author: NYE, Justice.

text:
    LIFE & CASUALTY INSURANCE COMPANY OF TENNESSEE, Appellant, v. Homero RIVERA, Appellee.
    No. 306.
    Court of Civil Appeals of Texas. Corpus Christi.
    Nov. 9, 1967.
    Rehearing Denied Nov. 21, 1967.

      Wm. R. Anderson, Jr., and James H. Atwill, of Sorrell, Anderson & Porter, Corpus Christi, for appellant.
    Eduardo E. de Ases, Corpus Christi, for appellee.
   OPINION

NYE, Justice.

This is a suit on a life insurance policy brought by Homero Rivera against Life and Casualty Insurance Company of Tennessee. Plaintiff alleged that he entered into a contract with the defendant insurance company whereby the plaintiff agreed to pay a stipulated premium and defendant agreed to issue a policy of insurance insuring the lives of the plaintiff, his wife and children. The insurance company issued a non-medical life insurance policy on the life of the plaintiff in the principal sum of $1,000.00 and $500.00 on each dependent child. One of plaintiff’s children Nora Linda Rivera died several months after the policy was issued. Plaintiff alleged that the contract of insurance was in full force and effect, the premium had been paid, and that after notice to the insurance company, the claim upon the policy had been denied. The insurance company defended on the sole ground that the deceased child was not in good health and that under the express terms of the policy said insurance would not be effective unless at the time of such issuance of the policy the said Nora Linda Rivera was in fact in good health. The case was tried before the court without the aid of a jury resulting in a judgment in favor of the plaintiff for $500.00 plus costs and $250.00 attorney fees.

The insurance policy provided that: “This Policy shall take effect as of the date of issue provided the insured, the insured Wife and each Dependent Child are alive and in good health on such date and the first premium shall have been paid in cash.” The insurance company’s agent completed the application for insurance and filled in the blanks because the plaintiff insured was an illiterate farm worker who could not read nor write. The insured stated that he and his children were in good health. The insurance company did not raise any question about fraudulent statements or misrepresentations.

The appellant insurance company’s sole defense in the trial court and here is that the deceased child was not in good health at the time the policy of insurance was issued. Appellant’s four points of error are to the effect that the plaintiff was required to prove that the deceased was in good health at the time the policy was issued. Appellant argues that in view of the fact that the insurance company plead this defense (that the insured deceased child was not in good health) that under Rule 94 Tex.R.Civ.P. the burden of proof was on the plaintiff and that the plaintiff failed to meet this burden, and that the trial court was therefore in error in rendering judgment for the plaintiff. Appellant contends that when the defendant insurance company pleads exceptions as a defense to the policy, the plaintiff has the burden of proof to negate the exclusions to the limitations contained in the policy pleaded as a defense by the defendant’s answer. Citing Sherman et ux v. Provident American Insurance Co., 404 S.W.2d 340 (Tex.Civ.App.—Beaumont 1966, affirmed 421 S.W.2d 652, Tex.1967). It is true that where an insurance company issues a policy of insurance containing certain exceptions, limitations and exclusions to the coverage and the defendant insurance company answers a suit based on its policy of insurance pleading certain exclusions and limitations contained in the policy, which the company contends would relieve it of liability, then the burden of producing evidence to demonstrate that the plaintiff’s cause of action was not attributable to the pleaded exclusions and limitations is on the plaintiff. Sherman v. Provident American Insurance Company, supra; Hardware Dealers Mutual Insurance Co. v. Berglund, 393 S.W.2d 309 (Tex.Sup.1965) and International Travelers Association v. Marshall, 131 Tex. 258, 114 S.W.2d 851 (1938) see the cases cited therein. But this is not the situation where the defense by the insurer goes to a promissory warranty that affects the very validity or effectiveness of the policy of insurance itself. See 32 Tex.Jur.2d 795, Sec. 540.

Where the plaintiff in a suit on the policy pleads and proves the execution and delivery of a policy of life insurance, he makes out a prima facie case as to the original validity of the policy of insurance. Trevino v. American Nat. Ins. Co., 140 Tex. 500, 168 S.W.2d 656 (Tex.Com.App., opinion adopted Tex.Sup.1943). The plaintiff suing on the policy of insurance is not required either to plead or prove that the deceased insured was in sound health when the policy was issued. Ill health of the insured or fraudulent representations as to the condition of the insured’s health are extrinsic facts, matters of defense, upon which the insurer may rely in contesting the policy that evidences its liability. The plaintiff made out a prima facie case by proving up a valid life insurance policy held by him on the life of the deceased child. The burden of invalidating the policy was upon the defendant insurance company. Manhattan Life Insurance Co. v. Harkrider, 396 S.W.2d 207 (Tex.Civ.App.—Austin 1965, wr. ref., n. r. e., Tex.Sup., 402 S.W.2d 511, 1966); Trevino v. American Nat. Ins. Co., supra. This is true under Rule 94, Tex.R. Civ.P. as nothing under the rule changes the burden of proof on such issue of good health.

The question concerning the burden of proof was recently before the Supreme Court of Texas. There the insurance company sought to cancel a non-medical life insurance policy. The beneficiary in a cross action sought recovery of the policy proceeds. The policy contained the similar provision that it shall not take effect unless the insured was in good health at the time it was delivered to him. The court stated that the insurance company had the burden of proof on the question of good health in either situation as plaintiff or as cross defendant. The insurance company is required to obtain a finding from a preponderance of the evidence that the insured was not in good health. Great American Reserve Insurance Co. v. Britton, 406 S.W.2d 901 (Tex.Sup.1966); 46 C.J.S. Insurance § 1319 at pp. 424 and 431.

In the case at bar the judgment was for the insured in face of the defense that the deceased was not in good health. There were no findings of fact and conclusions of law requested or found. Therefore, the judgment of the trial court should be affirmed if it can be upheld on any legal theory that finds support in the evidence. Bishop v. Bishop, 359 S.W.2d 869 (Tex.Sup.1962). The trial court impliedly found that the deceased was in good health at the time the policy went into effect. Where the insurer fails to obtain a favorable finding on the question of good health, then the true question to be decided by us is whether the evidence establishes conclusively, according to recognized legal standards, that the insured was not in good health. Great American Reserve Insurance Co. v. Britton, supra. The Court in Britton stated:

“ * * * ‘good health’ does not mean ‘perfect health’. * * * The term (the Court reasoned) is usually defined as a state of health free from any disease or bodily infirmity of a substantial nature which affects the general soundness and healthfulness of the system seriously or materially increases the risk to be assumed by the insurer. * * * ” Citing cases. “ * * * We have also held that a good health provision is breached if the applicant ‘is suffering from a serious kind of illness, which continues and eventually causes his death.’ ” Citing cases.

The conclusiveness of the insurance company’s proof that the deceased was not in good health must be tested by these standards.

The history of the deceased child revealed five periods of hospitalization. It is apparent from the evidence that the five confinements were not in any way connected to one another. Quoting from the hospital records the treating doctor stated that the dates of admission and the primary complaints were as follows:

1. July 26, 1959: At age seven months. Acute cerebellar ataxia, an inflammation of cerebellum or the lower part of the brain. The cause was probably a virus.

2. February 6, 1961: History given that child had two convulsions prior to admission. Diagnosis: “Convulsions”, although she had no convulsions in the hospital. Discharged February 21 in good condition.

3. May 14, 1962: The hospital records showed a history of convulsions prior to admission to the hospital but patient responded to treatment and had no convulsions in the hospital. Discharged May 22.

4. January 30, 1964 to February 11, 1964: Acute otitis media, (which means an abscessed middle ear) and, acute pharyngitis, (an acute inflammation of the throat). There was no history of convulsions either before admission or during her stay in the hospital which ended February 11, 1964.

5. June 4, 1964: The reason for her admission was a condition of acute diarrhea and as a result of this, she was acutely dehydrated and acidosis and failed to respond to treatment and died June 11, 1964.

Without us considering the question of the admissibility of the testimony of the insurance company’s doctor, he testified in substance from a hypothetical question, basing his opinion upon a study of the deceased’s medical history and medical records. The doctor testified in effect that the child was grievously ill; that her disease was of a substantial nature; that it affected the general soundness and healthfulness of her system which seriously and materially increased the risk to be assumed by the insurer; that the defendant insurance company would not have issued the policy if it had known of the history of convulsions and of the treatment that the child had received from physicians over the five years prior to the issuance of the policy.

The treating doctor testified that the cause of death was ulcerative enteritis, that is, an inflammation of the small bowel and this was because of diarrhea. The insurance company’s doctor contended that the child had a history of convulsions and therefore not in sound health at the time the policy was issued. In response to the question of whether or not the cause of death had anything to do with the child’s history of convulsions the treating doctor testified:

“Primarily, I think not. Now, the convulsions that this child had subsequent to its primary admission here, I think, reasonably could be attributed to the primary illness, the cerebellar ataxia the child had, the inflammation of the brain, which probably could have left a residual, which made this child susceptible .to convulsions. On the other hand, from our history on the previous admissions, this child doesn’t act any different than lots of children that have convulsions at the onset of acute illness, just like they have fever, some children just have an acute illness and have convulsions. If it were not for the fact the child did have the brain inflammation originally, we would not have paid particular, I mean, we would not have thought it unusual that this child did have the convulsions at the onset of severe illnesses, which she had.”

This doctor did not think that it was considered unusual for the child to be admitted to the hospital five times during her lifetime of five and one half years. The cause of death, ulcerative enteritis which is an inflammation of the bowels caused by diarrhea and intestinal infection has a sudden onset and had no connection with the previous hospitalization periods. Southern Life & Health Ins. Co. v. Grafton, 414 S.W.2d 214, at 218 (Tex.Civ.App.—Tyler 1967).

The opinion testimony of experts, although persuasive, is not altogether conclusive. The trial court or the jury may take in consideration the intelligence, learning and experience of the witnesses and the degree of attention each deserves. The Supreme Court in the Britton case supra, stated that medical diagnosis and lay testimony may have an important bearing, or even a controlling effect, on the issue of good health. Here the issue of good health was in dispute. Our courts have been liberal in receiving opinions of ordinary lay witnesses. A witness need not be an expert in medical matters to give an opinion as to the observed physical condition of a person. McCormick & Ray 271, § 1427. The father of the deceased testified that other than when the child was in the hospital and being treated, that between such times, the child appeared to be in good health. He testified that during the time from the last hospitalization until the issuance of the policy that the child was “always well at that time then.” The mother testified that “Well, as far as we could tell, she (the deceased child) was normal. She used to help me, you know, carry out the trash and rinse out babies diapers and go to church and play as any other normal child.” The question of whether or not the child was not in good health was a question of fact that the trier of facts could determine by consideration of lay testimony as well as that of experts. American Nat. Ins. Co. v. Ferguson, 209 S.W.2d 797 (Tex.Civ.App.—Eastland 1948); Lincoln Income Life Ins. Co. v. Anderson, 409 S.W.2d 555 (Tex.Civ.App.—Amarillo 1966, ref. n. r. e.). In the Britton case the Court in considering the testimony of one of the expert witnesses who testified that the deceased had a continuing type of disease, said: “* * * The result is that to hold the good health provision of the policy was breached as a matter of law we would have to take judicial notice that the nature of one or more of the ailments was such as to seriously affect the soundness of Britton’s (deceased’s) health or to materially increase Great American’s (insurer’s) risk. These are relative matters, and except in extreme cases should be left for jury determination from evidence introduced on trial.”

In the case at bar the appellant insurer cites Texas Prudential Insurance Co. v. Dillard, 158 Tex. 15, 307 S.W.2d 242 (1957). The same case was cited in the Britton case, supra. In Dillard the proof was that the insurer had established the breach of a good health provision in the policy as a matter of law. The Dillard case and others cited by appellant do not control the decision of the case under the facts before us. We hold that the evidence does not establish conclusively, according to legal standards, that the Rivera child was not in good health when the policy was delivered. Appellant’s points are overruled.

Judgment of the trial court is affirmed.


source: Caselaw Access Project

author: BATEMAN, Justice.

license: Public Domain

text:
    Miller McCRAW et al., Appellants, v. CITY OF DALLAS and Texas Turnpike Authority, Appellees.
    No. 16974.
    Court of Civil Appeals of Texas. Dallas.
    Sept. 29, 1967.
    Rehearing Denied Nov. 3, 1967.

      Searcy M. Ferguson, Jr., Blanchette, Smith & Shelton, Dallas, for appellants.

      Joe H. Staley, Jr., of Locke, Purnell, Boren, Laney & Neely, Kenneth C. Dippel, Asst. City Atty., Dallas, for appellees.
   BATEMAN, Justice.

This is a suit by abutting owners against the City of Dallas and Texas Turnpike Authority for title to a strip of land 30 feet wide and 1,137.79 feet long. The principal question involved is whether the dedication of the strip as a street in 1941 has been timely accepted, or rejected or abandoned by the City in the intervening years. The trial court rendered summary judgment that the plaintiffs take nothing and adjudicating that the City of Dallas have an easement to the strip without encumbrances or impairments, for public use as a street or thoroughfare. The plaintiffs appeal.

Facts

The appellants, Miller McCraw and wife, owners of a tract of land north of the City of Dallas, subdivided a portion thereof lying immediately south of Northwest Highway and immediately west of the right of way of St. Louis & Southwestern Railroad, and filed a plat thereof for record in the office of the County Clerk of Dallas County on March 1, 1941. Accompanying the plat was a dedicatory certificate signed by the McCraws whereby they adopted the plat, adding: “and, WE do hereby DEDICATE TO THE PUBLIC USE FOREVER the streets and alleys and parkways shown thereon.” The strip in question was shown on this plat as “CHITTY AVENUE” and was shown to lie along the eastern edge of the subdivision, immediately west of and adjoining the said railroad right of way and extending south from the south line of Northwest Highway to the southern boundary of the subdivision. Block A consists of several large lots facing north on Northwest Highway, and Lot 5 of that block is in the extreme northeast corner of the subdivision, its east boundary being on the west boundary of Chitty Avenue. Block D of the subdivision consists of seven large lots extending from McCraw Drive on the west to Chitty Avenue on the east. Berkshire Lane, running east and west between Block A on the north and Block D on the south, terminates at Chitty Avenue.

On May 22, 1952 the McCraws filed a revised plat of Block A of the subdivision which changed the dimensions of all the lots therein and incorporated in Lot 5 the north end of Chitty Avenue, that is, the 210.87 feet of it north of Berkshire Lane. This revised plat of Block A was also recorded in the Map Records of Dallas County. Both it and the original plat of the subdivision were approved by the City Plan Commission of Dallas.

In 1945 the subdivision was annexed by the City of Dallas. The City of Dallas has never improved the strip (Chitty Avenue) or made any use of it whatever. During the eleven years between the time of filing the original plat in 1941 and the filing of the revised plat of Block A in 1952, several lots in the subdivision were conveyed by deeds referring to the original plat.

The appellee, Texas Turnpike Authority, began planning a toll road over the railroad right of way from downtown Dallas through the towns of Highland Park and University Park to Interstate Highway 635. As a part of that plan it proposed to use the strip of land in question for an entrance ramp to the southbound lanes of the toll road.

The appellants, other than the McCraws, were purchasers of certain lots in the subdivision. All of their conveyances, as well as the deeds conveying other lots to other purchasers who were not parties to the suit, described the lots conveyed by reference to the original plat recorded in 1941.

The appellee Texas Turnpike Authority filed a cross-action in condemnation against the appellants, asserting its statutory right of eminent domain over most of the strip in question, but when the court announced its decision to grant the City’s motion for summary judgment it nonsuited its cross-action.

Opinion

By their first, fourth, tenth, twelfth and thirteenth points of error on appeal the appellants contend that as a matter of law there was an abandonment of the strip and, alternatively, that there were fact issues as to whether it had been abandoned. Appellants say that there was evidence of such abandonment in that: (a) neither the County, nor the City after annexation of the area, ever opened Chitty Avenue graded it or paved it or did anything to make it available to the public as a street; and (b) the proposed use of it as an entrance ramp to the tollway, whereby members of the public would be able to use it to reach only the southbound portion of the tollway, is an altogether different use than that for which it was originally dedicated and is an additional burden or servitude on appellants’ abutting land.

Appellants rely principally upon Griffith v. Allison, 128 Tex. 86, 96 S.W.2d 74 (1936), and Magee Heirs v. Slack, 152 Tex. 427, 258 S.W.2d 797 (1953). However, those cases are not controlling here. They do announce the rule that abandonment occurs when the use for which property is dedicated becomes impossible, or so highly improbable as to be practically impossible, or where the object of the use for which the property is dedicated has wholly failed; but it clearly appears from the opinions that the platting of the subdivision or addition in question in each of those cases evidenced a dream or plan of an extensive urban development which utterly failed of fulfillment and was “impossible of accomplishment,” making it quite obvious that the dedication of streets, roadways and parks therein had been abandoned. Such a situation is not reflected by the record before us.

Appellants also rely on City of Fort Worth v. Burnett, 131 Tex. 190, 114 S.W.2d 220 (1938), holding that the City of Fort Worth had no right to use land for a public library which had been given to the City to be used as a park and place of recreation, and numerous other cases.

In our opinion, the cases cited by appellants do not support their contention that the proposed use of the strip would constitute such additional burden or servitude on their property as to effect a revert-er of title to the easement. The area in question was dedicated as a public street, obviously intended for vehicular traffic. The new proposed use thereof is for vehicular traffic. The slight difference between the use now contemplated and the use probably contemplated by the dedicators is not in our opinion sufficient in law even to be evidence of abandonment of the original dedication.

Land dedicated for the use of the public as a street may continue to be used by the public as a street, not only in the manner in which streets are ordinarily used at the time of dedication, but also to accommodate the most recently invented vehicles and to conform to modern plans for traffic acceleration and control. Andrews v. City of Marion (1943), 221 Ind. 422, 47 N.E.2d 968; Franklin v. Board of Lights and Water Works, 212 Ga. 757, 95 S.E.2d 685 (1956).

Mere nonuser of an easement will not extinguish it. Adams v. Rowles, 149 Tex. 52, 228 S.W.2d 849 (1950); Dallas County v. Miller, 140 Tex. 242, 166 S.W.2d 922 (1943); Peterson v. Greenway Parks Home Owners Ass’n, 408 S.W.2d 261, 267 (Tex.Civ.App., Dallas 1966, writ ref’d n. r. e.). The last two cited cases are also authority for the principle that, although abandonment may he shown by circumstantial evidence, yet the circumstances must be established by clear and satisfactory evidence. As stated by Judge Hickman for the Commission of Appeals in Dallas County v. Miller, supra, “ * * * while abandonment may be established, like any other fact, by circumstances, yet those circumstances must disclose some definite act showing an intention to abandon and terminate the right possessed by the easement owner. The material question is the intention to abandon, and that intention must be established by clear and satisfactory evidence. Mere nonuser of an easement will not extinguish it.” (Italics ours.) No such showing of intention to abandon is made here. “The facts regarding the alleged abandonment are undisputed. Therefore no jury question arises, but only a question of law.” Adams v. Rowles, supra. We decide that question of law adversely to appellants and overrule their first, fourth, tenth, twelfth and thirteenth points of error.

By their second, third and eleventh points of error appellants assert that there was a material fact issue as to whether there was an acceptance by the City of Dallas, and also that, as a matter of law, the offer of dedication had been withdrawn before acceptance by the public; that the incorporation of the land into a multi-lane toll road constitutes such withdrawal, as well as a refusal by the City to accept the property as dedicated.

We see no merit in any of these points. Several of the lots in the subdivision were sold by reference to the plat recorded in 1941, and it has been held many times that such sales constitute a valid acceptance of the offer, making the dedication effective and irrevocable. Adams v. Rowles, 149 Tex. 52, 228 S.W.2d 849 (1950); Martinez v. City of Dallas, 102 Tex. 54, 109 S.W. 287, 113 S.W. 1167 (1908); Oswald v. Grenet, 22 Tex. 94 (1858); City of Corsicana v. Zorn, 97 Tex. 317, 78 S.W. 924 (1904). There was no material controverted fact issue to be submitted to the jury, and we hold from the undisputed facts that as a matter of law the offer of dedication was not withdrawn or rejected but was timely accepted on behalf of the public. Appellants’ second, third and eleventh points of error are overruled.

By their fifth, sixth and seventh points of error the appellants assert reversible error in the failure of the City of Dallas to file an abstract of title pursuant to demand made under Rule 791, Vernon’s Texas Rules of Civil Procedure, making all of the documentary evidence offered by the City in support of its motion for summary judgment inadmissible. Rule 791 provides that in a trespass to try title suit either party may demand an abstract in writing of the claim or title on which his opponent relies

Rule 792, T.R.C.P. provides:

“Such abstract of title shall be filed with the papers of the cause within twenty days after the service of the notice, or within such further time as the court on good cause shown may grant; and, in default thereof, no evidence of the claim or title of such opposite party shall be given on trial.”

The purpose of these rules is to give timely notice of the basis of an asserted claim of title and thus enable the opposite party to investigate and prepare to meet it. 56 Tex.Jur.2d, Trespass to Try Title, § 102, p. 221.

The rule will not be strictly enforced when to do so will result in injustice. Its purpose is to help the cause of justice and fairness in litigation, not to pervert or hinder it. Davis v. Dowlen, 136 S.W.2d 900, 904 (Tex.Civ.App., Beaumont 1939, writ dism’d jdgmt. cor.). Extensions of time will be freely given, even to permitting the filing of an amended abstract “[a]t the commencement of the trial.” Keller v. Downey, 161 S.W.2d 803, 808 (Tex.Civ.App., Beaumont 1942, affirmed 143 Tex. 171, 183 S.W.2d 426).

Moreover, if the party’s pleading supplies the information which an abstract would contain, evidence of the facts so pled is admissible. Johnson v. Durst, 115 S.W.2d 1000 (Tex.Civ.App., Austin 1938, writ dism’d); Reeves v. Fonville, 267 S.W.2d 238 (Tex.Civ.App., Texarkana 1954, no writ). This is also true as to instruments described in a list filed pursuant to Art. 3726, V.A.C.S. Semmes v. Olivarez, 368 S.W.2d 46 (Tex.Civ.App., Austin 1963, no writ).

The affidavit of Kenneth C. Dip-pel, filed 19 days prior to the hearing, contains a list of all the deeds which the City offered in connection with its motion for summary judgment, together with all of the information required in connection therewith by Rule 793, T.R.C.P., and this gave appellants all of the notice and information an abstract would have given. Therefore, the error, if any, was purely technical and harmless. Rule 434, T.R.C.P.

Moreover, these deeds were not links in the City’s chain of title. The parties stipulated that Miller McCraw and wife were the common source of title. The only link or muniment of the City’s title was the plat recorded in 1941, and appellants themselves offered proof of it and its filing. The only purpose of the deeds was to foreclose appellants’ claim of non-acceptance, or withdrawal before acceptance, of the dedication by showing the sale of lots in the subdivision by reference to the very plat under which the appellees claim. Davis v. Cisneros, 220 S.W. 298 (Tex.Civ.App., San Antonio 1920, writ dism’d); Hays v. Hinkle, 193 S.W. 153 (Tex.Civ.App., Texarkana 1917, writ ref’d); Barrera v. Duval County Ranch Co., 135 S.W.2d 518 (Tex.Civ.App., San Antonio 1939, writ ref’d); Wolf v. Wilhelm, 146 S.W. 216 (Tex.Civ.App., San Antonio 1912, writ ref’d).

Appellants’ fifth, sixth and seventh points of error are overruled.

Under their eighth point of error the appellants say that the trial court erred in rendering summary judgment because the City of Dallas is estopped by its own act (the approval by the City Plan Commission of the subsequent revised dedication of Block A) to claim the right to use the northern part of Chitty Avenue, which was in said revised plat incorporated into Lot 5 of Block A.

No element of estoppel is presented here. City of Dallas v. Schawe, 12 S.W.2d 1074 (Tex.Civ.App., San Antonio 1928, writ dism’d). Moreover, the revised plat and dedication of Block A are in our opinion void because the attempted revision was not in compliance with Art. 974a, V.A.C.S., which sets forth the exclusive method of withdrawing or revising dedications. Gambrell v. Chalk Hill Theatre Co., 205 S.W.2d 126 (Tex.Civ.App., Austin 1947, writ ref’d n. r. e., cert. den. 334 U.S. 814, 68 S.Ct. 1071, 92 L.Ed. 1745); Priolo v. City of Dallas, 257 S.W.2d 947 (Tex.Civ.App., Dallas 1953, writ ref’d n. r. e.). The eighth point of error is overruled.

By their ninth point of error appellants, complain that the language of the summary judgment in effect grants to the City of Dallas a fee title to the strip in question. The language of the judgment complained of is:

“IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the City of Dallas has an easement without encumbrances or impairments, for the public use as a street or thoroughfare, to the following described property, to-wit: ”■ (describing the strip in question.)

Appellants argue that by using the words “without encumbrances or impairments,” the court in effect adjudicates a fee title which the City would own even though it discontinued use of the land as a street. We do not agree. The language of the judgment is quite clear and gives the City only an easement “for the public use as a street or thoroughfare,” not for any other purpose. The fee title of the abutting property owners, subject to that easement, is not disturbed. This point of error is overruled.

We have carefully examined all of appellants’ points of error and find therein no justification for reversal of the judgment. It is therefore affirmed.

       Vernon's Ann.Civ.St. Art. 6674v, provides, inter alia, for the creation of the Texas Turnpike Authority with power to construct modern expressways, to condemn land needed therefor, to issue revenue bonds to pay the cost thereof, to collect tolls for the use thereof, and that when such bonds are paid the tollroads may be taken over and maintained by the State Highway Commission, free of tolls. The Authority is also given power to use, change, reconstruct or relocate any existing highway or street. See Texas Turnpike Authority v. Shepperd, 154 Tex. 357, 279 S.W.2d 302 (1955).


author: SELLERS, Justice.

text:
    BEN WHEELER INDEPENDENT SCHOOL DISTRICT, Appellant, v. COUNTY SCHOOL TRUSTEES OF VAN ZANDT COUNTY, Texas et al., Appellees.
    No. 297.
    Court of Civil Appeals of Texas. Tyler.
    Nov. 2, 1967.
    Rehearing Denied Nov. 30, 1967.
    Lawrence & Lawrence, W. Dewey Lawrence, Tyler, for appellant.
    Wynne & Wynne, Gordon R. Wynne, Wills Point, for appellees.
   SELLERS, Justice.

This is an appeal from a judgment of the District Court of Van Zandt County by Ben Wheeler Independent School District, appellant, against the County School Trustees of Van Zandt County et al, appellees. The judgment of the court was a denial of appellant’s application for an injunction restraining the enforcement of an order of appellees consolidating the Independent School District of Ben Wheeler with the Van Independent School District. The hearing in the trial court was before the court without a jury, and both sides introduced evidence which is before this court in a Statement of Facts.

Appellant filed in this court a former appeal from a ruling of the trial court denying it a temporary injunction after a hearing to preserve the status quo until a hearing could be had on appellant’s application for the injunction prayed for in its petition.

In other words, this is the second appeal of this case to this court. The first appeal being from the trial court’s judgment denying a temporary injunction, and this appeal denying the injunction after hearing, appellant’s petition for relief being the same on both appeals.

This court, in an opinion by Justice Moore, affirmed the trial court’s judgment denying the temporary injunction and in doing so, passed on a number of legal questions that might otherwise be involved here. Justice Moore’s opinion is found in Ben Wheeler Independent School District, Appellant v. County School Trustees of Van Zandt County, Texas et al., Appellees, Tex.Civ.App., 414 S.W.2d 477, to which reference is here made, and the opinion is adopted the same as if copied here in full.

We regard this opinion as settling all of the legal issues involved herein except the sufficiency of the evidence to support the trial court’s judgment denying the injunction. Appellant has not seen fit to point out in its Brief any evidence which is regarded as inadmissible, but takes the position that the evidence as a whole is insufficient to support the trial court’s judgment.

We have reviewed the evidence and it is our opinion when the rule announced by the Supreme Court in the case of the City of San Antonio et al. v. Texas Water Commission et al., 407 S.W.2d 752, is applied to the facts of this case, it must be held that the facts are sufficient to support the trial court’s judgment. See also the case of Neill v. Cook, Tex.Civ.App., 365 S.W.2d 824.

The judgment of the trial court is affirmed.


text:
    Frank HAYES, Appellant, v. Eugene H. BOULIGNY, Appellee.
    No. 344.
    Court of Civil Appeals of Texas. Corpus Christi.
    Oct. 19, 1967.
    Rehearing Denied Nov. 9, 1967.

      W. W. Kilgore, of Whitlow, Cole & Kil-gore, Victoria, for appellant.
    Clarence Stevenson, of Fly, Cory, Moel-ler & Stevenson, Victoria, for appellee.
   OPINION

NYE, Justice.

This is a suit on a promissory note brought by Eugene H. Bouligny, the payee, against Frank Hayes, the maker. The trial was to the court without a jury and the court rendered judgment for the plaintiff for the principal sum of the note together with interest and attorney fees. The defendant maker has perfected his appeal to this court.

The plaintiff alleged that he was the legal owner and holder of the indebtedness evidenced by a promissory note executed by the defendant dated July 1, 1963 in the original principal sum of $2,500.00 payable on or before July 1, 1964 at Victoria, Victoria County, Texas, bearing interest from date until maturity at the rate of six percent per annum and bearing interest from maturity until paid at the rate of ten percent per annum, which promissory note contained the provision that the maker thereof agreed to pay an additional sum of ten percent of the amount due and owing on said note as attorney fees in the event suit was filed for the collection of said promissory note. The petition stated that the plaintiff had made repeated demands on the defendant to pay the same but that the defendant had failed and refused. Plaintiff further alleged that he no longer had in his possession the original of such promissory note but that such note was in the possession of the defendant and he made demand that the defendant produce the original of the promissory note upon the trial.

Defendant answered by a general denial and by an amended pleading that “if plaintiff has a cause of action, the same is barred by the statute of limitations in that it was not commenced within two years after the cause of action, if any, occurred.” Neither answer was verified by affidavit.

Appellant’s first point is that the trial court erred in admitting evidence that the $2,500.00 note was supported by consideration when the plaintiff had not plead a consideration for said non-negotiable note and when said note had not recited a consideration.

Where the instrument sued upon cannot as a practical matter be produced because of its loss, the production of the original is excused and other evidence of its contents may be received. Plaintiff followed the correct procedure of advising his adversary of the lost instrument so as to apprise him of the necessity of producing the original or that secondary evidence would be used. See 2 McCormick & Ray 421, § 1570. Plaintiff’s oral testimony of the contents of the instrument was sufficient. McCormick & Ray, § 1577. This court has held that where an original instrument has been lost or destroyed and cannot be produced, it is not error to permit the oral testimony of witnesses as to the contents of the writing over the objection that such testimony violated the best evidence rule. Danaho Refining Company v. Dietz, 378 S.W.2d 412-416 (Tex.Civ.App.— Corpus Christi, 1964).

Appellant contends that since the plaintiff’s pleading did not describe the note as being payable to “bearer or to order” or that the pleading did not use the words “for value received” such note was a nonnegotiable instrument and since plaintiff did not plead that it was received for a valuable consideration the pleading will not support the judgment.

Plaintiff plead that the note in question was a promissory note. Plaintiff’s cause of action was a plain statement which set forth his claim for relief and was sufficient to give fair notice of the claim involved. Rule 45 and Rule 47, Tex.R.Civ.P. There was no doubt from the pleading that the suit was on a written instrument. Since a written contract imports a consideration it is not necessary to plead consideration. See 13 Tex.Jur.2d 653, § 375. Absent any exception to plaintiff’s pleading the petition was sufficient Jo apprise the defendant of the plaintiff’s claim.

During the trial plaintiff testified that he had loaned the defendant $9,000.00; that the defendant had paid $4,000.00 on it and that he prepared a note for $5,000.00; thereafter, the defendant paid $2,500.00 and the subject note in question represented the balance due on the original loan. We hold that the plaintiff proved up the terms of the note and the consideration for it by legally competent evidence. The burden of establishing a want or failure of consideration is upon the defendant.

Where a written instrument upon which a pleading is founded is to be alleged to be without consideration such pleading shall be verified by the party asserting it. Rule 93 (j) Tex.R.Civ.P. Where the payee sues on the instrument it is not necessary for him to set up the nature of the consideration that passed. Failure of consideration is purely a defensive matter and the burden rests upon the defendant to allege and prove a prima facie case. 9 Tex.Jur.2d 272-273, § 250 and pp. 303-305, § 280. Appellant’s point is overruled.

Appellant’s second point is that the trial court erred in rendering judgment on plaintiff’s trial amendment which he dictated to the court reporter but which was not signed or filed subsequently with the clerk. Although the trial court permitted the plaintiff during the course of the trial to file a verbal trial amendment it is apparent from the record that the judgment entered was not based on this pleading. Since the plaintiff did not rely on his trial amendment, it is. not necessary for us to consider this point.

Judgment of the trial court is affirmed.


author: PHILLIPS, Chief Justice.

text:
    URBAN RENEWAL AGENCY OF the CITY OF SAN MARCOS, Appellant, v. Lela Mae BETHKE et al., Appellees.
    No. 11541.
    Court of Civil Appeals of Texas. Austin.
    Nov. 1, 1967.
    Rehearing Denied Nov. 29, 1967.

      Sawtelle, Goode, Troilo, Davidson & Leighton, John W. Davidson, James M. Raines, San Antonio, for appellant.
    Boyle, Wheeler, Gresham, Davis & Gregory, A. W. Worthy, San Antonio, for appellees.
   PHILLIPS, Chief Justice.

This is a condemnation case arising in the City of San Marcos. Appellant, and plaintiff below, is a governmental agency with the power of eminent domain over real property and the question of the proper award in damages for property taken from appellees under this power is the sole question before this Court. The property sought was for the expansion of Southwest Texas State College. Trial was before a jury in the County Court of Hays County and the jury found the market value of appellees’ property to be $75,000. Judgment was entered on the verdict and from that judgment this appeal was taken.

We affirm.

Appellees’ property consists of land and a building situated on the northeast corner of Colorado Street and North Lyndon B. Johnson Drive, both being paved streets in the City of San Marcos. The property fronts approximately 80 feet on Colorado Street and 106 feet on Lyndon B. Johnson Drive with a square footage of approximately 8,445 feet. The service station on the property rents for $250 per month, the cleaning shop for $60 per month, the cafe for $50 per month and the apartment for $65 per month or for a total monthly rental of $425. This property is located in a part of the city that is well located from a business standpoint being some two blocks due north of the courthouse square lying between this square and the College. There is no dispute between the parties that the principal value factor in appellees’ property is its location.

Appellant is before this Court on eighteen formal points of error, however it states in its brief that these points can be grouped into several main categories.

The first of these categories is the refusal of the trial court to admit into evidence the zoning ordinance of the City of San Marcos effective on the date of taking or to permit appellant to examine or cross examine witnesses concerning its provisions applicable to appellees’ property thus permitting the jury, in determining market value, to consider and speculate on uses of the property to which it was not reasonably adaptable. Appellant contends that appel-lees’ valuation witnesses based their opinions of market value upon uses which the off-street parking requirements of the zoning ordinance, of which they were admittedly unaware, would either severely restrict or prohibit.

We overrule these points.

Appellant’s position here is that a zoning ordinance was passed prior to the date of the taking of appellees’ property. That this ordinance had an off-street parking requirement which provided that if buildings not located in the central business district are altered or demolished, off-street parking must be provided on the basis of one space for each employee and one space for each three hundred feet of building space. That this off-street parking requirement would apply to the subject property if the buildings were altered or demolished. That there was value testimony based on making structural changes and alterations to the building.

Appellant’s counsel began questioning witnesses concerning the ordinance and as far as this Court can ascertain the ordinance itself was never offered into evidence or received into evidence. Appellant contends that it was offered, however the record does not bear this out although there is evidence that appellant did intend to offer the ordinance, referred to it on numerous occasions and in fact cross examined witnesses concerning the ordinance. Appellant correctly states that the record does not reflect any ruling of the trial court on the admission of the ordinance and the trial court rejected appellant’s motion to change the statement of facts to show a ruling excluding the ordinance and certified the statement of facts as filed in this Court. Consequently, we can only assume that the trial court had nothing on which to rule concerning the admissibility of the ordinance.

Appellees vigorously objected to the admission of this ordinance on the ground that, since it was enacted as a part of the plan of the City of San Marcos to condemn appellees’ land and change its use, it would be unfair and improper to admit it for the purpose of diminishing the value of the land taken.

Since the ordinance was not in evidence, it was not improper for the court to have excluded testimony concerning the contents of the ordinance and its relation to the property in question.

With respect to the court’s sustaining of the objection to appellant’s question of a witness as to whether or not there is any off-street parking requirement in San Marcos, no bill of exception was taken to the ruling, consequently nothing tangible has been properly presented for determination by this Court. Johnson v. Poe, 210 S.W.2d 264 (Tex.Civ.App. Galveston 1948, writ ref’d, n. r. e.).

It should be pointed out here that counsel through his questioning of the witnesses left little doubt in the minds of the jury that there was in fact an off-street parking ordinance in San Marcos. The trial court correctly sustained objections to questions intending to secure from the witness his construction of the ordinance and his opinion as to its effect. These are questions of law or of mixed law and fact which the trial court properly excluded. 2 McCormick and Ray, Texas Law of Evidence, Sec. 1423, p. 263; Dallas Railway & Terminal Company v. Gossett, 156 Tex. 252, 294 S.W.2d 377, (1956).

With respect to the court’s refusal to allow the witness Moon to testify as to whether the ordinance had caused a certain sale to fall through, we hold that this ruling was correct on the ground that it related to an unaccepted offer of sale. It is well settled that unaccepted offers of sale are inadmissible. See Hanks v. Gulf, Colorado & Santa Fe Ry. Co., 159 Tex. 311, 320 S.W.2d 333, (1959).

Appellant’s second main category of errors is that of the trial court in permitting,. appellees to introduce a deed which recited a consideration of $85,000 to the Mauldin Plymouth Agency property diagonally southwest across Lyndon B. Johnson Drive from appellees’ property without any evidence of comparability and to allow appellees’ counsel in jury argument to hammer on it, together with the court’s refusal to grant a mistrial after appellees’ counsel asked appellant’s valuation witness if he had' not appraised the Kercheville Pontiac property directly west across Lyndon B. Johnson Drive from appellees’ property for $120,000 without subsequent proof of same thus encircling appellees’ property with high dollar sums totally unrelated to the market value of appellees’ property. Since appellees’ evaluation witnesses did not base their opinions on comparable sales, the above innuendoes were particularly prejudicial since the jury could hardly be expected to exclude from consideration what the court admitted into evidence. It is the position of appellant that these errors were prejudicial beyond repair and individually require a reversal.

We overrule these points.

With respect to the Mauldin property, the record discloses that appellant’s counsel himself elicited from one of appellees’ witnesses his reliance on the Arnold-Maul-din sale as a comparable sale and made no objection to his testimony on this ground. Then evidence was adduced from appellant’s own witness that the property involved in the Arnold-Mauldin sale was comparable in that the sale was close in time, that the property was diagonally across the intersection from appellees’ property, that it was business property improved in part by a gasoline service station.

The deed which appellant objects to recites on its face that the total consideration of $85,000 consisted of $65,000 for the land, which included a service station and $20,000 for the business interest which was an automobile agency. This deed was offered in direct rebuttal to the hearsay testimony of one of appellant’s witnesses to the effect that he had been told by Mauldin that the sale was of a going business and that the total consideration could not be allocated between the realty and the personalty. The deed reflected that the parties themselves had made the allocation, consequently a fact situation was raised for the determination of the jury. Navar v. State, 344 S.W.2d 188 (Tex.Civ.App. El Paso 1961, no writ); State v. Hamman, 377 S.W.2d 727 (Tex.Civ.App. Houston 1964, no writ).

Appellees’ argument to the jury that the Mauldin property located diagonally across the street as comparable property was proper inasmuch as the evidence regarding same had been properly admitted.

Appellant’s point of error number ten is that of the trial court in refusing to grant appellant’s motion for a mistrial after appellees’ counsel stated without any support to witness A. N. Moon: “Have you never estimated Mr. Kercheville’s property across from Mrs. Bethke’s to have a value of $120,000.00?”

Mr. Moon’s answer to this question was that he had not. Under this record, if this was error, it was harmless. Tex.R.Civ.P. 434. We overrule this point.

Appellant’s points eleven and twelve, briefed together, are the error of the trial court in refusing to permit appellant’s expert appraisal witness A. N. Moon, to use the “cost approach” method of appraisal in that it did not allow him to show the consideration paid for the property known as the Texan Cafe; and, in this same respect, the refusal of the court to admit the evidence of appellant’s appraisal witness Herman Korff.

We overrule these points.

In connection with points eleven and twelve, we also overrule appellant’s points fifteen and sixteen, briefed together, which complain that there was no evidence of a probative and admissible nature to support the jury’s verdict, that such evidence was insufficient and against the overwhelming weight and preponderance of the evidence.

The statement of facts in this case consists of 470 pages. The case was well developed on both sides and with a wide range of value testimony having been heard by the jury. As the court states in Ham-man, supra, “It is within the province of the trial court to determine whether there is such similarity between tracts as to allow testimony as to the sales price of other tracts. The judge has a great deal of discretion in making this determination. His decision that there is sufficient similarity cannot be reviewed except to determine whether there has been an abuse of discretion,” citing cases.

Cost approach, broadly defined, involves valuation of the condemned land separately from the improvements as a part of the process of arriving at the cost of reproduction of the whole property. Separate valuation of the land is arrived at by comparison with sales of other lands claimed to be comparable.

The witnesses Moon and Korff both testified extensively using what they considered to be the cost approach, giving their opinions as to the value of appellees’ land exclusive of improvements, and supporting their opinions by reference to sales of other land claimed to be comparable.

With respect to the court’s exclusion of Texan Cafe property it is undisputed that this property was totally unimproved whereas the property in question was completely developed and situated in a different part of town. We hold that the court did not abuse its discretion in excluding this evidence. 22 Tex.Jur.2d, Eminent Domain, Section 301.

Appellant’s point number thirteen is the error of the trial court in allowing appellees’ witness, Roland Mansky, to testify to the value of appellees’ property since his testimony of value was based on what the property was worth to him, not fair market value.

Roland Mansky is a San Marcos businessman. He was appointed by the County Judge to serve as a special Commissioner in this case and did so serve. He has bought and sold real property in the immediate neighborhood of the condemned property and has been consulted by others seeking business sites in San Marcos because of his knowledge of property values. He was acquainted with the condemned property having made an effort to purchase it for his own use, and, having reexamined it in connection with his services as a special Commissioner, he testified that he knew property values in San Marcos and the market value of the condemned property. From our reading of the record, the witness’ testimony is not susceptible of the construction placed upon it by appellant.

We overrule this point.

Appellant’s point of error number fourteen is the error of the trial court in allowing E. O. Bethke to testify about the sales price paid for the property known as the “Colloquium Book Store” even though the court rules the witness was not qualified to render an opinion of market value.

Here the trial court merely permitted this witness to read from Defendant’s Exhibit 25 a deed reflecting the sale of property near the condemned property, and which had just been admitted in evidence without objection, the consideration paid for the property as stated in the deed. We overrule this point.

Appellant’s point number seventeen is that if none of the above errors, in and of themselves, are sufficient to result in an improper and excessive verdict, the cumulative effect of all of said errors caused the rendition of an improper and excessive verdict.

We overrule this point.

Appellant’s point of error number eighteen is that of the court in failing to direct a remittitur of $41,467.00 as the record reflects an excessive verdict in this amount.

Remittitur is appropriate only where the amount of the award exceeds the value placed on the land by any witness, where the record shows passion or prejudice on the part of the jury or when the evidence shows the amount of the award is manifestly excessive. The amount of damages is a question for the jury and unless the award is influenced by the improper elements set out above, neither the trial nor the reviewing court can substitute its judgment of values for that of the jury. 22 Tex.Jur.2d, Eminent Domain, Sec. 319.

The judgment of the trial court is affirmed.

Affirmed.

      . Article 1269Z-3, Section 16(a) Vernon’s Ann.Civ.St. (Urban Renewal Law).

      . Appellant’s first five points of error pertinent here are:
      “(1) The trial court erred in refusing to admit into evidence plaintiff’s exhibit 14, a zoning ordinance of the City of San Marcos, which controlled the uses to which appellees’ property could be devoted on the date of taking; (2) the trial court erred when it refused to allow appellant’s appraisal witness, A. N. Moon, to testify how an applicable zoning ordinance of the City of San Marcos which contained an off-street parking requirement would affect the area of land available for business use on ap-pellees’ property and consequently affect the market value of same; (3) the trial court erred when it refused to permit appellant’s appraisal witness, A. N. Moon, to show how ordinances containing off-street parking requirements affect land available for business use; (4) the trial court erred when it refused to allow appellant’s appraisal witness, A. N. Moon to testify that a prospective sale of property directly across the street from the subject property fell through because of the zoning ordinance which contained a provision for off-street parking and which ordinance also applied to the subject property and (5) the trial court erred when it refused to allow appellant’s attorney to cross-examine ap-pellees’ witness, Alex Kereheville, about the applicable zoning ordinance in effect at the date of taking and the consideration given it in his opinion of value.”

      . Appellant’s points of error six through nine pertinent here are:
      “(6) The trial court erred in admitting into evidence defendant’s exhibit No. 26, a deed 'which reflected the consideration paid in a sale, when the sale, in addition to conveying real estate, conveyed an interest in an automobile agency, together with stock in trade; said automobile agency and real property being situated diagonally across the street from appel-lees’ property; (7) the trial court erred in admitting into evidence the deed in the Arnold to Mauldin sale, which deed reflected the sales price involved in absence of a predicate or testimony by a qualified expert witness that the Arnold to Mauldin property was comparable to appellees’ property; (8) the trial court erred in allowing appellees’ attorney to argue in closing argument that the consideration recited in defendants’ exhibit No. 26 was indicative of the market value of the appellees’ property when said sale was the sale of a business interest in an automobile agency and the real property upon which the agency was situated, and (9) the trial court erred in allowing the appellees’ attorney to argue in closing argument that the property diagonally across the street from appel-lees’ property was comparable or in his words, ‘the most comparable to the Bethke property’ when the • only testimony of comparability of said property came from E. O. Bethke, a witness, held by the court not to be qualified to give an opinion of market value.”


author: MASSEY, Chief Justice.

text:
    Earl REGION et al., Appellants, v. DOWNTOWNER OF FORT WORTH, INC., et al., Appellees.
    No. 16851.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 13, 1967.
    Rehearing Denied Nov. 17, 1967.
    Christopher & Bailey, and M. Ward Bailey, Fort Worth, for appellants.
    Cantey, Hanger, Gooch, Cravens & Scarborough and J. A. Gooch and Richard L. Griffith, Fort Worth, for appellees.
   OPINION

MASSEY, Chief Justice.

Plaintiffs Earl Region et al., using the trade-name of “Downtown Motel,” brought suit for damages and injunctive relief because of the defendants’ use of the name “Downtowner Motor Inn.”

Defendants were the Downtowner of Fort Worth, Inc., et al.

Upon a jury verdict by which negative answers to certain special issues of plaintiffs were returned (i. e. the plaintiffs failed to obtain desired answers to issues the burden upon which were cast upon them) a “take nothing” judgment was entered.

Judgment affirmed.

As applied to the jury’s findings of “no damage” or “no lost profits” in this type of case we are convinced that the proper rule of law is stated in the case of Wm. Walker Co. v. Pocatello Monument Co., 1951, 71 Idaho 294, 230 P.2d 701, 704, as follows:

"Conceding that the evidence showed appellants’ business fell off or that the previous rate of increase in volume did not proportionately continue, and that respondent’s business was steadily increasing; nevertheless, it was for the trial court to determine the cause of such trends; whether the decrease in appellants’ business, or failure to increase, and the increase of respondent’s business were customer defections from appellants to respondent; whether the variables were due to mere competition because of the entrance of a new rival in the monument business, or, and to what extent, such situations were occasioned in whole or in part, or to a negligible extent, by the use of the now interdicted name. Shaw v. Pilling, 175 Pa. 78, 34 A. 446. Does not a pronouncement of law so divided as to approach indecisiveness, Mishawaka R. & W. Mfg. Co. v. S. S. Kresge Co., 316 U. S. 203, 62 S.Ct. 1022, 86 L.Ed. 1381, but accentuate that the discernment of the trier of facts (court or jury) be accorded due consideration? In the first instance, the trier of facts must determine whether there are sufficient substantial facts to support the essential, ultimate conclusion of fact, and in so doing may determine that there are gaps or deficiencies. Even though others might conclude there were no déficien-cies, unless the conclusion of the trier is unreasonable and the evidence as a whole presents such a perfect pattern and is so overwhelming that no reasonable contrary conclusion could be drawn, the findings as made by the trier of facts must be sustained. See First Nat. Bank [of Hagerman] v. Peterson, 47 Idaho 794(9), 279 P. 302, and 63 C.J. 580, § 282.”

From our examination of the record made in the case we cannot say that there exists any reason justifying a holding of error as the result of the aforementioned jury findings.

We are of like opinion as applied to the jury finding to the effect that an ordinarily prudent person in the exercise of ordinary care would not be so misled by the name “Downtowner Motor Inn” as to cause him to patronize the defendants’ establishment instead of the “Downtown Motel”.

Quoted in the Wm. Walker Co. v. Poca-tello Monument Company case, supra, is the following:

“ ‘ “The controlling principle in cases wherein it is charged that a name used by one party is in conflict with a name used by another is that, in order to justify relief such as sought in the instant case, the circumstances must be such that it appears that the business of complainant will suffer from a deceptive use of its name, or that, by reason of such deceptive use of complainant’s name, the public will be imposed upon.” ’ ”

We believe this a correct statement of the law. Furthermore, even in instances where it so appears we believe that a form of use of the term “Downtown” in the name of a business enterprise, such as that of both the plaintiffs and defendants, is merely descriptive of a part of town in which the business may be found by possible patrons, and as such the term use cannot be exclusively appropriated as against others who can and do use it with equal truth, even if the term “Downtown” in the context of use has acquired a secondary meaning.

In our view the legal question posed is not to be distinguished from a former case in which we held that a term used as part of a store name, to-wit: “factory outlet”, being merely descriptive of business carried on, could not be exclusively appropriated as against others who can and do use the same with equal truth even if the words have acquired a secondary meaning. Rogers v. Famous Brands of Texas, Inc., 352 S.W.2d 510 (Fort Worth Tex.Civ.App., 1961, no writ hist.).

In view thereof, the judgment should not be disturbed unless one or more of the events of trial can be said to have amounted to reversible error.

There are three in each of which complaint is made of the court’s permitting defendants’ evidence, as follows:

(1) Exhibits which were in substance scrap-book clippings showing cities in which “Downtowner Motor Inns” have been built by or through arrangements with defendants.

(2) Testimony of H. B. Tiller, manager of two of Fort Worth’s larger motor hotels, concerning 1964-1965 decline in occupancy rate in motels-hotels in the Fort Worth vicinity.

(3) Evidence about the number of motels and rooms built in the Fort Worth vicinity since the defendants’ “Downtown Motel” was built.

As applied to (1) we have no doubt that reversible error would not, by reason thereof, exist in view of the provisions of Texas Rules of Civil Procedure 434, “If Judgment Reversed”. We do not believe the admission of the evidence probably caused the jury to return a verdict other than that it did return.

As applied to (2) we are of the opinion that the evidence tendered was properly qualified and admitted, with the weight thereof made a matter for consideration by the jury.

As applied to (3) we find substantially the same evidence was elicited from the plaintiffs’ own principal witness. Hence error, if any, was waived.

Affirmed.


author: BARRON, Justice.

text:
    The CITY OF HOUSTON, Appellant, v. J. L. McFADDEN, Appellee.
    No. 19.
    Court of Civil Appeals of Texas. Houston (14th Dist.).
    Nov. 1, 1967.
    Rehearing Denied Nov. 22, 1967.

      Wm. A. Olson, City Atty., Homer T. Bouldin, Trial Supervisor, Joseph G. Rollins, Senior Asst. City Atty., Houston, for appellant.
    Bryan, Suhr, Bering & Bailey, William G. Fox, Joseph S. Horrigan, Houston, for appellee.
   BARRON, Justice.

This is a suit for damages. J. L. McFadden sued the City of Houston for damages alleged to have been caused by the continual flying of jet airplanes over his home property located in South Houston Gardens. McFadden’s property consists of a tract of 4% acres of land on which he has erected a one-story frame house having a dimension of 22 feet by 38 feet, with three bedrooms, a living room, a breakfast room and a kitchen. Adjoining the home is a metal barn and building and three kennels. The home is near and east-southeast of the Houston International Airport, owned and operated by the City of Houston. It is alleged and shown that private and commercial a.rplanes fly near the air spacing over plaintiff’s home. In 1960, the City extended the runway or landing strip in an easterly direction so as to make possible the landing and taking off of jet propelled aircraft, which required a much longer runway or landing strip. It was shown that the planes fly low over plaintiff’s home when taking off and landing and that this occurs at frequent intervals during the day and night. The planes are large and heavy. Most of them are four-motored planes which create loud noises and intense vibrations. At night the lights on the planes illuminate plaintiff’s home and yard with a blinding glare. The plaintiff and his neighbors testified as to physical damage to their properties, in the form of vibrations; broken windows; cracks in the walls; and jet fuel spraying the homes, necessitating repainting. The intensity of the noise due to overflights was recorded by Reese Brinsal, an accoustical engineer, at up to 109 decibels. His testimony shows that it would be practically impossible to communicate during that sound level background. The record shows that large planes fly as low as 80 feet from the top of plaintiff’s home, and that this occurs for extended periods at intervals of approximately fifteen minutes.

Plaintiff purchased his property in 1954. At that time there were no jet planes flying over. Prior to the year 1960, propeller driven airplanes were used which took off and landed on comparatively short runways and landing strips, and which were able to turn and adequately clear plaintiff’s home. The new runway and landing strip was completed about June 2, 1960. While the jet planes were few in the beginning, the number soon increased, until nearly all of the commercial airline operators now use them. They land and take off from Houston International Airport. Plaintiff alleges that his property has depreciated in the sum of $16,000.00 by reason of the frequent use of the jet planes over his property.

Trial was to a jury, which found that the property had decreased in value, due to the above, from $26,000.00 to $13,500.00 since 1960. The trial court rendered judgment for plaintiff for $12,500.00 with interest at 6% per annum from June 2, 1960. Defendant, City of Houston, excepted and has properly perfected its appeal to this Court.

This type of action has been recognized and approved as a “taking” of property, in the constitutional sense, in the nature of an air easement for which compensation must be made. See Griggs v. Allegheny County, Pa., 369 U.S. 84, 82 S.Ct. 531, 7 L.Ed.2d 585 (U.S.Sup., 1962).

The parties will be referred to as in the trial court, McFadden as Plaintiff and City of Houston as Defendant.

Defendant, City of Houston, contends under points of error one, two and three, that the testimony of Harry P. Weiss, plaintiff’s value witness, amounts to no evidence or that the evidence was insufficient and was against the great weight of the testimony. It contends that his testimony was inadequate to support the verdict of the jury and that the case should be reversed. Each party used one value witness. Weiss testified for the plaintiff and George L. Reed testified for the defendant. Weiss testified that he was a real estate broker and appraiser and was trained at the University of Houston in real estate appraisal. He has been in such business since 1950 and is a licensed real estate broker. He is a member of Brokers Institute, National Association of Real Estate Brokers, Texas Real Estate Association and Houston Board of Realtors. He is self-employed. In February, 1962, he was employed to appraise the property of Mr. McFadden. His experience in the Houston area has been rather extensive since 1950. He testified that the fair market value of the property in question prior to the time of the jet airplanes started flying over it was $31,810.00, and that the land without improvements was in excess of $5,000.00 per acre. He further testified that since the jet traffic and overflights began in 1960, on the basis of approximately forty to fifty jets a day, the land had depreciated to $2,500.00 per acre and that the property as a whole would be depreciated by 50%. The appraisal was made in February, 1962. In June of 1962, he was taken ill for about two years, and his records were disposed of. While the witness could not, on cross-examination, give specific facts as to how he arrived at the figure, it was clear that he was acquainted with appraisal methods and had used a reasonable formula to determine a fair market value of the property. He had, at the time of appraisal, used a series of other comparable properties with which to compare values, though details were not given.

The testimony of defense witness George L. Reed was entirely different. He qualified properly as an expert witness, as a realtor and as an appraiser, and by an extended series of comparable values to which he testified, he fixed the value of plaintiff’s property with improvements at $20,621.00 on June 2, 1960. He stated that the improvements were valued at $7,370.00 and the land was valued at $13,251.00 on the basis of a fair market value. He further testified that the jet air traffic did not affect the value at all, but on the contrary the comparative sales showed an increase in value. When asked whether he would like to live in such a place, his answer was, “no,” but he pointed out what he thought were advantages. Mr. Reed admitted on cross-examination that the Federal Housing Administration had withdrawn insurance on loans involving property that was within the 100 decibel area and that the McFadden property was within that area. He stated that the highest and best use of the property is not residential but industrial use.

The sufficiency of this type of evidence to support the verdict of a jury has been passed upon many times by our courts under similar circumstances. While there has been much criticism of the weight which the courts give to expert testimony of this kind, the established rule is that when a witness gives evidence that he is acquainted with market value, he is prima facie qualified to testify concerning the value of property as an expert. His testimony is admissible as such and has probative value. It then becomes a question of the weight that may be given it by the jury. City of Houston v. Schorr, 231 S.W.2d 740, 742 (Tex.Civ.App.), writ dism., and cases cited.

The jury was not required to accept all of the testimony of any one witness. Here the testimony ranged from $31,810.00 to $20,621.00 on value, and from $15,905.00 to zero as to diminished value. The jury was given a wide range for its findings. The jury could adopt the testimony of each witness in part and reject it in part. The jury had the duty of resolving the testimony and agreeing on a verdict as to the value of the property and the disminished value caused by the noise and vibration, if any. Opinion testimony does not establish any material fact as a matter of law. Hood v. Texas Indem. Ins. Co., 146 Tex. 522, 209 S.W.2d 345. Authority almost directly in point is City of Houston v. Raborn, 409 S.W.2d 480 (Tex.Civ.App.) writ ref., n. r. e., which adopts a statement from City of Houston v. Schorr, 279 S.W.2d 957 (Tex.Civ.App.), writ ref., n. r. e. (a subsequent appeal of that case) as follows :

“All opinions of values depend for their acceptance probably more upon the faith the witness inspires rather than upon how well with reason he supports his conclusions. But be this as it may, the evidence was competent and if the values were not supported by good reasoning, they went to the weight and not the competence of the evidence. We must, therefore, hold that there was evidence to sustain the award.”

See also Maryland Cas. Co. Hearks, 144 Tex. 317, 190 S.W.2d 62; Fort Worth & D.C.R. Co. v. Hapgood, 210 S.W. 969 (Tex.Civ.App.), no writ; State v. Scarborough, 383 S.W.2d 839 (Tex.Civ.App.), writ ref., n. r. e.; 2 McCormick and Ray, Texas Law of Evidence, p. 256 et seq., Sec. 1422.

It is contended, however, that a mere conclusion as. to market value is insufficient, and that one seeking damages must show the nature of the damage and the relationship thereof to market value. The case of Tennessee Gas & Transmission Co. v. Zirjacks, 244 S.W.2d 837 (Tex.Civ.App.), writ dism., is a good example of the rule where a bare statement of market value is made with no proof showing the nature and extent of the damages. The distinction applicable here is fully and ably discussed in State v. Scarborough, supra, which recognizes the rule that one claiming damages to land must show the nature of the damage and the relationship of the same to market value. A mere conclusion as to market value is insufficient for such purpose. But, this refers to the party claiming damage, not his value witness. There is ample evidence in this case of damage to the McFadden property as a result of the jet overflights. It is not necessary to look to Weiss’ testimony to find this evidence of damage. Plaintiff and his neighbors testified fully to the noise, lights, physical damage to the property, and intense vibrations caused by the low-flying jet aircraft. Here there was sufficient, specific testimony tending to show why a decline in market value would take place. Zir jacks and similar cases are not in point. See Natural Gas Pipeline Co. of America v. Towler, 396 S.W.2d 917 (Tex.Civ.App.), no writ. It is not for this court to discredit Mr. Weiss’ testimony because he failed to give detailed reasons for his conclusions as fully as those given by Mr. Reed, defendant’s witness. The jury was the sole judge of the credibility of the witnesses and the weight to be given their testimony. We overrule defendant’s first, second and third points of error.

Defendant, by its fourth point of error, contends that reversible error was committed by the trial court in refusing to grant a new trial to the City of Houston as a result of a reference by Mr. Weiss to plaintiff’s plans for possible subdivision of his property. The statement of Mr. Weiss was objected to by defendant’s counsel. The objection was sustained by the trial court and the jury was promptly instructed to disregard it. While the trial court by his instruction cured any possible error, we hold that such error was harmless in any event. Rule 434, Texas Rules of Civil Procedure.

By defendant’s fifth point of error, it is contended that the trial court committed reversible error in failing to grant a mistrial after plaintiff’s counsel asked Mr. McFadden whether he had had trouble with his hearing prior to the time the jet overflights began, to which plaintiff replied, “no.” Defendant’s counsel objected, the court dismissed the jury and motion for mistrial was made on the grounds that deafness of the plaintiff was outside the pleadings and that such testimony tended to inflame the jury to the prejudice of the City of Houston. Defendant’s counsel requested that the jury be instructed not to consider the question and answer. The trial court promptly complied, ordered the question and answer stricken from the record and instructed the jury not to consider it for any purpose. The court acted properly, and the error, if any, was cured. In any event, the incident was harmless. Walker v. Texas Emp. Ins. Ass’n., 155 Tex. 617, 291 S.W.2d 298 (Tex.Sup.1956).

Error is claimed by reason of the court’s failure to instruct plaintiff’s counsel to desist from continued attempts to get the contents of a United States Government Information Manual before the jury through questions directed on deposition to Joseph A. Foster, Director of Aviation for the City of Houston, concerning acceptable noise standards in residential areas. Mr. Foster was an adverse witness so far as plaintiff was concerned and had previously qualified as an expert on airport affairs. He was an attorney, had represented the City before federal agencies in Washington, and he had worked closely with the Federal Aviation Agency. We believe he was qualified to -testify from personal knowledge as to any guidelines set up by the government for acceptable noise levels in areas surrounding airports. The trial court, however, sustained each objection made to the testimony by the City. Defendant’s value witness, Mr. Reed, later testified that the F.H.A. considered areas subjected to a noise level of 100 decibels to be unacceptable for residential use. No objection was made by defendant’s counsel to the latter question. Any error in admitting testimony is rendered harmless if other evidence of the same facts is admitted without objection. Olan Mills, Inc. v. Prince, 336 S.W.2d 186, 188 (Tex.Civ.App.), no writ. Moreover, we do not think there is any reversible error in the trial court’s action, nor do we agree that the cumulative effect of points 4, 5 and 6 amounted to reversible error. Rule 434, T.R.C.P.

The judgment of the trial court is affirmed.


text:
    Louise Hensley McDOWELL et vir, Appellants, v. CENTRAL POWER & LIGHT COMPANY, Appellee.
    No. 330.
    Court of Civil Appeals of Texas. Corpus Christi.
    Oct. 19, 1967.

      W. T. McNeil, of Vance, Vance & McNeil, Edna, for appellants.
    H. K. Howard, Allen Wood, of Fischer, Wood, Burney & Nesbitt, Corpus Christi, for appellee.
   OPINION

NYE, Justice.

This is a condemnation case. Central Power & Light Company instituted condemnation proceedings in the County Court of Jackson County to condemn an easement for two electric transmission lines across appellant McDowell’s land. The con-demnor objected to the award of the commissioners and perfected its appeal to the county court where the case was tried before a jury. Judgment was entered in favor of the landowners for the value of the easement taken. The jury found no damages to the remainder. The landowners, being dissatisfied with the jury verdict have perfected their appeal to this court raising a single point of error:

“The trial court erred in ruling that appellants’ damages to the remainder of their land was limited to the 111.16 acres of land described in condemnor’s petition when the uncontroverted evidence showed that the tract of land owned by landowners from which the easement was carved exceeded 200 acres, all of which was a single tract of land undivided by fence or otherwise and all of which was devoted to the same use.”

The landowners owned a rather large ranch northeast of Port Lavaca in Jackson County, a portion of which fronted on both sides of Farm to Market Road 1593. One particular tract of landowners’ land called “C-2” included a rectangular shaped parcel of land of 111.14 acres on the west side of the Farm to Market Road. It was this tract out of which the easement was sought by condemnor and which was described by condemnor in its petition for condemnation. There is no question that the description of landowners’ land was sufficient for jurisdictional purposes. Miers v. Housing Authority of City of Dallas, 153 Tex. 236, 266 S.W.2d 842 (1954). The landowners made the usual stipulations which entitled them to open and close the evidence and arguments. During the course of the trial it was developed without objection, that the landowners owned additional land contiguous to the described land on the same side of the Farm to Market Road. This additional land to the west of the property described in the petition, fronted on Swan Lake, Catfish Bayou and had deep water facilities through Lavaca Bay. All of the land was under the same fence with no cross fences. Such additional land was legally described as being two 46 acre tracts and was acquired by landowners at or about the same time as the larger “C-2” tract. The landowners made no exceptions to the petition of condemnor and condemnor raised no objection to the testimony concerning the ownership of the additional land.

The conflict came when landowners’ expert witness was about to testify as to the damage to the remainder of landowners’ land. Objection by the condemnor to any testimony concerning damages to landowners’ additional tract was made because the original description in the petition for condemnation described only 111.14 acres and because of the stipulations entered into at the time of the trial. Condemnees contended that they were entitled to have such testimony admitted because they were the owners of the entire 200 acre tract (111.14 acres plus the 2 — 46 acre tracts); that their ownership had been developed in the evidence without objection; that the land constituted a single tract; and that to refuse them the right to show their damages to the entire remainder of the land which they owned, would deny them the right and opportunity to collect and receive the total damages due them by virtue of the condemnation proceedings. The con-demnor’s objection was that they were not prepared to try the case on any other basis than that set forth in the pleadings which limited the property to 111.14 acres; that the parties had stipulated to the jurisdictional facts; and that it would be manifestly unfair and unjust to permit the landowners to file additional pleadings which would then result in requiring the' con-demnor to seek a continuance or mistrial. When the court asked both parties if they wished to join in a mistrial, neither party sought such action. The trial court then reasoned and said: that in view of the fact that the parties entered into a stipulation whereby they have agreed that the property made the basis of arriving at the damages, was the property that is described in the petition: “I am going to rule this way, and that is as far as having the witness testify as to cash market value of the remainder on October the 14th, 1965, we will limit it to the 111.16 acres.” Landowners objected to the court’s ruling but did not prove up a bill of exceptions.

Although the stipulation by the parties concerning the description of the land was sufficient to give the county court jurisdiction; and procedural wise it was sufficient to give the landowners the right to open and close the testimony and argument, the burden, nevertheless, of proving the damages was upon the landowners, not only as to the part taken, but as to the remainder; State v. Jackson, 388 S.W.2d 924 (Tex.Sup.1965); City of Teague v. Stiles, 263 S.W.2d 623 (Tex.Civ.App.—Waco 1954, n. r. e.); Ready v. City of Marshall, 234 S.W.2d 104 (Tex.Civ.App.—Ft. Worth 1950) and although it was error under these fact circumstances for the trial court not to permit the landowners to attempt to prove up all legally compensable damages to all their land (affected by the taking), such error, as will be demonstrated hereafter, was harmless.

In order to obtain a reversal of the judgment, the landowners have the burden to show that the rejection of the proffered testimony was error, and that it was reasonably calculated to cause and probably did cause the rendition of an improper judgment. Rule 434, Texas Rules of Civil Procedure; Gordon v. Aetna Casualty & Surety Company, 351 S.W.2d 602 (Tex.Civ.App.—Eastland 1961, err. ref.). In order to determine the nature and the character of the disputed evidence that was excluded, and to estimate the influence that such evidence would likely have had upon the minds of the jury, and in order to determine the fact issue to which it relates, the landowners should have developed by a bill of exceptions what the excluded testimony would have been. Rules 372, 373 and 418(c), Tex.R.Civ.P.; Gulf Paving Co. v. Lofstedt, 144 Tex. 17, 188 S.W.2d 155 (1945); State v. Evans, 340 S.W.2d 99 (Tex.Civ.App.—Waco 1960, n. r. e.); Gass v. Baggerly, 332 S.W.2d 426 (Tex.Civ.App.—Dallas 1960); Southerland v. Porter, 336 S.W.2d 841, 845 (Tex.Civ.App.—Amarillo 1960, n. r. e.), where the court quoted from Texas Law of Evidence, McCormick & Ray, Vol. 1, Sec. 30, p. 31, as follows:

“ * * * Where the ruling excludes evidence counsel must show what the proffered evidence is or what the expected answer of the witness would have been” in order for his objection to be preserved on appeal.

The land of appellants fronted on the east by Farm to Market Highway 1593. The easement sought by the condemnor was also near this east boundary line running generally north and south and parallel to the Road. Next to the Road was a pipeline easement of Houston Pipeline Company ; next to this easement and parallel to it was the Port Comfort & Northern Railroad tracts; then came the Southern Pipeline Corporation easement; next to it was the Tennessee Production Pipeline Company easement; and finally the subject easement. All of the land was unimproved pasture used exclusively for grazing. Con-demnor’s expert witnesses, after testifying as to their opinion of the value of the land taken, testified that there was no damage to the remainder of landowners’ property by virtue of this new easement. On cross examination one of condemnor’s witnesses admitted that the land nearest the lake and bayou was more valuable. However, even with water frontage, the witness testified, there would be no damage to the land because of the easement to be taken.

Landowners’ own expert witness testified: “It makes very little difference whether we consider here 111 acres or we consider the whole 200 acres in the appraisal, because this land is contiguous and owned by the same party. As far as the appraisal value, whether you appraise a part of it or the whole thing is a very minor thing.” The landowners’ own exhibit number 2 concerns a plat of the easement to be taken and prepared by a registered public surveyor. It described the subject property of landowners as: “Showing Central Power and Light Company’s 120.0' easement across Louise Hensley McDowell 111.26 acre tract of land, more or less, * * It is apparent that the landowners knew that the taking concerned the 111 acre tract. The jury found damages to the amount taken for the easement in the amount of $1744.00, and found that the reasonable market value of the remainder of landowners’ property had exactly the same value before the condemnation as it did immediately after the taking..

Since the jury found that there were no damages resulting from the taking as to the remainder of 111.14 acres, we do not find from the record that the court’s ruling on the evidence of damages to lands further to the west amounted to such a denial of appellants’ rights as was calculated to cause, and probably did cause, the rendition of an improper judgment. Rule 433, Tex.R.Civ.P. The burden was on the appellants to demonstrate that the exclusion of the evidence probably caused the rendition of an improper judgment. We hold that the appellants have not discharged this burden. Gordon v. Aetna Casualty & Surety Company, supra; City of Galveston v. Hill, 151 Tex. 139, 246 S.W.2d 860 (1952); Dallas Railway & Terminal Co. v. Bailey, 151 Tex. 359, 250 S.W.2d 379 (1952). Appellants’ point is overruled.

Judgment of the trial court is affirmed.


text:
    Garland PENNY, Appellant, v. E. N. ADAMS et al., Appellees.
    No. 308.
    Court of Civil Appeals of Texas. Tyler.
    Nov. 9, 1967.
    Rehearing Denied Nov. 30, 1967.
    Enoch G. Fletcher, Grand Saline, for appellant.
    Ramey, Ramey & Neal, Jack G. Neal, Sulphur Springs, F. L. Garrison, Gilmer, Vaughan O. Stewart, Henderson, for appel-lees E. N. Adams and others.
    James K. Wilson, Houston, for appellee Humble Oil & Refining Co., Dillard Baker, Houston, of counsel.
   SELLERS, Justice.

Garland Penny, the appellant herein, brought this suit in trespass to try title against E. N. Adams and others to recover about nine acres of royalty under certain land located in Rains County, which land was producing oil at the time the suit was brought.

The case was tried to the court without a jury and, after hearing, the court rendered a judgment for the defendants that the plaintiff take nothing.

Humble Oil & Refining Company, one of the defendants, is the owner of a valid oil and gas lease on the land and has been paying royalties under the terms of the lease to the other defendants in the trial court, Adams, Thrash and Coe. Thrash and Coe claim title under Adams. Adams purchased his interest in the land by a warranty deed dated February 1, 1954, which was filed for record on February 24, 1954. The deed was executed by Cora Brooks Penny and others. This deed provided as follows:

“ * * * have Granted, Sold and Conveyed and by these presents do Grant, Sell and Convey, unto the said E. N. Adams, of the County of Rains, State of Texas, all that certain tract, lot or parcel of land, situated in Rains County, Texas, and being all our undivided interest, in the following described land, to-wit: ⅜ ⅜ ⅜ »

At the time this deed was executed, Cora Brooks Penny and others had previously, on September 19, 1945, executed a non-participating royalty deed conveying one-half royalty under the land for twenty years, and as long thereafter as there was production of oil and gas from the land. This instrument was not filed for record until February 6, 1954. It is under this conveyance that the appellant claims title to his nine acres of royalty. On the trial, it was agreed and found by the trial court that Adams, the grantee in the deed by Cora Brooks Penny and others, executed on February 1, 1954, paid a valuable consideration for the same and had no notice of the royalty deed executed on September 19, 1945, under which the appellant claims. Upon these facts, the trial court found that appellee Adams was an innocent purchaser for value, and rendered judgment that appellant take nothing. From this judgment, the appellant has duly prosecuted this appeal.

It is the contention of appellant on this appeal that the deed to appellee Adams, above referred to, is a quitclaim deed which will not support a claim of innocent purchaser. Regardless of what the authorities have been in the past, it would seem to be now settled that a conveyance of all of the grantee’s undivided interest in a particular tract of land to a grantee, if otherwise entitled, will be protected as a bona fide purchaser. Bryan et al. v. Thomas, 365 S.W.2d 628. We quote from this authority:

“The deed under consideration here from Mrs. Bryan to Thomas is more than a quitclaim deed. It recites that the grantors 'have granted, sold, conveyed, assigned and delivered and by these presents do grant, sell, convey, assign and deliver unto the said grantee all of our undivided interest in and to all of the oil, gas and other minerals in and under and that may be produced from the following described land situated in Hunt County, Texas, * * *.’
* ⅜ *
“To remove the question from speculation and doubt we now hold that the grantee in a deed which purports to convey all of the grantor’s undivided interest in a particular tract of land, if otherwise entitled, will be accorded the protection of a bona fide purchaser.”

We can see no legal distinction in the provision in this deed from that in the deed to Adams, and for this reason, we are of the opinion that the trial court’s judgment that appellant Adams was an innocent purchaser for value must be sustained.

The judgment of the trial court is affirmed.