text:
    George William CURRY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Sept. 30, 1966.
    Matthew B. Quinn, Jr., Robert Haddad, Louisville, for appellant.
    Robert Matthews, Atty. Gen., George Rabe, Asst. Atty. Gen., Frankfort, Edwin A. Schroering, Commonwealth Atty. for 30th Judicial Dist., Louisville, Carl Ousley, First Asst. Commonwealth Atty. for 30th Judicial Dist., Louisville, for appellee.
   DAVIS, Commissioner.

This appeal is from the order denying appellant’s RCr 11.42 motion to vacate sentence, and is a sequel to a prior appearance of this matter before this court. See Curry v. Commonwealth, Ky., 390 S.W.2d 891. Pursuant to the mandate of this court, the trial court appointed counsel for appellant and afforded him an eviden-tiary hearing on the motion. At the conclusion of the hearing the motion for relief was denied and this appeal seeks reversal of that order.

Although some rather nebulous evidence was presented touching the alleged inadequacy of court-appointed counsel at the original trial, it is apparent that appellant has substantially abandoned all of the claimed bases for relief except the one relating to the irregularity in the jury’s verdict.

Appellant was indicted for dwelling-housebreaking, an offense denounced by KRS 433.180, in which punishment is authorized, upon conviction, of imprisonment for not less than two nor more than ten years. The same indictment charged appellant with two previous felony convic-' tions, and constituted a presentment against him as a violator of the Habitual Criminal Act. KRS 431.190.

After the jury had heard the evidence in the original trial the case was submitted upon appropriate instructions. Instruction No. 1 related to the principal offense of dwelling-housebreaking, and properly defined the possible penalties. Instruction No. 2 presented the issue as to the Habitual Criminal Act and set out life imprisonment as within the penalty limit. The trial court provided the jury with a typewritten sheet containing three possible verdicts in this form:

“(1) We, the jury, find the defendant not guilty.
Foreman
(2) We, the jury find the defendant guilty under Instruction No. 1, and fix his punishment at_
Foreman
(3) We, the jury, find the defendant guilty under Instruction No. 2, and fix his punishment at _
Foreman”

The jury returned into open court with its verdict executed as follows:

“(2) We, the jury find the defendant guilty under Instruction No. 1, and fix his punishment at life.
(s) William J. Kraemer, Foreman”

The jury was then discharged, and at least one member of the jury left the court house and returned to his place of employment. This juror was notified that the court desired that he return to court at once, and he did so. It was probably an hour or more after the original verdict was rendered before the jury was reassembled. When the jury came back, the court informed them that the verdict had been signed in the wrong place inasmuch as life imprisonment is not a possible punishment under Instruction No. 1. The jury was not re-sworn, but was directed to go back to its jury room, and if the verdict was still for imprisonment for life, the foreman was directed to sign the verdict pursuant to verdict No. 3 on the form. Thereupon the jury did retire and returned its verdict, signed by the same foreman, in the spaces provided by form verdict No. 3; the word “void” was written twice over the verdict as earlier signed on form verdict No. 2, and the signature of the foreman and the word “life” as contained in the original verdict were marked through, although the words remain legible upon the form itself.

The appellant testified that when the verdict was first brought in the trial judge expressed some surprise and told appellant that he had gotten off with only “two years.” The judge who heard the original case denied having made that statement; no other person recalls such a statement, and there is nothing in the form itself to suggest that “two years” was ever written there. Two members of the jury testified in the RCr 11.42 hearing, and stated that their verdict was for imprisonment for life, and that there had never been any other verdict agreed upon. The record is entirely silent as to any effort being made to tamper with or influence the members of the jury after they separated.

In 66 A.L.R. 541, it is written:

“It is generally held that, even though the jury has been finally dismissed from the case, they may be reassembled to correct or amend their verdict when the defect is merely one of form, or is apparent on its face, or is of such nature that the court itself could have corrected it without the aid of the jury.”

In support of that text, three decisions from this jurisdiction are cited: Taggart v. Com., 104 Ky. 301, 46 S.W. 674; Denham v. Com., 119 Ky. 508, 84 S.W. 538, and Ray v. Ray, 196 Ky. 579, 245 S.W. 287. The appellant calls attention to Crockett v. Com., 100 Ky. 389, 38 S.W. 676; Williams v. Com., 140 Ky. 34, 130 S.W. 807, and Meader v. Com., Ky., 363 S.W.2d 219, in which it was held that an incorrect verdict should be corrected before the jury is discharged, and it is not error to require the correction. We are not able to read from those opinions that this court has taken the position that an error of form may not be corrected if the jury has been discharged.

The Commonwealth takes the position that even the original verdict was valid, and cites Sebree v. Com., 260 Ky. 526, 86 S.W.2d 282; Crump v. Com., 215 Ky. 827, 287 S.W. 23; and Winburn v. Com., 181 Ky. 183, 203 S.W. 1073. In those cases there was no specific finding of the offense upon which the verdict was based, but the penalty fixed by the verdict necessarily had to be reflective of the offense for which the verdict was rendered. It is true in the present case that it was only under Instruction No. 2 — the Habitual Criminal Act — that the jury could have imposed a life sentence. Thus, the inadvertent writing of the verdict as if found .under Instruction No. 1 (carrying a maximum sentence of ten years) made the verdict obviously inconsistent. We are not persuaded that the three cases just cited are fully dispositive of the question at hand.

We have no difficulty holding that the defect in the original verdict was a defect of form only. We adhere to the rule, herein quoted, which recognizes the propriety of reassembling the jury to correct a mere error of form. In the complete absence of any showing or suggestion that the jury ever had any other intention than to fix the punishment at imprisonment for life, it becomes apparent that the irregularity in the verdict was a formal misprision. We think it would be an unrealistic policy to vitiate a trial and conviction upon such a technicality.

It may well be doubted that the alleged error before us is one cognizable under RCr 11.42 anyway, absent some showing of a denial of due process. Warner v. Com., Ky., 385 S.W.2d 62, 65. However, as we observed in the first opinion in the instant case, a different question would have been presented if a substantive showing had been made that the jury had at first fixed the penalty at two years’ imprisonment and then changed it to life after separation.

The judgment is affirmed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re James B. MINIARD.
    Court of Appeals of Kentucky.
    Sept. 30, 1966.
    Charles S. Cassis, Gen. Counsel, Kentucky State Bar Ass’n, Frankfort, for complainant.
    James B. Miniard, pro se, Lexington, for respondent.
   PER CURIAM.

Charges preferred by the Fayette County Bar Association and the Kentucky State Bar Association against respondent James B. Miniard, an ' attorney, resulted in a recommendation to this court by the Board of Governors of the Kentucky State Bar Association that respondent be permanently disbarred from the practice of law in this Commonwealth. Respondent admits the charges against him are true and contends only that the degree of discipline recommended by the board pursuant to RCA 3.-175 is too severe for the unethical and unprofessional conduct admitted.

It is urged on behalf of the Board of Governors of the Kentucky Bar Association that its recommendation of disbarment is fully justified by the admitted charges of misconduct.

In the interest of a complete public record and for use in determining the reasonableness of the recommendation, we set out, in detail, without relish or zest, the nature of the charges. It is charged, and admitted by respondent, that on May 5, 1965, he caused to be filed in the Jackson Circuit Court a complaint, styled Dorothy Smoot Jones v. Roy Jones, seeking a divorce in which it was alleged Dorothy Smoot Jones was a resident of Jackson County, he knowing that she was not then and never had been a resident of Jackson County. It is further charged that there was later filed in the record in Jackson Circuit Court the deposition of Dorothy Smoot Jones and Hazel White purported to have been taken in the office of and by respondent; that the said depositions were fraudulent in that neither Dorothy Smoot Jones nor Hazel White ever appeared at the taking of said depositions, were not examined by respondent, and the certificate of the notary public was also untrue and false; that on learning of the false and fraudulent depositions, which were the basis for the entry of a divorce judgment, Dorothy Smoot Jones and Hazel White filed affidavits which resulted in setting aside the divorce judgment on the ground it was fraudulently and illegally obtained.

We repeat, respondent admits the charges.

Respondent relied on the case of In re Bentley, 304 Ky. 554, 201 S.W.2d 712 (1947), to support his contention that the recommendation of the Board of Governors is excessive and not “commensurate with the violation.” Bentley was only suspended for thirty days for signing the names of witnesses to their depositions without their consent and the forgery of the notary certificate. His contention was that the witnesses had given their depositions and were not conveniently available to sign their names. In addition, fifteen letters by local lawyers urged leniency. Bentley also claimed that he had been laboring for a number of years under extreme personal and domestic difficulties.

In Bentley there was no motive to defraud. The witnesses and notary public no doubt would have signed their names had the depositions been presented to them. We do not consider the charges against Bentley like or similar to the present case.

Respondent relies heavily on In re Allen, et al., 307 Ky. 855, 212 S.W.2d 328 (1948), which has some similarity to the case at bar, but has not the bold and calculated element of fraud present in the case at bar. Allen made affidavit for warning order attorney in which he stated the defendant was a nonresident of the state and absent therefrom. He apparently did not want to know the place of residence of defendant as he stated as much when the father of plaintiff attempted to tell him.

In Allen, the court accepted the recommendation of thirty days suspension but observed in the opinion that: “From the evidence heard by the commissioners the disciplining order from which this appeal is prosecuted, to say the least of it, was exceedingly lenient to both respondents.” (Emphasis added.)

Other cases cited by respondent are not considered helpful to respondent’s contention.

Very similar unprofessional conduct was shown In re Gilbert, 274 Ky. 187, 118 S.W.2d 535 (1933), and Rosenberg v. Commonwealth, 255 Ky. 413, 74 S.W.2d 478 (1934). We quote from the former case:

“It is difficult to conceive of a more serious professional offense than the destruction of the verity of an examiner’s certificate to depositions. Unless the courts can rely on the accuracy of depositions, the administration of justice would be hopelessly bogged down.”

In this Commonwealth, nearly four thousand attorneys are licensed to practice. Law schools and bar examiners have inadequate means and little opportunity to determine whether the prospective lawyer has the fortitude of character and stamina of integrity essential to weather the storms of temptation that often beset members of the legal profession. The fourteen-member Board of Governors, a model system, was established to promote the observation of the canons of professional and judicial ethics and to weed out the unfaithful. The board is selected by the bar. Its recommendations are entitled to considerable respect.

The legal profession is largely responsible for the administration of justice and keeping straight the affairs of man. The tools of the profession involve rules of right and justice. When a member of this high and honorable profession discards such tools and substitutes in their place unfaithful and unethical practices, he runs the risk of losing the privileges of and membership in that profession.

The recommendation of the Board of Governors that respondent be permanently disbarred from the practice of law is considered reasonable and appropriate. It is accordingly ordered by this court that respondent James B. Miniard be permanently suspended from the practice of law in this Commonwealth.


author: STEPHENSON, Justice.

text:
    Martha GRAHAM et al., Appellants, v. Willie HUBBARD, Appellee.
    No. 6831.
    Court of Civil Appeals of Texas. Beaumont.
    Sept. 8, 1966.
    Forse & Forse, Newton, for appellants.
    Barber & Seale, Jasper, for appellee.
   STEPHENSON, Justice.

This was an action in trespass to try title. Trial was before the court and judgment was rendered for plaintiff. The parties will be referred to here as they were in the trial court.

It was agreed that L. B. Snell and wife, Verdie Mae Snell, were the common source of title. The evidence showed the plaintiff, Willie Hubbard, received a deed to the property in question from L. B. Snell and wife, dated April 14, 1956, but that this deed was not recorded until March 28, 1964. The evidence further shows that Andrew Graham received a deed to the same property from L. B. Snell and wife, dated May 11, 1957, and recorded May 29, 1957. The evidence showed Andrew Graham was dead at the time of this trial, and the pleadings alleged the defendants were his surviving wife and children.

Defendants rely upon two series of points in seeking a reversal and rendition in this cause. Complaint is made that plaintiff’s pleadings were not sufficient to permit introduction of evidence that the deed given by L. B. Snell and wife to Andrew Graham was in fact intended as á mortgage. It is also urged that it was error for the trial court to allow certain evidence as being a transaction with a descendant and precluded under Article 3716, Vernon’s Ann. Civ. St. However, neither of these points is controlling in this case.

The disposition of this case is determined by the rule of law that plaintiff having established that he had received a deed to this property from the agreed common source prior in time to the deed under which defendants claim, was entitled to recover unless defendants then discharged their burden of proving by evidence outside of the recital in their deed that they purchased the land for a valuable consideration and without notice of the previous conveyance. Turner v. Cochran, 94 Tex, 480, 61 S.W. 923.

The trial court made findings of fact and conclusions of law. The court found as a fact: That plaintiff and his family were living on this land as their home at the time of the deed to Andrew Graham. That at the time he received his deed, Andrew Graham had full and actual knowledge of the prior unrecorded deed to plaintiff. The trial court then held as a conclusion of law that Andrew Graham did not have the status of an innocent purchaser for value, or a bona fide purchaser. None of these findings of fact nor this conclusion of law is contested.

Affirmed.


text:
    TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellant, v. Simon A. WOOLF, Appellee.
    No 6836.
    Court of Civil Appeals of Texas. Beaumont.
    Sept. 8, 1966.
    Rehearing Denied Oct. 5, 1966.

      Garrison, Renfrew, Zeleskey, Cornelius & Rogers, Lufkin, for appellant.
    Clark Anderson, Lufkin, for appellee.
   STEPHENSON, Justice.

This is a case brought under the Workmen’s Compensation Law. Trial was by jury and judgment was rendered upon the jury verdict that plaintiff recover for total and permanent disability. The parties will be referred to here as they were in the trial court.

The first series of points relate to special issue No. 12. This issue asked whether another employee of the same class as plaintiff worked for at least 210 days during the year preceding the date of plaintiff’s injury. It is contended that the jury’s affirmative answer to this issue had no support in the evidence, that there was insufficient evidence and that such finding was contrary to the weight and preponderance of the evidence.

In passing upon the “no evidence” point, we consider only the evidence supporting such finding by the jury. The only evidence in the record on this issue was given by Ray Halbrooks, the business agent for the local carpenters’ union in Lufkin. Plaintiff was working as a carpenter in this area at the time of his injury. Hal-brooks gave this testimony: That because of his position he knew how many days in a year carpenters worked in that area. That he put men on the job and when they got out of work they came back to him for another job. He had examined his records to determine if there were carpenters in the area who worked as many as 210 days during the year preceding the date of plaintiff’s injury. He found that many carpenters had worked as many as 210 days during such period of time. This evidence supported the finding of the jury.

In passing upon the insufficiency of the evidence point and the point that such finding was against the weight and preponderance of the evidence, we consider the entire record. On cross-examination Ray Halbrooks testified that he did not have his reports with him on particular carpenters who worked 210 days, but that he could give their names and could get the records. We do not consider the failure to name particular men as being fatal as suggested by defendant. No case has been cited to us holding that the evidence must go so far as to name specific employees in order to satisfy the burden of proof. These points are overruled.

Defendant’s next series of points complain of certain statements made by attorneys for plaintiff in their arguments to the jury as being prejudicial and inflammatory and as comparing the wealth of the parties. The first portion complained of was to the effect that if the insurance company could bring the vice president from Bryan for a week, it could afford to bring a doctor from Jacksonville if they thought it was necessary to have him. The doctor was an orthopedist, Dr. Mahon, that plaintiff had gone to see but had not called as a witness to testify. Plaintiff’s second attorney had argued in reference to the same doctor and as to plaintiff’s failure to call him as a witness: “Who has got the resources in this case ?” Also, this second attorney made this argument: “* * * Now, I again say to you, do not give him one dime because he is poor and because he is a working man and because he is suing an insurance company. * * *” Plaintiff’s attorney in his argument to the jury referred to the testimony that Dr. Leamon, called by defendant to testify, did 70% of his dealings with defendant’s law firm and stated: “You know, it’s been my experience in life to observe that the man who pays the fiddler calls the tune to be played * * Defendant also complains of the cumulative effect of all of such arguments.

All of these points were raised in a motion for mistrial and defendant did not ask the court for an instruction to the jury that it should disregard such arguments. We have examined these arguments from the standpoint of the rule stated in Texas Employers’ Ins. Ass’n v. Haywood, 153 Tex. 242, 266 S.W.2d 856, as follows:

“The true test is the degree of prejudice flowing from the argument — whether the argument, considered in its proper setting, was reasonably calculated to cause such prejudice to the opposing litigant that a withdrawal by counsel or an instruction by the court, or both, could not eliminate the probability that it resulted in an improper verdict.”

We hold that such arguments were not so inflammatory that they could not have been cured by an instruction from the court. In any event, we do not find that the arguments were reasonably calculated to cause, and probably did cause, the rendition of an improper judgment, in the light of the record as a whole. Rule 434, Texas Rules of Civil Procedure. The points are overruled.

It is next contended that one of plaintiff’s attorneys informed the jury as to the effect of their answers by the following argument: “That’s the first thing the defendant says by way of defense, that the plaintiff’s disability was caused solely by other injuries, and that will let the defendant out if that’s true.” Special issue No. 15 asked the jury to find whether or not plaintiff’s incapacity was not due solely to arthritis. No objection was made to this argument at the time and no instruction from the court was requested. We do not consider such argument as improper as it did not inform the jury of anything that men of ordinary intelligence would not be presumed to know.

Affirmed.


author: GRISSOM, Chief Justice.

text:
    Charles L. KRUEGER, Appellant, v. Helen Mack YOUNG et vir, Appellees.
    No. 4076.
    Court of Civil Appeals of Texas. Eastland.
    Sept. 9, 1966.
    Rehearing Denied Sept. 23, 1966.

      Alfred M. Scott, Austin, for appellant.
    Andrews, Kurth, Campbell & Jones, James W. Dilworth, Houston, for appellees.
   GRISSOM, Chief Justice.

Charles L. Krueger, a lawyer, sued Helen Mack Young, widow of J. O. Mack, deceased, as statutory trustee of a dissolved corporation under then Article 1388, seeking a judgment requiring Mrs. Young to transfer to him 61,292.45 shares of stock in the Florida Gas Company, to which, he alleged, Mrs. Young held the legal title as trustee for Krueger, or for $796,801.85 in the event she refused to transfer said shares to plaintiff. Krueger alleged a right thereto by virtue of a contract made in February, 1952, with J. O. Mack, President of Houston Texas Gas and Oil Company, that, for his expenses and services as a lawyer and promoter of a gas pipeline, just before the stock in a proposed gas pipeline corporation was offered for sale to the public, he would be “permitted” to buy “some” stock at the price paid therefor by its founders and in sufficient numbers to pay for his services and expenses. Upon completion of plaintiff’s case, the court discharged the jury and rendered judgment that plaintiff take nothing. Krueger appealed.

The amended petition upon which Krue-ger went to trial contained allegations that in February 1952, J. O. Mack was engaged in the promotional enterprise of planning, organizing, incorporating, financing and constructing an integrated natural gas pipeline system within the United States; that he was desirous of obtaining the services of a Texas lawyer, experienced in oil and gas law, oil and gas properties, corporate law and the customary forms of corporate structures and financing for such a system, which he alleged he was; that, because of Mack’s shortage of capital, he desired to obtain plaintiff’s services without paying him in money for his expenses or services; that in February, 1952, Mack induced Krueger to enter into a verbal agreement to become a joint venturer and founder with Mack, his wife, the appellee, and his son-in-law, Kleinkauf, of corporations Mack might employ in such venture, upon the following terms: Krueger would render the services requested by Mack and pay his expenses and, if the pipeline should be completed and proved successful, Krueger’s expenses would be reimbursed and his services paid for “by being the owner of shares of corporate stock in the enterprise” and Krue-ger would become entitled to certificates evidencing ownership thereof upon paying the same amount of cash paid by Mack and his family for “founder’s stock” which, he alleged, later proved to be $1.30 per share. Krueger alleged that it was also anticipated that after the pipeline corporation stock was offered to the public it would rapidly increase in price and plaintiff would make a profit on his shares, so that he would not only be paid for his expenses and services but obtain a large profit on his shares, as was also expected by the Mack family and other founders. Krueger alleged the agreement was, in essence, that he would be permitted to “get in on the ground floor as a founder” on the same basis as the Macks and others contributing capital in the form of cash or services to promotion of the enterprise, but that if the venture failed plaintiff would lose his expenses and services.

Krueger alleged the pipeline system was completed and stock therein was first offered to the public in August, 1958. He alleged the Florida Gas pipeline corporation was parlayed from a Texas corporation, capitalized for $1,000.00 in 1952 to a multimillion dollar system through the nominal ownership of three corporations or conduits :

1. Houston -Texas Gas & Oil Company, a Texas corporation;
2. Houston Texas Gas and Oil Corporation, a Delaware corporation, and
3. The Houston Corporation, incorporated March 19, 1957, but which, in July 1962, changed its name to Florida Gas Company.

Krueger alleged that during the existence of the Texas corporation Mack, Mrs. Helen Mack (Young) and Kleinkauf, were its stockholders, directors and officers and, from incorporation of the Delaware corporation, in July, 1953, until 1957, they were the stockholders, directors and officers of the Delaware corporation, that Mack controlled them, until his death in May, 1955, in such way that the court should disregard corporate entities and treat J. O. Mack as the alter ego of said corporations.

Krueger alleged that, beginning in May, 1952, and continuing until June, 1954, in accord with his agreement, he rendered services of the value of $77,700.00 and expended $1,980.19; that Mack, Mrs. Mack (Young) and Kleinkauf issued stock in the Delaware corporation to themselves at $1.30 per share; that this was the price at which plaintiff and Mack had agreed stock should he issued to plaintiff for his services and expenses and, therefore, plaintiff should acquire 61,292.45 shares at $1.30 per share to reimburse him for his expenses and compensate him for his services, without affording him any profit on his stock as contemplated by him and Mack; that such shares in the Delaware corporation, when they were exchanged for stock in the Florida Gas Company on a share-for-share basis in April 1957 by the Macks and other founders, had a cash market value of $13.00 per share, so that the shares to which plaintiff was entitled has a value of $796,801.85.

Krueger alleged that from formation of the Texas corporation in May, 1952, and the Delaware corporation in 1954, until the death of J. O. Mack on May 7, 1955, the appellee, Helen Mack (now Young), was a stockholder, director and officer in said corporations and the wife and secretary of J. O. Mack and knew, or was charged with knowledge, of Krueger’s contract with Mack and of his rendition of services and outlay of expenses.

Krueger alleged that in March, 1955, J. O. Mack, his wife and son-in-law, the only stockholders, directors and officers of the Texas corporation, without Krueger’s knowledge or consent, caused it to be dissolved and that they stripped it of its assets leaving its debt to Krueger unpaid. Krueger alleged the liability of Mrs. Young substantially as follows: That under Articles 1388-1392 Mrs. Young and Kleinkauf became trustees of its assets for its creditors; that Krueger had a lien on its assets “which vested in plaintiff both the legal and the equitable right to trace and pursue and identify all of such assets and to subject them and their mutations and accretions to the satisfaction” of his claim. Krueger alleged that when said Texas corporation was dissolved it had assets of $550,000.00, consisting of 187,500 shares of stock of the Delaware corporation of the value of $1.30 per share, with a total value of $243,750.00, engineering data and reports worth $250,000.00 and “Other funds paid to J. O. Mack personally to the extent of $56,250.00” to apply as a credit on a total of $315,382.82, which Mack had advanced to said Texas corporation. Krueger then alleged that, in July 1954, J. O. Mack, appellee and Klein-kauf, incorporated said Delaware corporation without his knowledge or consent, and converted the assets of the Texas corporation, of the value of $550,000.00, which they held in trust for him, by transferring them to the Delaware corporation, being 187,500 shares of stock worth $1.30 per share, or $243,750.00, and for payment by the Delaware corporation to J. O. Mack personally of $56,250.00 as a credit on the $315,382.82 Mack had advanced to the Texas corporation. Krueger alleged that Mack, Mrs. Young and Kleinkauf caused the Delaware corporation to receive said assets of the Texas corporation for $300,000.00, in violation of their statutory trust for the benefit of plaintiff.

Krueger alleged that in December 1954, J. O. Mack and the Delaware corporation, then under his domination and control, began contracting for construction of said pipeline system and, in April, 1957, Mrs. Young, her daughter and son-in-law exchanged their stock in the Delaware corporation on a share-for-share basis for stock in the Florida Gas Company, which had a value of $13.00 per share; that thereby the Mack family acquired stock in the Florida Gas Company with the Delaware stock, “to which plaintiff was entitled to resort for satisfaction of his claim” and that their stock in the Florida Gas Company came into the trust fund for the Texas corporation assets, on which plaintiff had a lien, all in violation of the statutory trust.

Plaintiff alleged that, anticipating dissolution of the Texas corporation, in March, 1955 and on May 2, 1955, five days before the death of J. O. Mack, appellee and Klein-kauf further violated their statutory trust by converting to their own use 187,500 shares of stock of the Delaware corporation, which were the only remaining assets of the Texas corporation; that they converted said shares, purportedly in liquidation of the Texas corporation and as payment of their claimed interests therein.

Krueger alleged that J. O. Mack, appellee and Kleinkauf received 25.39% of the stock of the Florida Gas Company; that, Mrs. Helen Mack Young received 121,616 shares of stock in the Florida Gas Company; that Mack died on May 7, 1955, leaving a will bequeathing to appellee his community one-half interest therein; that appellee owned her community one-half interest, or $50.00, in the stock of the Texas corporation and for her $50.00 investment in the Texas corporation she came out of the corporate maneuvering with stock in the Florida Gas Company worth $1,459,392.-00, but that she acquired only the naked legal title to stock in all said corporation, it being subject to the equitable lien and claim of plaintiff.

Krueger alleged that appellee did not repudiate her statutory trust until July 6, 1959, when she expressly refused to recognize his claim for any amount. He prayed for judgment requiring Mrs. Young to transfer to him 61,292.45 shares of stock in the Florida Gas Company, “to which she now holds the legal title”, or for a money judgment for $796,801.85, in the event she refused to transfer said stock to plaintiff; and for a money judgment amounting to $13.00 per share, less $1.30 per share, for each share she failed to transfer to him. Plaintiff’s prayer concluded with a request for judgment for the value of the corporate assets of the Texas corporation “converted” by Mrs. Young in acquiring her stock in the Florida corporation.

Mrs. Young denied that the contract sued on was ever made and answered, among other things that, if made, it was unenforceable under the Statute of Frauds and barred by the two and four year Statutes of Limitation.

Appellant presents four procedural points to the effect that the court erred in quashing the deposition of W. T. Mack, Jr., in excluding it and in sustaining objections to certain testimony about the amount of expenses incurred and services rendered by him. Appellant’s fifth point is that the court erred in granting defendant’s motion for a directed verdict, withdrawing the case from the jury and rendering judgment for Mrs. Young.

We shall specifically discuss only the following counterpoints and contentions. Appellee contends that she established her pleaded affirmative defenses that (1) the contract asserted by appellant was not to be performed within one year from the making thereof and, therefore, it was unenforceable by virtue of the Statute of Frauds, Article 3995, Section 5, and (2) it was barred by the two and four year Statutes of Limitation. Articles 5526 and 5529. If either of these defenses was established the procedural errors assigned become immaterial because, regardless of the alleged errors, judgment should have been rendered for Mrs. Young.

We sustain appellees’ first counterpoint that the court did not commit reversible error in withdrawing the case from the jury and rendering judgment for ap-pellee because she established that the oral contract sued on is unenforceable by virtue of. the Statute of Frauds. This suit was filed May 23, 1961. The oral con.tract that is the basis of this suit is alleged to have been made in February 1952. Article 3995, Sec. 5, of the Statute of Frauds, provides that no action shall be brought upon any agreement not to be performed within one year unless it is in writing anc'l signed by the party to be charged therewith. It applies only when the contract; cannot be performed within a year. ‘However, where the agreement cannot, either by its terms or by the nature of the required performance, be performed within one year it comes within the statute. “A verbal contract that specifies no definite time for performance but that, of necessity, reqüires more than a year for performance according to a reasonable interp retation of its terms is within the statute of frauds.” 26 Tex.Jur.2d Section 32 page.s 193, 194. Our Supreme Court’s decision in Hall v. Hall, 158 Tex. 95, 308 S.W.2d 12, is decisive of the question. There, the plaintiff was employed under an oral contract to develop an exclusive sales territory for defendant’s products in the northeastern quarter of the United States. No tin.ie for performance was stated. Duration of performance was implied. The defend ant pleaded Section 5, Article 3995, as a defense barring enforcement of the contract because it was oral and was not to be performed within one year. The cou rt said that where the contract provides f or performance of acts which cannot be /performed in one year, the statute applies. It held that the mere fact that duration of performance was implied did not prevent it from coming within the statut e; that what is a reasonable time for performance must be determined by the circumstances. It said that the basic rule for determining whether a contract came wit'hin the statute was whether it appeared from its terms that performance could not be c ompleted within one year and that what wa s implied was as much a part of the contract as that which was expressly stated. The court held that provisions for what was to be done showed the contract could not be performed within a year and that it was, therefore, within the statute. In Bratcher v. Dozier, 162 Tex. 319, 346 S.W.2d 795, 797, our Supreme Court construed an oral contract where said statute was pleaded as a defense and correctly came to the opposite conclusion. The facts there relied on to bring the agreement within the statute were clearly insufficient to show that it could not be performed within a year. Consideration thereof bolsters our conclusion that the facts of the instant case compel a conclusion that the alleged contract is within the prohibition of said statute. Here, Krueger was required to help in planning, developing and successfully completing an integrated gas pipeline from Texas into southern Florida. The formation of different companies, obtaining tremendous gas reserves, finances, expert advice and workmanship for organization, development and completion of such a project, obtaining from the Federal Communications Commission a certificate of necessity and convenience, obtaining a permit for the sale of stock in the final pipeline corporation from the Securities and Exchange Commission and the infinitesimal requisites of such a tremendous undertaking, had to be completed and the stock ready for sale to the general public before appellant, under his own testimony, had an option to purchase stock in the final gas pipeline corporation at the price paid therefor by its founders. Consideration of the many prerequisites, under appellant’s own testimony, shows impossibility of its performance within one year. Appellant testified that he was paid off by the Texas corporation in May 1954 and quit in June 1954, so that he could devote all his time to a case in West Texas. But, regardless of such testimony and considering only the necessary time, we find that he testified that from the last date he performed service, the promoters and builders of the pipeline moved remarkably fast, but that, nevertheless, the project required about seven years to complete. This pipeline that appellant, under his own testimony, had to help put over and complete before he was entitled to anything, was a two hundred million dollar project involving a large line, about 1600 miles long, running from the lower Rio Grande Valley of Texas into the southern part of Florida which required about seven years to complete. It is uncontroverted that at the time the contract was alleged to have been made it was understood and contemplated that it would necessarily require several years for it to be performed. Appellant testified:

“A. Well, Mr. Dilworth, Mr. Mack and I were both very aware of a lot of the obstacles, anything from the right-of-way to New York bankers, to everything else.
Q. You knew it was going to take several years at least?
A. We sure did.
Q. It took seven years to complete the project?
A. I will say six and a half anyhow, possibly seven.
Q. You all were aware at the time you started it was going to take a long time ?
A. We sure were; yes, sir.
Q. Which would necessarily involve several years of work?
A. That’s right.
Q. All right, Did you have any minimum projected period at the time you started
A. No, sir, we didn’t * * *
Q. You just knew it would take several years ?
A. Yes.”

When no time for performance is specified a reasonable time will be implied, considering the nature and purpose of the agreement. What is a reasonable time must be determined by all the circumstances, the situation of the parties and the subject matter of the contract. Cheek v. Metzer, 116 Tex. 356, 291 S.W. 860, 863. What constitutes reasonable time when the facts are undisputed becomes a question of law. Whether this contract comes within the Statute of Frauds is a question of law. Bratcher v. Dozier, 162 Tex. 319, 346 S.W. 2d 795, 796; Housing Authority of City of San Antonio v. Newton, two year statute, Tex.Civ.App., 235 S.W.2d 197; McDonald, Texas Civil Practice, Sec. 11.28, page 1041. We hold that the contract is unenforceable against ap'pellees’ defense that it was unenforceable under our Statute of Frauds, Article 3995", Sec. 5.

Appellant a.rgues that said statute is inapplicable because his petition, on its face, does not show the agreement could not be performed with in a year. Allegations are not alone determinative of the question. The entire record must be looked to and, where a plaintiff pleads or proves an agreement which requi res more than a year for performance, as determined from the circumstances surrounding the parties, the situation and the subject matter thereof, it is within the statute. 26 Tex.Jur.2d page 193. Cheek v. Metzer, supra, and Hall v. Hall, supra. It musí be remembered that all the things mentioned had to be successfully completed beforn appellant, under his own version of the contract, was entitled to buy some stock. Th e contract was made not later than June, 19 52. Under his testimony it could not ha-ve been performed within a year; he was not entitled to buy stock until just before i t went on sale to the general public, which turned out to be 1958. See San Francisco Brewing Corporation v. Bowman, 52 Cal.2d 607, 343 P.2d 1. Section 5, Article 3995, wa s established as a defense.

Article 5526 requires all actions for conversion of personal property and for debt, not evidenced by a contra ict in writing, to be commenced within two years after the cause of action accrues. .Article 5529 provides that every action, other than for recovery of real estate, for which no limitation is otherwise provided, shall be brought within four years after the right to bring same shall have accrued. We hold that appellant’s right to recover is barred by said statutes. Appellant’s own testimony was that the contract was that he was to have an option to buy some stock in some corporation when the pipeline system was successfully completed and its stock was ready to be offered to the general public, at the price paid therefor by its founders. Appellant’s testimony shows he had merely an option to buy some stock in some future corporation at a price to be determined by future events. The number of shares, the price to be paid, what corporation and when were among the uncertainties to be later determined. Whether he bought any stock was for his determination in the future. How did he then become the owner of stock in the corporation founded in 1952 that was dissolved, or for that matter in any of said corporations. There is no indication that he became a share holder in the Texas corporation at any specific time, or of any specific number of shares, or that it was agreed that he should. Under his agreement, according to his own testimony, he owned no stock in the corporation which was dissolved. Under the theory last asserted by appellant, Mrs. Young is charged with liability for his alleged share in the assets of the Texas corporation formed in 1952 and dissolved in 1954. Krueger must know the dissolved corporation was indebted to him. That theory is inconsistent with his testimony that he i5ad an option to buy stock in a new gas p'ipeline corporation just before its stock ■w 'as offered for sale to the general public. H e says he had a right to buy it at $1.30 pe. r share. If he became a stockholder in the corporation when he rendered services and spent his money, payment of $1.30 per shar 'e to make him the owner would have been unnecessary. As shown by appellant’s testimony, whether he could and would pay the pi 'ice to be later determined for the new corpot‘ation’s stock were matters awaiting future events and his then desire. Incidentally, he was paid all he claimed the then corporation owed him in May 1954 and he withdrew from the project in June, 1954. The record does not show that he rendered any services or spent any money during the time intervening. If he did, his testimony, at most, showed no more than an executory option to purchase which is now barred by the Statute of Frauds and the two year Statute of Limitation. Articles 3995 and 5526. Appellant testified to an executory option to purchase made in 1952. Appellant admits he wrote Mr. Mack in 1954, a few days before he withdrew from the project, telling Mr. Mack he would make no charge for increasing the capital of the Texas Corporation because he wanted to gamble with him and he still had “hopes” that “if” the pipeline was completed and proved successful that he would be “permitted” to buy “some” stock at the founders’ price just before it went on sale to the general public, or, if not, that he might then be permitted to “work for a few shares.” Mr. Mack’s reply was for appellant to forget it. In June 1958, long after Mr. Mack’s death, appellant wrote Kleinkauf that he had a verbal contract with Mr. Mack to buy a few shares of stock at a cheap price. Appellee says, certainly with some justification, that appellant’s claim has progressed from one by which he claimed the right to buy a few shares in June 1954, more shares in June 1958, to the right to buy 900 shares in December 1959, 7,359 shares in 1961 and 61,292.45 shares in 1965.

Appellant’s alleged cause of action must be for personal services rendered and expenses incurred between May 1952 and the latter part of June 1954, when he quit. This suit was filed May 23, 1961 about seven years after the last service was claimed to have been performed. Therefore, it is barred by the two year statute of limitations. Article 5526. It is also barred by the four year statute of limitations. Article 5529. We think subdivision 4 of Article 5526 is applicable because appellant’s cause of action is for a debt based upon an oral contract for the value of his services and for expenses incurred, or for damages caused by its breach, according to his own clear and unequivocal testimony, by which he is bound. Simmonds v. St. Louis, B. & M. Ry. Co., 127 Tex. 23, 91 S.W.2d 332. The contract testified to by him was oral and gave him only an option to purchase “some” stock in some future pipeline corporation at whatever price was being paid therefor by its founders when stock in that gas pipeline company was offered for sale to the public, which he testified was August 18, 1958, more than two years before he filed suit. He testified:

“Q. Well, is your suit a suit for damages or a loss of legal fee or failure to pay you? You still haven’t satisfied me, Mr. Krueger, to tell me what your case is about and what your theory of recovery is.
A. It is primarily for the failure to permit me to buy some stock at the same price as the family.
Q. It is a breach of contract that you had with Mr. Mack; is that right?
A. That is right.
Q. . * * * Was it written or oral?
A. Oral.”

Appellant now says appellee was sued as a trustee of a statutory Trust imposed upon her by then Article 1388 and that limitation did not commence to run until she repudiated this trust by her letter of July 6, 1959. In his brief, he asserts he owned the equitable “title” to “some” stock in the “dissolved” corporation. He cannot urge equitable title here because the option to purchase he testified to could convey no title. He must rely upon the asserted trust theory and delayed repudiation thereof to escape the bar of the two year statute of limitations. Nevertheless, if appellee is such a statutory trustee, she is in the same position as the corporation would have been. He could have no cause of action against appellee unless he ha,d a cause of action against the corporation when it was dissolved. Article 1388 attempted no more than to substitute a statutory trustee for the corporation to the extent of its property that came into the hands of such trustee. If appellant’s claim against the dissolved corporation was barred when his suit was filed it is barred against the trustee who stands in lieu thereof by virtue of said statute. Dean Hildebrand in Texas Corporations, Volume 3, page 394, states “the fact that those in control hold as trustees for the creditors does not stop the running of limitations against the creditors.”

In Orange Lumber Co. v. Toole, Tex.Civ.App., 181 S.W. 823 (writ ref.) the court said:

“Appellee, however, contends that West was sued as a trustee, in possession of property of a dissolved corporation, under and by virtu'e of the law, and therefore limitation would not run in his favor as against a creditor of the corporation until West in some way gave notice of his repudiation of the trust. We think the authorities are uniformly against such contention.”

Appellant contends he is suing Mrs. Young as a statutory trustee and that limitation did not begin to run until she repudiated the trust. In Orange Lumber Company v. Toole, the court said the authorities were uniformly against that con- - tention. If appellant’s suit is, as he testifier i it was, for breach of an agreement to permit him to buy “some” stock his cause ■ of action could not have accrued later th an August 18, 1958, the last day before ’the stock went on sale to the general public, according to his own pleading and trasti-mony. Even if this late date is applic able, his cause of action was barred by the; two year statute of limitations on Auguist 19, 1960, which was more than nine months before he filed this suit on May 23 , 1961. To toll the statute appellant was required to both plead and prove facts which stopped the running of limitation for a sufficient length of time to prevent his case from being barred. Wise v. Anderson, 163 Tex. 608, 359 S.W.2d 876 ; 37 TJ 2d Sec. 200, p. 389. Despite all his ingenious arguments, he did not do this. We hold that appellant’s asserted cause of action was barred by said Statutes of Limitation and unenforceable under the Statute of Frauds, and that reversible error is not shown by the points presented. They are overruled. The judgment is affirmed.


author: MURRAY, Chief Justice.

text:
    John A. SHAMALEY, Appellant, v. Alex R. SAYKLAY, Appellee.
    No. 14511.
    Court of Civil Appeals of Texas. San Antonio.
    Sept. 21, 1966.
    Abraham & Chagra, Lee A. Chagra, El Paso, for appellant.
    Robert S. Pine, Collins, Langford, Pine & Woodard, El Paso, for appellee.
   MURRAY, Chief Justice.

Alex R. Sayklay instituted this suit against John A. Shamaley, seeking to recover a real estate commission in the sum of $2,500.00, together with $1,000.00 attorney’s fees. The trial was to a jury and resulted in judgment in the sum of $3,500.-00 in favor of Sayklay, from which judgment Shamaley has prosecuted this appeal.

Appellant’s first point is: “The Court erred in submitting Special Issue Number One, because there are no pleadings to support the submission of the same.”

It is difficult for us to see how the mere submission of the above issue to the jury could constitute reversible error, but we will construe this point as also complaining of the court’s action in basing the judgment upon the jury’s answer thereto.

Appellee plead that he first entered into an oral contract to act as rental agent for appellant in securing an agreement concerning a lease of appellant’s premises known as Lots 19 and 20, Block 1, Coronado Country Club Foothills, Unit One, 6404 North Mesa Avenue, El Paso, Texas, and that on the 4th day of February, 1964, the said agreement was modified and reduced to writing and executed by appellant and appellee, reading as follows:

“It is understood that in connection with the lease consummated by Alex R. Sayklay between John A. Shamaley, Lessor, and William Anderson, Lessee, the ne£ commission payable, Alex R. Sayklay shall be the sum of $2,500.00, payable when Lessee occupies the premises located at Lots 19 and 20, Block 1, Coronado Country Club Foothills Unit 1, 6404 North Mesa Avenue, El Paso, Texas.
AGREED AND ACCEPTED:
S/Alex R. Sayklay, Agent S/John A. Shamaley, negotiating Lease. Lessor”

Appellee further plead that the lessee, Harry William Anderson, executed a lease agreement with appellant and occupied appellant’s said premises on or about the 4th day of January, 1965, and that thereafter appellee demanded and appellant refused payment of appellee’s commission.

Appellee in a trial amendment plead that at the special instance and request of appellant he performed services to the appellant in obtaining the execution of a lease agreement between him and William Anderson, which services were of the reasonable value of the sum of $2,500.00, no part of which had been paid. The record does not show that these pleadings were excepted to and, on the contrary, appellant plead that there was a failure of consideration in that appellee did not secure the rental contract.

The pleadings were sufficient to raise the issue as to whether appellee was the procuring cause of the lease and the trial court properly submitted Issue No. 1 to the jury.

Appellant further contends that the letter of intention, signed on February 5, 1964, required appellee to complete the lease contract within a period of 60 days, and inasmuch as the lease contract was not finally completed until some seven months later he was not entitled to his commission. The provision relied upon by appellant reads as follows: “a time limit of sixty days from the date of this letter shall be alloted for the consummation of this lease.” This sentence was contained in the letter of intention which was an agreement between Harry W. Anderson as tenant and appellant, John A. Shamaley, as landlord, and this is clearly stated in the letter itself. That stipulation did not limit appellee’s agreement with appellant to a sixty-day period.

The evidence was sufficient to support the finding of the jury to the effect that appellee was the procuring agent of the lease and that he cooperated right up to the time the lease was executed.

The judgment is affirmed.


author: COLLINGS, Justice.

text:
    Willmon MARSHALL, Appellant, v. J. WEINGARTEN et al., Appellees.
    No. 4069.
    Court of Civil Appeals of Texas. Eastland.
    Sept. 9, 1966.
    Paul P. Regnier, Houston, for appellant.
    Fulbright, Crooker, Freeman, Bates & Jaworski, W. N. Arnold, Jr., Vinson, El-kins, Weems & Searls, B. Jeff Crane, Jr., and Raybourne Thompson, Jr., Houston, for appellees.
   COLLINGS, Justice.

Willmon Marshall brought suit against Ora L. Smith, Bernard L. Weingarten and J. Weingarten, Inc. Plaintiff sought to recover damages for personal injuries alleged to have been sustained on or about July 23, 1962, as a result of being struck by an automobile owned by defendant, J. Wein-garten, Inc. and operated by Ora L. Smith. A severance was granted as to the cause of action alleged against Ora L. Smith. Bernard Weingarten and J. Weingarten, Inc. filed motions for summary judgment which were granted. Willmon Marshall has appealed.

Marshall urges points contending that the court erred in finding that there was no issue of fact upon which liability of J. Weingarten, Inc. and Bernard Weingarten can be based; erred in ruling that statements made by Ora L. Smith to police officer, J. B. Calloway, were hearsay and inadmissible and erred in applying to the said statements tests applicable to principal and agent, instead of the test applicable to master and servant and to bailor and bailee.

Appellant contends that the following fact questions are presented by the pleadings and evidence:

1. Was Ora L. Smith, the operator of the automobile at the time of the accident, engaged in her own personal affairs or in the service of her employer, Bernard L. Weingarten?
2. Was the said Ora L. Smith at the time of the accident acting in the course of her employment and in the scope of her authority, and
3. Did J. Weingarten, Inc., the owner of the automobile and Bernard Weingarten, the employer of Ora L. Smith, know, or should they have known, that the brakes of the automobile were defective prior to the accident and during the trip upon which the accident occurred?

The motions for summary judgment were based upon the pleadings of the parties and depositions introduced in evidence. Appellant, Marshall, alleged that Ora L. Smith, while in the scope of her employment with appellees Bernard Weingarten and J. Wein-garten, Inc., negligently drove the automobile in question over him; that the automobile was owned by either Bernard Wein-garten or J. Weingarten, Inc.; that the brakes on the automobile were defective and that either or both of appellees knew or should have known of the defective brakes and they were negligent in entrusting the vehicle to said Ora L. Smith.

J. Weingarten, Inc. denied generally all the allegations in appellees’ petition. Bernard Weingarten specially denied that at the time of the accident Ora L. Smith was acting in the course of her employment with him and denied that she was engaged in any business or undertaking for said Bernard Weingarten; that, to the contrary, Ora L. Smith was at the time engaged in a purely personal mission of her own. In the motion for summary judgment by J, Weingarten, Inc. it is asserted that the undisputed evidence, as set out in the depositions introduced, shows, as a matter of law, that Ora L. Smith was not at the time of the accident, nor at any time, employed by J. Weingarten, Inc., and was not acting within the scope of her employment for either J. Weingarten, Inc. or Bernard Weingarten. In the motion for summary judgment of Bernard Weingarten it is asserted that the undisputed testimony as set out in the depositions introduced in evidence shows, as a matter of law, that Ora L. Smith was not at the time of the accident acting within the scope and course of her employment as an employee of Bernard Weingarten but that, on the contrary, she was on a purely personal mission of her own and was not performing any act for appellee, Bernard Weingarten.

The evidence is uncontradicted that Ora L. Smith was driving an automobile owned by J. Weingarten, Inc. The vehicle had been assigned as a company vehicle to Bernard Weingarten and was ordinarily used by him six days each week on company business. Bernard Weingarten owned an automobile which he and his wife used for family purposes, but did at times use the company car on family matters. Ora L. Smith, the driver of the automobile at the time of the accident was employed by ap-pellee Bernard Weingarten as a cook or maid. She had a valid driver’s license. She lived on the family premises and part of her duties were to look after the children of Mr. and Mrs. Weingarten. On the occasion of the accident Bernard Weingar-ten, his wife and his older children, were out of the city on a vacation trip. He had left the company automobile at his home for the use of Ora L. Smith who was a servant of the family. Miss Smith had been given instructions concerning the use of the Weingarten family vehicles. These instructions provided for the use of such vehicles for the Weingarten family business when specific consent of a member of the family was obtained to use the vehicle. Ora L. Smith had been instructed that while Mr. and Mrs. Weingarten were away from home the automobile in question was to be used for taking care of the needs of the Weingarten baby who was left at home, and the house. The deposition of Bernard Weingarten indicated that Miss Smith was not specifically given nor denied the use of the automobile for purely personal business. The testimony of Ora L. Smith was to the effect that on the occasion in question she was on business of a purely personal nature; that she was en route to see her doctor.

Appellant’s contention that there are fact issues upon which the liability of J. Weingarten, Inc. can be based is not tenable and is overruled. There is no evidence tending to show that Ora L. Smith at the time of the accident was an employee of or acting within the scope of her employment with J. Weingarten, Inc. Appellant’s contention concerning the liability of appellee J. Weingarten, Inc. is that such appellee, who was the owner of the automobile, knew or should have known that the brakes on the vehicle were defective prior to the accident. There was some evidence tending to show a failure of the brakes but there was no evidence of any previous defects in the brakes or knowledge of the defective brakes by Ora L. Smith or either of appellees. The only evidence of any knowledge of defective brakes was the knowledge of Ora L. Smith at the time of and immediately prior to the accident. She testified that she had used the brakes several times on her trip to see her doctor which was, according to her testimony, the purpose of her use of the automobile on the occasion in question, and that the brakes at such times worked perfectly. Bernard Weingarten testified that he never had any difficulty with the brakes on the automobile ; that the brakes were in good working order the last time he used the vehicle prior to the accident and that he had used it for a period of four or five months after the accident without any trouble with the brakes. Bernard Weingarten also testified that he had had the brakes inspected after the accident and found them to be in good working order and that nothing was wrong with them. The defects in the brakes, if any, were not shown to have been known of by either of the appellees prior to the accident nor was there any showing of defects which should have been discovered by either of appellees in the exercise of ordinary care. Under the circumstances there was no liability on the part of appel-lee, J. Weingarten, Inc. Alexander v. Cheek, 241 S.W.2d 950, (Ct.Civ.Apps.1951, n. r. e.) and cases cited. There was no evidence of negligent entrustment on the part of either J. Weingarten, Inc. or Bernard Weingarten.

Ora L. Smith testified by deposition that on the day of the accident she had not been feeling well and had used the automobile to go see her physician; that because of construction work in the streets she made a detour ; that appellant, Marshall, who was employed by a contractor, and several other laborers were sitting with their backs to a building located on the lot where Ora L. Smith was making the detour, and that, in attempting to make the turn, Ora L. Smith ran over appellee and injured him. She testified that at the time she was on a purely personal mission and that she was not performing any task for the Weingarten family.

Appellant sought to introduce in evidence the testimony of J. B. Calloway, an ex-traffic officer of the City of Houston. Cal-loway testified by deposition that he received a call in connection with the accident at about 12:20 p. m. and reached the scene of the accident at about 12:32; that he discussed the accident with Ora L. Smith and made his customary investigation; that in the course of the conversation Ora L. Smith stated that her brakes had gone out on the automobile; that as she made a right turn into the lot and was pulling up toward the building she attempted to stop but her brakes failed to work and she struck a pedestrian who was sitting along side the building. Calloway further testified that he asked Ora L. Smith what she was doing with the automobile and how she was employed by the Weingartens; that she stated she was a maid for them and had come to the business establishment where she had stopped to purchase some kind of commodity for them.

Appellant contends by his second point that the court erred in ruling that the statements made by Ora L. Smith to the officer, J. B. Calloway, were hearsay and inadmissible. He contends that such tes7 timony by the officer was admissible and shows that Ora L. Smith was at the time of the accident acting in the furtherance of the business of her employer, Bernard L. Weingarten. We overrule the point. The general rule is that evidence of a statement made out of court when such evidence is offered for the purpose of proving the truth thereof is inadmissible as hearsay. The statements here under consideration do not come under any of the exceptions to the hearsay rule. The purported statements by Ora L. Smith to the officer were made after the accident. Although they were made soon after the accident they did not relate to, explain or shed any light upon the accident, itself, or the cause of the accident. They related only to employment or course of employment. The declarations were not admissible as res gestae and the court did not err in so holding. American General Insurance Company v. Coleman, 157 Tex. 377, 303 S.W.2d 370, 373, (1957); Lewis v. J. P. Word Transfer Co., (Tex.Civ.App.), 119 S.W.2d 106, 108, writ refused; Empire Gas & Fuel Co. v. Mueg-ge, 135 Tex. 520, 143 S.W.2d 763, 769; Stokes Bros. v. Thornton, (Tex.Civ.App.), 91 S.W.2d 756, 757; Continental Casualty Co. v. Crabb (Tex.Civ.App.), 170 S.W.2d 794, writ refused, want of merit; Alfano v. International Harvester Co. (Tex.Civ.App.), 121 S.W.2d 466, 469, writ dismissed. In Webb-North Motor Company v. Ross, 42 S.W.2d 1086 (Tex.Civ.App.1931, writ dismissed), which was cited in American General Insurance Company v. Coleman, supra, it is stated as follows:

“Neither agency, the authority of the agent, nor the fact that he was acting within the scope of his employment can be proved by the declarations of the agent. Nor are such declarations admissible as primary evidence of the facts they detail.”

In Gulf, C. & S. F. Ry. Co. v. York, 74 Tex. 364, 12 S.W. 68, 70, it is stated as follows:

“There can be no doubt, we think, that the objections to all of this testimony should have been sustained. It certainly did not constitute a part of the res gestae, tested by the most liberal construction applied to that character of evidence. It was not descriptive or illustrative of the particular way in which the collision occurred. It was not admissible because made by an agent in such manner as would bind his principal.”

Appellant’s points are overruled.

The judgment is affirmed.


text:
    STATE of Texas et al., Appellants, v. Rudolph ZARUBA et ux., Appellees.
    No. 6828.
    Court of Civil Appeals of Texas. Beaumont.
    Sept. 8, 1966.
    Rehearing Denied Oct. 12, 1966.
    Woodrow Curtis, Asst. Atty. Gen., Austin, for appellant.
    Zbranek & Friend, Liberty, for appellee.
   STEPHENSON, Justice.

This is an eminent domain case an.d involves a partial taking of land for the purpose of widening an existing highway. Judgment was rendered upon a jury verdict and the State appealed.

Issues were submitted to the jury concerning the value of the land taken, and the value of the remainder before and after the taking. No complaint is made as to the finding by the jury as to the value of the land taken. All of the errors complained of concern the remainder. The strip of land taken was 5 feet in width across the front of Zaruba’s tract which was 100 feet by 100 feet in size. The evidence shows that Zaruba had constructed an odd shaped building upon these premises using a part as a drive-in grocery store, a part as a bar and the remaining portion for living quarters. The portion of the building used as a bar extended forward more than that used for the grocery store. The living quarters were located at the rear of the building. The barroom was located three feet from the right-of-way line before the taking so when the 5 feet was taken, the right-of-way line cut off 2 feet of the barroom. The portion of the building used as a grocery store was located 9 feet from the right-of-way before the taking, leaving only 4 feet after the taking. The evidence also showed that for many years the customers of Zaruba’s store and bar parked their cars perpendicular to the building and such cars extended out into the old right-of-way.

The first series of points raised by the State involve the question as to whether Zaruba was entitled to offer evidence as to the cost of tearing down the building and reconstructing it on another part of the remainder further back from the right-of-way. The State contends that Zaruba’s customers had been using the right-of-way for parking, that access was not being denied to him, and that he was not entitled to recover damages for the loss of an operation which could not have been carried on without the use of such right-of-way. Zaruba contends that he could have carried on his businesses even if he had been prevented from using the right-of-way for parking before the 5 feet were taken. He argues that he could have removed the portion of the bar extending beyond the grocery store and provided parallel parking for his customers. That after the taking, if he could no longer use the right-of-way for parking, it would be impossible to provide any parking on his property remaining and that the building would then have to be torn down and rebuilt.

The witness, Potetz, was permitted to give evidence as to the cost of tearing down the building and reconstructing it further back on the property, primarily with new material. We have concluded that this evidence was admissible and the jury was entitled to give it consideration in arriving at the market value of the remainder after the taking. The general rules concerning the admissibility of evidence in an eminent domain case were set out by the Supreme Court of Texas in State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194 at page 199, as follows:

“ ‘The market value of property includes its value for any use to which it may be put. If, for reasons of its surroundings, or its natural advantages, or its artificial improvements, or its intrinsic character, it is peculiarly adapted to some particular use, all of the circumstances which make up this adaptability may be shown, and the fact of such adaptation may be taken into consideration in estimating the compensation. * * * ’
“ ‘ * * * The fact that the road necessitated additional fencing and establishment of an additional watering place in order to restore the land to its former usefulness and value for the purpose for which it was used by the owner was evidence of a depreciated value. The cost of additional fencing, establishing water places, and other items of like natuA necessitated by the laying of the road do not constitute a measure of damage and are not recoverable as distinct items of damage, but evidence of this nature is admissible, and is entitled to be accorded its proper probative force in determining whether the tract of land as a whole has been damaged. * * * ’
“ * * * In arriving at this second item of damage, (depreciation in value to the remainder) the parties would have the right to introduce evidence of everything that would tend to affect the value of the land, in the estimation of a proposed purchaser, or that would tend to make it more or less valuable to the present owner, such as the shape in which the tract will be left; the increased amount of fencing, if any, that will be required; the increased expenditure made necessary to provide water; the added facilities, if any, provided for tract to the owner of the land. * * *
“The matters of proof touching value as well as damages are so varied and multitudinous that only general rules can be formulated. * * * Generally, it may be said that it is proper as touching the matter of the value and depreciation in value to admit evidence upon all such matters as suitability and adaptability, surroundings, conditions before and after, and all circumstances which tend to increase or diminish the present market value. * * * ”

The taking of a parking lot was involved in the case of City of Dallas v. Priolo, 150 Tex. 423, 242 S.W.2d 176. The witness, Wolf, was permitted to testify as to the loss of business because of the loss of parking space and the court had this to say about such testimony:

“ * * * To establish the amount of his damages Priolo placed upon the witness stand Arthur Wolf, a real estate dealer with much experience in appraising Dallas property. The witness testified that he was familiar with Priolo’s property, with the neighborhood in which it is located, and with the volume of business done by Priolo. He was then permitted to state his opinion as to the value of the strip taken and the lessened value of the land and the building not taken. Questioned by Priolo’s attorney as to the factors which went into the values testified to by him, he stated that there were several factors, among them being the number of people living within the vicinity of the business, the parking facilities, the uses to which the property can be put, and the income therefrom. He testified that the highest and best use for Priolo’s property was that for which it was presently being used. At considerable length he testified as to the value of parking space; that his estimate of value was based, in part, on figures given him by Priolo that 50 percent, of the customers came in cars, and that there would be a 50 percent, or greater loss of these customers; that future loss of business as a result of the loss of parking space was one element in his valuation; that the amount of business has considerable bearing on the valuation; that the amount of business has considerable bearing on the rent that a tenant would pay, and that rental value is an element in fixing market values ; that the income was a basis for valuation; and that the theory of replacement value and depreciation would result in the same figures, since it would become necessary to depreciate the value of the remaining land and building a great deal more because the land and building would sell for less with no parking space in front. In effect, this witness, who was called by Priolo, testified that the lessened market value of the portion of the lot not taken was due to a falling off of Priolo’s business.
* * * It was held in that case, [Milam County v. Akers, Tex.Civ.App., 181 S.W.2d 719] and we approved the holding by our refusal of an application for writ of error therein, that where the ownership of land, improvements and business conducted thereon are in the same person evidence of resulting injury to the business is admissible, not as a separate item of damage, but as affecting the market value of the remaining land and improvements for the uses to which they were adapted and were being put. That was the theory upon which the testimony of the witness Wolf was admissible.” (Emphasis added)

It was proper for Zaruba to offer evidence to show the cost of moving and reconstructing the improvements because of the loss of the space which could have been used as parking. Such evidence was admissible, not to prove separate items of damages, but as affecting the market value of the remainder of the land and the improvements and the uses for which they were adapted and were being used.

The State next contends it was error on the part of the trial court in refusing to strike the value testimony given by Zaruba. No information is given to this court as to where in the statement of facts such a motion to strike was ever made, presented and refused. Zaruba denies such a motion was made. We do not find that the State ever objected to the value testimony given by Zaruba, nor that any motion to strike such testimony was made. The point is overruled.

The trial court permitted Zaruba to give evidence as to the amount of profit that he would lose during a four month period of time. The witness Potetz had testified that 120 days would be required to tear down and reconstruct the improvements. Under the authority stated above, City of Dallas v. Priolo, supra, such evidence was admissible. The point is overruled.

The State next complains of the trial court’s action in permitting the witness Po-ietz to testify to the cost of tearing down and reproducing the same improvements with new material at a different location on Zaruba’s land. The record shows that the objection to this testimony was on the ground that it involved future intended usage of the property. The State’s motion to strike such testimony again states that the basis of such objection is that the testimony shows a future intended use and further that it is strictly a replacement cost and not a damage. No mention is made either in the original objection or the motion to strike that such testimony included the cost of new material in reconstructing the improvements. It is noted that this evidence was not offered to prove the value of improvements being taken in a condemnation proceeding, but for the purpose of showing the cost of moving the improvements to a different location. We do not consider this as being objectionable on the ground that it shows a future intended use, but consider it as evidence of the damage suffered by Zaruba in order for him to continue to use the property in the same manner as at the time of the institution of the condemnation proceedings. The point is overruled.

In connection with special issue No. 3, which inquired as to the value of the remainder after the taking, the trial court instructed the jury that it could consider the effects, if any, that the condemnation will have upon the improvements located on the remainder. We do not consider this instruction as a comment on the weight of the evidence nor as calling for double damages. We find nothing improper about the instruction and overrule this point.

The State’s last series of points were that there was no evidence to support the findings of the jury as to the value of the remainder both before and after the taking, and that the evidence was insufficient to support such findings. In passing upon the “no evidence” points we consider only the evidence favorable to such jury findings. The jury found the value of the remainder before the taking to be $30,000.-00 and after the taking to be $16,000.00. Zaruba testified: That his property was worth $40,000.00 considering the land, improvements and business. That this was divided $10,000.00 for the residence and $30,000.00 for the business. That after the taking the business would not be worth anything. That the value of the land taken was $500.00. On cross-examination Za-ruba testified: The market value of all of his land and improvements was $40,000.00 with the residence at $10,000.00 and the business at $30,000.00. The value of the land separately was $3,500.00. Taking the $3,500.00 from $40,000.00 would leave $36,-500.00 for the residence and business improvements. The residence was worth $10,000.00, leaving $26,500.00 as the value of all improvements except the residence. The witness McConnell testified the value of the premises after the taking would be $14,575.00. The witness Hogue testified the value of the premises after the taking would be $14,500.00. The values found by the jury were within the limits as testified to by these witnesses. The value of the remainder before the taking, as found by the jury, was less than that testified to by Zaruba. The value of the remainder after the taking was more than that testified to by the witnesses McConnell and Hogue. The jury could accept part of the testimony of one witness and part of the testimony of the other witnesses. Coastal Transmission Corp. v. Lennox, Tex.Civ.App., 331 S.W.2d 778. The points are overruled.

In passing upon the “insufficiency of the evidence” points we consider the entire record. We do not find the answers of the jury to these issues to be so contrary to the evidence as to be manifestly unjust or clearly wrong. The points are overruled.

Affirmed.