-1; City of Fort Worth v. Barlow, supra; State v. Clarke, supra; Sunland Supply Company, Inc. v. State of Texas, 392 S.W.2d 369 (Tex.Civ.App.) 1965, (reversed on other grounds June 8, 1966, Tex., 404 S.W.2d 316). In the light of the entire record, if the exclusion of the map in question and the testimony of Wiggins offered on plaintiff’s Bill of Exception, which was based entirely on the excluded map, was error, (which we do not hold), it was not such error as was calculated to cause and probably did cause the rendition of an improper judgment. Rule 434, Texas Rules of Civil Procedure; Bruner v. State, 391 S.W.2d 149, 155 (Tex.Civ.App.) 1965, N.R.E.

The next two Points of Error are based upon the action of the court in sustaining defendants’ challenges to jurors Ray R. Lowe and Claude Bankston.

On voir dire examination of Lowe, it was shown that he owned stock in Texas Utilities, which is a holding company and holds all of the stock for Texas Power- & Light Company, the plaintiff in this case, which the effect of is that he owns stock in the Texas Power & Light Company.

The trial court held said juror to be disqualified under Article 2134, Vernon’s Ann. Revised Civil Statutes. Subdivision 2 of said Article disqualifies any person interested, directly or indirectly, in the subject matter of the suit. Where a corporation is a party to the suit, its stockholders are necessarily interested in the result. 35 Tex.Jur.2d, page 261, Sec. 193.' We think the trial court correctly sustained defendants’ challenge to this prospective juror. Texas Employers’ Ins. Ass’n v. Lane, 251 S.W.2d 181 (Tex.Civ.App.) 1952, writ ref., n. r. e.

The voir dire examination of Bankston showed that he worked for the Commissioner’s Court of Henderson County in connection with the’ purchase of property for use as highway right-of-way, and he stated that if he were made a member of the jury, “I’d be just afraid it would put me in an embarrassing position later on because, you know that the County and the State had to go through the same thing, and which you know they will on some of it. And I’m just afraid — .” He replied in response to defendants’ attorney’s question, that if the jury were to determine a high verdict in damages in this condemnation suit that it would put him in “an embarrassing position.” Further, Mr. Bankston admitted if he were selected as a member of the jury to hear the case that he “would be thinking about” what his future relationship would be with the people he would have to be dealing with in purchasing right-of-way. He also admitted that if he were on the jury, he would also be considering what effect the verdict that he would render in the case would have on his testifying in the future regarding his own purchasing work for the County, and that worried him. He said he would try to not let this affect him, but that he didn’t know if he could do it as freely as he would like to do it, and that he felt it would be better if he didn’t serve. However, in response to questions from attorneys for both plaintiff and defendants, he stated that if selected as a juror in the case, that he would do what was right and would not let this affect his verdict. He also testified that he could not erase these thoughts from his mind and reiterated that he preferred not to serve on the jury because of the possible embarrassment it might be to him in the future in connection with his employment with Henderson County. The court likewise held Bankston to be disqualified.

Without further statement from the testimony of the prospective juror Bankston, we deem it sufficient to say that in our opinion the evidence adduced on the voir dire examination did not show conclusively that such prospective juror was lacking in the qualification for jury service prescribed by Article 2133, V.A. C.S., or was disqualified for such service under the provisions of Article 2134, of said statutes, or of Article 35.16, Vernon’s Ann. Civ. St. of Texas, C.C.P. A challenge for cause not based on any ground mentioned in the statutes is ordinarily addressed to the sound discretion of the trial judge whose action thereon should not be disturbed on appeal unless it clearly appears that a fair and impartial trial was thereby prevented. Bennett v. Jackson, 172 S.W.2d 395 (Tex.Civ.App.) 1943, Ref. Want Merit; Harrison v. Missouri-Kansas & T. R. Co. of Texas, 89 S.W.2d 455 (Tex.Civ.App.) 1936, err. dism.; Parker v. Traders & General Insurance Co., 366 S.W.2d 107 (Tex.Civ.App.) 1963, (modified on other grounds, Tex., 375 S.W.2d 714). Since we cannot say that the prospective juror Bankston was disqualified by law, or that a clear abuse of discretion on the part of the trial judge was shown, with respect to his action in ruling that the said prospective juror was disqualified, this point must be overruled.

Plaintiff further contends that prospective jurors Lowe and Bankston were not disqualified and that the court erred in sustaining defendants’ challenge to said prospective jurors, and that it was thereby forced to accept an objectionable juror. This contention is overruled.

The record reflects that the plaintiff did not make known to the trial court that it was forced and compelled to accept a juror who was objectionable to it until the hearing on its motion for new trial. It was after an adverse verdict and upon hearing for new trial, plaintiff for the first time made it known that one of the jurors who served at the trial was in fact objectionable. It has been held by this court in Hammon v. Texas & New Orleans Railroad Company, 382 S.W.2d 155, writ ref., n. r. e.:

“ * * * that in order to complain, plaintiff would be required to show that prior to the exercise of his pre-emptory challenges, he apprized the trial court that one of the jurors was obnoxious to him and that he would have challenged that juror had he not been forced to exhaust a challenge on an objectionable juror. Galveston, H. & S. A. Ry. Co. v. Keesey, 50 Tex.Civ.App. 463, 110 S.W. 170; Kansas City, M. & O. Ry. Co. of Texas v. Weaver, Tex.Civ.App., 191 S.W. 591.”

In any event, the trial court did not commit reversible error. Rule 434, T.R.C.P. provides that no judgment shall be reversed on appeal in any cause on the ground that the trial court has committed an error of law unless the appellate court shall be of the opinion that the error complained of amounted to such a denial of the rights of appellant as was reasonably calculated to cause and did cause the rendition of an improper judgment. Moreover, the plaintiff has failed to show the alleged improper action of the court resulted in harm and further there is no showing that it was denied a trial by a fair and impartial jury. Texas Employers’ Ins. Ass’n v. Lane, supra; Bashrum v. Vinson, 330 S.W.2d 538 (Tex.Civ.App.) writ ref., n. r. e.

The plaintiff by its tenth Point of Error says: “The trial court erred in refusing to admit the testimony of Joe Faulk that he had been appointed to serve as a Special Commissioner by the Judge of the County Court in this case.”

The record shows that plaintiff attempted to elicit from its witness Joe Faulk that he had been appointed by the Judge presiding over the trial of the case, in his capacity as County Judge of Henderson County, as one of the special commissioners, whose award for damages was objected to by the plaintiff and resulted in the institution of the case then on trial. In response to defendants’ objection, the Judge excluded this testimony. The record further reflects that the witness Faulk was allowed to render his opinion of the value of defendants’ property and even to mention that he had served as a special commissioner in condemnation cases in the past, to show his general experience and qualifications. He was also permitted to testify that he had had experience in making appraisals. We do not think the excluded testimony had any significant bearing, if any, on said witness’s qualifications to testify to the value of the Adams’ property. Therefore, the plaintiff has failed to demonstrate to this court any harm by the action of the court in excluding said testimony. Under the record before us, we think the point is without merit and same is overruled. Thompson v. Janes, 245 S.W.2d 718 (Tex.Civ.App.) 1952, aff. 151 Tex. 495, 251 S.W.2d 953.

The only other Points presented by plaintiff allege:

1. “There is no evidence to support the jury’s answer to Special Issue No. 4.”
2. “There is insufficient evidence to support the jury’s answer to Special Issue No. 4.”
3. “There is no evidence to support the jury’s finding of damages to the remainder as reflected by its answers to Special Issues Nos. 3 and 4.”
4. “There is insufficient evidence to support the jury’s finding of damages to the remainder as reflected by its answers to Special Issues Nos. 3 and 4.”

Special Issues Nos. 3 and 4 and the jury’s answers thereto are as follows:

“SPECIAL ISSUE NO. 3: What do you find from a preponderance of the evidence was the market value of the remaining 1321 acres of land of the defendants, lying outside of the easement, immediately before Texas Power and Light Company acquired the easement in question on May 4, 1964?
“Answer in dollars and cents.
“ANSWER: $250,990.00
“SPECIAL ISSUE NO. 4: What do you find from a preponderance of the evidence was the market value of the remaining 1321 acres of land of defendants, lying outside the strip of land occupied by the easement, immediately after Texas Power and Light Company acquired the easement in question on May 4, 1964?
“Answer in dollars and cents.
“ANSWER: $224,570.00.”

After careful review of all the evidence, we think there is sufficient testimony to support the jury’s answers and these points are accordingly overruled. Texas Power & Light Company v. Trinity Valley Ranch Company, 395 S.W.2d 866 (Tex.Civ.App.) 1965, n. w. h.

Finding no reversible error in the record, the trial court’s judgment is affirmed.

       As figured by mathematical division of jury verdict to find per acre average value found on the tract in question.


source: Caselaw Access Project

author: MURRAY, Chief Justice.

license: Public Domain

text:
    Shylock WARREN et ux., Appellants, v. Coy W. DIKES et al., Appellees.
    No. 14502.
    Court of Civil Appeals of Texas. San Antonio.
    June 27, 1966.
    Rehearing Denied July 13, 1966.
    William H. Price, San Antonio, for appellants.
    Carter, Callender & Onion, San Antonio, for appellees.
   MURRAY, Chief Justice.

This suit was instituted in a district court of Bexar County by Shylock Warren and his wife, Lucille Warren, against Coy W. Dikes and Rheinhardt Photoengraving Company, seeking to recover damages sustained by plaintiffs arising out of a collision between an automobile driven by Lucille Warren and a motorcycle ridden by Coy W. Dikes, which collision occurred at the intersection of Houston and Alamo streets in San Antonio, Bexar County, Texas. The jury found, in answer to Special Issue No. 8, that Lucille Warren failed to keep such a lookout as an ordinarily prudent person in the exercise of ordinary care would have kept under the circumstances; and in answer to Special Issue No. 9, that such failure was a proximate cause of the collision. Based upon this finding of contributory negligence, the trial court rendered judgment that the plaintiffs take nothing, from which judgment Shylock Warren and his wife, Lucille Warren, have prosecuted this appeal.

Appellants’ first contention is that the trial court erred in overruling their motion for a new trial because during the deliberation of the jury, a juror related his own experience and knowledge of the street intersection where the collision occurred, and thus caused the jury to answer Special Issue No. 8 against appellants.

On the hearing of the motion for new trial, as to whether the jury were guilty of misconduct during their deliberations, three witnesses were called and testified, namely, L. H. Martin, Fred Reagan, and Mrs. Concepcion S. Logan, all three were members of the jury that heard the case. Appellants rely principally upon the testimony of Mrs. Logan to show misconduct. She testified that the jury during its deliberation voted twice on Issue No. 8. The first vote was divided, some thought that Lucille Warren failed to keep a proper lookout and some thought she did not fail to do so, when she entered the intersection. Mrs. Logan was one of the jurors who voted that Lucille Warren did not fail to keep a proper lookout. Then there was more discussion of this issue. At this time one of the jurors, she was not certain which one, said that he was very familiar with the intersection of Houston and Alamo, and that you could see very well down Alamo Street. He described the corner from his own personal observation. After this discussion they took another vote and this time it resulted in a unanimous vote that Lucille Warren had not kept a proper lookout when she drove into the intersection. Mrs. Logan further testified that her second vote was principally based upon what the man said in the jury room. At another time she testified that her answer to Issue No. 8 was based on what she heard from the witness stand. Appellants’ motion for a new trial was overruled by the trial court, and the court thereby impliedly found that it believed the latter statement.

The witness Fred Reagan testified he heard some juror say that he was very familiar with this intersection, but he did not hear him say that you could see down Alamo Street.

The witness L. H. Martin testified that he worked at the new Moore Building which is just one block from the intersection of Houston and Alamo Streets. He parked his car and walked by this intersection every time he went to work. He further testified that there was considerable discussion of the jury between the first vote and the second vote on Issue No. 8. He said that during this discussion he said he knew Houston was wider because he walks it all the time. He denied saying anything about how far you could see down Alamo Street from Houston Street. He further testified that there was evidence from the witness stand as to the width of Houston Street.

There is no question but that it was improper for one or more of the jurors to state to the other jurors what they knew about the intersection by reason of their personal experience in crossing this intersection, but the question arises as to whether what happened during the deliberations of the jury was sufficient misconduct to require a reversal of the judgment.

The record shows that at the hearing on the merits the intersection was fully described by witnesses, in fact, it also shows that appellants introduced their Exhibit No. 1, which was a diagram of the intersection, but such exhibit was not brought to this Court. There is nothing to show that what was said by the juror from his personal knowledge of the intersection, contradicted in any way what was testified to by the witnesses on the trial. Lucille Warren testified that the reason she did not see the motorcycle Dikes was riding until it was right upon her, was that there was a pickup truck on her left which prevented her from seeing it.

Rule 327, Texas Rules of Civil Procedure, reads as follows:

“Where the ground of the motion is misconduct of the jury or of the officer in charge of them, or because of any communication made to the jury or that they received other testimony, or that a juror gave an erroneous or incorrect answer on voir dire examination, the court shall hear evidence thereof from the jury or others in open court, and may grant a new trial if such misconduct proved, or the testimony received, or the communication made, or the erroneous or incorrect answer on voir dire examination, be material, and if it reasonably appears from the evidence both on the hearing of the motion and the trial of the case and from the record as a whole that injury probably resulted to the complaining party.”

When this Rule is construed in connection with Rule No. 434, T.R.C.P., it becomes clear that the appellate court should not reverse a judgment of the trial court for jury misconduct, unless the appellate court is of the opinion that the misconduct amounted to such a denial of the rights of appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case. We are unable here to say that the misconduct complained of, in the light of the entire record, was calculated to cause and probably did cause the rendition of a wrong judgment. St. Louis S. W. Ry. Co. v. Gregory, 387 S.W.2d 27; City of Dallas v. Holcomb, Tex.Civ.App., 381 S.W.2d 347, ref. n. r. e., Tex., 383 S.W.2d 585.

Appellants next contend that the evidence was not sufficient to support Issue No. 8, and that the court erred in submitting that issue to the jury. Issue No. 8 inquired as to whether Lucille Warren failed to keep a proper lookout when she drove into the intersection and was struck by the motorcycle. The jury found that she failed to keep a proper lookout. Lucille Warren testified that she was driving her automobile on Houston Street and when she arrived at Alamo Street the traffic light was red so she stopped. There was a pickup truck stopped on her left. She testified she could see half of a block down Alamo, and the reason she could not see any farther was that the pickup truck was in her way. When the traffic light turned green she started up and entered the intersection when her car was struck by the motorcycle; she did not see the motorcycle until it was right upon her. The jury could have concluded that if she had been keeping a proper lookout to her left she would have seen the motorcycle in time to have avoided being struck by it. The fact that she had the green light does not give her a right to proceed blindly into the intersection without keeping a proper lookout, both to her right and to her left, for dangers which might be anticipated. De Winne v. Allen, 154 Tex. 316, 277 S.W.2d 95.

The judgment of the trial court is affirmed.


author: HUGHES, Justice.

text:
    Frank B. BROOKS, Appellant, v. George M. MORELAND et al., Appellees.
    No. 11408.
    Court of Civil Appeals of Texas. Austin.
    June 22, 1966.
    Kuykendall & Kuykendall, F. L. Kuyken-dall, Austin, for appellant.
    Baker & Watkins, Thomas H. Watkins, Austin, for appellees.
   HUGHES, Justice.

This suit arises from the collision of two automobiles near Bergstrom Field in Travis County on September 12, 1963. One car was owned by appellee, George M. Moreland and was at the time of the collision being operated by his daughter, Mrs. Shirley Von Gonten. The other car was owned and being driven by appellant, Frank B. Brooks.

Moreland sued Brooks who filed a cross action against Mrs. Von Gonten and her husband, Jimmy Von Gonten and Mr. More-land. Trial was to a jury upon whose verdict, the court rendered a take nothing judgment as to all parties. Mr. Brooks only has appealed.

Appellant has three points of error, all no evidence points, and they are jointly briefed. These points are that there was no evidence to support affirmative answers of the jury to special issues inquiring whether appellant on the occasion in suit failed to keep such a lookout as would have been kept by an ordinarily prudent person in the exercise of ordinary care under the same or similar circumstances, and whether such failure was a proximate cause of the collision; hence, the court erred in not granting his motion for judgment despite the verdict.

In determining these points, we will consider only the evidence favorable to appellees. We quote the narrative testimony of Mrs. Von Gonten:

“She was the driver of the 1963 Pontiac involved in the collision with a 1958 Ford driven by Frank Brooks on the night of September 12, 1963, on Highway 71 in front of Bergstrom Air Force Base. She and her aunt and her younger brother and sister had left the home of her parents to go and pick up another of her brothers who was at a high school football game nearby. The football game was not over and they had gone to the Jet Drive-In to get a malted milk. * * * Mrs. Von Gonten drove the Pontiac out of the Jet Drive-In, which is located on the north side of Highway 71 in front of Bergstrom Air Force Base, and drove on to Highway 71 and turned right, that is to the west. As she drove on to the highway she drove across the northern traffic lane for westbound traffic and into the southern or inside traffic lane for westbound traffic next to the safety island and proceeded to the end of said island intending to make a U-tum around such island and to proceed east on Highway 71. That at the end of such island she stopped her car and sat there for approximately 60 seconds waiting for the eastbound traffic to clear so that she could make a U-tum. While sitting there she saw in her rear view mirror Mr. Brooks’ car as it approached from the east in the inside traffic lane. That she immediately said, ‘My God, he’s going to hit us !’ And about the time she finished making this remark her car was struck in the rear by the car driven by Mr. Brooks. That after such collision her car was knocked down the highway and turned around so that it was facing east.
On cross-examination she testified that she did not know whether her car was parked parallel with the safety island or not; that her car might have been stopped at an angle to the island; that usually people intending to make a U-turn to the, left swung out to the right before commencing such turn; and that she might have swung out to the right before attempting to make her left hand turn, that she did not remember whether she did so or not.
Mrs. Von Gonten also testified that, although she was not sure, her best recollection was that her left turn signal light was on when she changed lanes.”

We also quote from the narrative testimony of appellee, George Moreland:

“Someone called his house and told him that Shirley had had an accident. He came to the scene of the accident immediately and found the cars located approximately as Mr. James and Mrs. Von Gonten had testified that they were located. The left hand blinker on the Pontiac was on and flashing when he got to the scene of the accident.”

We hold that this testimony is some evidence of probative force to sustain the jury answers to the above issues.

There are answers of the jury to other issues submitted to it which negate some of the matters testified to by Mr. Moreland and his daughter and which were material to the issues of improper lookout and its proximate cause. For instance, the jury found that Mrs. Von Gonten failed to keep a proper lookout, drove from the inside lane to the outside lane immediately prior to the collision, re-entered the inside lane without ascertaining that she could do so with safety, did not give a timely signal of her intention to stop the car and did not give a proper signal that she intended to turn left and that these findings were all negligent and each a proximate cause of the collision.

Notwithstanding the above conclusions it seems to us that there is a fatal conflict in the findings of the jury. It is our opinion that the findings of failure to keep a proper lookout and its proximate cause of the collision on the part of appellant are in conflict with the specific findings against Mrs. Von Gonten of acts of negligence each of which was found to be a proximate cause of the collision. These findings negate the only grounds upon which the jury could have found that appellant failed to keep a proper lookout.

The collision occurred on the inside lane. If, as the jury found, Mrs. Von Gonten turned from the inside lane to the outside lane and back to the inside lane “immediately” before the collision and without ascertaining that she could do so with safety and without giving timely signals, then the jury could not have believed that she stopped to turn 60 seconds before the collision and saw appellant approaching from the rear realizing that she was about to be hit, as she testified. Yet the jury made its finding of improper lookout by appellant based on this testimony, which was sufficient to support its answer.

All of the answers of a jury, if supported by the evidence, are of equal dignity and must be respected until set aside. All of the answers of the jury, above indicated, are supported by evidence and have not been set aside. However, they cannot, in our opinion, all be true.

If we discard the answers finding appellant failed to keep a proper lookout and its proximate cause, judgment would have been for him since this was the only act of negligence which he was found to have committed and Mrs. Von Gonten was found guilty of numerous acts of negligence which were proximate causes of the collision. If these findings against appellant are considered, judgment, of course, must, as the trial court held, go against him.

We believe there is a conflict of issues here within the rule of Little Rock Furniture Mfg. Co. v. Dunn, 148 Tex. 197, 222 S.W.2d 985, which is also authority for holding that this question is one of fundamental error which we must consider even though not raised.

It is our opinion that the trial court had no authority to render judgment on the verdict of the jury for or against appellant. We, therefore, reverse and remand this case for trial. Costs of appeal are assessed one half against appellant and one half against appellees.

Reversed and remanded.


author: MASSEY, Chief Justice.

text:
    ROYAL INDEMNITY COMPANY, Appellant, v. R. G. DENNIS, Appellee.
    No. 16746.
    Court of Civil Appeals of Texas. Fort Worth.
    June 17, 1966.
    Rehearing Denied July 15, 1966.

      Stone, Parker, Snakard & Brown, and Lawton G. Gambill, Fort Worth, for appellant.
    Harris & Ball, and Chester G. Ball, Arlington, for appellee.
   OPINION

MASSEY, Chief Justice.

Vernon’s Ann.Tex.Civ.St., Art. 8306, Texas Workmen’s Compensation Act, § 12b, ‘‘Hernia”, contains provisions relative to hernias for which compensation is payable. In general those in which successful results-are obtained as the result of a radical operation to relieve the herniated condition entitled the claimant to be paid compensation for twenty-six (26) weeks. As applied to those which cannot be operated, or those wherein successful results are not obtained as the result of operations, the claimant (if he does not die) is entitled to receive compensation under the general provisions of the law.

The question posed on appeal is whether in a case where an operation to correct the condition of hernia is unsuccessful, accompanied by a jury finding that the claimant sustained a total disability for a period of only six (6) weeks, the trial court must render judgment awarding only six (6) weeks of compensation (under the general provisions of the law) — or whether the claimant (on motion therefor) is entitled to have judgment for twenty-six (26) weeks of compensation.

In the trial court the jury returned findings which confronted the trial judge with this exact question. The court rendered judgment for twenty-six (26) weeks of compensation benefits. On the theory that the judgment should have awarded only six (6) weeks of compensation benefits, the insurance company appealed. The claimant, as appellee, seeks to uphold the judgment.

We find no reversible error. The judgment should be affirmed.

Based upon language found in Safety Casualty Co. v. Long, 137 Tex. 209, 152 S.W.2d 1102 (1941), it has been held that a hernia is a specific injury, as distinguished from a general injury, and as such properly designated as a “schedule injury”, i. e., one as to which there is a scheduled amount of compensation payable. Travelers Insurance Company v. Theriot, 353 S.W.2d 511 (Beaumont Civ.App., 1962, error refused). The case furthermore holds that in a construction of Sec. 12b of Art. 8306 it should be kept in mind that the Workmen’s Compensation Act is to be construed liberally in favor of the employee.

In 99 C.J.S. Workmen’s Compensation p. 1104, et seq., § 306, “(Schedule Injuries) — In General”, it is stated that ordinarily any award of compensation as to an injury included in a schedule is limited and determined thereby. It is also stated (p. 1106) that scheduled compensation for a specific injury is in the nature of damages or indemnity for the physical or functional loss and is to be awarded even though there is no loss of earning power or wages and without regard to the extent of the disability suffered. Texas cases are cited as authority under the note. It is also stated (p. 1107) that compensation for scheduled injuries becomes due when no further improvement in the injured member can reasonably be made. It is obvious from the entire text that an underlying theory of workmen’s compensation laws is that the payment of prescribed amounts or for prescribed terms in instances where claims are predicated upon “scheduled injuries” is an imposition of a restriction and is furthermore in the denial of general disability compensation. Especially is this true as applied to compensable hernias.

In the instant case the insurance company insists that the language of the law (Art. 8306, § 12b) means what it says, to-wit: “If such operation is not successful and does not result in death, he (the employee) shall be paid compensation under the general provisions of this law the same as if such operation had not been had; * *

To construe the Workmen’s Compensation Act or any part thereof, where there is room for construction, so that absurd consequences would be the necessary result should be avoided. Fidelity & Casualty Company of New York v. Shores, 329 S.W.2d 911 (Fort Worth Civ.App., 1959, error refused). In the trial court the insurance company, alternatively, contended that if the claimant was entitled to compensation it would be on the premise that the operation was successful (not unsuccessful). Under the peculiar situation presented on this appeal, where the appealing insurance company necessarily reverses itself as applied to the theory on which it sought to best the claimant in the trial court and insists that claimant’s compensation should be reduced to six (6) weeks because his operation was unsuccessful, we believe that an absurd consequence would be the result if we should sustain the contention. There is room for construction of the pertinent language of Art. 8306, § 12b, as applied to the instant circumstances. We are convinced and hold that twenty-six (26) weeks compensation is the minimum amount payable in instances of compen-sable hernias where there has been a radical operation which proves unsuccessful.

The insurance company attempts to bolster its position by complaining that there was not a compliance with procedural aspects for operative procedure under Art. 8306, § 12b. The claimant was operated on by his own physician shortly after he was injured, and there was not in this instance the delay attendant to a decision by the insurer to tender an operation, or for the Industrial Accident Board to direct such, etc. However, at no time did the insurance company register any complaint because the operation had been attempted. It was satisfied to accept the operative procedure initiated by the claimant. No additional operation was sought. No complaint is made of that part of the judgment which requires the insurance company to pay the medical and hospital expenses incident thereto. In fact it was stipulated on trial that they were reasonably and were necessarily incurred. Under these circumstances the legal position of the insurance company is not aided.

Judgment is affirmed.


author: NORTHCUTT, Justice.

text:
    EMPLOYERS CASUALTY COMPANY, Appellant, v. UNIVERSAL UNDERWRITERS INSURANCE COMPANY, Appellee.
    No. 7625.
    Court of Civil Appeals of Texas. Amarillo.
    June 20. 1966.
    Blanchard, Clifford, Gilkerson & Smith, Lubbock, E. Lawrence Merriman, Lubbock, of counsel, for appellant.
    Morehead, Sharp, Boyd & Tisdel, Plain-view, Robert Gibbins, Jr., Plainview, of counsel, for appellee.
   NORTHCUTT, Justice.

Employers Casualty Company brought this suit against Universal Underwriters Insurance Company to recover the sum of $789.59, which it had paid to General Electric Company and Carl William Allert for damages as a result of a collision between a vehicle owned by General Electric Company, and driven by Allert, and an automobile driven by John DePauw. Based upon the pleadings, answers to interrogatories and affidavits attached to the motions, each party moved for summary judgment. The trial court entered its order overruling Employers Casualty Company’s motion and sustained Universal Underwriters Insurance Company’s motion. Employers Insurance Company perfected this appeal from that judgment. Employers will hereafter be referred to as appellant and Universal as appellee.

Appellant in its original petition pleaded “that under the provisions of the plaintiff’s insurance policy, which covered John DePauw d/b/a DePauw Drilling Company, plaintiff was obligated to pay for bodily injury, liability, or property damage liability in an automobile not owned by the named insured or his spouse if a resident of the same household, while temporarily used as a substitute for the described automobile when withdrawn from normal use because of its breakdown, repair, servicing, loss, or destruction.” Appellant by its first amended original petition pleaded that on or about July 28, 1964, John DePauw drove his 1964 Mercury to Plainview, Texas, to be repaired at Bratcher-DePauw Motor Company, and that while the 1964 Mercury owned by DePauw was being repaired in Plainview, DePauw returned to Lubbock in a Mercury owned by Bratcher-DePauw Motor Company, and as DePauw was returning to Lubbock, he collided with a 1963 Chevrolet automobile owned by General Electric and driven by Carl William Al-lert. On the same day of the accident, July 28, 1964, DePauw notified appellant of the accident and informed appellant that he was driving the car owned by Bratcher-DePauw Motor Company. On July 31, 1964, appellant paid General Electric Company and Allert for damages in the sum of $789.59. Appellant also pleaded that De-Pauw was a full partner in the ownership of Bratcher-DePauw Motor Company.

The 1964 Mercury automobile owned by Bratcher-DePauw Motor Company, and loaned to DePauw, was insured at the time of the accident by Universal Underwriters Insurance Company.

Appellant moved for summary judgment contending it was liable only as an “excess” carrier and that appellee was liable for the damages sustained in the accident. Ap-pellee moved for summary judgment contending there was an absence of any genuine issue of fact and that appellant voluntarily made the payments for which it sued and in doing so was a volunteer. The trial court in sustaining appellee’s motion for summary judgment held appellant was a volunteer. Under this record, we think the sole issue here involved is whether the undisputed record shows appellant to be a volunteer.

It seems to be well established in this state that money voluntarily paid with full knowledge of all facts and without fraud, deception, duress or coercion cannot be received back although it was paid upon a void or illegal demand or upon a claim which had no foundation in fact and was paid without consideration. Pennell v. United Ins. Co., 150 Tex. 541, 243 S.W.2d 572; Gibson v. General American Life Ins. Co., Tex.Civ.App., 89 S.W.2d 1070 (writ dis.); Sanders v. Republic National Bank of Dallas, Tex.Civ.App., 389 S.W.2d 551; American Casualty and Life Insurance Co. v. Boyd, Tex.Civ.App., 394 S.W.2d 685 and the cases there cited.

The undisputed record here shows that the accident here in question happened on July 28, 1964, and the appellant paid the damages which it seeks to recover herein on July 31, 1964. At that time the ap-pellee did not know of the accident. Appellant paid the $789.59 without taking any statement from Carl William Allert or from anyone connected with the General Electric Company. Neither did appellant take any statement from any witness as to the accident. No communication of any kind was ever had with appellee concerning the accident prior to the time appellant had paid the sum here sued for. Considering this record as a whole if appellant by mistake paid the sums here involved, we think such condition places the mistake, if any, in the category of a unilateral mistake and money paid under a unilateral mistake cannot be recovered. Sellman v. American National Insurance Company, Tex.Civ.App., 281 S.W.2d 150 (writ dis.).

To permit appellant to pay the damages as was done in this case and then make appellee repay the appellant without giving appellee the right to have determined whose negligence caused the accident would be depriving the appellee of a valuable right. All this record shows is that there was an accident and appellant took upon itself to determine whose negligence caused the accident. The occurrence of an accident or collision is not of itself evidence of negligence. Rankin v. Nash-Texas Co., 129 Tex. 396, 105 S.W.2d 195; Davis v. Castile, Tex.Com.App., 257 S.W. 870; Phillips v. Citizens’ Nat. Bank, Tex.Com.App., 15 S.W.2d 550. Assuming that as between appellant and appellee, that ap-pellee would be the one obligated to pay the General Electric Company and Allert for their damages if they were entitled to recover, we think appellee would have the right to have determined, if it cared to do so, if it was the negligence of General Electric and Allert that caused the accident. If it was the negligence of General Electric or Allert that caused the accident, neither appellee nor appellant would be liable. Surely, the appellee would have the right to have some say as to the reasonable amount of the damages due General Electric and Allert.

We are of the opinion, and so hold, under this record that appellant voluntarily made the payments for which it sued and in doing so was a volunteer and is not entitled to recover back the sums paid by it.

Judgment of the trial court is affirmed.


author: BATEMAN, Justice.

text:
    W. C. DILLON et ux., Appellants, v. GREENVILLE HOSPITAL AUTHORITY, Appellee.
    No. 16737.
    Court of Civil Appeals of Texas. Dallas.
    June 10, 1966.

      Ralph M. Hall, Rockwall, for appellants.
    Clark & Clark, Greenville, for appellee.
   BATEMAN, Justice.

Appellants W. C. Dillon and wife sued for damages on account of bodily injuries sustained by Mrs. Dillon as she and her husband, who had just been discharged as a patient therein, were leaving the hospital operated by the appellee Greenville Hospital Authority. A motion for summary judgment filed by appellee, on the ground that the hospital was a charitable, nonprofit institution and consequently immune from liability for its negligence, was sustained. Appellants present a single point of error on appeal,' claiming that there was a genuine issue as to appellee’s liability for its negligence in retaining an employee who knew, or should have known, of a condition of danger on the hospital premises and failed to correct it.

Perhaps the leading Texas case establishing the immunity of charitable institutions from liability for injuries to beneficiaries of the charity, as well as to strangers sustaining no relation to the charity, is Southern Methodist University v. Clayton, 142 Tex. 179, 176 S.W.2d 749. The doctrine of immunity announced therein was approved recently in Watkins v. Southcrest Baptist Church, Tex.Sup. 1966, 399 S.W.2d S30. In concurring and dissenting opinions, 399 S.W.2d 535-536, it is indicated that the court may hereafter abolish the doctrine, but until then, following the majority in Watkins, we hold that appellee in this case is immune unless the case can be said to fall within an exception to the general rule.

Appellants say the summary judgment against them should be reversed because the case comes within an exception to the Clayton rule, which appellants say is that if the charitable institution was negligent in retaining in its employment an employee who knew, or in the exercise of ordinary care should have known, of a condition of danger on the hospital premises and failed to correct it, the charity is liable for those injuries proximately caused by such negligence.

Attached to appellee’s motion for summary judgment were an affidavit and certified copies of ordinances establishing that appellee was a charitable, nonprofit institution. Appellants filed a response to that motion but did not attach thereto or file therewith any affidavits, depositions or admissions tending to establish the exception relied upon. They merely allege that appellee was negligent “in continuing the services of an agent, servant, or employee who knew of or should reasonably have known of, said defects complained of and failing to abate said defects.” They do not allege who that agent, servant or employee was, or what authority or responsibility he had in the matter of correcting defects in the appel-lee’s hospital premises. The trial court was given nothing in the nature of proof to indicate that any such person knew or should have known of a defective condition on the hospital premises, or even that a defective condition existed, or that his knowledge, which he had or should be charged with, coupled with a failure to correct the condition, was a proximate cause of Mrs. Dillon’s injuries. In summary judgment procedure, the presence or absence of a genuine issue of material fact cannot be shown by mere pleadings, but must be shown by depositions, admissions, affidavits, or the like. Sparkman v. McWhirter, Tex.Civ.App., 263 S.W.2d 832, 838, wr. ref.; Gulf, Colorado & Santa Fe Ry. Co. v. McBride, 159 Tex. 442, 322 S.W.2d 492, 500.

The court properly sustained the appel-lee’s motion for summary judgment, and it is, therefore,

Affirmed.


author: RENFRO, Justice.

text:
    WISENBAKER, FIX & ASSOCIATES, Appellant, v. CITY OF HURST, Appellee.
    No. 16742.
    Court of Civil Appeals of Texas. Fort Worth.
    June 10, 1966.
    Spuriell, Lowry, Potter, Lasater & Guinn, and Chas. F. Potter, Tyler, for appellant.
    Tom Cave, City A tty., Hurst, for appel-lee.
   OPINION

RENFRO, Justice.

This is a venue suit.

The City of Hurst brought suit in Tar-rant County against J. L. Myers’ Sons, a partnership, engaged in the business of drilling water wells; Gulf Insurance Company, which made a performance bond for Myers; and Wisenbaker, Fix & Associates, consulting engineers, for damages growing out of the drilling of a water well for the City by Myers.

The City had a written contract with Myers. The City engaged Wisenbaker, Fix & Associates as consulting engineers.

Recovery was sought against Myers on its written contract. Recovery was sought against Wisenbaker & Fix on an implied warranty, and, in the alternative, plead that Wisenbaker & Fix negligently failed to oversee and plan the wiring, assembly and installation of the pump.

Wisenbaker & Fix filed plea of venue to have the case transferred to Smith County.

The plea was overruled.

Appellant, Wisenbaker & Fix, contends the court erred in (1 and 2) holding that suit was maintainable in Tarrant County under subdivisions 5 and 9a, Art. 1995, Vernon’s Ann.Tex.Civ.St, and (3) in applying subdivision 9a since appellee’s suit was primarily on contract and appellee relied on the same evidence in developing its case both as to contract and negligence liability.

Appellee failed to prove that Wisen-baker & Fix were parties to the contract between appellee and Myers. It therefore failed to sustain venue in Tarrant County under subdivision 5. Wisenbaker v. Johnny Folmar Drilling Company, 334 S.W.2d 465 (Texarkana Civ.App., 1960, dism.).

To sustain venue in Tarrant County under subdivision 9a appellee had the burden to establish that an act or omission of negligence occurred in Tarrant County; that the act was that of appellant and that such negligence was the proximate cause of the damages sustained.

Witness Hahn and appellant Fix testified extensively as to the differences of opinion as to the proper wiring necessary. Hahn explained in detail how the wiring, as required by Fix, was deficient and the reasons Fix’s method caused the damage. Hahn concluded his testimony by saying, “I would say the fault lay entirely with the manner in which Mr. Fix wanted it wired as it was finally wired. * * * I could find nothing wrong with the plans and specifications to this extent.” He further testified that Mr. Fix was “right there” (at the well in Hurst, Tarrant County) when the wiring was finally done according to the demands of Fix.

The record as a whole supports the trial court’s conclusion that venue was properly sustained in Tarrant County under subdivision 9a.

In support of its third point appellant points out that the same evidence was offered in support of appellee’s plea on the contract or warranty and its alternate plea on negligence, that appellee therefore made an election to sue on the warranty and was not entitled to sue on negligence.

On the venue hearing appellee made out a case of negligence against appellant. It did not establish, as a venue fact, its allegation of breach of warranty.

We fail to see how the doctrine of election of remedies is applicable.

Appellee was entitled to sustain venue in Tarrant County on the theory proved.

Affirmed.


author: HYDE, Judge.

text:
    B. & V. CONSTRUCTION COMPANY, a Corporation, (Plaintiff) Respondent, v. SHAW-VAN REALTY COMPANY, a Corporation, (Defendant) Appellant.
    No. 51704.
    Supreme Court of Missouri, Division No. 1.
    July 11, 1966.
    Robert E. Staed, St. Louis, for respondent.
    Lawrence E. Ehrhart, Clayton, for appellant.
   HYDE, Judge.

Action for balance due on building contract, dated May 16, 1960, and additions thereafter made. Judgment was for plaintiff for $6,328.26, which both parties agree was the amount remaining due on the contract, supplemental agreement and added extra work. However, defendant had a counterclaim asking for $45,000.00 which its brief says was reduced to $11,800.00. (Proof of items claimed only amounts to $10,800.00.) A jury was waived and the case was tried by the court, which found against defendant on its counterclaim. After judgment was entered and motion for new trial filed, the court on stipulation of the parties reopened the case “for the limited purpose of introducing evidence concerning $5000 note” of defendant, which it claimed should be returned to it. Thereafter, the court entered a final judgment in which the court found the $5000.00 note “represented another debt outside and apart from the cause of action presented in this case” by plaintiff; and defendant has appealed.

Plaintiff raises the issue of our jurisdiction. However, the total amount of defendant’s proof on its counterclaim was $10,800.00 and the value of the relief it sought of cancellation of its note certainly was $5000.00 not considering accrued interest. Thus the total claims of defendant amounted to more than our jurisdictional amount. Sec. 3, Art. V, Const., V.A.M.S.; Sec. 477.040, RSMo, V.A.M.S.

No issue is raised as to plaintiff’s judgment for $6328.26 being the correct balance due on the contract, supplemental contract and extra items for the construction of a bowling alley building by plaintiff for defendant. Defendant contends that the judgment against it on its counterclaim is erroneous. Defendant’s proof on this counterclaim concerned three items, (1) failure to properly perform certain construction work, on walls at the roof, including defective work and materials claimed not to have been furnished, which would cost $1800.00; (2) failure to install Armco guard rail on its parking lot, which would cost $1000.00; (3) and failure to install drain footing tile around the building which would cost $8000.00.

Defendant says there was insufficient evidence to support the trial court’s findings against it on these claims in its counterclaim, a contention obviously without merit since defendant had the burden of proof on these issues. Defendant’s further contention as to the first and third of these claims is that the court’s findings against these claims are clearly erroneous and contrary to the evidence. As to the second claim, defendant says an agreement signed by’ its vice president, Robert J. Schoen, was invalid. Considering this second claim first, it appears that Schoen was out there all the time while the work on the building was going on and that defendant’s president, George Blankmann, would come out periodically during the day, almost every day. Blankmann said Schoen “acted on behalf of Shaw-Van in supervision and construction of this building;” and “was representing Shaw-Van Realty Company when he was there.” The agreement was signed August 25, 1960, and stated: “It is understood that to compensate B. & V. Construction Co., Inc., for the extra work involved in installing the manhole and the extra drain tile the guard rail will be omitted.” Another document in evidence signed in May 1960 by Schoen for defendant was a “complete resume of various changes made to the plans and specifications” which authorized six deletions and it is not claimed he did not have authority to sign that agreement. On this and other evidence hereinafter set out, we consider this claim to be without merit.

As to the first claim, defendant’s evidence was that the plans called for ¼-inch asbestos board but that ⅛-inch board was used. Plaintiff produced invoices for 14-inch board and put in evidence a sample of the 14-inch board used. Defendant’s evidence also was that roofing cement and insulation were never applied; that required steel studs were not used; and that the asbestos sheathings and the joining walls were not sealed. Defendant’s evidence was that because of these failures driving rain would penetrate the side walls on the north side and would get onto the bowling lanes. Plaintiff’s evidence was that defendant’s officers Blankmann and Schoen were present during construction and approved the manner in which this part of the construction was done.

As to the third claim, defendant’s evidence was that only about 20% of the required drain tile was placed around the footings of the building, an estimate based partly on holes defendant had dug along the walls the day before the trial and partly on defendant’s computation from an invoice of drain tile purchased by plaintiff. Defendant also complained the downspout's were not connected to the drain tile as required in the specifications. Plaintiff’s evidence was that the plans showed no particular place for the drain tile to be installed but that they were installed on three sides of the building. Tile was not installed on the front because the front of the building was on a solid rock ledge. Plaintiff’s evidence also was that “it doesn’t show on the plans that they (downspouts) were to be hooked to the drain tile.” Plaintiff’s foreman testified the water from the downspouts went into a concrete splash box and on to the asphalt paving around the building. He said: “The asphalt was graded away from the building so the water would run away.” He also stated: “With a roof as big as that is and as much area when water comes off there if you would hook your downspouts directly into those drain tile you would not only defeat your purpose, you would wash them out because of the volume of water that went through there that would put the water in there and you’d wash your gravel out and — under your footings. You’re putting water in instead of taking it out.”

As to all three claims, it was shown that there was a guarantee in the specifications “that they were to take care of any defective work within a year;” but that during that period defendant never did call any of these claims to the attention.of plaintiff. It further appears that although the building was completed in December 1960, defendant did not make any of these claims to plaintiff until it filed its counterclaim in 1964. Moreover, defendant’s officers Blankmann and Schoen were there constantly observing the work while it was being done. Upon consideration of these facts and all the evidence in the case, we cannot hold the court’s findings against defendant’s claims clearly erroneous and contrary to the evidence. Although the evidence was conflicting, as to some matters, the court’s findings on these claims seem to us to be reasonable and fully warranted on the whole record.

As to defendant’s claim that its $5000.00 note should be cancelled, this issue was brought into the case when it was reopened on defendant’s motion. (Apparently plaintiff got the note after the original judgment was entered.) The origin of this note as appears from the testimony of plaintiff’s president: “Shaw-Van Realty Company advised me that they didn’t have enough money to complete the project and asked me if I could raise $20,000 for them. I did in the process get $5,000 from Mack Electric Company for which they signed a note.” It also appears that the note was not a part of plaintiff’s claim on the building contracts and that this note was on deposit with Security Title Company, so was not in plaintiff’s possession when this suit was brought. Plaintiff was not seeking to enforce the $5000.00 note in this action and defendant asked no relief as to it in any pleading until after the original judgment was entered. The basis of plaintiff’s claim and its judgment was as follows:

Original contract. . $153,959.00
Supplemental Agreement. . 3,152.00
Extras less $1000 Credit. . 3,751.50
Payments . ... $154,534.24
Balance due — Amount of
Judgment . . 6,328.26
$160,862.50 $160,862.50
The calculation of the amount due on extras appears from an agreement of March 29, 1961, in evidence, which was signed by defendant’s president and was as follows:
“With reference to our discussion of March 28, 1961 following is the settlement agreed to:
Balance of extras due 6,174.94
Less payment Rockhill Lumber Co. 172.08 Herford Concrete
Products Co. 301.31
B. & V. Construction Co. 600.05
B. & V. Construction Co. 350.00 1,423.44
Balance due after payments 4,751.50
Original note (which will be returned) 5,000.00
Interest on note 7/1/60 to 3/15/60 (61) 248.50
10,000.00
Less check 3/29/61 1,000.00
Balance due $ 9,000.00
Of the above balance due a note for $9,000.00 will be executed. This note to run for two years with a payment every six months. This note to be dated March 31, 1961 with equal payments of principal plus interest on the unpaid balance to be made. Note # 1 due 9/30/61; Note # 2 due 3/31/62; Note # 3 due 9/30/62; Note # 4 due 3/31/63.”

No new note for $9,000.00 was given and therefore the balance due of $3751.50 for extra’s was included in the claim sued on. Plaintiff did not have the $5000.00 note and it was not included. Defendant says: “[Tjhere was no evidence to support the trial Court’s finding that the Five Thousand ($5,000.00) Dollar note represented another debt (of Defendant’s) outside and apart from the cause of action presented in this case.” Our view is that this finding is supported by this agreement of March 29, 1961, which clearly indicates that both parties then considered the $5000.00 note another debt separate and apart from the building agreements. Defendant produced no evidence to the contrary and trial court based its findings on the March 29, 1961 agreement recognizing the $5000.00 note as an obligation in addition to defendant’s obligation for the amount due for building extra’s. Defendant relies on some apparently conflicting statements by plaintiff’s president in his testimony but construed together they reasonably could be considered to mean only that the $5000.00 note was no part of plaintiff’s claim against defendant in this action.

The judgment is affirmed.

All concur.