author: PHILLIPS, Justice.

text:
    Conard H. HOLLAND, Appellant, v. Alta Holland GIBBS et al., Appellees.
    No. 11273.
    Court of Civil Appeals of Texas. Austin.
    March 3, 1965.
    Rehearing Denied March 24, 1965.

      Russell & Pratt, Burnet, McKay & Avery, Austin, for appellant.
    Hammond & Hammond, Burnet, Archer & Archer, Austin, for appellees, L. Hamilton Lowe, Austin, of counsel, for appellees.
   PHILLIPS, Justice.

This is a suit to set aside a deed executed by appellant Conard H. Holland on September 7, 1925 and filed for record in Bur-net County, Texas, September 23, 1925 wherein appellant conveyed all the interest he had in the estate of his father and mother, now both deceased, to his sister Alta Holland Gibbs, one of the appellees in this case. This suit also seeks to construe the will left by appellant’s mother.

At the conclusion of trial to the court without a jury, the court entered judgment for the appellees herein filing certain findings of fact and conclusions of law.

We affirm the judgment of the trial court.

The abovementioned deed executed thirty-eight years ago by appellant, then twenty-five years old, to his sister Alta Holland Gibbs, then in her thirties, is as follows:

“State of Texas, County of Burnet, Know all men by these presents: That, we, Conard H. Holland, of Hale County, Texas, and Etta Hall Holland, widow, of the County of Burnet, State of Texas, for and in consideration of the sum of $1,800.00, in hand paid by Mrs. Alta Holland Gibbs, out of her separate estate, the receipt of which is hereby acknowledged, said payment being made to Conard H. Holland, have GRANTED, Sold and Conveyed, and by these presents do Grant, Sell and Convey, unto the said Mrs. Alta Holland Gibbs, as her separate property, of the County of Burnet, State of Texas, all that certain undivided one-fifth part of all the real estate and personal property belonging to S. W. Holland at the time of his death, the said S. W. Holland having been a citizen of Bur-net County, Texas, and also an undivided one-fifth part of all the real and personal estate now owned by Etta Hall Holland, widow of S. W. Holland, as well as the prospective inheritance of Conard H. Holland in and to all the estate which the said Etta Hall Holland may hereafter acquire and own at the time of her death, it being understood that the said Etta Hall Holland shall be entitled to receive and use all the rents, revenues and income of all of said property and have the right to use and occupy all of said property for and during her natural life. And the said Etta Hall Holland, by signing this deed consented to the assignment of said Conard H. Holland of his prospective inheritance in the estate of said Etta Hall Holland.
TO HAVE AND TO HOLD the above described premises, together with all and singular, the rights and appurtenances thereto in anywise belonging unto the said Mrs. Alta Holland Gibbs, in her separate right, her heirs and assigns forever, and we hereby bind ourselves, our heirs, executors and administrators, to warrant and forever defend, all and singular, the said premises unto the said Mrs. Alta Holland Gibbs in her separate right, her heirs and assigns against every person whomsoever lawfully claiming or to claim the same or any part thereof.
WITNESS our hands this 7th day of September, A.D. 1925.
signed Conard H. Holland signed Etta Hall Holland”
(Acknowledgments omitted by us)

On August 28, 1928, appellee Alta Holland Gibbs filed the following affidavit for record in Burnet County:

§ THE STATE OF TEXAS # September 30, 1925 -A.D. “Mrs. Alta Holland Gibbs
To / Affidavit
§ COUNTY OF BURNETT # Know all men by these presents: C. H. Holland, et al
That whereas, I, the undersigned, have bought from C. H. Holland his entire interest in the estate of his father, deceased, and his mother, Mrs. S. W. Holland, of Burnet County, Texas; And be it known that at the time of the transaction whereby I, the undersigned, bought the interest of said C. H. Holland, there was owing to the estate by the said C. H. Holland, ($1500.00) fifteen hundred dollars, which sum was to have been deducted from the said C. H. Holland’s part of the estate at the time of death of Mrs. S. W. Holland.
Now, I, the undersigned, hereby acknowledge that I do assume the $1500.00 owing the estate by the said C. H. Holland, minus one-fourth, or my part, of the $1500.00, which will leave a sum of ($1125.00) Eleven hundred and twenty-five dollars, to be deducted from my share and interest in the estate of my mother, Mrs. S. W. Holland after the death of the said Mrs. S. W. Holland, and the said eleven hundred and twenty-five dollars will be divided among the other heirs of the estate of said Mrs. S. W. Holland, To-wit: Gladys Holland, Santos J. Holland and Mrs. Raymond Ray, all of Burnet, Burnet County, Texas.
Signed
Mrs. Alta Holland Gibbs.
(Acknowledgment omitted by us)
Filed for Record August 22, 1928 at 9:30 A.M.
Recorded August 28,1928 at 9:55 A.M.
H. F. Atkinson
Clerk, County Court
Burnet County, Texas.”

A brief summary of the facts leading up to this lawsuit is as follows: Appellant Conard Holland is the son and heir at law of S. W. Holland who died in 1907. His mother was Etta Holland who died in 1963. The principal appellee is appellant’s older sister, Mrs. Alta Holland Gibbs. The remaining appellees are his other sisters Gladys V. Holland and Nelle Fox and his brother Santos Holland. Santos Holland is deceased and is survived by two sons.

When S. W. Holland died in 1907, he was intestate, however he left farm and ranch lands constituting some 847 acres of land in Burnet County in addition to some personal property. There was no administration on the estate and S. W. Holland’s wife, and the mother of the parties to this lawsuit, retained possession of the property until she died testate in 1963.

The testimony before the trial court reveals that in 1925 appellant needed money and entered into the above transaction with appellee Alta Holland Gibbs for the recited consideration of $1800 cash paid him by his sister. The testimony further reveals that there was additional consideration, not specified in the recited instrument, which consisted of appellee Alta Holland Gibbs’ assumption of a $1500 debt owed the estate by appellant in addition to cancelling a debt of $250 owed Alta Holland Gibbs by appellant.

The crux of this lawsuit is the $1500 debt assumed by appellee Alta Holland Gibbs. Appellant maintains that he would never have made the trade in question had he known that his sister would not immediately pay the debt to the estate. Such payment, at that time, would have in fact constituted a payment to the parties’ mother Etta Holland who was then alive. Appel-lee Alta Holland Gibbs maintains, and so testified at the trial, that it was her intention to pay this amount to the estate as described in the affidavit set out above.

Appellant and appellee Alta Holland Gibbs were the only witnesses on this point.

In 1933, the mother of the parties, Etta Holland, desired to obtain a loan on the real estate in Burnet County and in order to facilitate this loan all of her children, including the appellant herein, executed a deed to Etta Holland for whatever interest they might have had in the estate.

In 1933, Etta Holland executed a deed to appellee Alta Holland Gibbs for a interest to the estate in question reciting that 1/5 was the portion purchased by appellee Alta Holland Gibbs from the appellant herein, the other 1/5 being her portion as an heir.

Etta Holland died in 1963 leaving a will that devised the remainder of the estate to the remaining three heirs exclusive of appellant and appellee Alta Holland Gibbs.

After Etta Holland’s death, appellee Alta Holland Gibbs paid each of the heirs, excluding herself and appellant, their pro rata part of the $1500 in question. As stated above, it is this portion of the consideration for the abovementioned conveyance in 1925 from appellant to his sister that forms the principal basis for this lawsuit.

In his findings of fact, the Court, after setting out the abovementioned deed, found that there was no evidence that appellant received any right, title or interest in and to the lands belonging to the estate from any source after the execution and delivery of the 1925 deed from appellant to his sister; that the abovementioned payment by appellee Alta Holland Gibbs satisfied the debt assumed by her in the abovementioned transaction with the appellant; that the preponderance of the evidence shows that the consideration agreed to be paid by Alta Holland Gibbs in the abovementioned transaction with appellant is not tainted by any fraud on the part of Alta Holland Gibbs (here follows findings bearing on the will of Etta Holland not pertinent here for the hereinafter described reasons); that in the abovementioned deed executed by all of the heirs of S. W. Holland, said heirs conveyed their entire interests in the estate to Etta Holland in fee simple.

Appellant is before this Court on nineteen points of error, the first nine thereof being briefed together. The gist of these nine points is that appellee Alta Holland Gibbs acted fraudulently in securing the deed from appellant set out above in this opinion; the points of no evidence or the insufficiency of the evidence that the agreed consideration due appellant for his conveyance to appellee Alta Holland Gibbs had been fulfilled; that appellant’s pleadings had raised certain presumptions of fraud that had not been overcome and adequately discharged by appellee Gibbs; that the trial court erred in giving any weight and credibility to the affidavit filed for record by Mrs. Gibbs and set out above in this opinion.

We overrule these points.

As we view this case, it is basically an action to set aside the conveyance in question because of fraud. Without establishing fraud, appellant’s case must fail. We hold that had there been any fraud attendant to this transaction, this action would be barred by the four year statute of limitation, Art. 5529 Vernon’s Ann.Civ.St. Appellant either knew or should have known that appellee Gibbs had not paid the estate the $1500; that any claim of fraud appellant might have had is barred by laches and stale demand; that there is ample evidence to support the judgment of the trial court that there was no fraud on the part of any of the parties to this case.

Appellant and appellee Gibbs were the only two witnesses on the question of the time and manner in which the $1500 that appellant owed the estate was to be paid.

Appellant testified that he thought appel-lee Alta Holland Gibbs had paid this debt to the estate before he conveyed his interest to her; that the fact that in 1933 his mother Etta Holland had to borrow money on the estate indicated her need for money. That if he had known his sister was going to delay this payment until after the death of his mother, he never would have entered into the transaction in question.

Appellee Alta Holland Gibbs, on the other hand, testified that she bought appellant’s share of the estate at his suggestion, that her intention was to help him as he was the one who needed money at the time. She testified that when the transaction of 1925 was entered into appellant, Conard Holland, Etta Holland and appellee Gibbs understood that this debt was not to be paid until after Etta Holland’s death. Mrs. Gibbs further testified that all of her sisters had known of this arrangement.

There is testimony from appellant himself that he knew a year before his mother’s death that the $1500 had not been paid, however he did nothing further in this regard until after her death.

The law is well settled in this State that Art. 5529 Vernon’s Ann.Civ.St. applies to suits to set aside a deed for fraud or failure of consideration. Fitchett v. Bustamente, Tex.Civ.App., 329 S.W.2d 920, writ ref., n. r. e.

In Sherman v. Sipper, 137 Tex. 85, 152 S.W.2d 319, the Supreme Court stated the rule as follows:

“Equally well settled is the rule that where a person has a right in property, and he claims fraudulent statements were made concerning the title to such property, when the records relating to such title are open to him he must exercise reasonable diligence to discover such defect; and if by the exercise of such diligence he could have discovered such defect and would have known of his right, he is held to have known it, and limitation will run against his claim from the time he could have made such discovery by the exercise of ordinary diligence.”

Appellant had 38 years to find out whether the debt in question had been paid. In addition to the affidavit set out above in this opinion having been on record in Bur-net County for some 35 years, he could have asked appellee Gibbs, his mother, Etta Holland, or any of his other sisters or brother. We hold as a matter of law under these facts that he either knew or should have known that the debt had not been paid before his mother’s death.

We hold further that in addition no facts having been developed to excuse appellant’s lack of diligence in pursuing the property before the right to do so was barred in law, he was also guilty of laches and not entitled in equity to have the conveyance set aside for fraud. See this Court’s opinion in Central Nat. Bank of Waco v. Barclay, Tex.Civ.App., 254 S.W. 140.

We hold, further, that there was sufficient evidence before the trial court for his findings that the transaction in question was not tainted by fraud. Such evidence must be viewed in the light most favorable to the findings of the trial court. Biggers v. Continental Bus System, 157 Tex. 351, 303 S.W.2d 359; Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 23 A.L.R.2d 1114.

Appellant has assigned error to the trial court’s statement that it based its judgment on the instruments of record set out above. These included the above described affidavit which appellant refers to as a self-serving document. We overrule this point. A reviewing court will sustain a judgment if it is correct on any theory applicable to the record, regardless of whether the trial court gives correct legal reasons for its judgment. Maher v. Gonzalez, Tex.Civ.App., 380 S.W.2d 764.

Appellant’s points ten through seventeen are briefed and argued together. These points (with the exception of No. seventeen discussed later herein) are either predicated upon an assumption of fraud or relate to the construction of Etta Holland’s will. We have already disposed of the fraud issue. Since the trial court found, and we so hold, that appellant had no further interest in Etta Holland’s estate or the estate of S. W. Holland and is not a devisee under the will, any further discussion of the will or its terms is superfluous.

Appellant’s seventeenth point states that the evidence supports the conclusion that a relationship of trust and confidence existed between appellant and appellee Mrs. Gibbs, which was violated by her, and there is no evidence to the contrary; and the trial court erred in failing to so hold. We overrule this point and cite and affirm the findings of the trial court stated above.

Appellant’s eighteenth point is the error of the trial court in failing to’ find and hold that the purported assignment between appellant and appellee Gibbs was a product of the mutual mistake of the parties. We overrule this point for the same reason assigned above relating to the findings of the trial court and all intendments relating thereto.

Appellant’s nineteenth point is that neither adverse possession nor limitations can form the basis of a judgment against appellant in this case. We overrule this point. We do not base any portion of this opinion on the law of adverse possession and with respect to limitations, we refer to that portion of our opinion set out above stating the applicable law as we understand it.

We affirm the judgment of the trial court.


source: Caselaw Access Project

author: WERLEIN, Justice.

license: Public Domain

text:
    CONNECTICUT INDEMNITY COMPANY, Appellant, v. Billy Roy HENSON, Appellee.
    No. 14515.
    Court of Civil Appeals of Texas. Houston.
    March 4, 1965.
    Rehearing Denied March 25, 1965.

      Dollahon & de Ybarrondo, Willard Dolla-hon, Houston, for appellant.
    Richard P. Hogan, Helm, Jones & Pletcher, Houston, for appellee.
   WERLEIN, Justice.

Appellant, Connecticut Indemnity Company, has appealed from a judgment based upon a jury verdict in a workman’s compensation case awarding appellee payments for permanent total disability.

Although appellant has complained that there is no evidence to support the jury’s answers to special issues finding total incapacity and that such total incapacity was permanent, appellant relies mainly upon its Points 2 and 4 complaining respectively that the jury findings of total incapacity, and that it was permanent, are against the great weight and preponderance of the evidence. These assignments require a careful examination of the entire record.

Appellee Henson testified that at the time of his injury on April 12, 1962 he was working for Funway Boat Sales, Inc., a retailer of boats, and had been working for such company for 22 months, driving a truck and transferring boats back and forth from Houston to Freeport and Seabrook, and also carrying boats from various boatyards to the Company’s yard for repair; when he handled large boats like a 25 foot or 30 foot boat he had a helper; that on the occasion of his injury a customer had brought in a 16 foot fiberglass boat to have its 70 h. p. outboard motor or engine worked on; the boat which weighed about 1200 pounds was on the ground beside the shop, leaning on one side of the building; pursuant to instructions he bent over and undertook to lift up and pull the boat half way up on the trailer so that the bow would be up in the air and the water would drain out of the boat; that as he did so he felt something sharp in his back, dropped the boat and fell to his knees and called for help; one Newman, a helper, came out and grabbed hold of him while he was still on his knees; Newman helped him up from the ground, and then Newman and one Smith braced him up and stood him up against a wall because he could' not sit down; the pain which he experienced was in the upper part of his back and extended into his neck; that the accident happened about 10 o’clock in the morning and about 12 they took him to Dr. Baier; that his uncle later took him home; he had never had any trouble with his back before; he was 29 years old and about 6 feet tall and weighed about 184 pounds, was married and had two children of his own and a stepchild; that he had had only a tenth grade education; that at the time of the injury he was making approximately $70.00 per week, or $1.20 per hour; his work required lifting.

He also testified that Dr. Baier told him to go home and apply hot water bottles and towels to his back and take aspirin; Dr. Baier gave him chiropractic treatments and adjustments every day except Saturdays and Sundays for some six weeks, and on June 20 he returned to his employer’s place of business for light work; he undertook to sweep the floors with a push broom, but he could not do it because of the pain in his neck and back, and he was sent home; that he continued to see Dr. Baier but the adjustments and treatments did not relieve him at all; he had to sleep on the floor many times; that about July 1 he was referred to Dr. Brodsky by his employer, and Dr. Brodsky took x-rays of his entire body, head and back; he was given therapy treatments and shots in his upper back in the area of his pain; that he was given about 10 heat treatments in Dr. Brodsky’s office, and given pills to take; the treatment helped his head and neck but did not relieve his back; that only one thing cleared up and that was the swollen knot, or swollen place, on his back. About two weeks after his last treatment at Dr. Brodsky’s he went to see Dr. Reece, a chiropractor, to whom he had been referred by his attorneys.

He further testified that he couldn’t do any work at the time he went to see Dr. Reece, and that after he went to see Dr. Reece and was being treated by him, he undertook to work for the Melton Brothers Texaco station; his employer had never called him back, and he couldn’t do any lifting; that his father worked for Mr. Melton at his Texaco station; he explained to Mr. Melton that he had been trying to get jobs elsewhere but had a back injury, and Mr. Melton on August 6, 1962 hired him at the Texaco station to work on the front; he worked there from August 6, 1962 until June, 1963, but during such period of about 10 months he lost one month because of his back; that his back would start giving him trouble and he would have to be off and go to the doctor; Mr. Melton let him go because he was missing too much time, and he had to have someone there who could do the work on time and stay there; that thereafter he went to work for Bill O’Day’s Gulf Station and worked approximately a month; he tried to wash cars but couldn’t do it; he washed about 10 cars that week but missed two days because of his back; he did no greasing or tire changing; he asked to be allowed to work on the front; he worked there about a month, and then was laid off because the manager said he did not have enough business to pay a man $60.00 or $65.00 a week just to work on the front, and he had to have somebody else who could work on the front and also wash cars and do everything; that he then went to work for Bob Matthews Hancock Service Station as night manager, working hy himself after 9 o’clock at night, and he worked about 12 hours a day just pumping gasoline and not doing any greasing or anything of that nature or any tire work; that he worked there until September 9, 1963 when the station was sold, and he did not stay on with the new owner; that after leaving Hancock he went to work at the Katy Road Gulf Station tuning up and putting in plugs, and points in distributors; he did not change radiators or starters or pull generators; that he worked for the Katy Road station from the latter part of September until around November 19, 1963, when he was laid off because he was asked to change a truck tire and he told the manager he couldn’t do it. He then called his father and asked him to talk to Mr. Melton and see if he would employ him again. He went to work on November 25, 1963 as front man at Melton’s, pumping gas and wiping windshields, and was still working there when his case went to trial on March 3, 1964.

Appellee testified that he still had pain in his back at the time of the trial and that he could not do any kind of heavy labor or perform the usual tasks of a workman on a job of like nature that he had at Funway Boat Sales, and that he didn’t think he would ever be able to do so in the future; that other than the job at Melton’s Texaco station, which his father helped him get, he had never applied for any other job from November, 1963, to the time of the trial; and that he could no longer play baseball or bowl as he had done prior to his injury. He said on cross-examination that he had greased his own car twice and had loosened some lugs on wheels with an electric wrench weighing about twelve pounds; that if he were able to grease cars and fix tires he would make more money; he has tried to lift or bend and as a result has suffered pain which lasted from four days to a week.

Dr. Reece, who was called by appellee as a witness, testified that he had seen appellee and treated him some six or eight times between July 31, 1962 and February 18, 1964, about two weeks before the case went to trial; that appellee had nerve root irritations and muscle spasms when he first examined him; that when he last saw appellee he was still having pain in the same area as he did when he first saw him; the pain was no greater, “maybe slightly less than the first time”; that he wouldn’t think ap-pellee could go out and do manual labor over a period of time and that manual labor such as picking up heavy boats, and also long standing and walking and things of that kind would aggravate appellee’s condition; he gave appellee instructions to refrain from lifting and things of that nature, and instructed him as to ways in which to seat himself. When asked whether he had any idea when appellee’s condition would clear up, he stated he just could not see that far in the future; and that if appellee went out and did heavy work as just described, he did not think appellee’s condition would ever clear up.

Dr. Brodsky, an orthopedic surgeon, called by appellant, testified on direct examination that on May 28, 1962 there were no objective findings made by him, but there were subjective complaints, and he assumed appellee had a sprain of the muscles. For this condition he injected the appellee in the muscles and ligaments with zylocaine and orthopedic hydrocortisone, and followed with ultra sound, heat, massage and exercises. He testified that he took x-rays and that appellee had no muscle spasm that he could detect, but on cross-examination the doctor, reading from his report sent to the insurance company on May 28, 1962, stated: “ * * * x-rays show loss of lor-dotic curvature, indicating muscle spasm.”

Dr. Baier, the chiropractor, who treated appellee immediately after his injury, and who was a stockholder in Funway Boat Sales, appellee’s employer, testified there was a correlation between the point of tenderness he found and the point where ap-pellee told him he suffered pain. He testified that in the mid dorsal regions emitting between the fourth and fifth dorsals, there was some tenderness next to the spine where the nerve comes out of the spine and goes to the muscles. He gave appellee a chiropractic adjustment to relieve the tension and the muscle spasm in the trape-zius muscle, and he required appellee to return for additional treatments to relieve the rest of the spasm. He also suggested the application of hot towels to the muscle to cause better blood supply and circulation; there was very slight improvement or reduction in the muscle spasm in the first 24 hour period. He x-rayed appellee’s back, and on or about May 4 dismissed him to resume light duties although he couldn’t do any heavy lifting for several weeks.

We have carefully read the testimony of all the witnesses in an effort to determine whether the findings of the jury are so against the weight and preponderance of the evidence as to be manifestly unjust. The testimony of the doctor and chiropractor called by appellant seems to refute appellee’s claim of total permanent disability. There is no definite medical testimony to the effect that appellee’s incapacity was both total and permanent. It is recognized, however, that the testimony of the injured party may outweigh that of a medical witness who is not confronted with the problem of living with the injury and who is generally not in as good a position as the injured party to evaluate the severity and extent of his pain and the disabling effects thereof. Furthermore, there is no fixed rule of evidence by which a claimant is required to establish the fact that he has suffered an injury that caused permanent total disability. See Traders & General Insurance Company v. Daniel, Tex.Civ.App., 131 S.W.2d 276, writ dism., judg. cor.; 45 Tex.Jur., p. 589, par. 162. As stated in Employers Reinsurance Corporation v. Jones, Tex.Civ.App., 195 S.W.2d 810, 812, writ ref., n. r. e.: “The duration and extent of a disability resulting from injury is at best an estimate which must be determined by a jury from all the pertinent facts before it.” The issue as to disability may be established by the claimant alone, and this is true even though his testimony may be contradicted by medical witnesses. 45 Tex.Jur., p. 592, Sec. 163.

The fact that appellee was unable to perform the kind of work he was doing at the time of his injury or was unable to earn the wages he was paid at such time would not alone establish that he was totally incapacitated. Our Supreme Court, in Texas Employers Ins. Ass’n v. Mallard, 143 Tex. 77, 182 S.W.2d 1000, approved the following definition of total incapacity:

“ ‘The term “total incapacity” (or total disability), as used in this charge, does not imply any absolute disability to perform any kind of labor, but a person disqualified from performing the usual tasks of a workman, in such a way as to enable him to procure and retain employment, is regarded as being totally incapacitated, or totally disabled.’ ”

Appellee’s testimony, in our opinion, shows that he was totally incapacitated within the meaning of that term as approved by our Supreme Court. The evidence is uncontroverted that he could not do the work that he did at the time of his injury. But more important is the fact that he was laid off or discharged three times because of the condition of his back, and his inability to perform the usual tasks of a workman in jobs which he was able to secure but could not retain. It seems clear that he can do only light work and cannot retain employment for any length of time or without assistance or special consideration. He secured the filling station job in which he was employed at the time of the trial with the help of his father who was employed as a “lube” man at Melton’s filling station. His work was limited to pumping gas and wiping windshields, and did not embrace the usual tasks of a workman engaged in the work of a filling station attendant.

We have found it more difficult to determine whether the evidence is sufficient to support the jury’s finding that appellee’s incapacity is permanent. There is no medical testimony that appellee’s condition is permanent. We are of the opinion, however, that the permanency of a physical condition may be shown by circumstantial evidence under certain conditions. The fact that appellee’s condition had remained practically the same for nearly two years from the time of the accident until the time of trial may be considered as some evidence of permanency. Neither Dr. Brodsky nor Dr. Baier, the chiropractor, had seen appellee for a period of approximately a year and a half and were not in a position to testify as to appellee’s condition at the time of the trial. Appellee testified that his back was still hurting at the time of the trial and that he was “still having the same trouble and it’s getting worsen” Dr. Reece testified that he had seen appellee some two weeks before the trial and he was still having pain in the same area as he did when he first saw him, and that he did not think appellee could go out and do manual labor over a period of time such as he had been doing, and that long standing and walking and things of that nature would aggravate his condition, and that if appellee undertook to do heavy work his condition would never clear up, and further that he could not see far enough in the future to determine when appellee’s back condition would clear up. From this evidence and testimony showing that appellee’s total incapacity or disability had continued unchanged down to the time of the trial and would continue indefinitely in the future, the jury found that such incapacity was permanent.

In Travelers Insurance Company v. Wade, Tex.Civ.App., 373 S.W.2d 881, writ ref., n. r. e., the court used the following language which is applicable to the instant case:

“Notwithstanding the general rule prohibiting a lay witness from expressing an opinion that injuries are total and permanent, it is well settled that the factual testimony of a claimant alone, or of other lay witnesses, will support a jury finding of total permanent disability. The jury may reasonably infer total and permanent disability from circumstantial evidence. And this is true though the lay evidence may be contradicted by the testimony of medical experts. Travelers Ins. Co. v. Helstrom, Tex.Civ.App., 351 S.W.2d 321, err. ref. n. r. e.; Consolidated Casualty Ins. Co. v. Baker, Tex.Civ.App., 297 S.W.2d 706, err. ref. n. r. e.; The Ins. Co. of Texas v. Anderson, Tex.Civ.App., 272 S.W.2d 772, err. ref. n. r. e.; Western Casualty & Surety Co. v. Mueller, Tex.Civ.App., 169 S.W.2d 223, err. ref. w. o. m.; American Motorists Ins. Co. v. Black, Tex.Civ.App., 253 S.W. 678, no wr. hist.; Lumbermen’s Mutual Casualty Co. v. Zinn, Tex.Civ.App., 220 S.W.2d 906, err. ref.; Lott v. American Surety Co. of N. Y., Tex.Civ.App., 140 S.W.2d 928, no wr. hist. It is to be remembered that the Workmen’s Compensation Act is to be liberally construed in favor of the claimant. Hargrove v. Trinity Universal Ins. Co., 152 Tex. 243, 256 S.W.2d 73.”

After examining all of the testimony, both that supporting the verdict and that militating against it, we cannot say that the jury’s findings of total and permanent incapacity are so against the overwhelming weight and preponderance of the evidence as to be manifestly wrong and unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

Judgment affirmed.


author: PHILLIPS, Justice. HUGHES, Justice

text:
    Charlie RANKIN et al., Appellants, v. J. C. KELLAM et al., Appellees.
    No. 11269.
    Court of Civil Appeals of Texas. Austin.
    Feb. 24, 1965.
    Rehearing Denied March 17, 1965.
    George & Stewart, E. Donald McNees, Dallas, for appellants.
    Clark, Thomas, Harris, Denius & Winters, Sander W. Shapiro, Austin, for ap-pellees.
   PHILLIPS, Justice.

This case is before us on an appeal from a summary judgment granted by the trial court.

The suit was originally filed by the plaintiffs below, and the appellants here, who are some of the former employees of Texas Broadcasting Corporation, in Hi-dalgo County, Texas. Their suit was to recover certain profit sharing funds that they allege had accrued to them during their employment with the appellee, Texas Broadcasting Corporation. Appellees, defendants below, are the Texas Broadcasting Corporation and the individual Trustees of the KTBC Profit Sharing and Incentive Trust. The case was removed to Austin after the district court in Hidalgo sustained appellees’ pleas of privilege.

The undisputed facts are summarized as follows: Texas Broadcasting Corporation was organized in June 1947, to own and operate radio and television properties. In 1958, the Company acquired KRGV, a radio and television station broadcasting from Weslaco, Texas. The Company operated KRGV until November 1961, at which time it sold the station. Appellants were employees of Texas Broadcasting Corporation at Weslaco, Texas during the time the station was owned by the Texas Broadcasting Company.

In 1956 and before the Texas Broadcasting Company purchased KRGV, it voluntarily instituted a profit sharing plan for the benefit of its employees. The plan took the form of a trust with Trustees appointed by the Company to administer the plan in accordance with the terms and provisions thereof.

The Company has made contributions to the trust in accordance with the terms of the plan in each year since the inception of the plan. Employees make no contribution whatsoever. According to the terms of the trust no amounts contributed by the Company or any other assets of the trust can ever revert to the Company.

On July 1, 1958, ninety-nine employees of KRGV became employees of the Texas Broadcasting Corporation, seventy of whom were eligible for participation and did participate in the plan. Following the sale of KRGV in November of 1961, the Company had in its employ 119 employees, 95 of whom were participating in the plan.

After KRGV was acquired, the employees employed by the Company at Weslaco, including appellants, became eligible for participation and did participate, as provided, in the plan. Accordingly, accounts were set up in the names of each eligible employee, including appellants herein, and credits made to such accounts in accordance with the plan.

When each of the employees of the Company at Weslaco, including appellants, became a participant in the plan, he was given a copy of the plan. Thereafter, in accordance with the requirements of the plan, each participant was given an annual statement showing the financial condition of the plan for that fiscal year.

Prior to the sale of KRGV by the Texas Broadcasting Company an announcement was made to all employees of KRGV that the sale was contemplated and that the Company would retain the employment of those who desired to remain, however the employment would be in Austin. Only two employees of KRGV accepted the Company's offer. All of the other employees, including appellants, terminated their employment.

As stated above, a group of employees whose tenure with the Company terminated, brought this suit for what they allege is their pro rata share of the funds in the plan.

The trial court granted appellees’ motion for summary judgment and denied the various motions of appellants hereinafter discussed.

We affirm the judgment of the trial court.

Appellants’ first six points of error, briefed together, complain of the action of the trial court in failing to grant their motion for summary judgment and in granting appellants’ in that appellants’ accounts were liquidated and established and appellees failed as a matter of law to show any right to these accounts; error of the court in failing to establish that each appellant is a. beneficiary cestui que trust with title to their respective accounts and that appellees, as a matter of law have failed to plead an affirmative defense or superior title to the accounts; that the pleadings before the court including the trust instrument established as a matter of law that appellee Texas Broadcasting Corporation does not have any right or title to the accounts of appellants ; “other” beneficiary appellees have not as a matter of law plead or established any title to the accounts of appellants; that Trustee appellees have not as a matter of law plead or established any right, title or interest in the accounts of the appellants.

We overrule these points. Points of error seven and eight will be discussed later in this opinion.

Section 4-2(a) of Article IV entitled “Leaving Employer’s Service” is as follows:

“(a) Before Ten Years of Service. A Participant who leaves the service of the Employer (other than by reason of death, retirement, permanent disability, or authorized leave of absence) prior to completion of ten (10) years continuous employment subsequent to July 1, 1947, shall receive nothing.”

Article IV is entitled Payments to Participants and Beneficiaries.

Section (b) of Section 4 — 2 of Article IV entitled “after Ten Years of Service” sets out a schedule of the percentages of the fund recoverable for successive years after ten. See foot note No. 1.

Section 11-1 entitled “Employment non-contractual is as follows:'

“Termination of Employment. The employer may terminate the employment of any Participant as freely and with the same effect as if this plan were not in effect.”

Section S — 2(j) states:

“The Trustees shall have absolute power * * * to construe and interpret this agreement.”

Section 5-2 states:

“[The Trustees] determination on all matters relating to the Plan shall be conclusive and binding upon all persons having or claiming to have any interest hereunder.”

The portions of the plan quoted above raise two questions, one, the construction of the plan as relates to the appellant employees, the other, the authority of the Trustees to interpret the plan.

With respect to the construction of the plan as it relates to appellant employees, they maintain that the requirement of ten years of service before any participation pertains only to those employed during the “regular course” of business. That when the Company sold Station KRGV terminating their employment as above described that such was a transaction “outside the regular course” of business bringing into operation Article XII of the plan entitled “Modification and Termination.” This Article states, among other things, that the employer may modify and amend the plan but that such power must not be exercised retroactively so as to impair the rights of participants insofar as they relate to past contributions to the trust, nor shall any such amendment divest any participating employee of any credit theretofore entered to his account. This Article further states that the Employer may discontinue the plan by giving the required notice or the plan may be discontinued upon other contingencies including that of merger with another corporation not assuming the obligation. Should such come to pass, the plan provides that each participant then an employee shall be assigned his full account whereupon the Employer and Trustees shall be fully acquitted and discharged from any further duties or liabilities to those particular participants. Appellants cite cases that state when the legal title merges with the equitable title the trust terminates. From this they argue that in the “regular course of business” the legal title merges with the equitable title after ten years due to the provisions of Sec. 4-2(a), supra, however that the above mentioned Article XII of the Plan provides for such a merger and termination of the trust upon contingencies “outside the regular course of business.” That in view of the fact that the plan provides that each of the accounts of the appellants were liquidated and determined as of June 30 of each year, they are due the amounts prayed for.

Appellants contend that in view of the provisions outlined above the accounts of participants were “irrevocably settled.” This is true only to the extent that according to the plan they could never revert to the Company, but they were not so settled in the sense that the full amount of the account in a participant’s name was vested when credited. Only that portion of each account was vested which complied with the provisions of Article IV which requires the 10 year service before any vesting occurs. Then follows a table setting out the percentage of the fund allocable for years of service succeeding ten. This section specifically provides that:

“The amount to which any participant shall be entitled should his employment be terminated under this Section shall be known as his vested interest.”

In Sec. 12-2 of Article XII the forfeiture provision of Sec. 4 — 2 is mentioned and held not to apply to any participant leaving the service of the Company where the Employer has failed to make contributions as required by the plan without discontinuing the trust. By specifically stating in what situation such forfeiture provision does not apply coupled with the fact that such exception to the forfeiture provision is included in a section of Article XII evokes the Expressio unius rule. See 53 T.J.2d, Section 142, p. 205.

Upon becoming a participant, an employee becomes a contingent beneficiary of the trust to the extent of the value of his account. This occurs after one year of service. The amount in his account which vests upon his termination of employment, is however, determined by the vesting provisions of Article IV. While no amount in the fund can revert to the Employer, the plan provides that the unvested portion of an account forfeited by reason of early termination of employment is distributed ratably to the accounts of the remaining participants. Where a participant, such as each of the appellants, leaves the services of the Employer for reasons other than death, retirement, or disability or leave of absence, and who has been continuously employed for less than 10 years, nothing has vested in him. Appellants therefore, who were with the Company only three years are not entitled to any of the funds in question. Any other construction of this plan would be strained and artificial.

As stated above, in addition to the construction of the plan in issue, we come to the question of the authority of the Trustees to interpret the plan. 38 Tex.Jur.2d, Master and Servant, Section 32, is as follows :

“A plan for employees’ pensions, disability benefits, or death benefits that is maintained by the employer without exacting contributions from the employees is a charitable enterprise in its nature. Therefore, under such a plan, the terms and conditions on which employees shall be entitled to participate, as prescribed by the employer, conclusively govern the determination of a suit by the employee or his personal representative to recover from the fund. These terms and conditions may include a provision that an extra-forum determination of any claim to participate in the fund shall be final and conclusive, and an employee has then no right to complain of its decision in the absence of fraud or bad faith on the part of those who administer the fund. In any event, the construction placed on the rules regulating the disposition of the fund will be adopted by the court unless that construction should conflict with law and public policy.” Citing cases.

The Trustees have interpreted the plan so as to require ten years of service before any employee is entitled to any portion of the fund. In Aston v. Magnolia Petroleum Co., Tex.Civ.App., 241 S.W.2d 306, writ refused, Judge Culver then speaking for the Ft. Worth Court of Civil Appeals, held that where an employee’s benefit fund is established by the employer with no contributions made by the employees, the decisions of the authorized committee regarding the amounts of benefits due employees’ beneficiaries is final and binding on all parties and is not subject to attack in the courts in the absence of actual fraud and bad faith. Also see cases cited in the above-mentioned section of Tex.Jur.2d.

All parties to the suit at bar agree that the plan in question is subject to the provisions of the Texas Trust Act, Art. 7425b-l et seq., Vernon’s Ann.Civ.St. While the abovementioned cases cited make no mention of whether the plans outlined therein were subject to the Texas Trust Act, we have neither been shown any reason, nor have we been able to find one that would preclude the rule in the Aston case, above, from being applied here. Therefore, we hold that the Trustees had the authority to interpret the Act as the}' have done.

Appellants’ seventh and eighth points of error respectively are that of the trial court in denying their motion for discovery and production of documents under Rule 167 and the error of the court in sustaining the objection of appellees to certain interrogatories submitted under Rule 168.

We overrule these points.

Nowhere in their brief or in their oral argument before this Court do appellants contend that any fact issues were to be determined by the trial court. While they assign error to the courts denying their motion for discovery and production of documents and the error of the court in sustaining appellees’ objections to certain interrogatories submitted by them, we are in no way appraised of the purpose of the information sought, in what manner they have been damaged by the court’s action or in what way the trial court abused its discretion in the matter.

Inasmuch as we hold that the only issue before the trial court was an issue of law and that the court correctly ruled on this issue we sustain his summary judgment and affirm this case.

Affirmed.

HUGHES, Justice

(dissenting).

The purpose of the Profit-Sharing and Incentive Plan before us is stated to be:

“Purpose
“The purpose of this Plan is to help employees provide security for their retirement and to provide a means for the sharing with employees of profits of the Employer,”

“Employees” in the Plan are defined by it to mean “all active officers of the Corporation and all employees receiving compensation for their services.”

Section 2-2 of the Plan provides:

“Section 2-2. Participants. All employees who have or will have, completed one year of continuous service with the Employer shall become eligible to participate under this Plan in the contribution for the year in which they so qualify and in the contribution for each succeeding year during the period of their continuous employment with the Employer. All such employees are herein sometimes called ‘Participating Employees.’ ”

The trustees of the Plan are appointed by the Board of Directors of the Corporation.

The Plan provides regarding the duties and authority of the trustees, in part, as follows:

“The Trustees shall serve until their respective successors are appointed, and shall have all powers necessary or appropriate to carry out the functions herein designated and otherwise to administer the Plan and to interpret it, and their determination on all matters relating to the Plan shall be conclusive and binding upon all persons having or claiming to have any interest hereunder.
>j« >|c >fc
“(b) Any action taken by a Trustee or Trustees less than a majority, or by any other person or persons appointed as an agent or agents of the Trustees, as provided for in this agreement, shall constitute action by the Trustees, and such action shall be binding upon the Trust the same as if all the Trustees had joined therein.
“(c) Nothing in this agreement shall restrict the rights of an individual Trustee who is also an employee from being entitled to participate in the benefits of this agreement, or restrict his rights with respect to any funds or cash to be used to or for his benefit. However, no individual Trustee shall have any right to vote or decide upon any matter relating to himself individually, or to his particular benefits as a participant hereunder, but any such matter shall be voted or decided upon exclusively by the other Trustees.”

Section 4-2 of the Plan provides, in part:

“Section 4-2. Leaving Employer’s-Service.
“(a) Before Ten Years’ of Service. A Participant who leaves the service of the Employer (other than by reason of death, retirement, permanent disability, or authorized leave of absence) prior to completion of ten (10) years continuous employment subsequent to July 1, 1947, shall receive nothing.”

Section 4-3 of the Plan provides:

“Section 4 — 3. Distribution of Forfeitures. Any amounts forfeited during a fiscal year shall be entered in a separate account, or accounts, as soon as practicable after June .30 of each year, all amounts forfeited during the year shall be credited to the accounts of those who are Participants on said June 30, each Participant receiving credit for that proportion of the forfeiture which the balance of his account bears to the total of all such balances of all Participants.”

In Section 5-2, paragraph (i) of the Plan, it is provided:

“(1) Except as herein otherwise provided, the Trustees shall have all the rights, powers, privileges, and duties, and shall be subject to all the provisions, conditions, and limitations contained in the Texas Trust Act, as said Act now exists or may from time to time be amended, or any similar act which may from time to time be applicable to trusts administered in the State where this Trust is administered.”

The record shows that the following accounts of the named employees have been forfeited by the trustees of the Plan:

“Charles D. Rankin $2,772.31
Roland E. Schweer 2,778.24
Mildred M. Graham 1,079.24
Leigh Cardwell 2,009.84
Pat Hales 1,165.51
Wray Post 1,123.94
Frances Hartwig 1,695.33
William T. Martin 2,438.97
Daniel E. McKenna 1,463.81
Margaret Garrett 1,285.78
Dora Ziebell 1,245.72
Lewis Hartwig 2,300.11
Jacque Elliott 618.74
John Roark 1,933.03
Timoteo Jiminez 730.51
Waylan Lee Johnston 1,513.06
Larry Taylor 211.06
Jose A. Gallardo 572.15
E. de la Cruz 1,130.20
Hank Page 1,971.34
Edward Badeaux 1,662.81
Gerald W. Whitaker 652.98
Sallye Jones 1,508.45
Fran Page 503.79
Virgil Jorgensen 1,297.16
Jose Rocha 206.42
Arnold Walker 541.56
Alex Ramirez 1,060.84
Romeo Escobar 434.58
Leonel Adams 368.53
T. Marshall Weaver 1,780.20
F. L. Soderquist 866.42
Frances Cohrs 357.27
C. H. Rollie Rowlands (Rollie Rosslando) 154.36
Gene Riethmeyer 355.49
Connie Houghland 169.23
W. L. McCormick 307.58
Donald Houghland 987.93
Vincent Neuhaus 142.04”

These employees had been employed by the Corporation for about three years or less.

There were originally five trustees and it appears that the number of trustees has remained constant but that their identities have changed. Of the five trustees who forfeited the above accounts, four were officers or employees of the Corporation and hence will personally benefit from the forfeitures of their coemployees’ accounts.

Appellees, relying upon the provision in the Plan that the determination of the trustees on all matters relating to it shall be conclusive, make this statement in their brief.

“Thus, even if another interpretation of the plan were feasible — and we think the plan is subject only to the interpretation that Appellants are entitled to no payments — the interpretation placed on the plan by the Trustees is binding. Appellants, therefore, have no grounds for recovery.”

It is my opinion that the action of the trustees in forfeiting the accounts of appellants is void for these reasons:

(1) the trustees, except one, acted on a matter which was to their “particular benefits as a participant” in violation of the specific terms of the Plan;

(2) the trustees’ action is against public policy.

This latter reason is self evident, however, I wish to quote from Patton v. Babson Statistical Organization, Inc., 259 Mass. 424, 156 N.E. 534, by the Supreme Judicial Court of Massachusetts because it concerns a profit-sharing or deferred salary plan. The plan provided that, “If any question arises as to the interpretation or application of any feature of the plan, the decision of the president shall be final.” In holding this provision invalid the Court approved the following language from Brocklehurst & Potter Co. v. Marsch, 225 Mass. 3, 113 N.E. 646:

“It would be a travesty upon all ideas of judicial propriety or of judicial work for a man to be an arbitrator to settle the amount of his own liability. It is contrary to natural right and fundamental principles of the common law for one to judge his own cause.”

This brings me to a discussion of the fact that one trustee was not disqualified by interest and that the Plan makes the action of one trustee the action of all.

The Plan is made subject to the provisions of the Texas Trust Act. Such Act, in Art. 7425b-18, V.A.C.S., provides in part:

“Unless it is otherwise provided by the trust instrument, or an amendment thereof, or by court order:
“A. Any power vested in three or more trustees may be exercised by a majority of such trustees; * *

The general rule is that trustees of private trusts must all join in an action unless by statute or the terms of an instrument a majority of the trustees is authorized to act. Hart v. First State Bank of Seminole, 24 S.W.2d 480, El Paso C.C.A., writ ref.

I construe the above statute as authorizing boards of three or more trustees to act by a majority where the trust instrument does not require unanimity. The granting of affirmative statutory authority to act by a majority under such circumstances is, under well established rules of statutory construction, a negation of authority for trustees, three or more, to act by less than a majority. In my opinion, one qualified trustee was not authorized to act for all trustees in this matter.

Appellees, and the Court, treat the Plan as a charitable trust. In this, I believe they err. It will come as a shock, I feel sure, to some of the employees or officers of this Corporation to learn that they, by participating in this Plan, are the recipients of charity.

It is my opinion that payments under the Plan are compensation. No taxes thereon are paid by the Employer. Federal taxes are paid by the employees on payments received under the Plan. The record demonstrates that the Plan inures to the benefit of Employer and Employee.

From a letter from the Chairman of the Board of Trustees of this Corporation to participants in the Plan, I quote the concluding sentence:

“For the Company which derives the benefit of your loyal and dedicated service, I thank you.”

See Annotation on this subject in 81 A.L.R.2d p. 1070.

It is not established as a matter of law, in my opinion, that appellants left the employ of the Corporation. If the termination of their service with the Corporation was involuntary and without fault on their part, then, under the following authorities, they did not leave their employment within the meaning of the Plan. Muesling v. International Ry. Co., 85 Misc. 309, 147 N.Y.S. 177, Supreme Court of New York, Gardner v. Metropolitan Life Ins. Co., 225 Mass. 439, 114 N.E. 717, Supreme Judicial Court of Massachusetts. See annotation on this subject in 81 A.L.R.2d p. 1078, et seq.

Appellants had worked for this Employer for three years or less. Some had credited to their accounts more than $2500.00. Ap-pellees concede that had these employees worked just short of ten years and even though their accounts might approach $10,000.00, yet, under the circumstances occurring here, they would lose it all.

The Plan, magnanimous and generous ás it is, should not be construed to deal such a crushing blow to the hopes, dreams and expectations of faithful employees if within the limits of reason and law it can be avoided.

The very least that these employees are entitled to is that their claims be determined by trustees who are free from conflicting self interest. I would reverse and remand this case for appropriate proceedings in equity.

I respectfully dissent.

      . Article IV entitled “Payments to Participants and Beneficiaries” is as follows:

      “Section 4-2. Leaving Employer’s Service.

      “(a) Before Ten Years of Service. A Participant who leaves the service of the Employer (other than by reason of death, retirement, permanent disability, or authorized leave of absence) prior to completion of ten (10) years continuous employment subsequent to July 1, 1947, shall receive nothing.
      “(b) After Ten Years of Service. Upon a Participant leaving the service of the Employer (other than by reason of death, retirement, permanent disability, or authorized leave of absence) after completion of ten (10) years continuous employment, he shall receive the following portion of his account, depending upon the number of years of continuous employment subsequent to July 1, 1947, completed by the Participant on June 30 next preceding his termination of employment:
      10 years but less than 11 years . . . . none
      11 years but less than 12 years .... 10%
      12 years and each full year thereafter . . . 20% plus 10% of each full year in excess of 12 years
      The amount to which any Participant shall be entitled should his employment be terminated under this section shall be known as his vested interest.
      “Section 4-3. Distribution of Forfeitures. Any amounts forfeited during a fiscal year shall be entered in a separate account, or accounts, as soon as practicable after June 30 of each year, all amounts forfeited during the year shall be credited to the accounts of those who are Participants on said June 30, each Participant receiving credit for that proportion of the forfeiture which the balance of his account bears to the total of all such balances of all Participants.
      “Section 4-4. Time of Distributions. All withdrawals and distributions made under the Plan are subject to the provisions for distribution in Article VI.”

      . Article XII entitled “Modification and Termination” is as follows:
      “Section 12-1. The Employer reserves the power to change, amend, modify, or alter any of the provisions of this Plan at any time, or to transfer the Fund or part thereof to a new Trust for the Participants’ benefit, except that said power to change, amend, modify, or alter shall have no application to Section 3-3 hereof and shall not be exercised retroactively to alter or impair the rights of Participants or their beneficiaries, insofar as they relate to past contributions to the Trust; nor shall any such amendment vest in the Employer any right, title, or interest in and to the assets of the Trust, divest any participating employee of any credit theretofore entered to his account, or permit any part of the assets of the Trust to be used for or diverted to purposes other than for the exclusive benefit of participating employees. The Trustees shall in writing notify all Participants of any change, modification, or alteration in the provisions of this Plan accomplished in accordance with this Section. No amendment shall require approval by the shareholders of the Employer.
      “The Employer may discontinue this Plan by giving written notice to the Trustees at any time. In case the Employer decides to discontinue this Plan (not substituting a new Trust therefor), or in the case of the dissolution of the corporation, or in case of adjudication of the corporation as a bankrupt, or the loss of the corporate existence of the corporation, or a merger into or with another corporation or corporations which shall not assume the obligations of this Plan, the Trustees shall assign to each Participant who is then an employee of the Employer his full account, whereupon the Employer and the Trustees shall be fully acquitted and discharged from any further duties or liability to those particular Participants.
      “Section 12-2. If the Employer shall at any time fail to make a contribution in accordance with the terms and provisions of Article III hereof without discontinuing the Trust and without securing approval of the District Director of Internal Revenue, the company shall be deemed to have discontinued contributions to the Trust and the forfeiture provisions of Section 4 — 2 shall not apply; and any Participant leaving the service of the company during such period of discontinued contributions shall be entitled to receive one hundred per cent (100%) of his interest in the Fund.”

      . Sections 2-2 and 2-8 read as follows:
      “Section 2-2. Participants. All employees who have or will have, completed one year of continuous service with the Employer shall become eligible to participate under this Plan in the contribution for the year in which they so qualify and in the contribution for each succeeding year during the period of their continuous employment with the Employer. All such employees are herein sometimes called ‘Participating Employees.’
      “Section 2-3. Determination of the right and basis of participating in each year’s contribution shall be made annually as of the 30th day of June of each such year, commencing June 30, 1956, and all persons qualifying during such year shall thereupon participate in the benefits provided hereunder upon the pro rata basis to which he or she is entitled according to the time of qualification during the year.”

      . This is the holding under similar facts in Lee v. Lee, 112 Tex. 392, 247 S.W. 828, followed in Herring v. Blakeley, 385 S.W.2d 843, Tex.Sup.


author: PARKER, Justice.

text:
    CONSOLIDATED UNDERWRITERS, Appellant, v. Owen PITTMAN, Appellee.
    No. 6672.
    Court of Civil Appeals of Texas. Beaumont.
    Sept. 30, 1964.
    Rehearing Denied Oct. 28, 1964.

      Baker, Botts, Shepherd & Coates, Houston, for appellant.
    Helm, Jones & Pletcher, Houston, for ap-pellee.
   PARKER, Justice.

Appellee Owen Pittman sued Consolidated Underwriters to recover benefits for an accidental injury sustained by him on February 19, 1962, in the course of his employment with Foster Lumber Company. Said employer had in effect with appellant a policy of insurance providing coverage under the Workmen’s Compensation Law.

A jury found that appellee sustained an accidental injury in the course of his employment on February 19, 1962, that the employer received notice of injury within thirty days, and said injury produced permanent total incapacity from said date. A wage rate producing a compensation rate for total incapacity of $35.00 a week was stipulated. Special Issues 16, 17, 18 and 19 were submitted to the jury to determine whether or not good cause existed for ap-pellee’s failure to file his claim for compensation with the Industrial Accident Board within six months’ period prescribed by Art. 8307, Sec. 4a, Vernon’s Ann.Civ.St. In answer to Special Issues 16 and 17, the jury found that appellee Pittman believed, until about the time his claim was filed, that his injuries would not disable him, and this was good cause for not filing his claim for compensation before it was actually filed. In its answers to Special Issues 18 and 19, the jury found that appellee Pittman believed until about the time his claim was filed that J. B. Webster, the employer’s chief forester under whom appellee worked, was handling his claim in a timely manner, which was good cause for not filing his claim for compensation before it was actually filed. The trial court entered judgment for appellee upon the verdict of the jury, the stipulations and undisputed facts.

Appellant’s Points of Error Nos. 1 through 5, inclusive, attack such findings of the jury on “good cause”.

The test for “good cause” has been uniformly held to be that of ordinary prudence, as exercised by a claimant in prosecuting his claim with that degree of diligence that an ordinarily prudent person would have exercised under the same or similar circumstances. The special issues on good cause were phrased in compliance with the foregoing test. The question is one for the jury except when, from the evidence, only one reasonable conclusion can be drawn; and, in that event, the question of good cause is determined as a matter of law. Hawkins v. Safety Casualty Co., 146 Tex. 381, 207 S.W.2d 370 (1948).

Appellee Pittman testified: that on February 19, 1962, while cutting land lines for Foster Lumber Company he stumbled in a stumphole and fell to the ground, injuring his back. He was unable to continue working and was carried home. His wife then called Dr. Mitchell, but it was not until the following day that he saw the appellee, prescribing analgesics and a back brace for support. Appellee Pittman was unable to work for four or five days. On March 6, 1962, he went to see Dr. Helm about his injuries, and saw him several times thereafter. Returning to work within a week after his accident, appellee notified the chief forester for Foster Lumber Company, Jim Webster, of the injury to his back. Ap-pellee worked for Webster. Thereafter, appellee was given lighter work, missing hours of work, and at times, a day’s work, until he was fired on September 18, 1962, because Foster Lumber Company wanted able-bodied men. Appellee testified that he believed his injuries were trivial and that he would get well; that his chief forester, Webster, told him not to file a claim with the Industrial Accident Board because he would take care of it. Webster was the representative of Foster Lumber Company signing the notice posted upon said company’s building which directed its employees to report on-the-job injuries in this language :

“All on-the-job injuries must be reported to the office immediately, of course, so that the proper forms can be filled out as required by the insurance company and by the State.
“FOSTER LUMBER COMPANY
“J. B. Webster
“Chief Forester”

Appellee’s testimony as to the injury to his back was corroborated by his wife, by Dr. Helm’s testimony, and other evidence. Buster Ford, another employee, testified to the contrary but such testimony was contradicted by a written statement signed by Ford on September 24, 1962, stating that Pittman fell in a hole while working, before noon, sometime in February, 1962, couldn’t walk, and that he, Buster Ford, reported the accident to Mr. Webster in Mr. Webster’s office the same afternoon.

Claim for compensation was filed by ap-pellee prior to September 24, 1962. Ap-pellee was not an educated man, although for fifteen years "he had satisfied Foster Lumber Company with his work under its chief forester, Jim Webster, his knowledge of timber and the boundary lines of the company lands.

The jury could properly consider the background and training of appellee, his lack of education and business experience in determining whether an ordinary prudent man, under the same or similar circumstances, would have delayed in filing his claim. The claimant reasonably could have relied upon Foster Lumber Company’s chief forester that he would take care of filing the claim. United States Fidelity & Guaranty Company v. Herzik, 359 S.W.2d 914 (1962, Tex.Civ.App.) (writ ref., n. r. e.). Appellee reiterated time and again that he thought he was going to get well until he was fired on September 18, 1962. Then he abandoned his belief in ultimate recovery, and promptly prosecuted this claim for compensation. Claim for compensation was filed within seven days after he was so discharged, a reasonable period of time necessary for the investigation, preparation, and filing of his claim.

There is evidence supporting the submission of and findings of the jury in answer to Special Issues 16,17,18 and 19, and, accordingly, appellant’s “no evidence” contentions are overruled.

Considering the entire record, there is ample support for the findings of the jury in answer to Special Issues 16,17,18 and 19. Further, such findings are not against the great weight and preponderance of the evidence as to be manifestly unjust and clearly wrong.

Appellant’s points of error urging there was insufficient evidence to support and sustain the findings of elements of “good cause” and that such findings were against the overwhelming weight and preponderance of the evidence are overruled.

Such findings of the jury on “good cause” are sufficient to excuse the delay in filing the claim. The issues were phrased properly. Each and all parts of points of error 1,2, 3,4 and 5 are overruled.

Appellant’s point of error No. 6 is that there is no evidence and insufficient evidence to support and sustain the submission of Special Issue No. 4 and the jury’s finding in answer thereto that the employer, Foster Lumber Company, had notice of injury within 30 days after the occurrence. Ap-pellee testified he reported his injuries. Appellant states that appellee only asked Webster, employer’s forester and foreman, if he had heard he had been injured. Ap-pellee Pittman testified that within a week of his accidental injury, he informed Webster that he had hurt his back and was unable to work. On this occasion, his boss, the chief forester, told him to work as well as he could, even though only for an hour or two a day, assuring appellee the Company would pay his time; that he, Webster, would take care of everything; that it wasn’t necessary for appellee to file any papers with the Industrial Accident Board. Appellee believed these statements because he was working under Webster and relied upon what Webster told him to do and not to do.

There is evidence supporting and sustaining the submission of Special Issue No. 4 and the jury’s finding thereon. That part of appellant’s point of error No. 6 contending there was no evidence thereon is overruled.

The jury finding that Foster Lumber Company received notice that Owen Pittman had sustained an accidental injury in the course of his employment with Foster Lumber Company within 30 days from February 19, 1962, taking into consideration the entire record, was supported by ample competent evidence, and was not so against the overwhelming weight and preponderance of the evidence as to be manifestly unjust or clearly wrong. That part of point of error No. 6 urging the evidence was insufficient to sustain the jury finding that the employer received notice of appellee’s injury within 30 days is overruled.

The jury found, in answer to Special Issues Nos. 1, 2 and 3, that Pittman sustained an injury to his body on February 19, 1962; that said injury was an accidental injury received in the course of his employment with Foster Lumber Company.

Point of error No. 7 is that there was no evidence and insufficient evidence to support and sustain'the court’s submission of such special issues and the jury’s findings thereon. Pittman testified he fell in a stumphole and injured his back while working in the course of his employment with Foster Lumber Company. It was an accidental injury. His fellow employee, Buster Ford, a witness for appellant, while upon the stand did not so testify. Nevertheless, the jury had a right to believe Pittman’s narrative as to his falling in the stumphole and injuring his back while employed by Foster Lumber Company. The fact that Buster Ford had previously made a written statement corroborating appellee’s testimony probably influenced the jury in disbelieving the testimony of Buster Ford. There is evidence supporting the submission and answers of the jury to such issues. It cannot be said that there was insufficient evidence to support the submission of such issues and the jury’s findings thereon. Appellant’s contention that there was no evidence supporting same is overruled. The testimony of appellee amply supports the ultimate fact issues found in his favor by the jury in answer to Special Issues 1, 2 and 3; and it cannot be said that the answers of the jury to such issues are manifestly unjust or clearly wrong. Accordingly, we overrule that part of point of error No. 7 contending there was insufficient evidence to support and sustain the court’s submission of Special Issues 1, 2 and 3 and the jury’s findings thereon.

Point of error No. 8 is a complaint by appellant that the trial court erred in overruling and refusing appellant’s motion for new trial because the cumulative effect of improper proceedings, conduct of counsel, and rulings of the court deprived appellant of a fair and impartial trial. Such matters complained of are detailed hereinafter.

Appellant did not timely object to the following statements made on voir dire examination of the jury panel or during argument to the jury at the conclusion of the trial by attorneys for appellee, namely:

1. That appellee was retained in his employment until the six months’ filing period had elapsed, and then was fired. This argument was supported by and undisputed in the record.

2. Appellee’s counsel argued to the jury at times by asking a question of the ap-pellee and his wife, with attorney for ap-pellee answering his own question.

3. Appellee’s counsel argued that Buster Ford testified, upon trial, in contradiction of a written statement signed by him. Such argument speculated as to what caused Buster Ford to change his story.

4. The statement of appellee’s attorney upon voir dire examination of the jury panel as follows:

“It is our contention in this case, as I have told you, and we expect to present medical evidence, competent medical evidence, to prove it, that under the law of this state as given by the Judge in his charge, that Owen is totally and permanently disabled. We are suing in this case for $35.00 a week for 401 weeks, in this case. Is there anybody prejudiced against it because we are suing for workmen’s compensation benefits of $35.00 a week for 401 weeks ? If there is, please hold up your hand. That’s what we are asking for in this case and that’s what we expect to prove by competent evidence.”

5. Jury argument by attorney for appellant containing substantially the same statements as contained above in No. 4.

6. The argument of appellee’s attorney as to how much a doctor was paid to testify as compared to the $5.00 per day that a juror received.

Appellant filed no motion for mistrial, and made no objection to the statement complained of upon voir dire examination of the jury. No objection was made by attorney for appellant to any of the foregoing numbered statements and arguments when made. Appellant waived its right to complain by not objecting thereto when made. The court had no opportunity to instruct the jury with respect thereto or to minimize any asserted damage to appellant. Appellee’s counsel was given no opportunity to retract or withdraw his remarks. Much more objectionable argument has been held curable by instruction upon timely objection. Such argument and statements, if erroneous, could have been cured upon instruction from the court. Younger Bros., Inc. v. Myers, (Sup.Ct., 1959) 159 Tex. 585, 324 S.W.2d 546. See T. & N. O. RR. Co. v. Perez, 346 S.W.2d 369, Tex.Civ.App. (rehearing denied, n. r. e.).

The only two instances where appellant objected to the ruling of the court and mentioned in appellant’s point No. 8 are as follows:

(a) Appellant offered in evidence a check (Defendant’s Exhibit No. 1). Appellee objected to a typewritten conclusion thereon. The court sustained the objection. Appellant excepted to the ruling of the court. Thereafter, counsel for appellee proposed that all of the check be admitted in evidence if counsel for appellant would agree to admit another instrument in evidence. This proposal was accepted. Both instruments were admitted in evidence. The exception of appellant to the previous ruling of the court on the check was waived.

(b) Counsel for appellee asked the witness Webster to look at a statement by Buster Ford and his signature thereto to refresh Webster’s memory. Appellant objected. The witness could not recall any fact after examining such signature and statement. The ruling of the court in this matter did not prejudice appellant so that it could be said it was deprived of a fair and impartial trial.

Appellant cites no authority applicable to (a) and (b) above that would indicate his objection was valid, and we find it to be without merit.

Final complaint under point of error No. 8 was that appellee’s attorneys were permitted to divide their time of jury argument so that Mr. Ellisor and Mr. Atkins both opened, and Mr. Ellisor closed. The trial court in its discretion could permit this. Appellant does not state in what manner he was prejudiced thereby. It seems to be without merit. Each and all of the complaints of point of error No. 8 are overruled.

Judgment of the trial court affirmed.


author: CHAPMAN, Justice.

text:
    PANHANDLE & SANTA FE RAILWAY COMPANY, Appellant, v. W. B. HOGAN, Jr., d/b/a W. B. Hogan & Son, Appellee.
    No. 7437.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 15, 1965.
    Rehearing Denied March 22, 1965.
    McWhorter, Cobb, Johnson & Cobb, Lubbock, for appellant.
    Nelson, McCleskey & Harriger, Lubbock, for appellee.
   CHAPMAN, Justice.

This is an appeal by Panhandle & Santa Fe Railway Company from a judgment based upon a jury verdict for W. B. Hogan, Jr. d/b/a W. B. Hogan & Son against the railway company for conversion of rock, sand, and gravel, referred to in the record as aggregate, which had been stored on Santa Fe’s property adjacent to Hogan’s leased and enclosed premises.

On July 22, 1955, Santa Fe leased to ap-pellee, W. B. Hogan & Son, 12,500 square feet of land owned by them along their right of way. The lease provided, among other conditions, that it could be terminated at any time by either party by serving 30 days written notice of termination upon the other party; that any notice given by lessor to lessee should be deemed to be properly served if such notice was deposited in the post office, post paid, addressed to lessee at Lubbock, Texas; and that lessee should use the premises exclusively as a site for a warehouse.

The lease was for a nominal sum and the obvious purpose of the Santa Fe in making the lease was the business appellee convinced them would result to the railway company in rail carload business. The testimony shows an estimate by the Hogans of 50 cars per annum. In 1956 they shipped 30 cars; in 1957, 29 cars; in 1958, 3 cars; and in 1959, 1 car; and none afterwards. Santa Fe cancelled the lease on October 18, 1960.

Though at least three letters dated from February 24, 1961, to September 13, 1961, sent by certified mail with return receipt requested and mailed in due course of business were addressed to Mr. Hogan at his proper address requesting that he effect proper clearance of the site of the right of way formerly covered by their lease agreement, all were returned unclaimed except one received approximately six days after Santa Fe had hired the aggregate removed and spread over part of their right of way to fill in holes and level their property.

Appellees had their leased site fenced but the record shows the aggregate was stored or piled outside their fenced area. Some of it was piled next to the fence and just the small amount that sifted through the fence was on the actual lease. An exhibit introduced into evidence shows two piles of the aggregate on the leased premises of Lubbock Insulation Company, another lessee of Santa Fe, and one pile on Santa Fe’s unleased property outside ap-pellee’s lease.

Santa Fe defended the suit for conversion on the theory that appellee was in law a trespasser but it cited no reliable authority showing any legal right of a land owner to convert the property of a trespasser under facts analogous to the instant case. Ap-pellee contends he had permission from Mr. Deitker, a Santa Fe employee, for the storage on the Santa Fe property, and from Mr. Bristow of Lubbock Insulation for storage on their lease, and was therefore a licensee by virtue of those oral licenses.

A jury found Mr. Deitker was without authority from Santa Fe to make representations to Mr. Hogan that he could store the crushed rock, sand, and gravel on premises adjacent to the premises formerly leased by the Hogans.

The only evidence on the subject of his authority was by Mr. Deitker himself. He testified in effect that he was general freight agent for Panhandle & Santa Fe Railway Company covering an area that included Lubbock County; that his duties are principally in sales and industrial work and service matters; that he investigated the lease application of the Hogans, recommended it to his superior traffic manager, but that the traffic department does not execute any leases; that leases are executed by the general manager’s office, or the vice president, or president in Chicago, depending on the type of lease; and that he has no authority to make any written or oral agreement or lease.

The trial court, over the objections of appellant, submitted issues as to whether W. B. Hogan was a licensee from Santa Fe to store the aggregate on land not described in the lease and the jury answered affirmatively.

It requires no authority to say, the question of whether one is a licensee or not is a legal question. In accordance with Rule 277, Vernon’s Ann.Tex.Rules the court gave an explanatory instruction by defining a licensee as “one having a right or mere permissive use to land authorized by a land owner or one having authority, without granting any interest in the land.” The record is undisputed that the land owner, Santa Fe, did not authorize any right or permissive use to store the aggregate on their unleased land. The only evidence that anyone representing Santa Fe authorized such right was the evidence of Mr. Hogan that Mr. Deitker did so, and the jury found he was not clothed with such authority. The evidence is undisputed that he had not such authority. Therefore, as to the aggregate stored on the unleased premises of Santa Fe, it is inescapable that the Hogans were trespassers.

Our Supreme Court has held that: “A trespasser * * * is one who, not having the title to land, without the consent of the true owner, makes entry thereon.” Pilcher v. Kirk, 55 Tex. 208, 216; McDaniel Bros. v. Wilson, Tex.Civ.App., 70 S.W.2d 618 (writ refused).

The court instructed the jury that a person “is a trespasser where he enters upon the property of another without any right, lawful authority, or express or implied invitation, permission, or a license, not in performance of any duty to the owner.”

Under either the definition of trespasser approved by the Supreme Court or the one given by the trial court, the Hogans were trespassers as to the aggregate stored on Santa Fe’s unleased land.

The legal problem thus presented is whether Santa Fe had the right and authority to remove the personal property of a trespasser from the right of way sought to be cleared and convert it to their own use without remuneration.

Under Section 16 of the lease contract if lessee failed to remove the improvements and restore the premises to substantially the state in which they were prior to the construction of the improvements, within the period and after the notice provided for in the clause, Santa Fe had the right and authority to hold the improvements as its sole property. We do not believe under the record here the aggregate could be called improvements within the meaning of the lease.

As heretofore stated, appellant has cited us to no reliable authority holding that a land owner may convert personal property of a trespasser to his own use, and in a diligent search we have found no authorities so holding under facts analogous to our own.

The San Antonio Court of Civil Appeals, in a suit for conversion, has held where tenants abandoned a house and left personal property it became the duty of the owner of the house to safely care for the personal property they found there. The court said, “by taking possession of the premises they made themselves responsible for the property left there; * * *.” Alsbury v. Linville, Tex.Civ.App., 214 S.W. 492, 495 (writ dismissed).

The El Paso intermediate court has said: “He [referring to the lessor] may not himself take forcible possession of the tenant’s property, and by doing so usurp the powers and functions of the court, * * Loftus v. Ray, Tex.Civ.App., 46 S.W.2d 1034 (dismissed woj).

Santa Fe could have cleared the aggregate from the premises involved, stored it and charged appellee for the moving and storage but they elected to move it and improve their property with it. Under the contract of lease between the parties and the record here made we do not believe they had the legal authority to do so even though as to that stored on Santa Fe’s un-leased premises appellees were trespassers. If they did not have such authority as to that stored on unleased premises; a fortiori, they certainly had no such authority as to the aggregate stored on Lubbock Insulation property, which W. B. Hogan, Jr. testified was with that company’s consent.

Accordingly, the judgment of the trial court is affirmed.


author: ARCHER, Chief Justice.

text:
    LO-VACA GATHERING COMPANY, Appellant, v. Earl CALLAHAN et al., Appellees.
    No. 11276.
    Court of Civil Appeals of Texas. Austin.
    March 10, 1965.
    Rehearing Denied March 31,1965.
    W. T. Blackburn, Corpus Christi, Ross Meredith, Elgin, for appellant.
    Maynard & McMurrey, Bastrop, for ap-pellees.
   ARCHER, Chief Justice.

This is a condemnation case for a pipe-. line easement across a 350-acre tract of grazing and pecan land in Bastrop County. Regular condemnation proceedings were held and appellees filed objections to the award of the Special Commissioners. Trial was before a jury. Plaintiff’s motion to disregard the answers to the special issues was sustained in part and overruled in part. Judgment was entered and appellant’s motion for new trial was overruled. This appeal is only from those parts of the judgment that are based on the jury’s answers to Special Issues Nos. 2 through 6, which relate to the decrease in value to appellees’ property caused by the pipeline.

The appeal is predicated on twenty-seven points, and may be separated into four divisions. The first division is directed to the error of the court in overruling appellant’s motion to disregard the jury’s answer to Special Issues Nos. 2 and 3, because there was no evidence to support the jury’s verdict.

Special Issue No. 2 inquired as to the reasonable market value of 3.87 acres of land covered by the easement immediately prior to the taking, and the jury answered $1548.00.

Special Issue No. 3 inquired as to the value of the 3.87 acres immediately after the taking of the easement, and the jury answered $774.00.

E. Charles Lewis, qualifying as an expert land appraiser, testified that he was employed by the appellant to make an appraisal of the lands involved in this case and identified many photographs of the land and became familiar with value of property around the Callahan land, and fixed the value of the 3.87 acre tract at $980.00 before the easement was taken and $490.00 after the pipeline was placed on the same; that the market value of the 350 acres outside the easement would have been $51,500 prior to the taking, and the same value after the taking.

Earl Callahan testified that the value of bottom, pecan land, was $1000.00 per acre, and between $100.00 and $150.00 per acre for the upland, and that the value of the entire tract was $250.00 per acre; that the pecan land was worth $350.00 to $500.00 per acre after the location of the pipeline, and that the upland, after the location of the pipeline was worth from $50.00 to $75.00 per acre.

Charles D. Alexander gave testimony as to the reasonable market value of the land as being substantially that given by Earl Callahan.

The jury could believe the witnesses Callahan and Alexander as to value, as these witnesses were familiar with the value of the lands and could express their opinions. The jury was not required to accept the appraisement values of the land as given by Mr. Lewis, but could give such evidence consideration in arriving at its answers. Panhandle Eastern Pipe Line Co. v. Jackson, Tex.Civ.App., 306 S.W.2d 145, n. w. h. City of Houston v. Ready, Tex.Civ.App., 370 S.W.2d 210, n. w. h. City of Houston v. Hendrix, Tex.Civ.App., 374 S.W.2d 764, er. ref., n. r. e.

The second division consisting of Points Nos. 6, 7, 8, 9, 10 and 11 are directed to the error of the court in failing to grant appellant a new trial because the jury’s answer to Special Issues Nos. 2 and 3 were not supported by sufficient evidence, and was so against the overwhelming weight and preponderance of the evidence as to be manifestly wrong and unjust.

Since we have concluded that the jury could believe the testimony given by the land owner and of Mr. Alexander its verdict finds support in the record, and we may observe that the statement of facts contains 492 pages of testimony and many exhibits indicating that the case was fully developed. Mr. Callahan had been County Commissioner for over ten years, and as such, purchased the right of way for the State for highway and road purposes, and was therefore familiar with land values and easements.

We believe that appellant had a fair trial in this case.

The jury was made up of people from all walks of life and they deliberated for one hour and forty-five minutes before they reached a verdict, in which there were only six issues.

Appellant was represented by capable counsel, one of whom was a local lawyer, and the prospective jurors were examined by such counsel and asked whether or not they could render a fair and impartial verdict, and under oath stated that they could.

The third division is concerned with 9 Points and are that the court erred in overruling plaintiff’s motion to disregard the jury’s answer to Issues Nos. 4, 5 and 6, inquiring if the Callahan property outside the 40 feet permanent pipeline easement was decreased in value and the jury answered that it was, and in answer to Issue No. 5 the jury found that the reasonable market value of the 350 acre tract exclusive of the 3.87 acres, before the taking was $77,879.25, and in reply to Issue No. 6 found the value to be, after the taking, $74,417.95.

Point No. 15 is that the court erred in rendering judgment for $3,461.30 for the damages to the remainder of defendants’ property; Point Nos. 16 and 17 are that there was no evidence of probative force to support the jury’s answers to Special Issues Nos. 4 and 5; Point No. 19 is that the court erred in failing to grant a new trial because there was no evidence of probative force to support the jury’s finding in response to Special Issue No. 6, and finally, the court erred in failing to grant a new trial because the jury’s answers to Issues Nos. 5 and 6 were of such amounts as to constitute a finding of damages to the remainder of defendants’ property outside the permanent pipeline easement that was grossly excessive.

There was no dispute by the witnesses as to the 3.87 acres as the amount of bottom land or upland. The tract as a whole was valued by Mr. Lewis at $980.00 before the easement was taken and at $490.00 after-wards.

Mr. Lewis testified that the 346 acre tract was not diminished in value by the taking of the 3.87 acre easement. Mr. Callahan gave a value on the 346 acres as a tract at $250.00 per acre and that it was worth from $50.00 to $75.00 less after the taking of the easement and the jury found the damage to be approximately $10.00 per acre or $3,641.-30. This valuation by the jury was doubtless based on the testimony of Mr. Callahan who later testified that the land had decreased in value by the location of the pipeline between $10.00 and $15.00 an acre. The jury accepted the lowest value fixed by Mr. Callahan as the damages.

Since neither Mr. Callahan nor any other witness testified to the number of acres in the 3.87 acre tract subjected to a permanent easement which were bottom land and the number of acres which were upland, the value of each kind of land being different, there is no evidence to support the jury findings to Issues 1 and 2 unless the aerial map in evidence is sufficient for this purpose.

We have examined such map and are unable to determine from it how, in acreage, the tract subjected to a permanent easement is divided between upland and bottom land.

Appellant’s witness testified that this 3.87 tract had a value of $980.00 before the taking and $490.00 after the taking, a difference of $490.00 as opposed to the jury finding of a difference in before and after values of $774.00.

The record being in this condition, we must reverse and remand this case unless appellees will file a remittitur in the sum of $284.00, being the difference between the jury finding and appellant’s testimony as to the lessened value of the 3.87 tract.

If such remittitur is filed within ten days from this date, the judgment of the trial court will be affirmed.

Affirmed on Condition.

Appellees having filed a remittitur herein in the sum of $284.00, as conditioned in our opinion of March 10, 1965, the judgment of the Trial Court is to such extent reformed and as reformed is affirmed.

The costs are taxed two-thirds against appellant and one-third against appellees.

Remittitur filed. Reformed and as reformed, affirmed.