text:
    EAST KENTUCKY RURAL ELECTRIC COOPERATIVE CORPORATION, Appellant, v. Robert STORY and Bernice Story, his Wife, Appellees. EAST KENTUCKY RURAL ELECTRIC COOPERATIVE CORPORATION, Appellant, v. W. G. WALTON and Viola Walton, his Wife, Appellees. EAST KENTUCKY RURAL ELECTRIC COOPERATIVE CORPORATION, Appellant, v. Opal ROSE, Widow, Appellee.
    Court of Appeals of Kentucky.
    March 31, 1967.
    Marvin W. Suit, Flemingsburg, E. R. Denney, Lexington, for appellant.
    Fox, Wood & Wood, Maysville, Richard L. Hinton, Flemingsburg, for appel-lees.
   DAVIS, Commissioner.

Three appeals, which involve condemnation proceedings tried together in the circuit court, are disposed of in this opinion. The appellant company is acquiring an easement for the construction and maintenance of an electric transmission line across the farms of the respective ap-pellees. In each instance the easement is 100 feet in width (except for a slightly greater width in a portion of the easement across the Story farm). The appellant contends that the verdict is excessive in each case; in each of the cases the appellant contends that the appraisal witnesses for the landowners “impeached their own testimony.”

In the Story case the easement extends 2,996 feet through the 87-acre farm; as noted the width of the easement is 100 feet, except for a slight portion of its distance, at which the width is 135 feet. There will be a high-voltage transmission line and an underbuilt distribution line, strung on two H-frame two-pole structures, plus nine single poles. Eleven anchor rods will be required to “guy” the structures. The total acreage included in the easement is 6.92 acres; the jury’s verdict was $8,200 in the Story case.

The Walton farm contains 127 acres; the easement extends through it a distance of 2,492 feet, at a width of 100 feet, and embraces 5.72 acres. In crossing the Walton farm the line is strung on six H-frame two-pole structures, requiring four anchor rods. The jury verdict in the Walton case was $5,000.

The Rose farm has 263 acres, and the easement over it is 2,981 feet in length and 100 feet wide, and contains 6.84 acres. On the Rose land the lines are strung on one single-pole structure, having two anchor rods, plus six H-frame two-pole structures which have no anchor rods. The jury’s verdict in the Rose case was $5,500.

The appellant complains that the three men who served as commissioners in the county court testified for the landowners in the circuit court, and expressed opinions somewhat higher than the county court awards. It is to be noted that it was upon cross examination by the appellant that the prior service as county court commissioners was disclosed. The three witnesses explained that they had formulated higher opinions than they had entertained earlier, because they had first viewed the land without the lines across it. The discrepancies between their testimony and their awards related to the probative value of their evidence, but did not disqualify them as witnesses. Commonwealth, Dept. of Highways v. Combs, Ky., 387 S.W.2d 592.

Appellant contends that it was patently erroneous for the jury to award more per acre for the easements than the per-acre value of the land in fee simple. This is not a valid argument except as it may be related to the question of exces-siveness of the verdicts. We think it is plain that there could be situations in which an easement would result in a diminution in market value greater than the per-acre value of the fee.

However, it is the view of the court that the verdict in each of the cases is excessive and appears at first blush to have been reached as the result of passion and prejudice. CR 59.01(4). It is to be noted that the land embraced in the easements yet remains usable by the respective owners, except for the location of the poles and anchors. No building or improvement is disturbed. As has been said often, “there is no definite yardstick which a court may apply in deciding whether damages are excessive in a given case.” See East Kentucky Rural Electric Cooperative Corp. v. Rand, Ky., 357 S.W. 2d 890, in which a verdict was sustained as not being excessive. In 8 Ky. Digest, Eminent Domain, <®==>150, many cases are collated in which the troublesome question has arisen. Even without the “definite yardstick,” the verdicts at hand impress the court as excessive.

The judgment is reversed in each of the cases for further proceedings consistent with the opinion.

All concur.


source: Caselaw Access Project

author: DAVIS, Commissioner.

license: Public Domain

text:
    KENTUCKY TRUST COMPANY et al., Appellants, v. COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellee.
    Court of Appeals of Kentucky.
    March 31, 1967.
    G. D. Milliken, Jr., Milliken & Milliken, Bowling Green, for appellants.
    Robert Matthews, Atty. Gen., H. C. Smith, Dept, of Highways, Frankfort, Charles W. Huddleston, Dept, of Highways, Bowling Green, for appellee.
   DAVIS, Commissioner.

A jury awarded the appellant-property owners $1,600 in this condemnation proceeding; the property owners appeal, asserting that the verdict is grossly inadequate, that the trial court erred in excluding competent evidence offered by appellants, and that ap-pellee’s counsel made an improper and illegal closing argument.

Before the taking the tract consisted of about 177 acres, located on the Scottsville Road, U. S. Highway 231, within the city limits of Bowling Green. One of the appellants acquired an undivided half interest in the entire tract in December 1962, at a purchase price of $115,250. A public hearing had been held September 29, 1961, relating to the proposed interchange at Greenwood and 1-65 and U. S. 231. The condemnation proceeding under consideration is incident to a portion of that construction.

For the Department of Highways two appraisal witnesses testified. One of them fixed the before value at $425,520 and the after value at $423,864, for a net difference of $1,656. The other placed the before value at $407,800 and the after value at $406,200, with a resulting difference of $1,600.

For the landowner-appellants there were two evaluation witnesses, one of whom placed the before value at $399,000 and the after value at $383,000 — a difference of $16,000. Appellants’ other value witness fixed the before value at $432,000 and the after value at $417,500, for a difference of $14,500.

The jury’s verdict placed $415,000 as the before value and $413,400 as the after value, resulting in a verdict of $1,600, as stated. The land taken is a sliver along the frontage, ranging from zero to 32 feet in depth and extending about 1,800 feet along U. S. 231. The area of the taken tract is 0.65 acres. Also acquired was a permanent easement embracing 1,500 square feet (50'x 30’) for drainage purposes.

The old road was a two-lane, free access highway. The new road is to be a four-lane, limited access thoroughfare. Two entrances onto the new highway are provided in the plans; these entrance-ways are each sixty feet in width.

The argument for appellants points out that after strenuous effort and skilled planning they had developed a plan for the subdividing of the entire tract so that part of it would be for residential lots, part for a shopping center, part for apartment buildings; included in the over-all plan was a mall area, along with areas for a proposed school and a church as well as recreational and playground sites. Prior to the trial appellants had sold off two separate portions of the original tract, and in their judgment, the nature of the taking substantially disrupts their plans for development of the remaining portion of the tract.

The jury viewed the land and heard the witnesses. The verdict was well within the range of the testimony. The jury could have been persuaded to the appellants’ position, but had the prerogative of accepting the Department’s evidence. We are not persuaded that the verdict is grossly inadequate, nor that it appears to have been rendered as the result of passion or prejudice.

The trial court permitted the appellants to exhibit before the jury a general plan of their over-all proposed plan for development of the entire tract, but admonished the jury that it could be considered only as it tended to prove the highest and best use of the property; the court concluded the admonition by saying: “ * * but any specific plan is not competent and you will not consider any specific plan for its use for this purpose.” This action of the court was proper, and in accord with our rulings in Commonwealth, Dept. of Highways v. Vincent, Ky., 357 S.W.2d 678; Commonwealth, Dept. of Highways v. Evans, Ky., 361 S.W.2d 766; Commonwealth, Dept. of Highways v. Denny, Ky., 385 S.W.2d 776. In the latter case we said, in part:

“Our decision in Com. Dept. of Highways v. Vincent, Ky., 375 S.W.2d 678, resolves the question concerning the admitting in evidence of a plat reflecting a proposed subdivision of land. As noted in Vincent, the evidence is admitted for the limited purpose of demonstrating the susceptibility of the land to subdivision purposes.” Id., 385 S.W.2d 778.

The appellants did not object to any portion of the closing argument of the Department’s counsel. Neither was any request made for an admonition to the jury. The claimed errors in the argument were first presented in a motion for a new trial. The alleged error has not been preserved for appellate review. See Commonwealth, Dept. of Highways v. Darch, Ky., 390 S.W. 2d 649; Commonwealth, Dept. of Highways v. Teater, Ky., 397 S.W.2d 137.

The judgment is affirmed.

All concur.


author: PALMORE, Judge.

text:
    Paul BURGAN et al., Appellants, v. Ray HARRISON et al., Appellees.
    Court of Appeals of Kentucky.
    March 31, 1967.

      Howell W. Vincent, R. Barry Wehrman, Wehrman & Wehrman, Covington, for appellant Burgan.
    John J. Blackburn, Covington, for Commonwealth, Dept, of Highways.
    O’Hara & Ruberg, Covington, Calvin Prem, Cincinnati, Ohio, for appellees.
   PALMORE, Judge.

The appellant Burgan brought this action against the appellees, Ray Harrison and Wellen Ford, Inc., for personal injuries sustained by him when an automobile allegedly driven by Harrison within the scope of his authority as a used car salesman for Wellen Ford, Inc., sideswiped a tollhouse in which Burgan was working as a toll collector for the Commonwelath of Kentucky. The Commonwealth intervened seeking reimbursement of the defendants for workmen’s compensation paid by it to Burgan as a result of his injuries. At the close of the evidence introduced by the claimants the trial court directed a verdict for both defendants and entered judgment dismissing the claims. Burgan and the Commonwealth appeal.

The accident happened at about 7:30 P.M. on September 24, 1962. Burgan was collecting tolls from northbound traffic at the Cincinnati exit (in Ohio) of- one of the bridges crossing the Ohio River between Covington, Kentucky, and Cincinnati, Ohio. The automobile that struck the toll station did not stop, and all Burgan was able to observe with respect to its description and occupants was that it appeared to be a light-colored bluish green 1959 or 1960 model Ford station wagon with a Kentucky dealer’s license tag the number of which began with an “X” and that it was occupied by one person, the driver. Immediately afterward the operator of a car following the hit-and-run vehicle gave Burgan its license number. This information was reported by Burgan to the Cincinnati police, who investigated the accident. Burgan also kept and later submitted as an exhibit with his testimony a portion of the toll booth structure bearing a paint mark from the collision.

The on-scene accident report made by the police showed the license number as “X 40568.” Apparently there was no such number. However, the number of Wellen Ford’s plates was “X 4056,” and on September 25, 1962, the next day, Cincinnati policemen called at Wellen Ford’s place of business in Covington and were shown among its used cars a Ford station wagon answering to the description shown on the accident report. This automobile had what appeared to be fresh damage to the left front portion. Arthur Boss, Wellen Ford’s used car sales manager, informed the officers that on the previous evening just prior to the accident Harrison, one of his salesmen, “had taken the car and gone out to eat and that he failed to return and when he didn’t return by the following morning Mr. Boss became concerned and he decided to go out and look for the car. He went across the river and was fortunate enough to find it parked down in the bottoms, somewhere on Front or Second Street.”

What Boss did not fell the officers, as appears from his deposition later introduced in this proceeding, was that Harrison had telephoned him at three or four o’clock that morning, told him that the car had been involved in an accident on the bridge in question while being driven by a customer to whom he had loaned it for demonstration, and advised him where the vehicle could be found.

Burgan himself also inspected the Ford station wagon on the premises of Wellen Ford, observed the marks of damage and the color of paint as compared with that which had been scratched on the toll booth, and ascertained that the license number was the same one that had been given to him the night before at the scene of the accident. At the trial Burgan identified this vehicle as the one that struck the toll booth.

Though Harrison lived in Cincinnati, efforts by the investigating officers to get in touch with him, through calling at his home and leaving word with his wife, and later telephoning, proved to be futile. It appears that he did not immediately return to work at Wellen Ford, but accepted employment around the first of October in Houston, Texas. He returned to Wellen Ford in January of 1963 and remained in its employment until May 6, 1963. He gave a discovery deposition but did not appear at the trial, nor was the deposition introduced in evidence. He declined to answer, on the constitutional ground that it might incriminate him, questions submitted to him' in the form of a request for admissions, and the trial court sustained such refusal except as to the question of whether he had ever been convicted of a felony.

It was established through a request for admissions addressed to Wellen Ford that on September 24, 1962, at approximately 7:30 P.M. Harrison was employed by it as a salesman, that his regular hours of work were from 9:00 A.M. to 9:00 P.M., that he was permitted as a salesman to use a blue Ford station wagon, and that the blue Ford station wagon was abandoned in Cincinnati at the aforementioned time and was recovered by Wellen Ford through Boss on the next day, September 25, 1962. Albert J. Wellen, president of Wellen Ford, is the corporate officer who responded to the request for admissions. After he had first answered “I don’t know” to each of the requests the trial court required him, in his representative capacity, to exercise whatever means were reasonably within the power of the corporation to obtain the information necessary in order for it to admit or deny the matters put to it by the request for admissions, including a personal inquiry of Harrison himself, despite his having theretofore invoked the constitutional privilege against self-incrimination. With regard to the question of whether Harrison was driving the car at the time of the accident, Mr. Wellen’s ultimate response was that “the said Ray Harrison had refused to discuss the matter with him, claiming his privilege against self-incrimination under the Kentucky Constitution,” and that his inquiries among other employes of the company had not elicited any further enlightenment.

The depositions of Wellen and Boss under cross-examination were taken on September 5, 1963, almost a year after the accident. At that time Wellen testified he had never discussed the incident with Harrison. Boss testified that in his own conversations with Harrison he had been told only that Harrison had loaned the car to a customer and the customer had had an accident. Boss professed not to know whether Harrison had been with the customer at the time of the accident, but said he would try to find out by asking Harrison. As it developed, Boss did not testify at the trial, so the appellants never had the opportunity of further examination to determine whether he followed through with an effort to get the information from Harrison.

The trial was held on January 21 and 22, 1965. Appellants had caused a subpoena or subpoenas to be issued for a large number of Wellen Ford’s employes, past and present, including Boss. The record does not disclose whether a call of the witnesses took place before the parties announced ready, but when Boss was called to testify he did not answer, whereupon counsel for Burgan moved that he be arrested forthwith. Counsel for the defendants then disclosed that the subpoena had not been served on Boss, despite the sheriff’s return to the contrary. Out of the presence of the jury it was then established that the sheriff had left the copies of the subpoena with Mr. Wellen, who assured him that he would see that they were delivered to the various witnesses employed at his place of business, including Boss; but that after the sheriff departed Wellen telephoned counsel and was advised not to deliver them.

It being established that Boss had not been validly subpoenaed, the trial court refused to have him arrested, because he was not in contempt. Counsel for Burgan then moved for a continuance, but the trial court, noting that Boss’ deposition was available, overruled the motion and permitted the deposition to be introduced and read to the jury.

As we have come to the conclusion that the evidence was sufficient to withstand the motion for a directed verdict it is unnecessary to decide whether it was an error for the trial court to refuse a continuance under the circumstances just described. It needs to be said, however, that the prejudice in not having such a witness in person is not cancelled out by a reading of his deposition. We are convinced from the record that the conduct of both this particular witness, Boss, and his employer, Wellen, has been consistently evasive to the point of incredibility. When the credibility of a witness is manifestly questionable, it is of considerable importance for the jurors to have an opportunity to observe his demeanor under examination. And when it appears, as it does here, that a litigant has actively practiced a deception upon his adversary, a court need not be overly circumspect in exercising its discretionary powers to bring the scales into balance.

The trial court’s ruling on Harrison’s refusal to give answers that might incriminate him was correct. Though CR 36.02 provides that an admission given pursuant to CR 36.01 cannot be used against the party in any other proceeding, the effect of the protection necessarily is limited to proceedings over which this court has rule-making power. Our rules of procedure would have no force in a prosecution in Ohio. Cf. Federal Deposit Insurance Corporation v. Logsdon, 18 F.R.D. 57 (W.D.Ky.1955).

The request for admissions directed to Wellen Ford submitted five questions, all of which were at first answered “I don’t know.” The first three of these covered matters that certainly must have been within the knowledge of the corporation. Hence the trial court, upon motion of the plaintiffs, ruled the responses insufficient and ordered that they be deemed admissions. Plaintiffs contend that the other two should have received the same disposition. They are the two by which the company was requested to admit that Harrison was driving the station wagon at the time of the accident. Though it is possible, or even probable, that by the exercise of reasonable diligence Wellen Ford could have gained that information at some time before the request for admission was made, it is by no means certain that it actually had done so. It is our opinion that the trial court properly exercised its discretion in requiring the company to utilize its best efforts to ascertain it and in allowing a reasonable time for that purpose. If it were utterly clear that Wellen was not telling the truth our opinion would be otherwise, but it is no more than a reasonable suspicion.

The question of whether the evidence was sufficient to support a verdict favorable to Burgan is a close one. The defendants contend, and the trial court held, that it would require supposition and speculation. There are, of course, many decisions in which it has been held that a verdict may not be permitted on the basis of conjecture. “A fact is not proved by circumstantial evidence if it is merely consistent with such fact * * * In other words, the circumstantial evidence must go far enough to induce a reasonable conviction that the facts sought to be proved are true and must tend to eliminate other rational theories.” United Electrical Coal Companies v. Brown, Ky., 354 S.W.2d 502, 503 (1962). The abstract principle is clear. Its application to the facts of a given case is another matter.

We do not doubt the sufficiency of the evidence to show the identity and ownership of the station wagon. Nor, if Harrison was driving it at the time of the accident, do we think it would be unreasonable for a jury to conclude that he was acting within the scope of his duties as a salesman for Wellen Ford. If the evidence was enough to support a finding that Harrison was driving the car, it would equally support a finding that he was engaged in the regular and normal pursuit for which his possession of the car was authorized and intended. Cf. Lever Bros. Co. v. Stapleton, 313 Ky. 837, 233 S.W.2d 1002, 1005-1006 (1950). He had the car with the company’s knowledge and permission, and the accident occurred during his regular working hours. The difficult question is whether his being the last person known to have been in possession of the car, which possession in terms of hours was recent, supports a reasonable inference that he was still in possession of it at the time of the accident.

When the evidence shows that the last known and recent driver was an occupant of the vehicle at the time of an accident, but he has been killed and there is no direct evidence to establish whether he or some other occupant was driving, there is said to be a “presumption” that the situation shortly before the accident continued to exist. See annotation, “Proof, in absence of direct testimony by survivors or eyewitnesses, of who, among occupants of motor vehicle, was driving it at time of accident,” 32 A.L.R.2d 988, 992. In such a case there is one evidentiary circumstance that is not present in this one — that is, it is an established fact that the person alleged to have been the driver was in the car. On the other hand, there is also the countervailing circumstance that there were other occupants as well, one of whom could have been the driver, whereas here we have but one occupant, the driver himself.

In cases involving commercial vehicles as distinguished from pleasure cars this court has held that proof sufficient to establish ownership is sufficient to prove also that the vehicle was being operated by a servant of the owner and on the owner’s business, provided that the accident occurred at a time and place within the normal scope of the owner's business activity. Louisville Taxicab & Transfer Co. v. Johnson, 311 Ky. 597, 224 S.W.2d 639, 27 A.L.R.2d 158 (1949); Webb v. Dixie-Ohio Express Co., 291 Ky. 692, 165 S.W.2d 539 (1942). The used car owned and held by Wellen Ford for purposes of resale may not fall strictly in the category of a “commercial vehicle” as such, but certainly its operation by a salesman for display and demonstration would qualify as a commercial use.

“By the weight of authority, proof of defendant’s ownership implies possession and control personally or through another under circumstances making defendant liable for negligent operation, especially where the car is a business vehicle being operated during business hours. It causes no special hardship upon the owner to show by positive evidence that the vehicle was not under his control at the time or, if in charge of his agent, that such agent was not acting for him, if such are the true facts, for such information is peculiarly within the knowledge of the person against whom the presumption is raised.” 9B Blashfield, Cyclopedia of Automobile Practice and Procedure, § 6057, pp. 530, 531 (Bandy 1954).

As we have said, the evidence was enough to establish that the Ford station wagon owned by Wellen Ford was the vehicle that struck the toll booth and injured Burgan. It is admitted that Harrison had possession of it within his authority as a servant and employe of Wellen Ford and within the period of his regular work day. Clearly the bridge between Covington and Cincinnati would have been and was within the normal area of his work as a car salesman. The accident happened within a relatively short time after he left Wellen Ford’s place of business with the car. At the time of the accident the car was occupied by one person, the driver, whose identity is in question. It is our opinion that in the absence of proof to the contrary these circumstances reasonably permit a jury to find that Harrison was the driver and that he was acting within his authority as a salesman for Wellen Ford.

The judgment is reversed with directions for a new trial.

All concur.

      . The regular -working hours were established also through the deposition of Boss.

      . We recite this otherwise unnecessary information for the purpose of illustration and approval of the procedure followed by the trial court.

      . The brief for Harrison and Wellen Ford suggests an insufficiency of the sheriff’s return as it related to Boss, but counsel for both sides expressly agreed to the trial court’s statement for the record “that the return to the Sheriff shows that Mr. Boss was served with a subpoena,” etc.

      . At the trial, for example, Wellen testified that he did not know where Boss was.

      . See Lee v. Tucker, Ky., 365 S.W.2d 849 (1963), for a discussion of whether a presumption or a permissible inference is created.


author: CALVERT, Chief Justice.

text:
    STATE BOARD OF MEDICAL EXAMINERS et al., Petitioners, v. Nathan MANN, M.D., Respondent.
    No. A—11541.
    Supreme Court of Texas.
    March 29, 1967.
    Rehearing Denied April 26, 1967.
    Crawford C. Martin, Atty. Gen., John H. Banks, Asst. Atty. Gen., Austin, for petitioners.
    Foster, Lewis, Langley, Gardner & Hawn, Emerson Banack, Jr., San Antonio, for respondent.
   CALVERT, Chief Justice.

The principal question in this case concerns the proper interpretation of certain provisions of Article 4506, Vernon’s Texas Civil Statutes, which regulates the cancellation, revocation, and suspension of licenses of practitioners of medicine. Suit was by Dr. Nathan Mann in one of the district courts of Travis County seeking a writ of mandamus to compel the Texas State Board of Medical Examiners to issue to the plaintiff a renewal license to practice medicine in the State of Texas. The trial court denied the relief sought, but the court of civil appeals, one Justice dissenting, reversed the judgment of the trial court and rendered judgment directing issuance of writ of mandamus. 403 S.W.2d 218 (1966). We affirm the judgment of the court of civil appeals.

This suit is an epilogue to a prior suit between the same parties. Dr. Mann was a duly licensed medical doctor practicing his profession in Nueces County. On January 21, 1958, the Board entered an order revoking and cancelling his license to practice medicine in the State of Texas. On January 28, 1958, Dr. Mann duly and timely filed an appeal in one of the district courts of Nueces County, and the case was docketed as “Nathan Mann, M. D., Plaintiff, v. Texas State Board of Medical Examiners, Defendant.” On April 14, 1958, the Board filed an answer and cross-action in the cause. On February 18, 1963, the court entered a judgment which reads as follows:

“On this the 18 day of February A.D. 1963, came on to be heard the above numbered cause; including cross-action and the plaintiff failing to appear in person or by attorney to prosecute said cause, it is ORDERED, ADJUDGED AND DECREED by the court that said cause including cross-action be and the same is hereby dismissed for want of prosecution at plaintiff’s cost, for which execution may issue.”

On January 1, 1964, Dr. Mann tendered and the Board accepted payment of his license renewal fee for 1964. Subsequent renewal fees have been duly tendered by Dr. Mann but have been refused by the Board.

Whether Dr. Mann is entitled to have a renewal license issued turns on whether dismissal of the Nueces County suit on February 18, 1963, had the effect of perpetuating the Board’s order revoking and cancelling Dr. Mann’s license or had the effect of terminating the order. The question is governed by Article 4506. We hold that the judgment of dismissal had the effect of terminating the order.

Article 4506 is quite lengthy and need not be quoted in full. The article confers power on the Board to cancel, revoke, or suspend licenses of medical doctors on grounds specified in Article 4505. Proceedings are begun by the filing with the Board of charges in writing and under oath. After due notice and hearing, the Board is directed to “determine the charges upon their merits.” Provision for appeal by a doctor whose license is cancelled, revoked, or suspended is made in the following language:

“Any person whose license to practice medicine has been cancelled, revoked or suspended by the Board may, within twenty (20) days after the making and entering of such order, take an appeal to any of the district courts in the county of his residence, but the decision of the Board shall not be enjoined or stayed except on application to such district court after notice to the Board. The proceeding on appeal shall be a trial de novo, as such term is commonly used and intended in an appeal from the justice court to the county court, and which appeal shall be taken in any District Court of the county in which the person whose certificate of registration or license is involved, resides.”

It is to be noted that the appeal part of the statute contains provisions which appear to be inconsistent. While the statute stipulates, in effect, that the Board’s order shall remain in effect unless it is enjoined or stayed by the court in which the suit is filed, it also expressly provides that the “proceeding on appeal shall be a trial de novo, as such term is commonly used and intended in an appeal from the justice court to the county court.” A de novo trial as “in an appeal from the justice court to the county court” would automatically nullify the order of the Board. See Southern Canal Co. v. State Board of Water Engineers, 159 Tex. 227, 318 S.W.2d 619, 622 (1958), in which we said:

“The sine qua non of a de novo trial as that term is used to describe a retrial of a matter or controversy theretofore tried by another tribunal is the nullification of the judgment or order of the first tribunal and a retrial of the issues on which the judgment or order was founded. When jurisdiction of the second tribunal attaches, the judgment or order of the first tribunal is not merely suspended, but is nullified.”

The Legislature obviously did not intend to provide in Article 4506 that when an appeal was perfected, the Board’s order should remain in force unless suspended by a stay order and also that it should be automatically nullified. Neither did it intend that absent the formality of a stay order the Board’s order would remain in force if on a trial in the district court a doctor should not be found guilty of the charges against him; and yet that would be the necessary effect of a literal enforcement of both of the inconsistent provisions. It becomes our duty to harmonize the inconsistent provisions, if possible, and thus to give effect to both. How may they be harmonized?

The Dallas Court of Civil Appeals answered the question in Texas State Board of Medical Examiners v. Watt, 287 S.W. 2d 559, 560 (no writ 1956), by holding that “the language of the statute means that enforcement of the Board’s order is not suspended pending trial of the case in District Court unless the court issues its injunction or stay order.” The court of civil appeals in deciding this case answered the question in the same manner in this language (403 S.W.2d 220) :

“ * * * Its [the statute’s provision that the Board’s order shall not be suspended except by a stay order] effect, and only effect, is to keep the order of cancellation in effect pending the appeal except as may be otherwise ordered by the court. This is a temporary measure and continues only until a judgment of the court is rendered, after which the terms of the judgment and other appellate procedures control.”

We approve the interpretation placed on the statute by the two court of civil appeals opinions. It gives effect to both of the inconsistent provisions, narrowing the literal meaning of each somewhat but nullifying neither. Any other interpretation would delimit the provision for a de novo trial further than is necessary to carry out what seems to have been the obvious intention of the Legislature. That intention appears to be this: The doctor whose license is cancelled, etc. is to have a de novo trial; but if the doctor wishes to continue to practice medicine while the case is pending, he may do so only by obtaining an injunction or stay order against enforcement of the Board’s order. Once this interpretation of the statute is accepted, it follows necessarily that the judgment dismissing the suit in Nueces County terminated the Board’s order can-celling and revoking Dr. Mann’s license.

When Dr. Mann appealed from the order of the Board, he became entitled to a trial de novo with all the rights, both substantive and procedural, of a defendant, just as though the charges had first been filed in the district court, except, and except only, that the Board’s order of cancellation and revocation was not nullified but remained in force until the appeal was finally disposed of in the trial court, unless superseded by an injunction or stay order. In Scott v. Texas State Board of Medical Examiners, 384 S.W.2d 686, 690 (Tex.Sup.1964), in which we sustained the constitutionality of the de novo trial provision of Article 4506, we articulated some of the rights of a doctor who appeals by recognizing that the burden of proof is upon the Board, and that fact questions, whether decided by the court or a jury, are to be resolved by a preponderance of the evidence. Another right of a doctor-appellant in a de novo trial is to require the Board to assume the position of plaintiff in the suit with the burden of obtaining a trial on penalty of having the case dismissed for want of prosecution. Cf. Denton County v. Brammer, 361 S.W.2d 198 (Tex.Sup.1962), and see Bender Bros. v. Lockett, 64 Tex. 566 (1885). When the Board suffered its cross-action against Dr. Mann to be dismissed for want of prosecution, the purpose of the statutory provision for keeping the Board’s order in effect had been fully served and the order was terminated. To hold otherwise would be to make the order permanent in character without discharge by the Board of its burden of establishing by a preponderance of the evidence that Dr. Mann was guilty of the charges lodged against him. Or, as the court of civil appeals put it, a contrary holding would permit the Board to “win its case by failing to prosecute in the same manner and to the same extent as it could win it by a successful prosecution before Court and jury.” 403 S.W.2d 220.

Inasmuch as Dr. Mann’s license to practice medicine stood uncancelled and unrevoked when this suit was filed, mandamus was the proper legal remedy for seeking a renewal license upon tender of annual dues; issuance of the license by the Board was a ministerial duty. Article 4498a provides that when an applicant is determined to be a licensed practitioner of medicine, the Board shall issue an annual registration receipt upon payment of annual dues. Moreover, inasmuch as the allegations in Dr. Mann’s petition were made under oath and were not traversed except by general denial and by allegations which in law constitute no defense to the suit, proof in support of the allegations is unnecessary to the granting of the writ. Sansom v. Mercer, 68 Tex. 488, 5 S.W. 62 (1887).

The judgment of the court of civil appeals is affirmed.

      . Emphasis ours.


author: SMITH, Justice.

text:
    Bahiyyih CORNELL, Petitioner, v. John B. CORNELL, Respondent.
    No. A-11527.
    Supreme Court of Texas.
    March 15, 1967.
    Rehearing Denied April 26, 1967.

      Jack T. Niland, El Paso, for petitioner.
    Talley, Gade & Schwarzbach, Thor G. Gade, El Paso, for respondent.
   SMITH, Justice.

Respondent and petitioner were formerly husband and wife. Their marriage was dissolved by a judgment of a district court of El Paso County, Texas, entered on December 20, 1955. The court also approved a property settlement agreement entered into by the parties.

The property settlement agreement was executed by respondent and petitioner on the date of the divorce decree. While the agreement dealt with several matters, we are concerned only with the provisions wherein the respondent agreed to pay to the petitioner “the following sums: (a) the sum of $150.00 per month for the first six months from the date of the entry of the divorce decree; (b) the sum of $100.00 per month for the second six months from the date of said decree, and; (c) the sum of $75.00 per month thereafter until defendant shall have remarried or be eligible for social security benefits.” The 1955 judgment contains a finding “that the parties herein have entered into a property settlement agreement which is filed with the papers herein, and * * * is approved in all respects insofar as this court has jurisdiction and power to so approve.”

On August 7, 1964, this suit for declaratory judgment was filed by respondent in the district court of El Paso County, Texas. In this suit for declaratory judgment, he sought a construction of the above quoted provisions of the property settlement agreement, and specifically, he sought a declaration by the court as to whether or not such property settlement agreement was a contract to pay alimony to the petitioner. He prayed that the court declare and that'he have judgment establishing that the property settlement agreement between respondent and petitioner is a “contract to pay alimony, and that such contract is contrary to public policy of the State of Texas and is void and unenforceable.”

The petitioner answered by general denial and by trial amendment. The trial amendment, in addition to the plea of a general denial, contained a plea of res judicata. Petitioner specially pleaded that her plea of res judicata be sustained on the ground that the issues involved herein were tried between the same parties to this litigation in a cause of action filed in the municipal court of the Monterey-Carmel Judicial District, of Monterey County, California, while respondent and petitioner were legal residents of that state; that the judgment entered in the California court holding that the property settlement agreement was not a contract for the payment of alimony was upheld by judgment of the Superior Court of California, an appellate court of that state.

On May 12, 1965, the district court of El Paso County, Texas, without a jury, entered its judgment in this declaratory judgment suit. The judgment recites that the trial court overruled the petitioner’s plea of res judicata and entered judgment declaring that the property settlement agreement was “a contract for the plaintiff, John B. Cornell, to pay alimony or support to the defendant, Bahiyyih Cornell, after divorce, and that as such the same is against the public policy of the State of Texas, is void and unenforceable, and that no action lies within the State of Texas to enforce said payments.” On appeal, the Court of Civil Appeals, sustained the action of the trial court in overruling petitioner’s plea of res judicata and affirmed the judgment of the trial court. 402 S.W.2d 571. The petitioner, as appellant in the Court of Civil Appeals, attacked the judgment of the trial court through a single point of error which was to the effect that the trial court erred in failing to hold that the California judgment was res judicata of all matters involved in the present case. The application for writ of error presents the same question to this Court for determination.

We reverse the judgment of the courts below for the reasons now to be stated. It is our opinion that the California judgment is res judicata of the basic question of whether or not the provisions ,of the property settlement agreement under consideration is a contract for the respondent to pay alimony. The California court has held that it was not alimony. Furthermore, this Court in the case of Francis v. Francis, 412 S.W.2d 29 (Tex.Sup.Ct.1967), a case which involved a similar property settlement contract, held that the contractual obligation there involved was not an obligation tp pay alimony and not void as being in violation of the public policy of this state. The rule announced in Francis v. Francis, supra, is controlling here. The Francis Case excludes “the idea that a mere contractual obligation of a husband to make periodic or lump sum payments for the support and maintenance of his wife is a provision for alimony.”

The judgments of the trial court and the Court of Civil Appeals are reversed and judgment is here rendered that the contractual obligation of respondent to pay monthly sums to petitioner is not alimony and is not for that reason void.


author: PER CURIAM.

text:
    Cora ZIMMERMAN, Petitioner, v. TEXACO, INC., Respondent.
    No. B-72.
    Supreme Court of Texas.
    March 22, 1967.
    Rehearing Denied April 19, 1967.

      Sanders, Masters & Watson, H. W. Sanders, Wichita Falls, for petitioner.
    W. B. Browder, Jr., W. N. Sands, Midland, for respondent.
   PER CURIAM.

In our opinion, the District Court of Gaines County, Texas had jurisdiction'of this cause under the allegations contained in plaintiff-petitioner’s first amended original petition. We are of the further opinion that petitioner’s application for writ of error fails to disclose a reversible error in the Court of Civil Appeals’ action in affirming that portion of the trial court’s judgment decreeing that plaintiff-petitioner take nothing by her suit against defendants. The opinion of the Court of Civil Appeals is reported in 409 S.W.2d 607, and the application for writ of error is refused, no reversible error.

WALKER, J., not sitting.


author: WOODLEY, Presiding Judge.

text:
    Leonard D. MARSHALL et al., Appellants, v. The STATE of Texas, Appellee.
    No. 40193.
    Court of Criminal Appeals of Texas.
    April 5, 1967.
    No attorney on appeal.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

This is a bond forfeiture case in which Reagan M. Martin and Clayton Fowler, sureties upon the appearance bond of Leonard D. Marshall, gave notice of appeal from a judgment rendered July 15, 1966, making final the judgment nisi forfeiting said bond and decreeing that the State recover from the principal and said sureties the sum of $1,000.00 and costs of suit.

Notice of appeal by .said sureties was filed August 10, 1966, and the record on appeal was approved January 12, 1967.

The record fails to show that an appeal bond was given, as required by Rule 333 Rules of Civil Procedure, and no briefs have been filed as required by Rules 414 and 415 R.C.P.

The appeal is dismissed.


author: BELCHER, Judge.

text:
    William Joseph MILES, Appellant, v. The STATE of Texas, Appellee.
    No. 40200.
    Court of Criminal Appeals of Texas.
    April 5, 1967.
    Maurice U. Westerfeld, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Phyllis Bell and Alvin A. Horne, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Judge.

The conviction is for burglary; the punishment, twelve years.

Notice of appeal was given on July 14, 1966.

The sufficiency of the evidence to support the conviction is challenged in appellant’s brief.

The testimony of the state reveals that about 5:15 a. m., December 17, 1965, two officers, upon hearing a noise coming from a garage building, saw a window being pushed open and a man wearing gloves throw an adding machine from the window; that the man ran from the window and after hearing another noise they saw the appellant run from the side of the building; that the appellant was wearing the same colored shirt as the man they saw throw the adding machine from the building; that the officers pursued the appellant as he ran away from the building, and during the chase they saw him throw two pistols into the bed of a truck parked by the roadside; that after a chase of two blocks, during which the officers never lost sight of the appellant, he was arrested, and he was wearing the same color of shirt as the man they saw inside the building and the man running from it; that in addition to the gloves the appellant was wearing, a search of him revealed an earring, some playing cards, and book matches, which were identified by the ■owner of the building as coming from his building, and one of the pistols found in the truck bed was also identified by the •owner of the building as belonging to him and taken from his garage building; that the owner did not consent to the forcible entry of the closed building and the taking ■of any property therefrom.

The appellant did not testify, but called ■one witness, Marcus de Roin, who testified that he, alone, burglarized the garage building. He testified that he entered the building, took the pistol, and had other things stacked in the building when he noticed the police car and left the building; that as he fled he first saw the appellant walking toward the truck while the police were in pursuit; that he threw his pistol and the one he took from the building in a truck, then hid in a ditch, and saw the officers apprehend the appellant.

In appellant’s brief he urges as a ground -of error that:

“In prosecution for burglary, where the state is relying solely upon circumstantial evidence, the confession by a third party should exclude the guilt of the accused when it shows that the person making the confession was so situated that he could have committed the crime and when the guilt of the party making the confession is inconsistent with the guilt of the accused.”

Error is also urged on the ground that:

“On a voluntary statement of confession the court should have instructed the jury generally on the law pertaining to such statement or confession.”

The court charged the jury upon the law applicable to circumstantial evidence.

The appellant did not testify, and no statement of the appellant was introduced or referred to in the evidence adduced. Appellant’s only witness, Marcus de Roin, freely and voluntarily testified that he, alone, committed the offense charged. Even though de Roin’s testimony admits his guilt, and shows that it is inconsistent with and excludes the guilt of the appellant, it raises no more than an issue of fact which was decided against the appellant by the jury. No error is perceived in the grounds urged as error.

Another ground presented as error is:

“The court should have instructed a verdict of acquittal where, by law, two witnesses are required, or one with corroborating circumstances.”

This contention seeks to make effective the provisions of Art. 38.17 Vernon’s Ann.C.C.P., to this case. The requirements of said article, in order to authorize a conviction, are not applicable to the evidence or the offense charged in this case. No error is shown.

The jury rejected the testimony of appellant’s witness de Roin, and we find the evidence sufficient to warrant the jury’s finding that the appellant is guilty as charged.

The judgment is affirmed.


text:
    Byron L. McCLELLAN, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 40192.
    Court of Criminal Appeals of Texas.
    April 5, 1967.
    Coleman & Whitten, by Earl L. Coleman, Denton, C. O. McMillan, Stephen-ville, for appellant.
    John Lawhon, County Atty., Denton, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

Tried upon an indictment alleging the offense of maiming, appellant pleaded not guilty before a jury. He was found guilty and elected to have the same jury assess his punishment. The jury assessed his punishment at seven years confinement in the Texas Department of Corrections and recommended probation.

The court suspended the imposition of sentence and placed appellant on probation.

The judgment on the jury’s verdict was entered nunc pro tunc.

Notice of appeal was filed with the clerk of the trial court within 10 days after motion for new trial was overruled, as required by Art. 44.08(b), Vernon’s Ann. C.C.P.

The problem which faces the Court in disposing of this appeal arises by reason of the innovation wrought by the 1965 Code of Criminal Procedure whereby the jurisdiction of the trial court does not end with the notice of appeal and perfection of the record, and the jurisdiction of the Court of Criminal Appeals does not vest until the record on appeal is filed in said court.

Section 9 of Art. 40.09 C.C.P. provides that after the record is approved the defendant shall file with the clerk of the trial court his appellate brief setting forth each ground of error of which he desires to complain on appeal.

Section 10 provides for the filing of the state’s brief.

Section 11 provides that the trial court may require oral arguments on the brief.

Section 12 makes it the duty of the trial judge “to decide from the briefs and oral arguments, if any, whether defendant should be permitted to withdraw his notice of appeal and be granted a new trial by the trial court.”

Section 13 provides that upon refusal of the trial court to grant defendant a new trial, the record and briefs shall be promptly transmitted to the Court of Criminal Appeals “in which court all grounds of error and arguments in support thereof urged in defendant’s brief in the trial court shall be reviewed, as well as any unassigned error which in the opinion of the Court of Criminal Appeals should be reviewed in the interest of justice.”

In his brief filed in the trial court appellant presented as his first ground of error the overruling of his motion to quash the indictment upon the ground that it was returned by a grand jury which required his attendance and appearance to give evidence before such grand jury in violation of the provisions of the Constitution of the United States and of the Constitution of Texas that “the defendant shall not be compelled to give evidence against himself.”

Other grounds of error presented by the defendant’s brief filed in the trial court relate to a deletion and amendment of the indictment; the admission of evidence and the sufficiency of the evidence to sustain the conviction.

In the performance of the duties imposed upon him by Section 12 of Art. 40.09 C.C.P. the trial judge, having reviewed the record and the briefs on file, concluded that under rulings of the Supreme Court of the United States in several cases recently decided concerning deprivation of constitutional rights of persons accused of crime, it was fundamental error to require the appellant herein to appear before the grand jury which found the indictment against him, and that his trial and subsequent conviction on the defective indictment found by the grand jury “was reversible error” and he advised that if appellant desired to withdraw his notice of appeal and reassert his motion for new trial, as authorized by Art. 40.09(12) C.C.P. he would have no alternative but to grant it.

The order of the court directing that the clerk promptly transmit the record and briefs to this Court recites that appellant had been so advised and had failed, refused and declined to withdraw his notice of appeal.

For this Court to review any ground of error urged in the defendant’s brief filed in the trial court other than such as in the opinion of this Court should be reviewed as unassigned error would be to ignore the salutary provisions of the 1965 Code whereby the trial judge is allowed full opportunity to examine the completed record, hear arguments and study briefs and grant a new trial to the same extent as would this Court should he decide that the defendant should not be permitted to withdraw his notice of appeal.

We hold that in declining the trial judge’s decision permitting him to withdraw his appeal and be granted a new trial, appellant waived all grounds of error save those which may be considered by this Court as unassigned errors.

Deprivation of constitutional right such as set forth in defendant’s brief as his first ground of error is, in the opinion of this Court, an error which should be reviewed in the interest of justice, though unassigned.

To affirm this conviction' we would be required to find, contrary to the trial court’s ruling, that appellant was not deprived of a constitutional right and it was not fundamental error to require him to appear before the grand jury that found the indictment against him and that his trial and conviction upon said indictment was not “reversible error.”

To so find, this Court would in effect be reviewing a finding of the trial court that was favorable to the defendant.

We conclude, without passing upon the trial court’s ruling, that the proper disposition of this appeal is to reverse the conviction and remand the cause to be disposed of as it would have been had appellant withdrawn his notice of appeal and been granted a new trial.

It is so ordered.


author: MORRISON, Judge.

text:
    Alexa BANKER, Appellant, v. The STATE of Texas, Appellee.
    No. 40286.
    Court of Criminal Appeals of Texas.
    April 5, 1967.
    Frank Maloney, of Maloney & Black, Austin, Thomas B. Cowden, Austin, for appellant.
    M. E. Laas, County Atty., Bellville, G. F. Steger, County Atty., Columbus, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The information charged aggravated assault upon a peace officer in the performance of the duties of his office; the jury found appellant guilty of simple assault, and a fine of $5.00 was assessed.

This 600 page record reflects the zeal with which this case was prosecuted and defended.

Appellant was a 60 year old married woman who had never before been accused of any violation of the law. She testified that Sheriff Maddox, (age 46) came upon her mother’s property and announced that he was going to give her a ticket for obstructing a public road. She stated that she immediately moved her automobile, but that Maddox was not satisfied and persisted in debating her guilt in obstructing what he contended was a public road, and that this led to heated words as to his dereliction in failing to apprehend the persons who had previously destroyed her rock wall. She stated that during such debate her 64 year old husband offered himself for arrest if the sheriff would leave her and her 78 year old mother alone, but that the sheriff said he was going to take the whole “push” to jail and assaulted her as if she were a cow or an animal, holding her head back and her hands behind her back. She denied that she made any overt physical gesture toward Maddox at any time. She stated that as he was forcing her into his automobile, he placed his hand over her face and some of his fingers into her mouth “and I remember doing my teeth this way (indicating) in self defense, because I could-n’t breathe. I was just almost exhausted.” Her testimony was supported by her husband and her mother. This one bitten finger, which resulted in no permanent injury, constitutes the basis of this prosecution.

The above is a sufficient statement of appellant’s testimony to demonstrate that the trial court erred in failing to submit appellant’s requested charge on the law of self defense which is a part of appellant’s second ground of error.

In Stanfield v. State, 118 Tex.Cr.R. 47, 38 S.W.2d 94, this Court said, “One making an illegal arrest, or one making an arrest in an illegal manner, is a trespasser, and the extent to which such arrest may be lawfully opposed is governed by the law of self defense.”

As we stated in Turley v. State, 171 Tex.Cr.R. 514, 352 S.W.2d 130, “[a] defensive theory raised by the evidence should always be submitted to the jury, even though the evidence is conflicting.”

For the error of the court in failing to give an appropriate charge raised by the defensive evidence, the judgment must be reversed. We have concluded that the jurisprudence of this State would not be benefited by a discussion of the many remaining grounds of error assigned.

For the error pointed out, the judgment is reversed and the cause remanded.


author: GRISSOM, Chief Justice.

text:
    J. R. HANSON, Appellant, v. Ottis PELHAM et al., Appellees.
    No. 4116.
    Court of Civil Appeals of Texas. Eastland.
    March 3, 1967.
    Rehearing Denied March 31, 1967.

      Frank C. Ashby, Garland Casebier, Midland, Rountree, Renner & Snell, Cayton & Gresham, Lamesa, Shaw & Bowman, Rodrick L. Shaw, Lubbock, Walter Morgan, Houston, John W. Pruitt, Austin, for appellant.
    Hu ffaker & Green, Tahoka, for appellees.
   GRISSOM, Chief Justice.

J. R. Hanson sued Ottis Pelham and others in trespass to try title to the North one-half of Section 37, Block 36, Township 5 North, Certificate 2704, Abstract 176, T. 6 P. Ry. Co. Survey in Dawson County. In the alternative, Hanson alleged that in November 1919, H. and S. E. Bockman were the record owners of said land; that on that date they conveyed it by warranty deed to D. M. Corley and by mesné conveyances it passed to Ottis Pelham, who conveyed it by warranty deed to S. L. Forrest, reserving the minerals under the North 80 acres of the said half section but not excepting the minerals reserved by the Bock-mans; that Forrest by warranty deed conveyed said land to R. C. Stuart, reserving the minerals in the South 80 acres of said half section, but not excepting said previously reserved minerals; that, in February, 1948, Stuart conveyed said land to Hanson by a warranty deed which did not contain nor mention any reservation of minerals. Hanson alleged that Bockmans’ deed to Corley contained the following provision:

“It is especially understood and agreed that the said H. Bockman retains all of the oil, gas and mineral rights on the North east quarter (N.E. ¼) of Survey-37, Block 36, Township S North, T. & P. Ry. Co., Surveys in Dawson County, Texas, and at any time he shall desire to develop any of the minerals above mentioned or retained herein, he can proceed with such development at his will by paying to the then owner of the land the actual damages caused by such development, if there should be cause for such damage, otherwise he shall proceed at his will to the development of said minerals.”

Hanson alleged that, before January 1947, both of the Bockmans had died intestate; that the quoted provision from the Bock-mans’ deed to Corley reserved to the Bock-mans a mere personal right which terminated upon their deaths and, therefore, no right, title or interest in the minerals in the Northeast one-fourth of Section 37 passed to the Bockmans’ heirs or assigns; that, notwithstanding said reservation terminated upon the death of the Bockmans, their heirs and assigns were claiming an interest in the minerals in the Northeast one-fourth of Section 37 and Hanson was entitled to have the cloud thereby cast upon his title removed.

Hanson alleged, in the alternative, that, if the quoted provision in the Bockmans’ deed to Corley did constitute a reservation of the minerals, Ottis Pelham in his deed to Forrest breached his warranty and the minerals he reserved in the Northwest one-fourth of said section should be taken by Hanson as a substitute for a like portion of the minerals which he did not own but purported to convey out of the Northeast one-fourth; that Forrest in his deed to Stuart breached his warranty as to the minerals reserved by the Bockmans and by Pelham and that the minerals reserved by him in the Northwest one-fourth of Section 37 should be taken by Hanson as a substitute for the same amount of minerals which he did not own but purported to convey under the Northeast one-fourth of said section. Hanson concluded that no minerals were reserved by Pelham or Forrest but, if their deeds were construed to the contrary, Pel-ham and Forrest and their heirs and assigns were estopped to assert title to any reserved minerals in the said half section because of said breaches of warranty, wherefore, Hanson should be decreed to be the owner of the minerals they reserved in the Northwest one-fourth of Section 37. We agree that such is the result of said breaches, they being prevented by the doctrine of equitable estoppel from asserting title to the interest reserved out of the Northwest one-fourth of said section.

Hanson alleged that the Humble Oil and Refining Company claimed to own an oil and gas lease on the Northeast one-fourth of Section 37 executed by the heirs and assigns of H. and S. E. Bockman, but that the Bockmans did not reserve and, therefore, their heirs and assigns did not own the minerals in the Northeast fourth of Section 37, and their lease to Humble constituted a cloud on Hanson’s title which should be removed.

In a trial to the court, it was decreed that Hanson take nothing against Humble Oil and Refining Company and the heirs and assigns of the Bockmans, but that Hanson recover from Pelham, Stuart and the heirs of Forrest $400.00, the agreed value of 80 acres of minerals which they purported to convey out of the Northeast one-fourth of said section but did not own, plus 6% interest thereon from the conveyance to Hanson in 1948. It was further decreed that Moore and Jamison take nothing against Hanson by reason of their claim that he breached his warranty. Jamison and Moore have appealed from the portion of the judgment adverse to them. That part of the judgment is affirmed. Pelham and Stuart and the heirs of Forrest have appealed from the award of interest from the date of the conveyance to Hanson. That part of the judgment is reversed and judgment rendered for said appellants. The parts of the judgment from which Hanson has appealed will hereafter be pointed out and discussed.

We shall first consider the appeal of Hanson from the judgment in favor of Humble and the heirs and assigns of the Bockmans. That portion of the judgment was the result of the court’s conclusion, with which we agree, that the Bockmans retained the minerals in the Northeast one-fourth of Section 37 and that the quoted provision of their deed, executed in 1919, was not merely a reservation of a personal right which expired with the Bockmans. Notwithstanding the fact that the oil law of Texas was just beginning to develop in 1919, it is evident from said reservation that the Bockmans intended to and did reserve the minerals in the Northeast one-fourth of Section 37. As stated, Hanson says the Bockmans reserved no estate in the minerals, only a power or license of a personal nature which died with them. In support thereof he cites Pan American Petroleum Corporation v. Cain, 163 Tex. 323, 355 S.W.2d 506 and Radke and Karr v. Union Pacific Railroad Company, 138 Colo. 189, 334 P.2d 1077. Both of said cases involve a license, power or personal privilege, as distinguished from a reservation of minerals. In the Cain case the court held that the reserved right to lease the interest in the minerals conveyed was not coupled with an “interest in the minerals conveyed” and terminated upon the grantor’s death. The Cain case is not decisive of the question presented here. The language used in the Bockman reservation, as a matter of law, reserved the minerals. If the Radke case is not distinguishable, it is contrary to the established law in Texas. In support of our conclusion that the Bockmans reserved the minerals we cite Donnell v. Otts, Tex.Civ.App., 230 S.W. 864, 866; Hester v. Weaver, Tex.Civ.App., 252 S.W.2d 214, 215, (writ ref.), and Joiner v. Sullivan, Tex.Civ.App., 260 S.W.2d 439. We affirm the judgment against Hanson in favor of Humble Oil and Refining Company and the Bockmans’ heirs and assigns, sustaining the validity and present effectiveness of the Bockmans’ reservation of the minerals in the Northeast one-fourth of Section 37.

Hanson contends that, if the Bockmans did reserve the minerals under the Northeast one-fourth of Section 37, when Pelham executed a warranty deed to Forrest purporting to convey the North one-half of said section, but reserving the minerals in the North 80 acres, Pelham breached his warranty as to the minerals he purported to convey out of the Northeast one-fourth of said section, because the Bockmans had reserved the minerals thereunder, and a like number of mineral acres which Pelham reserved out of the Northwest one-fourth of Section 37, to-wit, 40 acres, should be substituted for a like amount which he did not own but purported to convey out of the Northeast one-fourth; that when Forrest conveyed the North one-half of Section 37 to R. A. Stuart the same situation existed, except that Forrest reserved the minerals under the South 80 acres of said half section; that when Stuart conveyed the North one-half of Section 37 to Hanson his deed did not contain nor mention any reservation of minerals and that said named grantors, except as to the interests reserved, each breached his warranty and Hanson was entitled to take from Pelham and Forrest each a like amount of the minerals he reserved in the Northwest one-fourth of Section 37, they being estopped to assert ownership thereof against Hanson. We sustain this contention. The authorities cited to the contrary were written before the Duhig decision. It is ably argued that the doctrine of equitable estoppel applied here against Pelham and Forrest to assert ownership of said reserved interests may be applied only where an “undivided” interest is in controversy. Although such an interest may have been involved in the cases where our Supreme Court has applied the doctrine that court has not indicated that such was a reason for applying it. Able counsel argue that the doctrine should be applied only where the same amount of “undivided” interest is conveyed and reserved. They say that it could not be applied where parts of the conveyed and reserved lands produced oil while others were dry. We think the answer is that the doctrine is based upon equity and it would not be applied when it was inequitable to do so. Here, it was stipulated that both at the time of the breach and at time of the trial the minerals in the different parts of the half section were all of the same value. Under this agreed situation there can be no material difference between it and an undivided interest case in applying the Duhig doctrine.

The court erred in holding Hanson was restricted in recovery on his warranty to the value of the minerals as to which said grantors breached their warranties, which was at the time of the breaches of the agreed value of only $5.00 per acre. Said warrantors were estopped to assert ownership of minerals they owned and reserved in said half section equal to that which they purported to convey but did not own.

The sketch at page 10 of appellant Hanson’s brief, hereafter copied, shows the North half of Section 37 and tends to show the result of said warranties, breaches and reservations in Hanson’s chain of title.

The Bockmans reserved all the minerals under the Northeast one-fourth of Section 37, or the east one-half of the above pictured 320 acres. The area shown in red is 80 acres of minerals out of the Northeast one-fourth as to which Pelham, Forrest and Stuart all breached their warranties because they purported to convey it, notwithstanding that it had been excepted from the conveyance of the half section by the Bock-mans and was owned by their heirs and assigns. Pelham purported to convey all said half section, except the North 80 acres thereof. Pelham and Forrest each actually owned and reserved 40 acres of minerals (shown in blue) out of the Northwest one-fourth of Section 37. Hanson contends that when Forrest conveyed the North one-half of Section 37 to R. A. Stuart the same situation existed, except that Forrest reserved the South 80 acres thereof, and, when Stuart conveyed the North one-half of Section 37 to Hanson he purported to convey all the minerals thereunder and he thereby breached his warranty as to all minerals in the Northeast one-fourth of said section, except the North 40 and South 40 acres thereof which were purported to be reserved by Pelham and Forrest, respectively. Hanson says that neither Pelham nor Forrest could breach his warranty of title to the minerals he purported to convey out of the Northeast one-fourth and in the same deed retain 40 acres of minerals out of the northwest one-fourth of said half section conveyed by the same deed; that the 40 acres of minerals reserved by each in the West end of said half section should be taken by their grantees to offset the loss of an equal amount of minerals of equal value which each purported to convey but did not own, and therefore, did not convey, out of the East end. We agree with this contention. In Miles v. Martin, 159 Tex. 336, 321 S.W.2d 62, 65, Judge Walker speaking for our Supreme Court said:

“It was held in the Duhig case that the grantor in a general warranty deed is estopped to claim title to an interest reserved therein when to permit him to do so would, in effect, breach his warranty with respect to the title and interest which the deed purports to convey.”

In Benge v. Scharbauer, 152 Tex. 447, 259 S.W.2d 166, 169, in an opinion by Judge Griffin, it was held that the general warranty in a deed estopped the grantor from asserting that his deed conveyed a less interest than he owned. He said (in paragraph 5, at page 168):

“It is also well settled that where the conveyance represents that the grantor is the owner of a particular interest in property and such interest is conveyed by the deed, the grantor is estopped by his covenant of general warranty to claim that the deed conveyed a less estate than grantor’s ownership. Duhig v. Peavy-Moore Lumber Co., Inc., 135 Tex. 503, 144 S.W.2d 878.”

and further (in paragraph 9 at page 169) :

“The rule of the Duhig case, in order-to remedy the breach of warranty, takes from the grantors part of what the deed purported to reserve to them * * *.”

It was there held that a one-fourth mineral interest required to remedy the breach of warranty and to convey the interest purported to be conveyed would be taken from what the grantors reserved.

In Duhig v. Peavy-Moore Lumber Co., Inc., 135 Tex. 503, 144 S.W.2d 878, our Supreme Court adopted Judge Smed-ley’s opinion which laid down the rule that a grantor to whom realty has been conveyed with a reservation of a one-half interest in the minerals, who in his deed retains one-half the minerals, is estopped by his warranty from claiming the one-half interest which in the same deed he reserved to himself. So, it has been established in Texas that when a grantor purports to convey by warranty deed an interest in land that he does not own and in the same deed retains a like interest he is estopped to assert ownership of the like interest which he reserved. Hanson says the court erred in holding to the contrary and not awarding him the North 40 and South 40 acres of minerals out of the West half of the pictured half section reserved, respectively, by Pelham and Forrest. We sustain Hanson’s said contention. Said part of the judgment is reversed and judgment is rendered awarding Hanson title to said 80 acres of minerals out of the West half of said half section. See also McMahon v. Christmann, 157 Tex. 403, 303 S.W.2d 341, 346 and Gibson v. Turner, 156 Tex. 289, 294 S.W.2d 781, 786.

The court awarded Hanson 6% interest on his money judgment for breaches of warranty, to-wit, $400.00, from the date of the conveyance to him, February 9, 1948, to the date of the judgment. Pelham, Forrest and Stuart say the court erred in awarding him such interest because there was no proof Hanson was disturbed in his possession or use thereof and the burden was upon him to show he was evicted and received no profits from the minerals as to which the title was breached. We think they are correct. Hanson did not prove such things. On the contrary, the record shows Hanson leased the North half of Section 37, including the two 40 acre tracts for which he recovered $400.00 damages, excepting only the North and South 80 acres, for a valuable consideration. Under the circumstances, it was error to allow interest from said date. Brown v. Hearon, 66 Tex. 63, 17 S.W. 395; First National Bank v. Brown, Tex.Com.App., 15 S.W.2d 563.

C. R. Jamison and J. Hiram Moore were parties to this suit. Hanson alleged that “By reason of the purported reservation as hereinbefore set out in the Bockman to Corley deed, the defendants, C. R. Jam-ison and J. Hiram Moore, are asserting a claim against the plaintiff for breach of warranty as to that portion of said lease covering the Northeast one-fourth — of said section. Plaintiff says that such claims should be denied and said defendants take nothing of him.” Jamison and Moore answered by a general denial. They did not seek affirmative relief against Hanson and offered no evidence of such a claim against Hanson. It was decreed that they take nothing against Hanson by reason of their claim for breach of warranty. After Hanson obtained a deed to the North half of Section 37, he executed an oil and gas lease thereon to Jamison and Jamison conveyed a one-half interest to J. Hiram Moore. The judgment awarded no affirmative relief to Hanson against Jamison and Moore. It simply decreed that they recover nothing against Hanson by reason of their claim of breach of warranty. After it was decided that the Bockmans had reserved said minerals and that judgment was rendered they, untimely, sought to reopen the case and assert a cause of action for breach of warranty in said lease by Hanson to Jamison, apparently because of the decision that the quoted provision of the Bockmans' deed was a reservation of minerals and still in effect. Jamison and Moore were parties to the suit. Hanson alleged that by reason of the Bockman reservation and his lease to them Jamison and Moore were asserting a claim against him for breach of warranty in said lease, but their claims should be denied and judgment rendered that they recover nothing against him. Jamison and Moore say that theirs was not a compulsory counter claim and they had a right to reopen the case after judgment had been rendered sustaining the Bockman reservation and decreeing that they take nothing against Hanson by reason of their claim for breach of warranty and, on another hearing, recover damages from Hanson for breach of the warranty in his lease. The only pleadings filed by Jamison and Moore was a general denial. They did not seek affirmative relief against Hanson. They offered no evidence to support their claim for breach of warranty, which was put in issue by the pleadings. We affirm that part of the judgment refusing to reopen the case and then try their asserted cause of action for breach of warranty against Hanson. We think their cause of action was not timely presented and. that they should not be permitted to sit back and gamble on the outcome of the case to which they were parties, hoping that it would be held that the Bockmans did not reserve the minerals. We think that, under the circumstances, theirs was a compulsory counter claim within Texas Rules of Civil Procedure 97. Hanson’s claim was asserted and determined on the trial. The judgment as to Jamison and Moore is affirmed. Thomson v. Philips, Tex.Civ.App., 347 S.W.2d 832, (ref. n. r. e.); Lacy v. Carson Manor Hotel, Inc., 297 S.W.2d 367, (ref. n. r. e.).

That part of the judgment refusing to award the two 40 acre tracts out of the Southwest one-fourth of Section 37, shown in blue, to Hanson and awarding him only the value of the two 40 acre tracts shown in red is reversed and he is awarded the minerals in the two tracts shown in blue. But, Hanson cannot take the two 40 acre tracts, shown in blue, reserved by Pelham and Forrest, respectively, as a substitute for the two 40 acre tracts shown in red and at the same time recover the value of the two 40 acre tracts shown in red. It should be here noted that it was stipulated that, when Hanson bought from Stuart, Hanson knew of the reservations by Pelham and Forrest, respectively, of 80 acres off the North and South ends of said half section. Hanson’s judgment for $400.00 and interest thereon from 1948 is reversed and judgment is rendered awarding Hanson the two forty acre tracts shown in blue out of the Southwest one-fourth of Section 37, which were reserved by Pelham and Forrest out of the West end of said half section. Our conclusion that Hanson is entitled to said 80 acres of minerals out of the Northwest one-fourth of Section 37 prevents his recovery also of the value of a like interest out of the Northeast one-fourth, to-wit, $400.00 and is, of course, another and independently sufficient reason for denying Hanson a recovery of interest thereon. In all other respects the judgment is affirmed.

The judgment is reversed and rendered in part and in part affirmed.


author: DAVIS, Justice.

text:
    The FIDELITY AND CASUALTY COMPANY OF NEW YORK, Appellant, v. Linden M. JOHNSON, Appellee.
    No. 7771.
    Court of Civil Appeals of Texas. Texarkana.
    Feb. 14, 1967.
    Rehearing Denied March 7, 1967.
    Paul W. Persons, Baker, Botts, Shepherd & Coates, Houston, for appellant.
    Raymond L. McDermott, Mabel Grey Howell, Houston, for appellee.
   DAVIS, Justice.

A workman’s compensation case. Plaintiff appellee, Linden M. Johnson, sued the •defendant appellant, The Fidelity and Casualty Company of New York, as the result of an injury that appellee received in the course of his employment for the Houston Light and Power Company. The injury occurred on September 24, 1962. The judgment was signed and entered on January 26, 1966. Appellant filed a motion for new trial which was overruled on March 21, 1966. The transcript was filed in the Court of Civil Appeals on May 11, 1966. As a result of certain extensions of time the Statement of Facts, Bills of Exceptions and Supplemental Transcript were filed in the Court of Civil Appeals on June 29, 1966. Appellee has filed a motion to dismiss the appeal, or in the alternative, to strike the Statement of Facts, Bills of Exceptions and Supplemental Transcript because they have not been timely filed showing a properly authenticated approval by the trial judge, as required by Art. 2448, Vernon’s Ann.Civ.St., and Rule 18, V.T. R.C.P.

The case was tried before Judge John Snell, Jr., who signed the judgment, and overruled the motion for new trial. The Statement of Facts, the Bills of Exceptions and Supplemental Transcript were approved and allowed by Judge Wm. M. Holland as the judge presiding. The reason given by appellee as to why he refused to approve the Statement of Facts was because the jury arguments were included therein. The appellant did not approve the Statement of Facts. Appellant did prepare Bills of Exceptions which contained the jury arguments and presented them to Judge Holland who allowed the same and directed them to be filed. Judge Holland also approved the Statement of Facts. The motion to dismiss, or in the alternative, to strike the Statement of Facts, Bills of Exceptions and Supplemental Transcript were filed within 30 days after the filing of the Statement of Facts, Bills of Exceptions and Supplemental Transcript in the Court of Civil Appeals.

Motion to dismiss the appeal has no merit. The motion to strike the Statement of Facts, Bills of Exceptions, and Supplemental Transcript is well taken and must be sustained. Art. 2248, V.A.C.S. reads as follows:

“Any judge of a district or county court whose term of office expires before the adjournment of the term of such court at which a cause may be tried, or during the period prescribed for the filing of the statement of facts and bills of exception, or conclusions of law and fact, may approve such statement of facts and bills of exception, or file such findings of fact and conclusions of law in such cause, as provided in this title, and where any such judge shall die before the time for such approval or filing, the same may be approved or filed by his successor, as provided by article 2288.”

Art. 2288, V.A.C.S. has been repealed and is now Rule 18, V.T.R.C.P., and reads as follows:

“If the judge dies, resigns, or becomes unable to hold court during the session of court duly convened for the term, and the time provided by law for the holding of said court has not expired, such death, resignation, or inability on the part of the judge shall not operate to adjourn said court for the term, but such court shall be deemed to continue in session. If a successor to such judge shall qualify and assume office during the term, or if a judge be transferred to said district from some other judicial district, he may continue to hold said court for the term provided, and all motions undisposed of shall be heard and determined by him, and statements of facts and bills of exception shall be approved by him. If the time for holding such court expires before a successor shall qualify, and before a judge can be transferred to said district from some other judicial district, then all motions pending, including those for new trial, shall stand as continued in force until such successor has qualified and assumed office, or a judge has been transferred to said district who can hold said court, and thereupon such judge shall have power to act thereon at the succeeding term, or on an earlier day in vacation, on notice to all parties to the motion, and such orders shall have the same effect as if rendered in term time. The time for allowing statement of facts and bills of exception from such orders shall date from the time the motion was decided. Amended by order of June 16, 1943 effective December 31, 1943.”

Since neither the appellant nor the appellee approved the Statement of Facts, it then became the duty of the trial judge, the one who tried the case, to approve the same. There is no showing that Judge Snell had died, resigned, or had become unable to approve the same. Art. 2248 has not been repealed. United Gas Pipe Line Co. v. Helscher, et al, C.C.A. (1953) 259 S.W.2d 735, n. w. h. In this case, ap-pellee filed a motion to strike appellant’s Bill of Exception and Statement of Facts. The motion was based upon the contention that the Bill of Exception and Statement of Facts were not properly authenticated by the “judge who tried the case” in the trial court. In construing Art. 2248, the court said:

“The Courts of this State have construed this article as meaning that the judge who tried the case must approve the bill of exceptions and statement of facts in a case even though his term of office may expire before he is called upon to do so, and that where a bill of exceptions and statement of facts is approved by his successor in office while he is yet living and available they are not properly authenticated and cannot be considered as a part of the record. * * * Citing authorities.

It has been held that in counties where two or more district courts with civil jurisdiction, where a statement of facts was approved by both counsel, the judge who heard the evidence may request and direct any judge to sign his name thereto. Shaeffer et al v. Smyth, et al, Tex.Comm. App. (1931), 37 S.W.2d 1012, opinion approved by the Supreme Court. There is a gross difference in this case and the case before the court. Both sides approved the Statement of Facts. In this case neither side approved the same.

It is unnecessary for the trial court to approve the Statement of Facts where it is approved by counsel for both sides. It is the settled law in Texas that the judge who tries the case is the one who must approve the statement of facts if either party refuses to do so. Rule 337d, V.T. R.C.P. The judge who tries the case must approve the bills of exceptions. Koonce v. City of Mesquite, (Ct.Civ.App.1964), 382 S.W.2d 309, writ dismd. Smith, et al v. United Gas Pipe Line Co. (1950) 149 Tex. 69, 228 S.W.2d 139; Prichett v. Highway Insurance Underwriters (1958), 158 Tex. 116, 309 S.W.2d 46. The motion to strike the Statement of Facts, Bills of Exceptions and Supplemental Transcript is sustained.

The appellant has perfected its appeal and brings forward five points of error. By its points 1, 2 and 5, it complains of certain matters that cannot be decided without the use of the Statement of Facts. Since the Statement of Facts are not properly before the court, the points of error are overruled.

By its points 3 and 4, it complains of jury argument by the appellee. There is nothing before this court that will sustain these points, and they are overruled.

In the event we are in error in sustaining the motion to strike the Statement of Facts, Bills of Exceptions and Supplemental Transcript, we have carefully reviewed all the points of error and if we had jurisdiction, they would be overruled.

The judgment of the trial court is affirmed.