text:
    The STATE of Texas, Appellant, v. Frank K. MEYER et ux., Appellees.
    No. 50.
    Court of Civil Appeals of Texas. Corpus Christi.
    June 2, 1965.
    Rehearing Denied June 17, 1965.

      Waggoner Carr, Atty. Gen. of Texas, Carroll R. Graham and Watson C. Arnold, Asst. Attys. Gen., Austin, for appellant.
    M. C. Chiles, F. Russell Kendall, J. D. McDaniel of Vinson, Elkins, Weems & Searls, Houston, for appellees.
   SHARPE, Justice.

This is an appeal by the State of Texas from a judgment based upon a jury verdict in a condemnation case which awarded the landowners $1,074,199.50 for 14.9456 acres of land situated on South Post Oak Road in Houston, Texas. The owners and condemnees are Frank K. Meyer and wife, Lucille R. Meyer, appellees herein.

The tract condemned fronts on the east side of South Post Oak Road for a distance of 2618.93 feet, is 240 feet in depth and contains 651,030 square feet. It is located in a rapidly expanding area of southwest Houston, Harris County, Texas, and across South Post Oak Road from Meyerland Plaza Shopping Center. The State’s petition purported to take the fee simple title but excluded from the estate to be condemned all the oil, gas and sulphur which can be removed from beneath said land without any right whatever remaining to the owner of such oil, gas and sulphur of ingress or egress to or from the surface of said land for the purpose of exploring, developing, drilling, or mining of the same. Such exception is undisputedly of no value and is not material to this appeal. Said petition further alleged that as to the land abutting on the 14.9456 acre tract taken, access was not to be denied from such abutting land to the highway intended to be constructed on the tract condemned. The parcel taken was part of a larger tract of 103 acres owned by appellees.

Appellant urges twelve points of error which are replied to by appellees’ eighteen counter-points. Appellant’s point 1 asserts that the trial court erred in granting appel-lees’ motion in limine whereby the parties were restricted in their interrogation of witnesses, exhibits, evidence and argument so as to refrain from showing or referring to the existence or ownership by appellees of any remainder of lands contiguous to the tract taken by the State. Points 2, 3, 4, 5 and 6 are closely related to point 1 and assert that the trial court erred in excluding the testimony of three State’s witnesses and two of its exhibits. Points 7 and 8 complain of the action of the trial court in permitting appellees’ witnesses Winsted and Allen to testify over objection concerning the consideration involved in a number of allegedly comparable sales, on the ground that the estate involved in each of said sales was not the same estate as was being acquired by the State of Texas from appellees. Point 9 complains of the action of the trial court in excluding the testimony of appellee Frank K. Meyer, developed by appellant on cross-examination, concerning his attempt to lease or develop a strip of land directly across Beechnut Street from the property being condemned. Point 10 asserts that the verdict and judgment are excessive by at least the amount of $850,000.00 and that a remittitur in such amount should be required as a condition of affirmance of the judgment herein. Point 11 asserts that the trial court erred in refusing to strike the testimony of appellees’ witness Winsted, because in arriving at the value of the tract in question he took into consideration the enhancement of the property due to the construction of the improvements in question. Point 12 asserts that the cumulative effect of the errors allegedly shown by appellant’s point 1 through 11 amounted to such a denial of appellant’s rights as were reasonably calculated to cause and probably did cause the rendition of an improper and excessive verdict and that the judgment should be reversed and the cause remanded for a new trial.

We have concluded that appellant’s points should be overruled and the judgment affirmed.

The State’s petition for condemnation was presented to the County Judge of Harris County on April 14, 1961, and the award of the Special Commissioners was rendered on May 16, 1961. The State deposited the amount of the Commissioner’s award in Court on May 31, 1961, which is the date of taking in this case. Appellees’ original objections to such award were filed in the County Court at Law of Harris County, Texas, on May 18, 1961, and their First Amended Objections to such award were filed on March 28, 1963. The last-mentioned pleading contained a number of special exceptions to a Supplemental Petition filed by the State on November 3, 1961. The State also filed its Plaintiff’s Original Answer on September 4, 1962 and Plaintiff’s First Amended Original Answer on May 16, 1963.

In addition to the pleadings hereinabove mentioned, the appellees, on March 28, 1963, filed two other instruments, one of which was denominated “Admissions” and the other “Motion in limine”, all of which will be discussed more 'fully hereinafter.

Trial of the case began on May 20, 1963, the jury verdict was returned on May 29, 1963, and judgment was rendered and entered on June 14, 1963.

The State’s argument under the first six points relates to the exclusion of evidence by the trial court, particularly in granting appellees’ motion in limine and in excluding the testimony of three witnesses and two exhibits offered by the State, all as is shown by bills of exception perfected out of the presence and hearing of the jury.

Appellees asserted in their motion in limine that any reference to the remainder of the 103 acre tract owned by appellees, the nature of the improvements to be erected, and the matter of access rights were immaterial to and could not in any respect be considered by the expert witnesses in arriving at their opinion of the market value of the strip of land condemned. Appellant, on the other hand, took the position that such matters may be considered by the expert witnesses, if in their opinion such facts have a material bearing upon the issue of market value of the property acquired by the State, and especially the question of access rights. In particular the State contends that the evidence excluded by the trial court, including the existence and size of the remainder, was admissible for the reasons that (a) the appraisers in reaching their conclusion as to the value of the strip acquired are entitled to value the whole tract and assign such portion or percentage to the strip being acquired as in their opinion is proper, and (b) the ownership of a piece of real estate encompasses a group of rights and where some of such rights are taken and some are not taken it is necessary to show the size and existence of a remainder to properly value the rights not taken.

Appellees counter the said argument of the State with the contention that under the Constitution and laws of this State the benefit accruing to the remainder of a tract of land as a result of the taking of a parcel which was formerly a part of an integrated whole cannot be taken into consideration in placing a value on the parcel actually taken. Appellees further say that it is improper and illegal to appraise and fix the value of the tract of land being condemned at a pro rata or proportionate part of the value of a larger tract from which it is taken prior to the taking with the result that the value of the part taken is less than it would be if valued as a separate tract, particularly when the tract taken is a self-sufficient economic unit.

Appellant says that appellees’ last-mentioned contention involves a misconception of the facts in the instant case. Counsel for the State argue here, as in the trial court, that prior to the institution of this condemnation proceeding appellees owned 103 acres which abutted the East Right-of-Way line of Post Oak Road, and their property rights included the right of access to and from said road; that such right of ingress and egress contributed to the value of the entire 103 acres in the opinion of appellant’s witnesses; that the petition in condemnation specifically provided that the rights of ingress and egress were not being taken; that, thus, the most important element contributing to the value of the entire tract of 103 acres was not acquired in the proceeding, and the condem-nees should not be compensated for this element; that appellees assume that rights are being acquired which actually are not acquired by the State in this proceeding; that such rights were vested in appellees prior to the taking in question and remain in them after the taking; that appellees remained in status quo with respect to such rights; that by virtue of the rulings of the trial court appellees were compensated for such rights of ingress and egress when the same were not actually taken; and, that the result is that appellees received double compensation.

In passing upon appellant’s point 1 and the contention that the trial court erred in granting appellees’ motion in limine, we must give consideration to the state of the pleadings and the issues which existed at the time such action was taken on April 5, 1963.

On March 28, 1963, appellees filed their written admission, in substance as follows: that appellees owned the land described in the State’s Petition for Condemnation; that the State had the right to condemn and appropriate said land; that this condemnation proceeding was legally before the trial court; and that there were no issues to be determined except the market value of the said land as described in the State’s pleadings. In the same pleading appellees also alleged “It is the purpose of this Admission to eliminate from this cause every issue except the issue as to the market value of the land which the State of Texas seeks to condemn herein and which is described in its statement or petition for condemnation and its supplemental petition on file herein. These defendants herein make all the admissions required by Rule 266 of the Texas Rules of Civil Procedure.”

In their motion in limine, also filed on March 28, 1963, appellees alleged that they had waived all right to damages as to the remainder of their land and the sole issue was concerning the market value of the 14.9456 acre tract being condemned; that the fact that they owned additional land adjoining the tract being taken was immaterial as a matter of law to the issue before the court; that the sole purpose for introduction of such fact in evidence would be to prejudice the rights of appellees to recover the market value of their tract being condemned; that in order to avoid such prejudice the State should be restricted in its interrogations, arguments, evidence and exhibits from showing or referring to the remainder of appellees’ lands or from attempting to introduce any evidence which would have the effect of attempting to show the jury that the size of appellees’ land was just merely being reduced by the taking of the said 14.9456 acres; and that counsel for the State should be so instructed and restricted.

The trial court granted appellees’ motion in limine and entered an order in connection therewith which was substantially in accordance with its allegations and prayer. This action is better understood when other proceedings in the trial court on the same date are considered, particularly the sustaining of certain special exceptions urged in appellees’ First Amended Objections to the. commissioners award levelled against the allegations of the State’s Supplemental Petition filed on November 3, 1961. Said last-mentioned pleading reads in part as follows:

II.
“The ‘part taken’ in this suit is 14.9456 acres of land on the East side of South Post Oak Road extending from the South side of Beechnut Street to the North side of Brays Bayou. The ‘remainder’, is 88.17 acres in size. The Defendants’ ‘whole property’ is 103.-1156 acres in size. The ‘whole property’ is a large, level, unimproved, cleared tract. The ‘part taken’ has no exceptional distinguishing characteristics. In other words, the ‘remainder’ is the same kind of land as the ‘part taken’. Post Oak Road is being rebuilt into what is sometimes known as the ‘West Loop’. For a large part of its distance the West Loop location is along Post Oak Road.”
III.
“All of the ‘part taken’ will be used for the new road.”
IV.
“The Defendants will have as much, or more, frontage on the new road as they had on the old road. The Defendants right of access is not being condemned herein: The Defendants will have access to the new road.”
V.
“The issues in this case are and should be substantially as follows:
“ T. From a preponderance of the evidence, what do you find was the market value of the defendant’s whole property immediately prior to condemnation?
“ ‘2. From a preponderance of the evidence, what do you find was the market value of the remainder of the defendant’s tract of land immediately after the taking of the part being condemned?
“ ‘In answering the foregoing special issue No. 2, you are instructed to exclude increase in value, if any, and decrease in value, if any, by reason of benefits or injuries received by defendants in common with the community generally and not peculiar to them and connected with their ownership, use and enjoyment of the particular tract of land from which the part condemned is being taken, and taking into consideration the uses to which the part being condemned would be subjected. * * *
“ ‘3. From a preponderance of the evidence, what do you find was the market value of the defendant’s tract of land being condemned immediately before the taking, considering the fact that it was supported by and was a part of the defendant’s whole property?’”
VI.
“To use the usual ‘Carpenter case’ issues in this case would result in unjust enrichment because a consideration of the ‘part taken’ ‘as severed land’ would possibly result in a jury finding based upon the taking of commercial frontage when, as a matter of fact, ‘frontage’ is merely being moved back by the widening of the street. The issues suggested above would allow ‘just compensation’ and ‘damages’ all as provided by the Constitution and laws of this State. •
WHEREFORE, premises considered, the State of Texas respectfully prays as in its Petition aforesaid; and that Defendants be awarded the difference in the value of the ‘whole tract’ and the ‘remainder’, unless such difference is less than the value of the ‘part taken’, then they should be awarded that value; and that it be protected from having to pay more than just compensation or damages; and for general relief.”

The special exceptions of appellees which were sustained by the trial court were based, among other things, on the grounds that the State, by the said Supplemental Petition, was attempting to change the law of this State in a manner which could deprive appellees of the market value of their land which is due them under the Constitutions of the State of Texas and of the United States, and was an attempt to acquire appellees’ 14.9456 acres of land without paying just compensation based upon the market value of the land taken; that by describing appellees’ “whole property” and “remainder” the State was attempting to inject matters which should not properly be permitted and which would be detrimental and injurious to appellees; that the same was an attempt to inform the jury that appellees owned additional land which was not being taken; that requested special issues have no place in a pleading and the same would advise the jury as to matters of law which are to be determined by the court; that some of the allegations constituted a legal argument; that such allegations attempt to apply a measure of damages contrary to the laws of the State of Texas which would result in an unlawful, unjust and unfair taking of property without due process of law and without paying the market value of the tract being condemned. The trial judge properly sustained such exceptions on the same date he granted appellees’ aforementioned motion in limine.

The discussion of appellant’s point 1 is closely related to its points 2, 3, 4, 5 and 6, which involve the action of the trial court in excluding the testimony of the State’s witnesses Harold Legge (Point 2), O. F. Stork (Point 3), and Victor L. Dailey (Point 4), as well as appellant’s exhibits 5 (Point 5) and 6 (Point 6), in connection with its bills of exception.

Appellant’s first appraisal witness was Harold Legge. He valued appellees’ entire 103 acre tract before the taking at $1,340,-000.00, or $13,000.00 per acre, and the 14.-9456 acre tract being condemned at $13,-000.00 per acre, as a pro rata part of the whole, amounting to $194,300.00. Said witness testified that if access to the remainder of appellees’ land was denied the 14.9456 acre tract taken would have one value, and if such access be not taken it would have a different value. His testimony was tied to the proposition that the benefits or damage to the remainder of appellees’ property by having or not having access to the new road could and should be considered in placing a value on the tract taken. In response to questions propounded by the Judge out of the presence of the Jury, the witness testified that he would place one value on the tract taken if the owner had no remaining land and another value on it if the owner did have land adjacent to it. The witness testified specifically in response to questions by the Judge as follows:

“THE COURT: Let me ask you this: Are you stating that you have not actually appraised it and couldn’t give an opinion on it as one long strip of land, as a single entire complete sole tract of land that had been acquired so that it would leave the man nothing?
“THE WITNESS: Nothing more than just in generally. I haven’t made an appraisal of it based on it being on just one piece of property, separate, and a separate strip, under those conditions.”

Appellant’s second appraisal witness was Victor L. Dailey. His testimony was substantially in accord with that of the witness Legge. He appraised the entire 103 acre tract of land belonging to appellees as one tract and testified that if he had appraised the 14.9456 acre tract of land as a single tract, disregarding the remainder, his appraisal would be different and would have been more, or a higher value. Said witness made it clear that his appraisal for the State of the parcel taken at the sum of $208,192.00 was not “divorced from any damages or benefits of any kind”. Dailey’s value of the tract taken was a mathematical proportionate per acreage part of the whole 103 acre tract which he valued at $1,436,-400.00. Dailey’s testimony, developed on bill of exception, clearly showed that he considered benefits to appellees remaining land, just as Legge did. Dailey and Legge both testified that appellees’ property adjacent to Post Oak Road, which is the 14.9456 acres being condemned, was more valuable than the remainder of said property, but both of them averaged in the less valuable property in arriving at their final opinions as to such tract.

Appellant’s points 3, 5 and 6 involve the action of the trial court in excluding the testimony of Mr. O. F. Stork, Supervisor and Designing Engineer for the Texas Highway Department, and the State’s Exhibits 5 and 6 on its Bill of Exceptions. Said Plaintiff’s Exhibit 5 is a set of the contract drawings for the construction of the West Loop and South Loop Freeways, including the construction on the tract being condemned and on adjoining tracts. Said Plaintiff’s Exhibit 6 is a drawing or plat showing the freeway as proposed going through the Meyer tract, and is the same as Exhibit 5 as to the tracts shown except the scale is different. The said testimony and Exhibits were irrelevant and immaterial and might have been prejudicial to appellees. The trial judge properly excluded the same.

There are three major questions which must be considered in determining appellant’s points 1 through 6: (1) Whether the State condemned the fee simple title to the 14.9456 acre tract in question; or, even if it did not, whether the compensation to be paid to the owner, under the conditions, particularly considering the use to be made of the tract taken, would have been the same; (2) whether appellees’ rights of ingress and egress to the new roadway can be properly considered in connection with the condemnation of said 14.9456 acre tract, or if such rights are incident only to the remainder of the 103 acre tract owned by ap-pellees, and (3) whether the 14.9456 acre tract was a self-sufficient economic unit which must be appraised and valued separately without reference to the remainder of the land owned by appellees contiguous to the tract taken.

Examination of the State’s pleadings herein clearly establishes that the fee simple title to the surface of the 14.9456 acre tract was condemned by it. The State’s Petition for Condemnation reads in part as follows;

“ * * * that the State Highway Commission has found and determined that the above described land is suitable for use of such purposes and it is necessary to acquire the fee simple title to said land, as provided by law, as a part of the State Highway System to be constructed, reconstructed, maintained and operated thereon. It is intended to use said land for such purposes. Plaintiff, in the exercise of the police power for the preservation of human life and safety, and under existing laws, has designated said highway as a Controlled Access Highway, and roads are to be built as a part of said highway whereby the right of ingress and egress to or from the remaining property of defendants abutting on said highway is not to be denied. Plaintiff or petitioner is entitled to condemn the fee title in such land for said purposes aforesaid and asks that the same be condemned for such purposes aforesaid; provided, however, there is excluded from said estate to be condemned all the oil, gas, and sulphur which can be removed from beneath said land aforesaid without any right whatever remaining to the Owner of such oil, gas, and sulphur of ingress or egress to or from the surface of said land for the purpose of exploring, developing, drilling, or mining of the same.”
PRAYER
“WHEREFORE, the State of Texas respectfully prays that three disinterested freeholders be appointed as Special Commissioners to assess the damages of the owner and file their decision all as provided by law, to the end that plaintiff or petitioner may have a final judgment or decree of condemnation vesting in the State of Texas the fee title to said land, except as above provided as to oil, gas, and sul-phur, for writ of possession, for costs of suit, and for such other relief to which it may be entitled.”

Other pleadings of the State are to the same effect. During the trial of the case, in response to direct questions from the court and opposing counsel, the leading counsel for the State specifically stated that the fee simple title to the tract in question was being taken. Although the State’s pleadings that it was taking the fee simple title to the tract condemned were not amended or changed, the record reflects that counsel for the State argued in the trial court, and argues here, that appellees still have some estate remaining in the tract taken because of the State’s position that the right of ingress and egress to ap-pellees’ remaining property will not be denied, and that the State was entitled to offer testimony and evidence which would reduce the amount of the award for such reason. Evidence tendered by the State in this case shows that after the taking of the parcel in question there will no longer be any access to Post Oak Road as it existed on the date of taking. According to the witness Stork, the existing Post Oak Road will become the southbound access road to the new freeway, as is shown by Plaintiff’s Exhibit 6. The remainder of appel-lees’ property, after the taking of the parcel in question, will have access to a new north-bound one way access road to the freeway, and, under such conditions, it is not possible to drive from any part of the remainder of appellees’ property directly onto the area which was Post Oak Road; the freeway itself is a physical barrier between the old Post Oak Road and appellees’ property.

Appellant’s argument concerning the fact that the remainder of appellees’ land will have access to the new frontage road to be constructed by the State is to be contrasted with the position of appellees to the effect that such rights of ingress and egress are material only insofar as the value of said remainder is concerned. The State concedes that if it had decided or decides in the future, to acquire such rights of ingress and egress to the remainder from appellees, they would be entitled to compensation in a substantial amount, whether acquired voluntarily or by condemnation.

In support of its position that the motion in limine was improperly granted and its proposed testimony and evidence improperly excluded, appellant relies upon the cases of City of Los Angeles v. Allen, 1 Cal.2d 572, 36 P.2d 611 (Sup.Ct., 1934); City of Grand Rapids v. Barth, 248 Mich. 13, 226 N.W. 690, 64 A.L.R. 1507 (Sup.Ct., 1929); and In re Fourth Ave. in Borough of Manhattan, City of New York, 221 App.Div. 458, 223 N.Y.S. 525 (Sup.Ct., Appellate Division, First Dept. 1927; affirmed Per Curiam without opinion, 247 N.Y. 569, 161 N.E. 186), also reported on appeal from second trial, 255 N.Y. 25, 173 N.E. 910. Appellees counter the argument based upon such cases with the contention that in each of them the tract taken was not a self-sufficient economic unit as in this case. They cite as authority for their position the case of Territory of Hawaii by Sharpless v. Adelmeyer, 363 P.2d 979 (Sup.Ct. Hawaii 1961). Appellees concede that a non-self-supporting economic tract, because of its small size, may be valued in relation to the whole in order not to do an injustice to the owner, but contend that such is not the case here.

It is clear to us that appellant, in taking the fee simple title to the 14.9456 acre tract of land, has condemned every right which appellees owned in the same (except oil, gas and sulphur, which are of no value and not material under the conditions shown here). The allegation of the State’s petition that “the right of ingress and egress to or from the remaining property of defendants abutting on said highway is not to be denied” amounts to no more than a declaration of policy that the State will not condemn a right which ap-pellees already own in the land abutting. Even if the State had only acquired an easement in the 14.9456 acre strip, nevertheless, the owner is entitled to the market value of the fee where such easement deprives the owner of any beneficial use of the land. Thompson v. Janes, 151 Tex. 495, 251 S.W.2d 953 (1952).

An abutting owner who does not own the fee in the road has no separate and distinct right in it, the rights of such adjacent owner in the street itself being only the same as that of the general public. The right of ingress and egress from the abutting property is not a property interest in the road but is a property interest incident to and a part of the ownership in the abutting land, and if this latter right is taken, the owner is entitled to compensation therefor. McCammon & Lang Lumber Co. v. Trinity & B. V. R. Co., 104 Tex. 8, 133 S.W. 247, 36 L.R.A.,N.S., 662 (1911).

The record herein establishes that the 14.9456 acre tract of land condemned by the State is a self-sufficient economic unit, independently of the remainder of ap-pellees’ 103 acre tract. All of the testimony developed on the bills of exception show that such parcel is the most valuable portion of the larger tract. The long-established rule in this State, recognized by both parties herein, precludes the benefit accruing to the remainder of appellees’ tract as a result of the taking of the 14.9456 acre parcel which was formerly a part of the integrated whole from being considered in fixing the value of the parcel actually taken. Dulaney v. Nolan County, 85 Tex. 225, 20 S.W. 70 (1892) ; Travis County v. Trogden, 88 Tex. 302, 31 S.W. 358 (1895); State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194 (1936). The last-cited case is also authority for the proposition that where the landowner does not ask for damages for a decrease in value of his remaining land by reason of the taking of the strip in question, that evidence as to enhancement of the value of the land not taken is inadmissible. See, also, Steele v. City of Anson, 229 S.W.2d 948 (Tex.Civ.App., 1950, n. w. h.).

Even in those jurisdictions and instances where it is held permissible to value the tract condemned as a part of a larger tract from which it is taken, the testimony in this case of the appraisers for the State (Legge and Dailey), which was excluded, would not be proper. In 4 Nichols on Eminent Domain, Sec. 14.231, p. 545, the applicable rule is stated as follows:

“In assessing the value of the land taken as part of the entire tract it is not proper merely to compute the percentage value on the basis of an artificial average unit value for the entire tract unless the actualities of the case accord with such coverage value. It may be that the part taken is the most valuable part of the tract considered from a qualitative point of view. To attribute an average unit value thereto which is based in part on the lower value of the balance of the tract is inequitable to the owner in a double aspect of the situation. It attributes a value to the part taken which is lower than its actual value and it attributes a higher ultimate value to the remainder area than its actual value, thereby reducing his recovery as to both factors below his actual damages.”

The case of Territory of Hawaii by Sharpless v. Adelmeyer, 363 P.2d 979 (Sup.Ct. Hawaii, 1961) involved a partial taking where the parcel condemned was a self-sufficient economic unit and the landowners waived the right to recover any damages which might result to the remainder of their lands and contended that the sole issue was as to the market value of the parcel taken. The court rejected the contention of the condemnor “that when only part of a land under a single ownership is being condemned, the only acceptable method of arriving at just compensation is to value the whole first, then on that basis, assign a value to the part condemned.” In holding that it was not necessary in that case to value the part taken as a portion of the entire tract because such rule is inextricably bound up with the determination of severance damages, the court said:

“The rationale for the rule that the land taken must be valued as a portion of the tract of which it is a part and not as if it were standing alone, is that the parcel taken, being generally of limited size or unusual shape, or both, and having no independent use, would have little or no economic value, unless considered in its relationship to the remainder of the tract.”
* * * * * *
“Most of the partial taking cases applying the method of valuing the part taken in relation to the entire tract are those involving strips of land which had no real economic or market value standing alone. But where the part taken has an independent economic use with a market value and commanded a higher value as a separate entity, such value has been allowed. Lazenby v. Arkansas State Highway Commission [231 Ark. 601], 331 S.W.2d 705; Wishek Investment Co. v. McIntosh County [77 N.D. 685, 45 N.W.2d 417].”

The Court in Adelmeyer also quoted with approval from Union Ry. Co. v. Raine, 114 Tenn. 569, 86 S.W. 857, wherein it is said:

“‘[W]hen a small strip or portion of the land is involved, it ought to be valued at such a price, for the quantity taken, as the jury deemed it would be worth at that place and in that form, whether that he more or less than the price proven per acre for the whole tract.’ ”

In this case appellees are selling the 14.9456 acre tract being condemned by the State and they are entitled to be paid for it on the basis of its market value. Appellees are not being required to also sell the 88 acre tract belonging to them abutting on the rear of the tract being condemned, and it would be legally wrong to allow testimony of a per acre price for the tract taken derived by computing a hypothetical sale of the whole 103 acres. Under the testimony of Legge and Dailey the high value ascribed to the old frontage on Post Oak Road is switched over to the new frontage which exists after the taking of the 14.9456 acre tract. This is another way of saying that the remainder of appellees’ land is benefitted by the construction of the highway on the part taken. In effect, such testimony is that the new access road adjacent to the remainder of appellees’ land gives it a higher commercial and institutional value which it did not have before the taking of said 14.9456 acre tract, and, therefore, appellees are losing only the lower or averaged-out value of the property taken.

It is apparent that the testimony of Legge and Dailey failed to give appellees the market value of their 14.9456 acre tract of land being condemned in this suit. Even the testimony of the State’s experts showed that the tract taken was worth considerably more than the remaining acreage of appel-lees’ adjoining property, yet they were unwilling to appraise it without considering such remainder. The trial judge was correct in excluding their proffered testimony under such conditions.

The State, in its Reply Brief herein, places reliance upon the recent decision of the Beaumont Court of Civil Appeals in the case of McFaddin v. State, 373 S.W.2d 259 (1963), writ refused, n. r. e., in support of its first six points. In that case the Court overruled a motion in limine similar to that in the instant case and admitted testimony relating to the value of the remainder of the tracts not taken in connection with the value of the portions condemned.

The opinion in McFaddin does not supply much detail and the decision seems to rest upon the proposition that no evidence was admitted showing any benefit or enhancement in value to the remainder. However, it appears that several distinctions can be made with reference to the instant case. There was no showing in McFaddin that the 138 foot strip of land involved was an economically self-sufficient tract of land, but on the contrary it appeared that the highest and best use was as a part of the remainder of the land and that it had no special value. In the instant case it was shown that the tract taken (2618.93 by 240 feet) was a self-sufficient economic unit and had extremely high commercial value apart from any uses of any properties to the rear in the remainder owned by appellees. In McFaddin it appeared that all parts of the larger tract out of which the parcels were condemned had substantially the same value, whereas in the instant case the tract taken was undisputedly more valuable than the remainder. In particular, appellees proved that two sewage plants and a garbage collection plant were located near the rear portion of their 103 acre tract. Such evidence demonstrated that the rear portion of said tract was physically, qualitatively and economically different from the 14.9456 acres fronting on South Post Oak Road and far removed from such plants. In McFaddin there was no evidence of enhancement to the remainder directly or by inference, while in this case as has hereinbefore been noted, the effect of the testimony of Legge and Dailey was to inject such factor of enhancement into the case, as well as to water-down the value of the parcel taken by averaging its value with other less-valuable acreage in the remainder of the tract.

The trial court correctly granted appellees’ motion in limine and properly excluded the testimony of the witnesses Legge, Dailey and Stork, as well as the exhibits identified and tendered by the last-named witness. Appellant’s points 1 through 6 are overruled.

Appellant’s points 7 and 8 involve the action of the trial court in permitting appellees’ witnesses Winsted and Allen to testify over objection concerning twelve sales of properties which appellees contend were comparable to the tract condemned herein and which the State says were not. Appellant’s basic position on these points is that said sales were not comparable because the estate involved in each of them was not the same estate as was being acquired by the State of Texas in this proceeding; that in each of said sales, involving frontage on a major thoroughfare in the City of Houston, the right of ingress and egress and the full fee simple title was conveyed and that it necessarily follows that no property rights of any kind were retained by the grantor. Appellant contends that the estate conveyed in each of such allegedly comparable sales was greater than the estate acquired by the State in this proceeding where the rights of ingress and egress to and from the abutting street were not acquired by it. Appellant’s points 7 and 8 are not well taken for the reasons hereinbefore given in connection with its points 1 through 6. The State acquired a fee simple title to the surface of the 14.9456 acre tract belonging to appellees, including the rights of ingress and egress to old Post Oak Road, to the west of the property taken, as it existed on the date of taking. The rights of ingress and egress to the remaining property belonging to appel-lees are incident to and a part of the abutting land and are not material to the value of the tract being taken.

Under its point 9 appellant contends that the trial court erred in excluding the testimony of appellee Frank K. Meyer on cross-examination concerning an attempt to lease or develop a strip of land belonging to him directly across Beechnut Street from the 14.9456 acre tract condemned in this case. Such testimony is reflected in a bill of exception taken out of the presence and hearing of the jury. The substance of such testimony was that the witness had turned this particular tract of land over to an agent to lease or develop it during or about the month of April, 1962; that said agent had not been able to lease or develop it or to bring any prospects to Meyer that he wanted. The date of taking in this case was May 31, 1961, almost a year prior to the transaction referred to in such excluded testimony. The State contends, however, that such evidence was admissible to contradict Meyer’s earlier testimony given on direct examination to the effect that land values in the area had continued to go up since May 31, 1961. Such testimony was immaterial under the conditions shown to exist here. However, the fact that it was admitted without objection did not authorize appellant by way of rebuttal to put in inadmissible testimony over timely and proper objection. Dallas Railway & Terminal Co. v. Bailey, 151 Tex. 359, 250 S.W.2d 379, 382; 1 Wigmore on Evidence, § 15, p. 304 (3rd ed.). The trial court was correct in excluding the testimony mentioned. Appellant’s point 9 is overruled.

By its point 10 appellant contends that the verdict and judgment are grossly excessive and that a remittitur in the amount of at least $850,000.00 should be required. The jury award and judgment are based upon a value of $1.65 per square foot for the 14.9456 acre tract condemned. Two of appellees’ witnesses, Frank Meyer and Duncan Allen, expressed opinions that said tract had a value of $2.00 per square foot. A third witness for appellees, Mr. Robert Winsted, M.A.I., testified, in his opinion, said value was $1.85 per square foot. All of said witnesses were shown to be qualified to express opinions as experts as to such value. Such opinions are amply supported by twelve comparable sales ranging from $1.00 to $3.82 per square foot. The jury was entitled to believe the testimony and evidence offered by appellees and to reject that offered by appellant. The award herein is amply supported by the evidence and the fact that there was a wide range in the testimony concerning the value of the tract taken is not sufficient to demonstrate that the award is excessive or to require a remittitur.

Appellant’s point 11 asserts that the trial court erred in overruling its motion to strike the testimony of appellees’ witness Robert W. Winsted. Appellant’s brief refers us to that portion of the Statement of Facts which reflects the testimony of the said witness on cross-examination by counsel for the State, wherein it was developed that he did not consider two-thirds of another vacant tract immediately south of the tract taken and fronting 3929.10 feet on Post Oak Road as being on the market or available for commercial development because it was under threat of condemnation. Counsel for the State had theretofore developed on cross-examination of appellee Frank K. Meyer, that said other tract was being condemned by the State and was not subject to private uses. There is nothing in the testimony of said witness either before the jury or developed on the bill of exception which shows that his opinion of the value of the 14.9456 tract herein condemned was affected by the fact that said tract to the south was being condemned by the State or by the construction of improvements thereon. Appellant has not demonstrated either the impropriety of that portion of the testimony of the witness Winsted complained of under the point now under consideration nor that harm resulted to it from the same. Appellant’s point 11 is overruled.

By its point number 12 appellant argues that the judgment herein should be reversed and the cause remanded for a new trial because the cumulative effect of the errors allegedly shown by its points 1 through 11 amounted to such a denial of appellant’s rights as were reasonably calculated to cause and probably did cause the rendition of an improper and excessive verdict. Appellant’s position under this point is largely a summary and repetition of its contentions under preceding points of error. We have heretofore held that reversible error is not presented under such points and we now hold there is no cumulation of errors which would require reversal of the judgment herein.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: RENFRO, Justice. MASSEY, Chief Justice

license: Public Domain

text:
    James H. O’BRIEN, Appellant, v. LANPAR COMPANY, Appellee.
    No. 16641.
    Court of Civil Appeals of Texas. Fort Worth.
    May 21, 1965.
    Rehearing Denied June 18, 1965.

      Akin, Vial, Hamilton, Koch & Tubb, and James A. Knox, Dallas, for appellant.
    James H. Martin, Dallas, for appellee.
   RENFRO, Justice.

Plaintiff O’Brien brought suit in a District Court of Dallas County upon a judgment rendered in his favor in an Illinois Court of general jurisdiction against Lan-par Company, a corporation with principal office and place of business in Dallas, Dallas County, Texas.

The Illinois suit grew out of alleged breach of agreement made while in Chicago by the president of defendant corporation to pay plaintiff, an attorney, a fee for representing defendant corporation in a case in Federal Court in Illinois.

Citation was issued out of the Illinois Court as though defendant were a local corporation. Citation, however, was mailed to the Sheriff of Dallas County, Texas, who executed same by serving defendant’s president.

Plaintiff obtained a default judgment in Illinois.

In the instant suit both parties filed extensive pleadings, motions, and summary judgment motions. Defendant’s motion was granted; hence this appeal by plaintiff.

Plaintiff contends the court erred in holding the Illinois Court did not have in per-sonam jurisdiction over the defendant corporation.

The Illinois Civil Practice Act, S.H.A., Chap. 110, § 16 provides: “(1) Personal service of summons may be made upon any party outside the State. If upon a citizen or resident of this State or upon a person who has submitted to the jurisdiction of the courts of this State, it shall have the force and effect of personal service of summons within this State; * *

Section 17 of said Act provides: “(1) Any person, whether or not a citizen or resident of this State, who in person or through an agent does any of the acts hereinafter enumerated, thereby submits said person, and, if an individual, his personal representative, to the jurisdiction of the courts of this State as to any cause of action arising from the doing of any of said acts:

“(a) The transaction of any business within this State; (the term ‘transaction of any business’ is not defined in the Section. Subdivisions (b), (c), and (d) pertain to torts, real estate and insurance.) * * *
“(3) Only causes of action arising from acts enumerated herein may be asserted against a defendant in an action in which jurisdiction over him is based upon this section.”

In Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565 (1877), the Supreme Court held that every state possesses exclusive jurisdiction and sovereignty over persons and property within its territory, but that no state can exercise direct jurisdiction and authority over persons or property without its territory.

In a later case, International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), the court pronounced the “minimum contacts” rule. The court held in substance that due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.

The “minimum contacts” rule has been followed in both Federal and Illinois cases: McGee v. International Life Insurance Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957); Gray v. American Radiator & Standard Sanitary Corp., 22 Ill.2d 432, 176 N.E.2d 761 (1961); Nelson v. Miller, 11 Ill.2d 378, 143 N.E.2d 673 (1957); Kropp Forge Company v. Jawitz, 37 Ill.App.2d 475, 186 N.E.2d 76 (1962); Haas v. Fancher Furniture Company, 156 F.Supp. 564 (D.C.1957). The above cases involved business transactions as the term “business” is understood generally.

In his exceedingly able article on In Per-sonam Jurisdiction, 42 Tex.Law Review, p. 279 (303), Prof. E. Wayne Thode states (in regard to out-of-state service) : “ ‘Doing business’ is still the test for state regulation, but the limits on jurisdiction for the purpose of suing a nonresident are greatly enlarged. These limits are determined by the ‘minimum contacts’ test, and the contacts cannot be merely fortuitous, but must be purposefully made by the defendant. Further, the litigation must grow out of these contacts, and notice must be properly given to defendant.”

It is held generally that the institution or defense of litigation by a foreign corporation does not amount to the doing of business in a state. 23 Amer Jur. 349, § 366; 20 C.J.S. Corporations § 1836, p. 52.

In Alpena Portland Cement Co. v. Jenkins & Reynolds Co., 244 Ill. 354, 91 N.E. 480 (1910), the Supreme Court of Illinois held: “The words ‘doing business’ and ‘transacting business,’ as used in statutes regulating foreign corporations * * * do not include acts not constituting any part of its ordinary business, such as instituting and prosecuting actions in courts.”

The Texas Business Corporation Act, V.T.C.S., Art. 8.01, Sub. B(l) expressly provides that maintaining or defending any action or suit by a foreign corporation shall not be considered to be transacting business in this state.

In our opinion defendant corporation was not “doing business” in Illinois within the scope of the “minimum contacts” test when it engaged plaintiff to represent it in a lawsuit in a Federal Court in that state, and personal service on defendant’s president in Texas did not subject defendant corporation to the jurisdiction of the Illinois Court.

We agree with the trial court that the Illinois Court did not have jurisdiction of defendant corporation for judgment in per-sonam.

To rule otherwise would, as held in Orton v. Woods Oil & Gas Co., 249 F.2d 198 (7 Cir., 1957), be to stretch the doctrine of the International Shoe Co. case to the breaking point, and to expand the Illinois concept of state jurisdiction over nonresidents beyond the limit imposed by due process.

Affirmed.

MASSEY, Chief Justice

(dissenting).

My associates concede that the services for which the appellant brought suit and obtained judgment in the Illinois Court were for personal services performed wholly in Illinois pursuant to contract. Had said contract been with someone, such as a sales manager, for the performance oj the character of personal services such a person might be expected to perform, suit to recover thereunder would fall within the provisions of the Illinois statute. Haas v. Fancher Furniture Company, 156 F.Supp. 564 (N.D.Ill., 1957).

Is there a difference because the services for which the appellee contracted with appellant were by an attorney in connection with the conduct of legal proceedings ? Since the conduct of an isolated act of litigation, standing alone, would not come within the provisions of the statute, would it necessarily follow that appellant’s performance of personal services in the conduct thereof would not come within the provisions of the statute?

In my opinion there would be no cognizable difference between the personal services rendered by a sales manager and the personal services rendered by an attorney. Further, conduct of the litigation is to be distinguished from a contract made for an attorney’s personal services to conduct it; the fact that the former would not come within the provisions of the statute would be of no consequence in determining whether the latter would.

I believe the summary judgment was erroneous. It should be reversed, and the cause remanded for trial.


author: MASSEY, Chief Justice.

text:
    Louis OKON et al., Appellants, v. The STATE of Texas, Appellee.
    No. 16640.
    Court of Civil Appeals of Texas. Fort Worth.
    May 21, 1965.
    Rehearing Denied June 18, 1965.
    McKool & McKool, and Mike McKool, Dallas, for appellants.
    Waggoner Carr, Atty. Gen. of Texas, and Hawthorne Phillips, Stanton Stone, Jr., T. B. Wright, F. William Colburn, and Robert D. McGee, Austin, for appellee.
   MASSEY, Chief Justice.

The State of Texas, as condemnor, instituted action to condemn property belonging to Louis Okon, — and neighboring property of Louis Okon and others. The two cases were consolidated for a single trial and appealed on the same basis. A single judgment was entered. Louis Okon and his fellow condemnees appealed.

Judgment affirmed.

In Pillot v. City of Houston, 51 S.W.2d 794 (Galveston Civ.App., 1932, no writ), C. G. Pillot and others jointly owned a parcel of land in Harris County which was condemned by the City of Houston. In the proceedings leading to the rendition of the commissioners’ award, and in the perfection of an appeal therefrom into the County Court, the condemning authority never at any time sought to determine or state the respective interests owned and held in the realty by the several owners. Neither did the condemnee owners ever attempt to allege or establish such several interests as existed therein. Pillot et al. admitted right to condemn, and the trial was conducted with all the burden(s) of proof cast upon them.

Answers returned by the jury to the issues submitted in the Pillot case established the value of the property condemned as $49,000.00. The amount of the commissioners’ award had been $100,000.00. Hence the condemnees, collectively, received considerably less by the judgment entered upon the jury’s verdict than they did by the award. It cannot be determined from the opinion whether the condemnor had paid the $100,000.00 and taken possession of the property prior to suit. Since the Court of Civil Appeals found reversible error in con-demnor’s jury argument, and in the language of the charge and method of arriving at market value, mention thereof was not necessary to the opinion.

In the portion of the Pillot opinion having relation to the question with which we are presently concerned the Galveston Court held that no error existed. Pillot’s point of error read as follows: “ 'Where land being condemned is owned jointly by several persons or where several persons own different estates therein, the County Court in condemnation proceedings must apportion the compensation among the several defendants, and where the Court could do so but fails to apportion the compensation, then there is reversible error.’ ”

Pointing out that Pillot et al. made no objection to the portion of the charge inquiring as to the value of the land taken (which the jury found was $49,000.00); that there was nothing in the pleadings or evidence from which the jury or court could have found any difference in the proportionate value of the undivided interest of any of these parties; and that by their joint admission of the condemnor’s right to condemn they obtained the right to open and close both in the introduction of testimony and in the argument, the court said: “ * * * appellants assumed the burden of producing all the evidence necessary to establish the value of the separate interest of each of them in the land if they, or any of them, desired to have the value of the land as a whole apportioned to them separately, and, having failed to produce such evidence, they cannot complain of the failure of the judgment to make such apportionment. Gulf, C. & S. F. Ry. Co. v. Brugger, 24 Tex.Civ.App. 367, 59 S.W. 556.”

In this case the appellants/condemnees, acting jointly and by and through the same attorney, accept as correct the decision of the Pillot case but they assert it has no application. Here the proceedings were instituted for the purpose of acquiring two neighboring but separate parcels of property, as to which the commissioners had separately made awards. One tract was Parcel 237, Louis Okon being the sole owner. The commissioners’ award because of its taking, plus the amount by which his remaining land was diminished in value, totalled $140,000.00. The other tract was Parcel 232, owned jointly by Louis Okon and four other persons. The commissioners’ award for it totalled $28,700.00. Collectively, the total amount awarded was $168,700.00. (At this point we take occasion to note that the jury found in answer to two issues that the remaining land of Louis Okon was diminished in value, because of the loss of the portion taken out of Parcel 237, by the amount of $18,000.00, —and, in answer to a single issue, that the market value of the property taken (part of Parcel 237 and all of Parcel 232) was $132,000.00.)

On the theory that Parcel 237 and Parcel 232 should be considered as a unit, rather than as severable property (because of the nature of the uses to which both were adaptable as of the time condemnor went into possession), the condemnees introduced evidence by which they sought to prove the combined value of the two parcels. They rejected the State’s claim that the properties should be valued separately. All of the condemnees’ evidence was introduced under the theory adopted. When the condemnor sought to cross-examine witnesses in an attempt to develop separate valuations condemnees objected. When con-demnor sought to prove separate valuations by its own witnesses condemnees objected. The charge of the court to the jury, heretofore noted, was submitted according to the theory adopted by the condemnees, to-wit: that the value of the land taken in Parcel 237 and in Parcel 232 should be found by the jury in a single answer which established the combined value of the land taken. No objection to the manner of submission was made by any condemnee.

There is little doubt but that condemnees would have had no complaint of the circumstances had the jury found a value greater than the total value of the combined amounts of the separate commissioners’ awards. Since the jury found a total valuation which was considerably less than such awards, and, since all the funds deposited by the condemnor/State (in the amounts of both awards, but separately deposited and withdrawn at a time when there were two separate causes of action — having occurred before the causes were consolidated) had been received by the condemnees they do see reason to complain. Thereby was created a theoretical condition where each of them held a portion of the total amount which the verdict of the jury established as “owed back” to the condemnor. How much each owed was not determined, though their collective liability was established. Judgment was rendered in behalf of the State, as condemnor, for the total amount owed. A joint and several judgment in the sum of $18,700.00 was granted against condemnees.

At page 11 of condemnees’ reply brief they honor the statement of the Pillot case, hereinabove considered, but state their essential contention as follows: “There is no dispute between the owners of Parcel 232 as to how much of the market value of Parcel 232 each of them would receive. They only ask that the market value of Parcel 232 be determined so that each of them can then determine how much of the total value of Parcel 232 each of them own. It is clearly immaterial and unnecessary in determining the market value of Parcel 232 to know the percent, interest or value of each of the owners of Parcel 232.” So they say, in essence, that if the value of Parcel 232 be known the apportionment between themselves of the liability to the State may be determined under the principles of law and equity pertinent to contribution, and the liability of Louis Okon, individually, as applied to Parcel 237 would thereby be ascertainable as well as the liability of Louis Okon et al., as applied to Parcel 232. However, they contend, since Parcel 232 has not been valued sepárately and apart, but only in combination with Parcel 237, reversible error has resulted because it is essential and necessary to the entry of a proper judgment that it show the value of the properties separately.

We disagree and hold that principles of law pertinent to equitable estoppel have application to foreclose the condemnees in their contention. Furthermore we fail to perceive where the individual condemnees are prejudiced by the judgment. One or more of them might be inconvenienced through action of the condemnor to obtain restitution of its $18,700.00, but should that occur he or they would not be foreclosed from securing appropriate relief from the other condemnees. There would be no necessity for the State of Texas, as condem-nor, to participate. The condemnation cas is at an end. The issues which continue to exist are of concern to the condemnees only.

Our holding: agreed consolidation of the two suits, coupled with the manner by which the condemnees elected to and did proceed with the trial, entitled the trial court to treat Parcels 232 and 237 as a single property from the beginning; to disregard the fact that the commissioners had treated them otherwise in valuing them separately; to add the amounts of the two different awards and treat the total as a single award; and to disregard the fact that there were originally two separate condemnation cases and to treat the cause, existent at time of the trial as having always been a single cause. This the trial court elected to do. A result was the creation of the situation discussed in the Pillot case.

Condemnees found a contention of reversible error in the argument of the State’s attorney before the jury by bills of exception. Wanting therefrom is any showing as to whether the argument was or not in reply to and/or invited by the antecedent argument of condemnees’ attorney. The certificate of the court reads as follows: “The Court hereby certifies and finds that the following statements were made by Mr. David Thomas:

“(1) ‘We don’t want Mr. Okon to get fat at the expense of the State.’
“(2) ‘You and the people of the State of Texas are interested. * * *’
“(3) ‘We all like to have good roads to drive on.’
“(4) ‘The State has a duty to you to see that public monies are expended in a proper fashion.’ ”

The Court further certified that such statements were not in context and were not verbatim but were substantially what Mr. Thomas said. Mr. McKool, attorney for the defendant, objected to each of said statements, which objections were overruled at the time by the Court.

We first consider the aforesaid statements individually. Considered independently none of the statements would amount to error. It may be that if the entire context of the argument of the State’s attorney was before us to examine in connection with such statements one or more of them might be shown to have amounted to erroneous jury argument. However, without such, as demonstrative of the actual argument made, the existence of error would be impossible of determination. Each statement could have been in context, or in relation to the condemnees’ argument previously made, and/or could have comprised a part of a paragraph the whole of which would be completely innocuous. Under the circumstances the statements, and each of them, were not shown to constitute error. Certainly they were not shown to have amounted to reversible error.

Considered collectively, our holding is that the statements were not shown to have constituted error or reversible error.

The value of property condemned, as found by the jury, fell within the range of the testimony. There was evidence to support the finding and it was not against the great weight and preponderance of the evidence. The judgment is not to be disturbed merely because there was testimony from one of condemnor’s witnesses which, if believed by the jury, would have resulted in the jury returning a finding of a greater value.

All of condemnees’ points of errors have been severally considered. They are overruled.

Judgment is affirmed.


author: DENTON, Chief Justice.

text:
    TRADERS & GENERAL INSURANCE COMPANY, Appellant, v. Ethel Irene SELF, Appellee.
    No. 7466.
    Court of Civil Appeals of Texas. Amarillo.
    May 17, 1965.
    Rehearing Denied June 21, 1965.
    Strasburger, Price, Kelton, Miller & Martin, Dallas, for appellant.
    Joe L. Cox, Plainview, Donald L. Wor-thington, Cushing, Okl., for appellee.
   DENTON, Chief Justice.

This is a workmen’s compensation case in which Ethel Irene Self, wife of Jack C. Self, was awarded statutory death benefits under the Workmen’s Compensation Act for the death of her husband. The jury found Self suffered a fatal injury while acting in the course of his employment for Plains Food, Inc. From a judgment based on this jury finding, Traders & General Insurance Company, the employer’s insurance carrier, has perfected this appeal. No brief has been filed by the appellee. w

The principal question to be determined is whether or not Self was fatally injured while in the course of his employment. Most of the evidence is undisputed. Jack C. Self was a regularly employed truck driver for Plains Food, Inc., a food canning company of Plainview, Texas. Self resided in Oklahoma but worked out of his employer’s establishment at Plainview. The truck driven by Self was owned by his wife, appellee here, and was leased by her to Plains Food, Inc. He was paid a regular salary and expenses while on the road. The written lease between Mrs. Self and Plains Food, Inc. provided the truck was “for the purpose of hauling vegetables, fertilizers, any item of canned goods, bearing any labels other than those registered by Plains Food, Inc., processed by it for customers canning, and all goods, all types of new and used canning machinery, empty cans, cartons, canned goods after process as canned by us, or as canned by other packers for lessee’s account, raw products, salt, glue, labels and all other items used in such business.” The lease gave Plains Food “full and complete control of the above-mentioned equipment during the term of the lease.” The company had no permit to haul for hire, but it needed no permit to haul its own merchandise.

The company in the business of canning food regularly delivered its merchandise to North Carolina, South Carolina, California, Kansas, Oklahoma, and other distant states from time to time. On June 5, 1962, Self’s truck was loaded in Plainview with five different consignments of various canned vegetables. Self was instructed to deliver the prescribed consignments to named brokers in the following order: Greenville, S.C.; Charlotte, Winston-Salem, Greensboro, and Raleigh, N.C. When the last consignment was delivered in Raleigh, N.C., Self called Ashley Mixon, president and general manager of Plains Food in Plain-view, and advised him he had completed his deliveries. Mixon then instructed Self to go to Seagrove, N.C., to pick up 166 cases of black-eyed peas and deliver them to a named warehouse in Charlotte, N.C. Self was also told to pick up 10,000 labels and 2 bundles of empty boxes at Seagrove and return them to Plainview. The invoices in evidence show these items were picked up by Self on June IS. These items in addition to 12 or IS cases of rejected peas picked up at Greensboro made up Self’s load to return to Plainview. The company had no further communication from Self as he was killed in a highway accident on June 16 six or eight miles northwest of Morganton, N.C. Sometime after leaving Charlotte and before the accident, Self entered into a lease agreement with Underwood & Weld Company, Inc., of Crossnore, N.C., to haul 17 tons of mica for that company from Newland, N.C., to Los Angeles, Calif. The record shows Self was advanced $300.00 for the trip. Self was proceeding with this load of mica when the fatal collision occurred. Mixon of Plains Food had no knowledge of Self’s leasing the equipment to Under wood & Weld, and his company had never owned, purchased, or used any mica; and, in fact, he testified he did not know what it was. The record indicates Morganton is north and west of Charlotte, the last stop Self made for Plains Food. Mixon testified Self had no business for his company in either Morganton or New-land, and that Self had no authority to lease the truck to anyone nor did Self have authority to haul mica in the truck.

Section 1 of Article 8309, Vernon’s Ann.Civ.St., provides that the term, “injury sustained in the course of employment”, “shall include all other injuries of any kind and character having to do with and originating in the work, business, trade or profession of the employer received by an employee while engaged in or about the furtherance of the affairs or business of his employer whether upon the employer’s premises or elsewhere.” It is well established that not only is it required to show the injury had to do with and originated in the employer’s work, trade or business; but it must be shown the injury occurred while the claimant was engaged in or about the furtherance of his employer’s affairs or business. Smith v. Texas Employers’ Ins. Ass’n., 129 Tex. 573, 105 S.W.2d 192; Texas General Indemnity Co. v. Bottom, Tex., 365 S.W.2d 350. In the latter case the court held the Legislature in adding Section lb, Article 8309, which is entitled “Transportation or travel as a basis for claim for injury”

“intended thereby to circumscribe the probative effect that might be given to the means of transportation or the purpose of the journey rather than to enlarge the definition found in Section 1.”
“It is still necessary, therefore, for the claimant to show that the injury is of a kind and character that had to do with and originated in the work, business, trade or profession of his employer and was received while he was engaged in or about the furtherance of the affairs or business of the employer.”

A determination of the principal question must necessarily depend upon the particular facts and circumstances of this case. We have concluded, after reviewing this record, that as a matter of law Self was not acting within the course and scope of his employment at the time he was fatally injured. This conclusion is not based on the fact Self was apparently not returning to Plainview, Texas, by the most direct route, but on the basis he had deviated from his employer’s affairs or business. Self had a discretion to determine the routes to take on these long trips. Even though it may be said the route he was taking was not the shorter and more available route, that itself would not take Self out of the scope of his employment. Texas Employers’ Ins. Ass’n. v. Monroe, (Tex.Civ.App.), 216 S.W.2d 659. However, we think it is clear Self deviated from his employment with Plains Food when he leased the trucking equipment to Underwood & Weld and proceeded with the load of mica from Newland, N.C. to Los Angeles, Calif. Photostatic copies of the lease and the two checks made payable to Self are in evidence. William Godsey, bookkeeper and dispatcher for Underwood & Weld, testified by deposition as to this transaction between his company and Self. Undoubtedly, Self had authority to purchase merchandise for his employer and return it to them, but the mica transaction was not such a “legal haul.” Mixon described a “legal haul” as one in which the driver was hauling goods owned by Plains Food. Self was in violation of the Plains Food lease contract as well as his own employment agreement. The insertion of the name of “Plains Food, Inc.” as lessor of the truck equipment in the lease to Underwood & Weld did not alter the true nature of the transaction. It is to be noted Plains Food’s address in that lease agreement was listed as 1508 S.W. 32nd Street, Oklahoma City, Oklahoma. Appellee testified this was the address of Self’s sister and not of his employer who maintained its business only in Plainview, Texas. We can only conclude Self’s contract to haul the load of mica was a complete deviation from the business of his employer and was a business venture of his own. Mixon testified Self’s transaction with Underwood & Weld was without his knowledge or consent and that Self had no authority to enter into such a transaction. We can only conclude Self’s fatal injury did not have to do with and originate in the business of his employer as required by Article 8309; instead, these injuries were sustained after he had left his employer’s business and while performing a mission clearly outside of his employer’s business. This deviation had no connection with the business of Plains Food but was made for the financial benefit of Self. The fact Self had Plains Food’s labels, empty boxes, and the 12-15 cases of rejected peas on his truck at the time of his injury was merely incidental to the mission he was performing for his own benefit. We are of the opinion the trial court should have granted appellant’s motion for instructed verdict.

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


author: CHAPMAN, Justice.

text:
    Bernard Dale OWENS, Appellant, v. Herbert Lee PEEPLES, Appellee.
    No. 7464.
    Court of Civil Appeals of Texas. Amarillo.
    May 17, 1965.
    Jerry R. Hollingsworth, Amarillo, for appellant.
    Gibson, Ochsner, Harlan, Kinney & Morris, Amarillo, for appellee.
   CHAPMAN, Justice.

All parties admit this is a subrogation case in which Commercial Insurance Company brought suit in the name of plaintiff of record, Bernard Dale Owens.

Bernard Dale Owens filed suit on July 26, 1963, against Herbert Lee Peeples in Cause No. 39005 for personal injuries growling out of an intersection collision between Owens’ 1961 Volkswagen automobile and defendant Herbert Lee Peeples’ International Truck.

On July 31, 1963, Owens, for valuable consideration, transferred and assigned to Commercial Insurance Company, his insurance carrier on his automobile, all his claims against any other persons, including the right to file suit in the name of Owens, arising out of the collision in question.

On August 9, 1963, Herbert Lee Peeples was advised of the assignment to and sub-rogation rights of Commercial Insurance Company.

The suit for personal injuries was compromised, settled and dismissed with prejudice on October 4,1963.

On October 9, 1963, in consideration of $1,400 Owens executed and delivered a full and complete release of any and all claims arising out of the intersection collision “which the undersigned now has/have or which may hereafter accrue on account of or in any way growing out of any and all known and unknown, foreseen and unforeseen bodily and personal injuries and property damage and the consequences thereof resulting and to result from the accident

Both parties filed motions for summary judgment, appellee Peeples urging the suit in Cause No. 39005 and the subsequent compromise settlement thereof, dismissal with prejudice, and a full and complete release by appellant of any and all claims arising out of said collision in bar of appellant’s suit for damages to the automobile. The trial court denied Owens’ motion and granted Peeples’ motion. Appeal is perfected from such judgment.

The question to be decided is: May a plaintiff who receives injuries and damages to his person and property in a single collision bring two separate actions for damages against the same defendant, one for injuries to his person and one for injuries to his property without a recovery of one barring a recovery in the other? There is clearly a majority and minority rule among the jurisdictions on this question. 64 A.L. R. 663, 127 A.L.R. 1081 (majority rule) ; 64 A.L.R. 670, 127 A.L.R. 1083 (minority rule).

The San Antonio Court of Civil Appeals stated that the question was one of first impression in this state and held with the majority rule to the effect that “ ‘a single wrongful or negligent act or omission causing an injury to both the person and the property of the same individual constitutes but one cause of action with separate items of damage, and * * * hence, the cause of action cannot be split, and a recovery of a judgment for either item of damage may be pleaded in bar of an action to recover for the other item of damage, * ⅜ ”

We followed that authority in Garrett v. Mathews, Tex.Civ.App., 343 S.W.2d 289, because it prevents a multiplicity of suits, stating, “there is no good reason why the parties should be put through the expense and the trouble of two law suits when the grounds of recovery of the two items of damages must be based on exactly the same facts.” In the Garrett case we should have added following the word “facts”, and do here add to this opinion: “so far as the facts relating to the collision are concerned.”

There are no material exceptions in the instant case to change our holding in the Garrett case, which follows the majority rule on the question discussed.

The latest authority we know in Texas on the question is Traders & General Insurance Company v. Richardson, Tex.Civ.App., 387 S.W.2d 478 (N.R.E.). There the Beaumont Court of Civil Appeals in facts almost identical to our own followed our court in Garrett and the San Antonio court in Cor-mier.

We, therefore, hold that the trial court properly granted the summary judgment for appellee.

      . Cormier v. Highway Trucking Company, Tex.Civ.App., 312 S.W.2d 406.


text:
    Carl C. COX, Appellant, v. CITY OF AMARILLO, Appellee.
    No. 7458.
    Court of Civil Appeals of Texas. Amarillo.
    April 26, 1965.
    Rehearing Denied May 24, 1965.

      Lumpkin, Watson, Dunlap & Smith, Amarillo, for appellant.
    Gibson, Ochsner, Harlan, Kinney & Morris, Amarillo, for appellee.
   DENTON, Chief Justice.

This is a suit for personal injuries alleged to have been sustained by Carl C. Cox as the result of a collision between his automobile and a city-owned truck being operated by Neville Powell, an employee of the City of Amarillo. At the close of plaintiff’s evidence the trial court granted the city’s motion for an instructed verdict. Plaintiff has duly perfected this appeal from the judgment based on the instructed verdict.

Mr. Cox’s injuries resulted from a collision at the intersection of East 25th Street and Bolton Street in the City of Amarillo. It was stipulated the yield sign facing Cox as he approached the intersection was properly installed and in place; that the city ordinance regulating yield signs was in force and effect at the time of the collision; and that Neville Powell, the driver of the wrecker truck, was an employee of the City of Amarillo at the time in question. It is uncontroverted that Powell was on his way to pull out a city sanitation truck which was stuck. Prior to the presentment of the evidence appellant withdrew all allegations of primary negligence and proceeded to trial on the doctrine of discovered peril only.

Appellant’s points of error were briefed in two groups, and we shall consider them as such. The first group to be considered contend the trial court erred in granting an instructed verdict because there was a genuine issue of material fact raised by the pleadings and evidence as to appellee’s employee’s negligence under the doctrine of discovered peril. The other group of points concerns the City’s defense that its employee was engaged in a governmental function at the time of the collision.

In passing upon the question of the trial court granting an instructed verdict, it is well settled the evidence must be considered most favorably m behalf of the party against whom the verdict is instructed, and all adverse evidence disregarded. A peremptory instruction is awarded only when the evidence is such that no other verdict should be reached. Air Conditioning, Inc. v. Harrison-Wilson-Pearson, 151 Tex. 635, 253 S.W.2d 422; Texas & P. Ry. Co. v. Hagenloh, 151 Tex. 191, 247 S.W.2d 236. The only direct testimony concerning the collision was that of Powell, the driver of the truck. Cox simply testified he could remember nothing about the collision. Powell was proceeding south on Bolton Street and Cox was driving East on 25th Street. Bolton was a through street with no traffic controls. A yield sign faced Cox as he approached the intersection of Bolton and 25th Streets. This sign was placed 22 feet and 8 inches back from the intersection. Powell had travelled Bolton Street many times and knew the yield sign controlled 25th Street traffic at that intersection. Powell’s speed was approximately 35 miles per hour in a zone where the speed limit was 45 miles per hour. A governor on the truck limited its speed to 38 miles per hour. Powell testified he first saw Cox’s car when it was about 100 feet from the intersection when Powell was some “80 feet” or as much as “90 or 100 feet” from the intersection. Both vehicles were travelling at approximately the same rate of speed. Powell watched Cox’s car “approximately 25 or 30 feet” then looked in the opposite direction before looking back again at Cox’s automobile. At that time Powell estimated Cox was approximately 25 to 30 feet from the intersection and that Powell himself was approximately 20 to 25 feet from the intersection. Up to this point neither of the vehicles’ speed had been reduced. Powell then heard Cox applying his brakes but because “it all happened so fast, I couldn’t tell” that Cox’s speed was reduced. The investigating officer testified Cox’s car left skid marks of varying lengths and that they “began a little before you get to the yield sign”. Powell testified he first realized Cox was not going to stop when he, Powell, was 20 to 25 feet north of the center of the intersection or some 10 or 15 feet north of the north line of 25th Street which constitutes the entrance to the intersection from Bolton Street. Cox’s car was approximately the same distance west of the intersection when Powell first realized Cox was not going to stop. Powell then testified that at that time “the only thing I could think to do was to pull just as far left as I could, and try to accelerate, give me as much room as I could to get through there.” He testified he did this, but the collision occurred in the intersection. He further testified' that at the speed he was driving he could stop within 25 to 30 feet after applying the brakes. This estimate eliminates the reaction time.

Appellant relies on Ford v. Panhandle & Santa Fe Ry. Co., 151 Tex. 538, 252 S.W.2d 561, for his contention the evidence raised a fact issue as to whether or not Powell knew and realized Cox’s perilous position because of the facts and circumstances which Powell had knowledge of that Cox would in all probability continue into the intersection. We think there is a distinction between the instant case and the Ford case. The language of Judge Norvell in R. T. Herrin Petroleum Transport Co. v. Proctor, 161 Tex. 222, 338 S.W.2d 422, clearly stated the distinction when he said, “[I]n the Ford case the movements of the automobile under the evidence were reasonably predictable.” Our courts have repeatedly held the “could have” or “should have” standard for measuring the proof required to raise the discovery issue would not be followed. The recent case of Safeway Stores, Inc. v. White, 162 Tex. 473, 348 S.W.2d 162, reaffirms this position. That case held, “Actual discovery is an essential element of the doctrine of discovered peril as applied in Texas.” Although the issue may be raised by circumstantial evidence in the absence of direct evidence, the plaintiff must prove facts and circumstances from which it can be inferred the defendant did actually become aware of the peril. Safeway Stores, Inc. v. White, supra.

The only direct evidence on the issue of actual discovery was the testimony of Powell. He knew the yield sign was facing Cox; and testified he thought Cox would stop; and that he was some 10 to 15 feet from the intersection before he realized Cox would not do so. Powell had a right to presume the driver of the other car would not negligently drive through the yield sign and enter the intersection into the path of his truck. Parks v. Airline Motor Coaches, 145 Tex. 44, 193 S.W.2d 967; Duncan v. Durham (Tex.Civ.App.), 356 S.W.2d 377; Welch v. Ada Oil Co. (Tex.Civ.App.), 302 S.W.2d 175, (Refused, NRE) ; Gaines v. Copeland (Tex.Civ.App.), 209 S.W.2d 231.

There is no evidence or circumstances which tend to prove Powell actually discovered the peril prior to the time he stated. Under the facts and circumstances there is also a total absence of evidence that Powell realized the perilous position of Cox in time to have avoided the collision by the exercise of ordinary care and the use of all the means at his command. Texas & New Orleans Ry. Co. v. Hart, 163 Tex. 450, 356 S.W.2d 901; Parks v. Airline Motor Coaches, supra. There must be a last chance to avoid the injury and the last chance must be a clear one. R. T. Herrin Petroleum Transport Co. v. Proctor, supra.

In reviewing the evidence in the light most favorable to the appellant it is our opinion that the issue of discovered peril was not raised. Powell was travelling a through street and observed Cox approaching the intersection facing a yield sign. Powell knew of the presence of the traffic control sign and presumed, as he had a right to do, Cox would stop. Powell testified that he did not realize Cox’s perilous position until both vehicles, travelling 30 to 35 miles per hour, were approximately 25 to 30 feet from the intersection. We think there is no evidence that Powell discovered the perilous position of Cox in time to have avoided the collision; or that he failed after making such discovery, to exercise ordinary care to have avoided the collision.

In view of our holding the issue of discovered peril was not raised, it is not necessary to discuss and pass on the question of whether or not the City’s employee was engaged in a governmental function.

The judgment of the trial court is accordingly affirmed.