text:
    Elmer W. TAYLOR, Plaintiff-Respondent, v. Arthur James SCHNEIDER, Defendant-Appellant.
    No. 31306.
    St. Louis Court of Appeals. Missouri.
    Sept. 17, 1963.
    Rehearing Denied Oct. 14, 1963.

      J. Andy Zenge, Jr., Richard Howe, Canton, Brown & Normile Bruce Normile, Edina, for appellant.
    J. Patrick Wheeler, Canton, for respondent.
   BRADY, Commissioner.

This is an appeal from a verdict and judgment for $6,250.00 in plaintiff’s favor in an action arising out of an automobile collision occurring on Highway 61 in Clark County, Missouri, near an establishment known as Morgan’s Service Station. The parties will be referred to by their designation in the trial court. Defendant’s timely after-trial motions were denied and this appeal followed.

The factual situation, as viewed in the light required of us by the jury’s verdict and as limited by reference to the defendant’s allegations of error, follows. Highway 61 is a two-lane, concrete pavement 20 feet wide and, at this point, runs in a generally northwardly/southwardly direction. The defendant was traveling northwardly. Morgan’s is a service station and restaurant located on the west side of the highway and has 2 driveway entrances each 60 feet wide. Plaintiff testified that by his measurements the distance from the south curb of the south entrance to the north curb of the north entrance was 415 feet. This he later modified on cross-examination to 393 feet and stated that from the south end of the south driveway to the right side of his automobile when he was stopped would be 339 feet. Plaintiff had been in the restaurant eating and upon entering his automobile drove it eastwardly on the north driveway toward the highway, coming to a stop next to the south curb of the north entrance with the front of his automobile 6 feet west of the west edge of the pavement. He looked! northwardly and saw nothing. He could see about 1 mile to the south and, upon looking in that direction, saw the lights of an approaching northbound automobile 800 to-900 feet from him. (He determined this-distance from the fact that these lights-were to the south of another service station, which is on the east side of the highway and to the south of Morgan’s and he later-measured this distance.) Plaintiff then, drove eastwardly out onto the pavement at. about 5 miles per hour. When the right front wheel of his automobile was at the center line and the left front wheel was-about 4½ feet from it, he turned left or-to the north. When the plaintiff was “sitting” over the center line, he looked again to the south and saw the defendant “ * * at the south drive.” He proceeded to complete his turn. He was on his side of the-road, had traveled 80 or 90 feet after the-turn, and was going 20 miles per hour when, his automobile was struck from behind. His testimony was that 7 seconds had' elapsed from the time he began to move-until impact occurred. An instant before the impact he saw the lights of the defendant’s automobile in his rear view mirror. Varner, a passenger in defendant’s automobile, testified that before the impact he-saw both tail lights of plaintiff’s automobile ahead of defendant’s automobile. Plaintiff’s automobile left the road after being propelled 35 feet forward from the point of impact. Defendant’s automobile left skid marks of 44 feet and came to a stop 160 feet beyond the north end of these marks. The road was dry. The plaintiff testified that he was very familiar with the highway and knew that the speed limit at this point was 55 miles per hour.

During the cross-examination of defendant, it was established that his automobile was a 1955 two-door Oldsmobile “88”. Defendant was then asked if he had ever raced that automobile in drag races. Upon timely objection, the jury was instructed to disregard that question. The following then occurred: “Q Had you ever had this ■car up to its maximum speéd? (Defendant’s objection was timely made and overruled.) A I have. Q And what was the maximum speed of that car? A Well, 108 miles an hour.”

Defendant’s allegations of prejudicial error present four contentions. First he alleges the trial court should not have overruled the motions for a directed verdict offered at the close of plaintiff’s evidence and offered again at the close of all the evidence. In support of this allegation of prejudicial error, defendant urges that plaintiff was contributorily negligent as a matter of law. The second contention defendant presents is that the trial court erred in overruling his motion to set aside the verdict and judgment for plaintiff. In support of this motion, defendant urges that plaintiff’s version of this occurrence is so contrary to what defendant refers to as “the physical and scientific facts” as to have no probative value. The defendant then contends that the trial court preju-dicially erred in allowing the inquiry by plaintiff’s counsel, over objection, as to the defendant’s conduct on another occasion when he drove his automobile at a speed of 108 miles per hour. Defendant’s fourth and last contention deals with the giving of certain instructions. In view of the disposition of this appeal, as enunciated in this opinion, we do not reach that last contention and, for that reason, the instruction complained of will not be set out herein.

The defendant’s allegation of prejudicial error with regard to the overruling of his objection to the question as to whether he had ever driven his automobile up to its maximum speed compels us to reverse this judgment. As stated in that portion of this opinion giving the facts, the trial court permitted the plaintiff’s counsel to inquire if defendant had ever driven his automobile at its maximum rate of speed. Defendant’s answer that he had done so and the resulting inquiry as to that rate of speed was given over the timely objection of his counsel. There was no controverted issue as to speed in this case. The plaintiff contends that this evidence was pertinent to the issue of whether defendant’s automobile could have struck plaintiff’s automobile; this the defendant never denied and thus it was not an issue in this case. The evidence which should be admitted in a case is that evidence which tends to prove or disprove an issue in the case. Evidence which goes to prove or disprove other matters is immaterial and irrelevant. 20 Am.Jur., Evidence, § 246, p. 239. Actually plaintiff’s argument amounts to a tacit admission that the trial court erred in permitting this question and answer but that such error was not prejudicial. We think the prejudicial nature of this error is manifest when the form of the question is recalled. The inquiry was in no way related to the defendant’s conduct on the occasion in evidence but he was asked if he had ever driven his automobile at its maximum rate of speed. His answer that he had driven the automobile at a speed of 108 miles per hour could not help but weigh heavily against him. The effect of the trial court’s ruling was to allow the prejudice that would naturally result from defendant’s admitted conduct upon another occasion to become a factor in the jury’s determination of whether or not he was negligent on this occasion.

The plaintiff also contends this point should be ruled against the defendant because the statement of the point in motion for new trial was general in nature. In the motion for new trial, the language used was that “The court erred in admitting irrelevant, immaterial and incompetent evidence on behalf of plaintiff over the objections * * * ” of the defendant. The motion for new trial did not set out the evidence claimed to be irrelevant, immaterial and incompetent. Civil Rule 79.03, V.A.M.R., specifically approves the sufficiency of such an allegation of error in a motion for new trial where during trial the party made an objection complying with Rule 79.01, V.A.M.R., as to definiteness. This is the situation in this case.

Having reached the decision that we must reverse the judgment, the extent of our order becomes pertinent. If the plaintiff failed to make a case, then we should reverse this judgment outright. On the other hand, if plaintiff did make a case for the jury then our order should include remanding this cause for a new trial. It is, therefore, necessary to consider the defendant’s allegations of error going to the sufficiency of plaintiff’s case. Defendant’s contentions in this regard are those encompassed by the allegations of prejudicial error based upon the trial court’s action in overruling defendant’s motions for a directed verdict and in overruling his motion to set aside the verdict and judgment for plaintiff.

It is well settled that by presenting evidence after the trial court overruled the motion for a directed verdict offered at the close of plaintiff’s case, defendant waived any complaint he may have had as to that action. Snead v. Sentlinger, Mo., 327 S.W. 2d 202; Whalen v. St. Louis Public Service Co., Mo.App., 351 S.W.2d 788; § 510.280, n. 50, 51, RSMo 1959, V.A.M.S.; Mo.Digest, Trial; <S=»S=»419, 420. That allegation of error, therefore, presents nothing for our review.

Defendant presents two grounds to-support his contention that the trial court prejudicially erred in overruling his motion-for a directed verdict offered at the close of all the evidence. He first contends that the-plaintiff was guilty of contributory negligence as a matter of law because plaintiff’sown testimony shows a violation of § 304.-021, subd. 5, RSMo 1959, V.A.M.S. This-subsection reads as follows: “The driver of a vehicle about to enter or cross a highway from an alley or any private road or driveway shall yield the right of way to alii vehicles approaching on said road or highway.” It is to be noted that in subsections-3 and 4 of § 304.021, supra, the prohibition against turning or entering the intersection is limited in time by referring to the approaching vehicle as being so close as to constitute an “immediate hazard.” In subsection 6 of that same section, the limitation is-created by the use of the words “ * * *■ when the making of such left turn would' create a traffic hazard.” There is no similar limitation in the wording of subsection 5, yet surely the legislature never intended' a strictly literal construction of that subsection. The defendant, in effect, recognized the necessity for some limitation to this-language by stating in his brief that the effect of the statute was that “ * * * a*, person cannot move from a private driveway into a through highway in the close proximity of a vehicle moving on the through highway so as to create a dangerous condition.” We hold this subsection is to be read and construed with the rest of § 304.021, supra, and when that is done it requires the driver of a vehicle about to enter or cross a highway from an alley or private road or driveway to yield the right of way to all vehicles approaching on said road or highway which have reached a point so near as to constitute an immediate hazard. We therefore cannot hold that, by the act of driving out onto the highway to begin his turn while defendant’s vehicle was approaching on the highway re■gardless of where defendant’s automobile was then located, the plaintiff violated § 304.021, subd. 5, supra, and must be held to have been contributorily negligent as a matter of law.

The defendant then contends the plaintiff was contributorily negligent as a matter of law because the evidence shows that he did, in fact, drive out onto the highway when defendant’s vehicle was so close as to constitute an immediate hazard. It requires no citation to substantiate the applicable rule that if reasonable minds could ■differ as to whether the defendant’s vehicle was so close as to constitute an immediate Tiazard when plaintiff pulled out onto the highway, then the plaintiff’s contributory negligence was a jury question. The distance at which plaintiff placed the defendant to the south, the speed limit of which plaintiff testified he was cognizant, and the plaintiff’s intent to make a left turn are all factors which lead us to deny defendant’s contention that the factual situation here presented is one on which reasonable minds could not differ. The plaintiff’s testimony was that the defendant was 800 to 900 feet away from him when the plaintiff began his turn. He further testified that he was very familiar with this section of Highway 61 and knew that the speed limit at this place on the highway was 55 miles per hour. This court cannot agree that réasonable minds could not differ as to whether plaintiff, possessing the knowledge that the legal rate of speed for approaching automobiles was 55 miles per hour, was contributorily negligent in pulling out from a position 6 feet back from the edge of the pavement with the intention of making a left turn at a time when defendant’s automobile was 800 feet away from him. It follows that the trial court did not err in overruling defendant’s motion for a directed verdict.

The defendant’s allegation that the trial court erred in not granting his motion to set the verdict aside is also without merit. This motion was based on the defendant’s contention that plaintiff’s evidence is so contrary to what defendant characterizes as “the physical and scientific facts” that it has no probative value and plaintiff’s case, therefore, must fail. It should be kept in mind that defendant relates this contention only to the factual situation existing when plaintiff, then “sitting” over the center line of the pavement, looked to the south and saw the defendant at the south curb of the south entrance. The defendant’s argument is that the evidence shows the south curb of the south entrance to be 275 feet from the plaintiff’s automobile when it was in the middle of the pavement. He urges that the plaintiff’s best evidence placed the defendant 800 feet south of the plaintiff as the latter was stopped in the north driveway 6 feet from the edge of the pavement. Plaintiff was then a total of 16 feet from the center of the highway if that distance is measured in a straight line from the front end of plaintiff’s automobile to the center line. Defendant contends that plaintiff’s evidence, placing the defendant at the south curb of the south driveway when plaintiff had reached the center of the highway, is contrary to “the physical and scientific facts” because that would have required defendant to have traveled 525 feet (800 less 275) in the 2.2 seconds it took plaintiff to travel 16 feet at 5 miles per hour.

It should first be pointed out that the evidence, taken in the light we must view it, does not lead to the conclusion defendant has reached. The evidence most favorable to the plaintiff is that the south curb of the south drive is 339 feet from the south curb of the north drive. The result is that the distance covered by the defendant was 461 feet (800 less 339) instead of 525 feet. Moreover, the defendant’s contention in this regard denies to the plaintiff the benefit of certain reasonable inferences which the jury was entitled to draw. The plaintiff testified that the left front wheel of his automobile was about 4(4 feet back from the center line of the pavement when the right front wheel was at that line. The only reasonable inference to be drawn from that testimony is that he was traveling in a gradual arc. It would follow from that arc that he traveled more than the 16 feet to which the defendant seeks to prescribe him. It would follow that a longer period of time was consumed than 2.2 seconds. Fisher v. Gunn, Mo., 270 S.W.2d 869. Another fair inference from his testimony compels the same conclusion. The distance of 6 feet to the edge of the pavement was related to the front end of plaintiff’s automobile. The 16 feet of which defendant recites was also related to the front of the automobile. However, when asked where he was when defendant was at the south curb of the south drive, plaintiff related his position to the black line in the middle of the pavement by testifying that his person was then over that line. It has been held that a court judicially knows that the front end of an automobile precedes the driver’s person. Fuzzell v. Williams, Mo.App., 288 S.W.2d 372, 1. c. 377. It follows that the front end of plaintiff’s automobile had traveled more than 16 feet and, at 5 miles per hour, this involves a lapse of time greater than 2.2 seconds.

However, we prefer to base our decision on this allegation of error upon an even more compelling ground. It is that any error in plaintiff’s testimony as to defendant’s position at any time between the time when defendant was 800 feet to the south and the point where impact occurred could not require the trial court to sustain defendant’s motion to set aside the verdict and judgment unless that testimony destroys the plaintiff’s theory of the case and conflicts with the other testimony supporting that theory. Regardless of where the defendant was when the plaintiff was “sitting” over the center line, the factual situation as we are required to take it is that the defendant hit the plaintiff from the rear after plaintiff had completed his turn and had proceeded an additional 90 feet. This means that defendant had covered 890 feet. This figure does not give the plaintiff the benefit of the additional distance he covered as might reasonably be inferred from the gradual arc of his turn but even this distance is sufficient to illustrate that the alleged error in plaintiff’s testimony could not destroy his entire case. The time plaintiff required for his turn has previously been given as over 2 seconds. His further testimony was that after completing his turn at a speed of 5 miles per hour, he had reached a speed of 20 miles per hour before impact. The average speed at which plaintiff traversed this 90' feet was, therefore, 12½ miles per hour and required a time lapse of approximately 5 seconds. This is in accordance with plaintiff’s testimony that about 7 seconds elapsed between his first movement and impact. Mathematical computation will illustrate that an automobile traveling at any speed' over 88 miles per hour will traverse more than that distance in 7 seconds. This court cannot hold that it is impossible to travel at such speeds or to traverse 890 feet in 7 seconds. Accordingly, the plaintiff’s theory as-to how this collision occurred is fully supported by facts which are not affected, adversely or otherwise, by the testimony which defendant contends is so contrary to the physical and scientific facts as to have no probative value. That being the case, the testimony of which the defendant complains cannot be held to destroy his entire case. It follows that the plaintiff made a submissible case.

It does not appear the matters contained in the defendant’s allegations of prejudicial error dealing with the giving of instructions 5 and 6 must necessarily arise again upon retrial of this cause and for that reason will not be dealt with herein.

The judgment should be reversed and the cause remanded to the trial court for a new trial. The Commissioner so recommends.

PER CURIAM.

The foregoing opinion of BRADY, C., is adopted as the opinion of this court. The judgment is reversed and the cause remanded to the trial court for a new trial.

RUDDY, P. J., WOLFE, J., and WILLIAM M. KIMBERLIN, Special Judge, concur.


source: Caselaw Access Project

author: DOERNER, Commissioner.

license: Public Domain

text:
    CITY OF ST. LOUIS, Plaintiff-Respondent, v. Forrest BOECKER, Defendant-Appellant.
    No. 31278.
    St. Louis Court of Appeals. Missouri.
    Sept. 17, 1963.
    Forrest Boecker, St. Louis, for defendant-appellant.
    Thomas J. Neenan, City Counselor, H. J. Dodson, Asst. City Counselor, St. Louis, for plaintiff-respondent.
   DOERNER, Commissioner.

Defendant was arrested and charged with violating an ordinance of the City of St. Louis which limited the maximum speed of automobiles to 30 miles per hour. He was tried and found guilty in the City Court, and thereafter appealed to the St. Louis Court of Criminal Correction. A trial by jury in that court resulted in a verdict and judgment finding defendant guilty and assessing as penalty a fine of $25. From that judgment defendant prosecutes this appeal.

Defendant was arrested by Officer John Hoffman of the St. Louis Metropolitan Police Department on June 1, 1961, about 11:35 A.M., on Lindell Boulevard, an east-west street in the City of St. Louis. The only evidence tending to prove that defendant was exceeding the lawful speed limit was that given by Hoffman, over the timely and proper objections of defendant. The officer testified that he was operating a radar speedmeter mounted in the trunk of his police car, and that as defendant’s automobile, proceeding westwardly, passed through the beam projected from the radar machine the dial of the radar speedmeter indicated defendant’s speed as 40 miles per hour. On cross-examination the officer admitted that defendant’s car was “lagging behind” other automobiles which were proceeding west-wardly on Lindell ahead of defendant.

It has been said that normally there are four basic issues involved in the conviction of an accused for a speed violation detected by radar: (1) the accuracy of the device as a scientific instrument; (2) the proper functioning of the particular machine used; (3) the identification of the accused as the speed violator; and (4) hearsay evidence as it may relate to the testing and setting up of the unit, to identification, and to the arrest of the accused. To those we suggest the addition of a fifth, that of the training and experience of the operator. However, in this appeal defendant has raised only one of the foregoing issues, and accordingly our review will be confined to that question. In brief, what the defendant here contends is that Officer Hoffman’s testimony as to the speed registered on the radar speedmeter was not admissible, and that without it no submissible case was made, because there was no evidence that the radar device had been adequately tested or that it was functioning properly at the time defendant was arrested. The City, of course, contends to the contrary.

The only evidence of any test made of the radar device was that given by Officer Hoffman. Asked by the City’s counsel whether on the day of the arrest he had tested the radar machine in any way before he took out the police car in which it was installed, he stated:

“Well, there is a tuning fork, as they call it, used specifically for checking this instrument, this unit. And this fork is used in a manner that you can turn it on, then you flip this fork and you touch it lightly, cause a vibration in it. And you hold it to the rear where the box would be that is picking up this-—shooting out this beam, and that makes á reading on your visual meter of thirty miles an hour. And when it holds that reading for several seconds,, then we are told that the machine is in perfect operating condition.”

Defendant objected to the hearsay involved’ in the latter part of the officer’s answer and moved that it be stricken, but the record, fails to show any ruling by the court.

Sergeant Herbert Bosch, supervisor of the Communications Technical Section of the Police Department, who was licensed by the Federal Communications Commission to-service radar units and was in charge of the maintenance and repair of the Police Department’s machines, testified that the tuning fork used to test the radar devices was very similar to a tuning fork used by a piano-tuner ; that it is cut to a certain audial frequency; that when held in front of the-radar instrument and vibrated, it has the same effect on the radar as a car going through the beam at 30 miles per hour; that if the dial registers 30 miles per hour it is considered a test of the accuracy of the machine; and that it is an accepted test, recommended by radar engineers. On cross-examination the Sergeant stated that the Police Department had two tuning forks, one calibrated for 30 miles per hour and the other for 60. He also stated that he had no personal knowledge of when, either before or after defendant’s arrest, the unit used by Officer Hoffman had been tested.

Both the defendant and the City cite and rely on the only reported Missouri case involving radar, State v. Graham, Mo.App., 322 S.W.2d 188, decided by the Springfield Court of Appeals in 1959. In that case the state troopers had tested their radar machine shortly before defendant’s arrest, and at the point where the arrest occurred, by what is called the run-through test, in which a car was driven through the beam at speeds of 50 and 70 miles per hour (as indicated on the automobile speedometer) to determine whether corresponding speeds were registered on the dial of the radar speedmeter; and also by the use of two tuning forks calibrated to register 50 and 70 miles per hour on the radar speedmeter. The defendant, who was charged with going 65 miles per hour in a 50 mile per hour zone, raised among others the same points as does the defendant here, namely, that there was no proof that the radar had been properly tested or that it was functioning properly at the time of his arrest. The court stated that it was a matter of common knowledge that an automobile speedometer reflects only approximate speed and that there is considerable variance in the speedometers of different cars. It noted that there was no evidence that the speedometer in the patrol car used to check the accuracy of the radar device was itself accurate, or had ever been checked. But it held (1. c. 197 of 322 S.W.2d):

“ * * * If such a situation existed in a close case, where there was a slight difference between the allowed and actual speed, we might question the admissibility of such speedometer evidence; but here there was an excess of 15 miles per hour. In addition, there was the confirmation of the tuning fork test. These tests we think were sufficient to make the evidence of the radar speedmeter admissible.”

The court further held that (1. c. 197 of 322 S.W.2d), “* * * the dual tests made almost immediately before the occasion * * * ” was prima facie proof that the machine was functioning properly at the time of defendant’s arrest.

Defendant argues that it was held in effect in that case that a run-through test by a moving vehicle is absolutely essential to establish the accuracy and proper functioning of a radar speedmeter, and that the court relied entirely on such a test. On the other hand, the City asserts that the court in State v. Graham, supra, recognized the sufficiency of the tuning fork test, standing alone, as prima facie proof of the accuracy and proper operating condition of the radar unit. In our opinion neither view is correct. As the foregoing quotations illustrate, the court based its decision on the duality of the tests made. We think that the important principles to be deduced from State v. Graham, supra, are three-fold: First, the acceptance as a matter of judicial knowledge, “ * * * that a radar speedmeter is a device which, within a reasonable engineering tolerance, and when properly functioning and properly operated, accurately measures speed in terms of miles per hour.” (1. c. 195 of 322 S.W.2d); Second, the recognition as a matter of judicial knowledge that the device may not operate properly upon occasions and for various reasons, and that it is therefore, “ * * * the obligation of the proponent who uses it to establish prima facie that the machine was properly functioning * * * ” (1. c. 197 of 322 S.W.2d); and Third, that “ * * * the value of such tests (of a radar speedmeter) would depend upon the accuracy of the measuring device against which it is checked. * * * ” (1. c. 197 of 322 S.W. 2d).

Unlike the situation which existed in State v. Graham, supra, dual tests were not made in the present case; in fact, Officer Hoffman testified that the Police Department ceased making the run-through tests some years before, when the use of the tuning fork began. The only test made of the accuracy of the radar unit here involved was the tuning fork test made by Hoffman “on the morning” of the day of the arrest, before he took the police car “out,” presumably at the start of his tour of duty on that day. The record is totally devoid of any evidence of the time when, and the place where, such test was made. No evidence was introduced as to the nature and extent of the movements of the car during the period of unknown length which intervened between the making of the test and the arrest of defendant. Nor is there any testimony as to the manner in which Hoffman set up the unit at the site on Lindell Boulevard, the procedure he followed when he activated the device, or the length of time the set had been in operation before the arrest was made. In fact, when his testimony regarding the test (heretofore quoted in full) is read carefully it will be noted that he did not even state that the radar speedmeter read 30 miles per hour when he tested it with the tuning fork; all that he actually did was to describe in the abstract the nature of and the principle underlying the tuning fork test. For the purposes of this case, however, we will infer from his testimony that the radar device read 30 miles per hour at the time he tested it with the tuning fork.

Bearing in mind the principle stated in State v. Graham, supra, that it is the obligation of the proponent who uses the radar speedmeter to establish prima facie that the machine was accurate and functioning properly at the time the accused’s speed was checked, the ultimate question presented is whether by the foregoing evidence the City sustained its burden of proof. We are constrained to hold that it did not. The reasons which impel us to reach that conclusion are based upon the nature and characteristics of the radar speedmeter.

The courts customarily adopt a conservative attitude toward accepting scientific advances or developments, an inherent disposition which has been referred to as a “cultural lag.” While some reluctance to accord judicial recognition to the radar speed-meter was at first exhibited, within the relatively short time since its use began numerous courts have taken judicial knowledge that a radar speedmeter is a device operating on scientifically sound principles, which when properly functioning and operated will accurately measure the speed of a moving vehicle within a recognized and relatively small tolerance. It has been suggested that the important role played by radar during World War II greatly accelerated the judicial acceptance of the radar speedmeter: “The war-time reputation of radar has created an impression, through name alone, of such perfection in design or performance integrity, that psychologically everyone is impressed.” What is perhaps not generally recognized, however, is that, the radar used by the military during the war is a completely different type instrument, operating on a totally dissimilar scientific principle, than the device called a radar. speedmeter. The military unit is a pulse type radar which transmits microwaves at controlled intervals. A wave, coming in contact with a target, is reflected back to the receiver. Since the wave travels in both directions at the speed of light, approximately 186,000 miles per second, by computing the elapsed time the distance of the target can be ascertained. Also, since the beam projected is a relatively narrow one, the bearing of the target from the transmitter may be determined. The military unit does not indicate the speed of the target; that fact, as well as the target’s direction of travel, must be computed by tracking and plotting the changes in distance and bearing over a period of time.

In contrast, the radar speedmeter does not send out microwaves at intervals or as short disconnected pulses. Instead, a continuous flow of microwaves is transmitted at a theoretical frequency of 2455 megacycles, or 2,-455,000,000 cycles per second. When the beam of waves strike a target, part of the beam is reflected back to the receiver. According to what is called the Doppler effect, if the object is moving then the frequency of the reflected or echo wave will be different from the frequency of the outgoing wave; greater in frequency if the target is moving towards the transmitter, diminished in frequency if the target is receding. Because it would be extremely difficult to measure the difference in frequencies between one which already amounts to 2,455,000,000 cycles per second and another of an even greater number (if the target is advancing), a second phenomenon is invoked. This is the phenomenon of “beats,” used in tuning stringed musical instruments. Thus, if two adjacent notes on a piano are struck simultaneously, the combination of the two tones will have alternate increases and decreases of intensity, the throbbing of the sound being called “beats”; the number of beats per second being equal to the difference of the frequencies of the two vibrating sources. In the same way that beats occur with sound waves of different frequencies so can they also occur with radio waves of different frequencies. In the case of the radar speed-meter, the antenna receives the outgoing wave transmitted at the theoretical frequency of 2,455,000,000 cycles per second, as well as the echo wave, which has been modulated to a still higher frequency (if the target is advancing), and by measuring the number of beats set up by the two frequencies, transposes such beats into the miles per hour speed of the target; the result being indicated on a dial. Dr. John M. Kop-per, who has testified as an expert on behalf of police departments in a number of the reported cases, states that a radar speedme-ter “ * * * is in essence a beat frequency meter, whose readings are given in miles per hour instead of in beats per second. * * * ”

We have used the phrase “theoretical frequency” of 2,455,000,000 cycles per second because of the controversy which appears to exist as to the precision and accuracy to which the transmitter in a radar speedmeter may be tuned. Dr. Kopper states that the frequency of the transmitter can be set to within plus or minus 0.05 per cent of 2,-455,000,000 cycles per second. Carosell and Coombs, who are highly critical of the radar speedmeter as an accurate device, point out in effect that such a margin of error would amount to 1,227,500 cycles more or less than 2,455 megacycles, which they consider excessive. Variations in the frequency would, of course, affect the accuracy of the radar unit as a speed measuring device. We have been unable to learn from the literature we have examined what increase of frequency of the echo wave is necessary, when measured against the transmitter’s frequency, in order to produce one beat. We do learn, and both authorities agree, that despite the astronomical number of cycles with which a radar speedmeter deals, there are only 7.31 beats for each mile of speed which it records. Hence, a car traveling at 30 miles per hour would generate 219.3' beats, while one going 40 miles per hour would produce 292.4; or a difference of only 73.1 beats.

An exhaustive research of the authorities has failed to disclose any case, and none has been called to our attention, in which it has been held that a test of a radar speedmeter made solely with a tuning fork is sufficient to establish the accuracy of the radar device. In his comprehensive article to which we have referred Dr. Kopper does not even mention such a test. Carosell and Coombs in their paper refer to it only in connection with their criticism that a radar speedmeter is susceptible to microphonic error from outside sources, such as a diathermy machine, an automobile. radio, or the closing of the door of a car. The expert witness who appeared on behalf of the city in the instant case, David F. Winter, former professor of electrical engineering at Washington University and the holder of patents in radar circuitry, testified only as to the scientific principles and merits of the radar speedmeter, and was not asked a single question about the reliability or accuracy of the tuning fork test.

We share the opinion expressed in State v. Graham, supra, that the value of any test of a radar speedmeter depends upon the accuracy of the measuring device against which it is checked. That is true whether the measuring device used is an automobile speedometer, a stop watch, or, as in the instant case, a tuning fork. All are the products, of human endeavor and therefore subject to error in manufacture, or to subsequent impairment and damage. We do not question the use of a tuning fork to test a radar speedmeter as a matter of principle. We accept the testimony of Sergeant Bosch that such a means is an accepted test, recommended by radar engineers. The same statement would undoubtedly apply to a test by an automobile speedometer, or a stop watch. But the value of such a test would obviously depend upon the accuracy of the particular tuning fork used. In the light of the number of cycles per second involved • and the precise measurement which must be made, it is apparent that any imperfection in the tuning fork would materially affect the speed registered on the radar dial. Because of the absence of any evidence that the tuning fork used in the instant case was itself accurate, we entertain grave doubts that the City’s evidence was sufficient to establish prima facie that the radar speed-meter was functioning properly, even at the time such test was made.

We prefer, however, to rest our decision upon another aspect of the case, one about which there cannot be the slightest doubt. As stated in State v. Graham, 1. c. 196 of 322 S.W.2d in the colorful but wholly accurate language used by the writer of that opinion, a radar speedmeter is “ * * an instrument constructed by human hands, dealing with delicate measurements, and having a rather feminine need for primping. * * Some indication of the amount of “primping” required may be gathered from Sergeant Bosch’s testimony that although the Police Department owned only four machines it employed eleven radio technicians who spent at least part of their time “ * * * fixing these units, calibrating them, testing them, keep it in service.” That the accuracy and proper functioning of a radar speedmeter may easily be affected by its movements from place to place is acknowledged by Dr. Kopper, who states that, “It is important to check the meter for accuracy each time it is set up for use; if the meter is to be used at two sites in one morning then it should be checked at each site to avoid the contention that the meter was thrown out of adjustment during transit. * * * ” The necessity for proving that the radar device was properly set up and tested for accuracy at the place where, and immediately prior to, the defendant’s arrest was recognized by the Supreme Court of Appeals of Virginia in Royals v. Commonwealth, 198 Va. 876, 96 S.E.2d 812. A statute had been enacted in that state making the rate of speed as shown on a radar machine admissible in evidence without the necessity of proving by expert testimony the theory and scientific principles on which the device operates to measure speed. Nevertheless, that court held that the statute, “ * * * does not eliminate the necessity for the Commonwealth to prove that the machine used for measuring speed had been properly set up and recently tested for accuracy * * *” (1. c. 816 of 96 S.E.2d), and it reversed a conviction where such evidence was not adduced.

Here, as in that case, no test of the radar speedmeter used to determine defendant’s speed was made at the site of or immediately preceding his arrest. The only test made was at some unknown time and at some undisclosed place. Even if it is assumed that the radar unit was operating properly at that time, such evidence would have no probative force to establish that it was accurate and functioning properly after what may have been (for all the evidence shows) a great number of individual movements, to a far distant site, over a substantial period of time.

Our views in this respect are strengthened by a comparison between the apparent operational procedures employed in the instant case and those recommended by Dr. Kopper. All that appears from the evidence here is that Officer Hoffman parked his police car, flipped the switch which activated the unit, and immediately began to check the speed of approaching motor vehicles. Dr. Kopper recommends: (1) That the set be allowed to warm up for a period of five to ten minutes before being put to work; (2) That the dial then be checked to be certain that it reads zero; and that the set be adjusted accordingly if it does not; (3) that since diathermy machines, swinging signs, swaying trees, and other outside sources can give false readings, that the meter be examined and watched for such indications; (4) that the accuracy be checked by the run-through test, both before and after the period of observation of traffic, by having a car with a calibrated speedometer run through the zone twice, once at the maximum legal rate of speed, and once at a speed 10 or IS miles per hour greater; and (5), that if the difference between the speedometer reading and the radar meter reading is greater than 2 miles per hour, (due to the engineering tolerance inherent in the radar set) that a further check and any necessary adjustment be made. One court has gone so far as to adopt the substance of Dr. Kopper’s recommendations as a requirement for conviction. People v. Sachs, 1 Misc.2d 148, 147 N.Y.S.2d 801, 809. It would appear from State v. Graham, supra, that the state highway patrol makes both the run-through test and the tuning fork test at the site where traffic is to be checked.

We are not unmindful that excessive speed is a dominant factor in the appalling amount of injury and death which occurs daily on our streets and highways. Nor are we unaware of the difficulties encountered by the authorities in the enforcement of the traffic laws and ordinances. Such efforts are to be encouraged, and not hampered. But the requirement that proof be adduced that a radar speedmeter was tested and found to be operating properly at the site of and reasonably close to the time of an arrest should not place an undue burden on the prosecution, and should at the same time protect the rights of motorists against the possibility of error in this device which makes “delicate measurements.” State v. Graham, supra.

It is unnecessary to discuss other points raised by defendant. For the reasons stated it is apparent that the judgment must be reversed. If the record indicated that other evidence as to defendant’s speed could be produced, we would remand the case for a new trial. Here, however, it is clear from the record that no other evidence of the speed of defendant’s automobile would be available to the City. Officer Hoffman, a traffic officer with years of experience, testified on cross-examination that in the long block he followed defendant before he apprehended him he never once looked at the speedometer of his own car; and when invited on cross-examination to estimate the speed at which his own or the defendant’s car was traveling, steadfastly maintained that he could not do so. The judgment should therefore be reversed. The Commissioner so recommends.

PER CURIAM.

The foregoing opinion by DOERNER, Commissioner, is adopted as the opinion of this court. Accordingly, judgment is reversed.

• WOLFE, Acting P. J., ANDERSON, J., and JACK P. PRITCHARD, Special Judge, concur.

      . Hough, 24 Mo.L.R. 197 (1959).

      . For example, although the use of fingerprints as a means of identification was known long before the birth of Christ, it was not until 1905 that fingerprint evidence was first introduced in an English court. Baer, Radar Goes to Court, 33 N.C.L.R. 355, 356 (1955); Stacy v. State, 49 Okl.Cr. 154, 292 P. S85.

      . Baer, 33 N.C.L.R. 366; Britt, 21 Minn. L.R. 671 (1937).

      . State v. Moffitt, 9 Terry 210, 48 Del. 210, 100 A.2d 778; People v. Offermann, 204 Misc. 769, 125 N.Y.S.2d 179.

      . See the wealth of eases cited in State v. Graham, supra, including the parent case of State v. Dantonio, 18 N.J. 570, 115 A.2d 35, 49 A.L.R.2d 460.

      . Carosell and Coombs, Radar Evidence in the Courts, 32 Dicta (Colo.) 323,. 324 (1955).

      . 49 A.L.R.2d 470.

      . Kopper, The Scientific Reliability of Radar Speedmeters, 33 N.C.L.R. 352 (1855).

      . Compare Carosell and Coombs, 32 Dicta (Colo.) 329 (1955) with Dr. Kopper’* article, 33 N.C.RR. 343.

      . 33 N.O.L.R. 353.


author: BARROW, Justice.

text:
    Clara FRIEDRICHS, Appellant, v. Alfred REINHARDT, Appellee.
    No. 14147.
    Court of Civil Appeals of Texas. San Antonio.
    Sept. 11, 1963.
    Albert C. McDavid, T. P. Hull, San Antonio, for appellant.
    Clark Murray, Floresville, for appellee.
   BARROW, Justice.

The last will of Caroline Behrens, deceased, was admitted to probate on January 26, 1959. On August 21, 1959, Clara Fried-richs filed this suit against Alfred Reinhardt, executor under the will, to cancel and hold for naught the order admitting said will to probate. After an adverse judgment in the county court, her suit was tried in the district court upon the agreed stipulation that the sole issue was whether the testatrix had testamentary capacity at the time she executed said will. After a full hearing on the merits before the court, without the intervention of a jury, a take-nothing judgment was entered against Clara Friedrichs and she has appealed.

Appellant asserts, first, that the trial court improperly placed the burden of proof on her. The rule is well settled that in a proceeding to set aside the probate of a will, the burden of proof is upon the person who files such suit. Sec. 93, Texas Probate Code, V.A.T.S.; Boyd v. Frost National Bank, 145 Tex. 206, 196 S.W.2d 497, 168 A.L.R. 1326; Crane v. Pierce, Tex.Civ.App., 257 S.W.2d 510, writ refused; Jordan v. Virginia Military Institute, Tex.Civ.App., 296 S.W.2d 952. Since appellant brought this suit to contest the validity of the will which had been admitted to probate, the burden of proof was upon her to show its invalidity.

By her second point, appellant asserts that there is no evidence to support the trial court’s implied finding that testatrix had testamentary capacity when she executed the will on January 8, 1957. In determining this “no-evidence” point, it is our duty to examine the record in its most favorable light in support of this finding, considering the evidence and inferences which support the finding and rejecting the evidence and inferences which are contrary to it. Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696; Chief Justice Calvert, No Evidence and Insufficient Evidence Points of Error, 38 Tex.Law Review 361.

This will was subscribed and acknowledged by testatrix as a self-proved will, in accordance with Sec. 59, Texas Probate Code; about two years prior to her death at the age of eighty-four years. At the time of its execution, testatrix was undergoing brief treatment at the Seguin Hospital, Seguin, Texas, and the will was witnessed by two disinterested employees of the hospital. Each of these witnesses testified that testatrix was of sound mind and had the mental capacity to know her next of kin and the nature and extent of her property at the time the will was executed. Hon. Joseph Dibrell, a practicing attorney of Seguin, acknowledged the signatures of the testatrix and the subscribing witnesses. Mr. Dibrell testified that he had not prepared the will, but was requested to serve as notary public. Under these circumstances, he took careful steps to ascertain the mental capacity of testatrix and therefore he talked to her about thirty minutes and reviewed the entire will with her before taking the acknowledgments. He testified that testatrix was of sound mind. Two other lay witnesses, who had been acquainted with testatrix over a long period of time, testified that she was of sound mind in January of 1957.

This evidence, although controverted in part by a witness called by appellant, amply supports the implied finding that testatrix had testamentary capacity at the time the will was executed. Nass v. Nass, Tex.Civ.App., 224 S.W.2d 280, affirmed 149 Tex. 41, 228 S.W.2d 130; Farmer v. Dodson, Tex.Civ.App., 326 S.W.2d 57; Nowlin v. Trottman, Tex.Civ.App., 348 S.W.2d 169. Appellant failed to discharge her burden of establishing the invalidity of the will.

The judgment is affirmed.


author: DAVIS, Justice.

text:
    Rufus LINDLEY et al., Appellants, v. J. G. LINDLEY et al., Appellee.
    No. 7502.
    Court of Civil Appeals of Texas. Texarkana.
    Aug. 27, 1963.
    Rehearing Denied Sept. 17, 1963.

      Joe N. Chapman, Sulphur Springs, Bird Old Jr., Mt. Pleasant, for appellants.
    Howard S. Smith, Sulphur Springs, Woodrow H. Edwards, Mt. Vernon, J. G. Lindley, Dallas, for appellee.
   DAVIS, Justice.

A Will contest. Sallie A. Lindley executed her holographic Will on August 10, 1959. Prior to executing this Will, she had previously executed three other Wills. She died June 3, 1960. The holographic Will was filed for probate. Rufus Lindley and Mary Lindley Hyder Harper filed a contest in the Probate Court, alleging that Mrs. Lindley was of unsound mind, and that the Will was executed as the result of undue influence exercised over her by certain grandchildren. The holographic Will was admitted to probate. An appeal was taken to the District Court. The case was tried in the District Court before a jury. The jury answered the only special issue that was submitted to them that Mrs. Lind-ley was of sound mind at the time she executed the holographic Will. An appeal has been perfected by Rufus Lindley, and he brings forward nine points of error.

Mrs. Lindley was the mother of three children, viz.: Tommy Lindley, deceased, Rufus Lindley, and Mary Lindley Hyder Harper. Rufus Lindley has no children. Tommy Lindley has three children, and Mrs. Harper has three children. Mrs. Lindley willed all her property to five of the grandchildren, two of whom were the children of Mrs. Harper. The other child was a practicing physician in Corpus Christi, and she directed that he be given one dollar. She likewise directed that Rufus Lindley and Mrs. Harper each be given one dollar.

Mrs. Lindley was 93 years of age at the time she wrote her holographic Will. There was much testimony offered showing she was a person of sound mind. There is no testimony in the record showing anyone being present that could have exercised any undue influence over her at the time she wrote the Will. Some of the testimony offered by appellant in an effort to prove she was of unsound mind is quite amusing. One man testified that he was related to Mrs. Lindley’s husband. He testified that in his opinion she was of unsound mind, and he carried her some violets shortly after Tommy Lindley’s death, (July 23, 1959). He fixed the time in August because the violets were “ripe”. The President of a bank in Sulphur Springs testified that in his opinion Mrs. Lindley was of unsound mind, but he continued to do banking business with her up until March of 1960, and he advised her in July, 1959, to make a Will.

By their first two points of error, appellant says the court erred in refusing their requested instructions on insane delusions in the definition of testamentary capacity, and in refusing their special issue and instructions on undue influence. By their points 3 and 4, appellant says the court erred in instructing the jury that every person of testamentary capacity has the right and power to make a Will, and in refusing their request that the jury be instructed to consider as one of the essential elements of testamentary capacity the deceased’s knowledge of the claims upon her of her next of kin and natural objects of her bounty. If she was suffering from an insane delusion she did not have testamentary capacity. The evidence is fully ample to support the jury’s finding. To show that a Will was executed as the result of insane delusions it must he shown that the testator was possessed of such insane delusions at the time she executed the Will. There is no such showing. Knight et al. v. Edwards, 153 Tex. 170, 264 S.W.2d 692; Smith v. Welch, Tex.Civ.App., 285 S.W.2d 823, W.R., N.R.E.; Von De Veld v. Judy, 143 Mo. 348, 44 S.W. 1117; Self v. Thornton, Sr., et ux., Tex.Civ.App., 343 S.W.2d 485, W.R., N.R.E.; 57 Am.Jur. 257-262, Secs. 349 through 358.

To show that Mrs. Lindley possessed the mental capacity to make the Will, the President of the Bank in Sulphur Springs advised her in July, 1959, the month of her son Tommy’s death, that she should make a Will. Apparently she took his advice, because on August 10, 1959, she wrote the Will. This is the only evidence in the record that shows that anyone ever suggested she make a Will. There is no evidence that anyone told her how to leave her property. The record does not reflect sufficient evidence of any probative force showing that any undue influence was exercised over Mrs. Lindley at the time she executed the Will. 44 T.J. 602, Sec. 59; Scott v. Townsend, 106 Tex. 322, 166 S.W. 1138; Self v. Thornton, Sr., et ux., Tex.Civ.App., 343 S. W.2d 485, W.R., N.R.E.; 94 C.J.S. Wills § 224, page 1064.

The instructions given in the court’s charge were approved in the case of Trouppy v. De Bus, Tex.Civ.App., 311 S.W.2d 431, W.R., N.R.E. See, also, Salinas v. Garcia, Tex.Civ.App., 135 S.W. 588, err. ref.; Stevenson’s Executors v. Stevenson et al., 33 Pa. 469, 471. The points are overruled.

The other points of error have been carefully examined, found to be without any merit, and they are overruled.

The judgment of the trial court is affirmed. ,

CONCURRING OPINION ON AFFIRMANCE

We concur in the result reached, to-wit, affirmance of the judgment of the trial court.

CHADICK, C. J. FANNING, J.


author: COLEMAN, Justice.

text:
    The STATE of Texas, Appellant, v. L. W. DICKERSON et al., Appellees.
    No. 14083.
    Court of Civil Appeals of Texas. Houston.
    Sept. 12, 1963.

      Waggoner Carr, Atty. Gen., Morgan Nesbitt, Winston P. Crowder, J. William Colburn, Asst. Attys. Gen., Jay Howell, Jr., Sp. Asst. Atty. Gen., Austin, for appellant.
    Spiner, Pritchard & Thompson, Clark G. Thompson, Houston, for appellees.
   COLEMAN, Justice.

This is a condemnation suit. A judgment was entered on the verdict of the jury and the condemning authority appeals.

The appellee testified that a short time before the date of taking, J. O. Porter, as agent, submitted to him a written offer to purchase the north 50 feet of his property, containing approximately 27,000 square feet, at a price of $.72 per square foot. This offer, he testified, was refused because he felt that the land was worth more. Soon thereafter he received another written offer for the land from the same agent by which the proposed price per square foot was increased to $.85. This offer was also refused for the same reason. Mr. J. O. Porter was presented as a witness by appellee, and testified that he was authorized to submit the offers by James A. Marshall. In connection with appellee’s testimony concerning the first offer there was admitted into evidence a written contract of sale reciting the deposit of earnest money, and executed by Mr. Marshall, but not by appellee Dickerson. The subsequent offer was in the form of a letter from Mr. Porter and was also introduced into evidence. Mr. Porter testified that Mr. Marshall did not want to put up any more earnest money until a price could be agreed upon. Appellant objected to the testimony and the exhibits. One ground of its original objection was that the contract of sale lacked mutuality. This objection was amplified when appellee offered the letter. Appellant objected for the reason that “the offer, being an unaccepted offer, there is no mutuality. It is in violation of the Statute of Frauds; and it is hearsay, and it involves highway influence.” When this objection was overruled, the court agreed that appellant could have a “full bill on those exhibits and on the questions and answers.” The objection was renewed, and again refused, in connection with the testimony of Mr. Porter. The objections made properly preserved the question of whether or not unaccepted written offers to purchase property are admissible as evidence of its market value.

Unaccepted offers to purchase real estate generally are inadmissible on the question of value. Hanks v. Gulf, Colorado & Santa Fe Railway Company, 159 Tex. 311, 320 S.W.2d 333; Jayson v. United States (5th Cir.), 294 F.2d 808. While the offers in the Planks case, and in the cases cited therein, were oral and not enforceable, much of the reasoning leading to the conclusion reached in those cases is equally applicable to written offers to purchase. No distinction seems to have been made by the courts of other states on the basis that the offer was made in writing. Anno. 7 A.L.R.2d 782, as supplemented.

A written offer to purchase was held inadmissible in Arkansas State Highway Commission v. Elliott, Sup.Ct., Ark., 353 S.W.2d 526. The error of the trial court in permitting a written option agreement to go before the jury as evidence of value was held to require a reversal of the judgment in State of Texas v. Williams, Tex.Civ.App., 357 S.W.2d 799, err. ref., n. r. e. In a number of cases testimony concerning an offer to purchase land has been held inadmissible where the witness made the offer. Lower Nueces River Water Supply District v. Sellers, Tex.Civ.App., 323 S.W.2d 324, err. ref., n. r. e.; Abramson v. v. San Angelo, Tex.Civ.App., 210 S.W.2d 476, writ den.; Anno. 7 A.L.R.2d 782, at 830.

The trial court erred in permitting the introduction into evidence before the jury of defendant’s exhibits Nos. 5 and 6. The contract of sale at $.72 per square foot . signed by the purchaser and reflecting that earnest money had been deposited, which offer was raised by letter to $.85 per square foot, was calculated to influence the verdict of the jury. Appellant’s only expert witness testified that in his opinion the market value of the land was $.60 per square foot. The jury probably disregarded this testimony entirely in view of the .unimpeached evidence that the land could have been sold at a much higher price. The error of the trial court was calculated to cause, and probably did cause, the rendition of ah improper judgment.

Appellant complains of the action of the trial court in refusing to permit cross-examination of appellee’s expert witnesses as to their knowledge of certain sales and in refusing to permit appellant’s expert witness to testify concerning these sales. Without detailing the testimony, properly preserved by bills of exception, it appears from the record that both of the tracts were sufficiently comparable to assist experts in forming an opinion as to the value of the property taken. Appellant’s expert witness testified that the properties were comparable. 167,078 square feet of appellee’s property was taken. Of the eight sales produced before the jury as comparable sales by appellee’s witnesses, only one exceeded 47,500 square feet in area and all except one were much farther from the property taken. The record clearly shows that the evidence tendered by appellant was excluded on the ground that the sales were too remote. The Robey to Pfeifer sale was made in 1952 and the Davidson to Pfeifer sale was made in February, 1962. The date of taking of the property of appellee was November 20, 1960.

In Hays v. State, Tex.Civ.App., 342 S.W.2d 167, ref. n. r. e., the Court of Civil Appeals at Dallas carefully considered the question of the admissibility of the details of sales considered by expert value-witnesses to be comparable to the land being condemned. We agree with the conclusion of that Court that:

“ * * * each expert value-witness having been held qualified to express an opinion as to the value of the land being condemned should be permitted to give the details of sales upon which he bases such opinion, after he has stated that the sales are of property sufficiently comparable to the property involved for appraisal purposes, and were from his knowledge or investigation voluntary sales in the economic area of the condemned property made within a time during which no material changes in market conditions had occurred. But should it appear that reasonable minds cannot differ from the conclusion that the evidence of another sale lacks probative force because of dissimilarities, remoteness in time and distance, or not being voluntary, then the trial court should exclude evidence of the details of such other sales.”

The Robey-Pfeffer sale having been consummated eight years prior to the date of taking, in the absence of testimony that no material changes in market conditions had occurred, was, in the state of this record, so remote in time that reasonable minds could not differ from the conclusion that such evidence lacked probative force. On the other hand, the Davidson-Pfeffer sale was consummated about fifteen months after the date of taking. Of the eight sales relied on by appellee’s witnesses as being comparable, six were more remote in point of time than this sale. It appears from the record that the trial court applied a different rule as to remoteness to sales made after the date of taking from that applied to sales made prior to the date of taking. The price per square foot of the Davidson-Pfeffer sale was $.50 per square foot. The testimony of all of the expert value-witnesses indicates that the value of land in this area increased considerably during the two years immediately prior to the date of taking and nothing in the record indicates that land values decreased during the approximately two years between the date of taking and the trial.

In City of Houston v. Collins, Tex.Civ.App., 310 S.W.2d 697, this Court said:

“ * * * the question of the admissibility of the sale price of other comparable property in the same locality' ordinarily involves those sales which have been made before the date of the taking. However, we see no reason, why the same rule should not be applicable to sales subsequent to the taking' as long as the price sought to be offered after the taking is not derived from the sale of any property which has been benefited by the project or improvement occasioning the taking. In fact, it has been so held in Housing Authority of City of Dallas v. Shambry, Tex.Civ.App., 252 S.W.2d 963, writ refused, n. r. e. 152 Tex. 122, 255 S.W.2d 184; Housing Authority of City of Dallas v. Nealy, Tex.Civ.App., 252 S.W.2d 967.”

We conclude that under the facts presented by this record, reasonable minds might well differ from the conclusion that this evidence lacks probative force. The trial court, therefore, erred in refusing to permit the expert value-witness produced by appellant to testify to the details of the Davidson to Pfeffer sale.

Appellant has also complained that the court erred in permitting one of appel-lee’s expert value-witnesses to testify to the details of a sale on the ground that it was improved property. The record sustains a finding that the property was sold as unimproved property. While there was a question as to whether a building of some sort was on the property at the time of the sale, there was testimony that the building was of no value. There was no positive testimony that a building was on the property at the time of sale. The trial court did not err in admitting this testimony.

Over the objection of appellant, the trial court admitted into evidence an ordinance of the City of Houston setting building lines, having the effect of restricting improvements on appellee’s property, as well as evidence that by reason of this ordinance the City had refused to issue building permits to appellee for certain improvements he desired to erect on the premises. Appellee states in his brief: "The admission of such ordinance, appellee’s testimony as to intended uses and the refusal to issue building permits was immaterial. Its only effect was to eliminate the inconsistency.” We are unable to see the materiality of such testimony on the issues of value presented at this trial, with the exception of that relating to intended uses. While the suggestion is made that the jury might speculate on the reason for such valuable property remaining unimproved over a period of years, this possibility does not authorize the trial court to permit the introduction of immaterial evidence over a proper objection. However, we cannot say that, considering the entire record, this error probably caused the rendition of an improper judgment.

The judgment of the trial court is reversed and remanded for a new trial.


author: MASSEY, Chief Justice.

text:
    NORTHEAST TARRANT COUNTY WATER AUTHORITY, Appellant, v. TRINITY RIVER AUTHORITY of Texas, Appellee.
    No. 16282.
    Court of Civil Appeals of Texas. Fort Worth.
    Sept. 6, 1963.
    See also Tex.Civ.App., 367 S.W.2d 720.
    Garrett & Garrett, and Rufus S. Garrett, Jr., Fort Worth, for appellant.

      Brewster, Pannell, Leeton & Dean, Fort Worth; Clark, Thomas, Harris, Denius & Winters; Martin Harris and Mary Joe Carroll, Austin, for appellee.
   MASSEY, Chief Justice.

Plaintiff Northeast Tarrant County Water Authority, hereinafter termed “plaintiff” brought suit in the district court of Tarrant County against Trinity River Authority of Texas, hereinafter termed “T. R.A.”. Object of the suit was to obtain a writ of mandamus which would compel T.R.A. to enter into negotiations in behalf of the plaintiff with the Corps of Engineers of the United States Army whereby water storage space in Grapevine Reservoir would be obtained and allocated for municipal water supply purposes by the Cities of Hal-tom City and Hurst in Tarrant County, and/or which would compel T.R.A. to provide or render assistance to plaintiff in obtaining a suitable and adequate municipal water supply. An additional objective was to obtain a writ of injunction which would prevent T.R.A. from promoting or encouraging navigation within the area of the T.R.A. district except as specifically authorized by the Act which created it. A further objective was to obtain a declaratory judgment as to rights and duties of the parties in relation to the remedies plaintiff sought to secure through writs of mandamus and injunction.

On motion of T.R.A., the trial court abated and dismissed plaintiff’s suit. This appeal is from that order. We affirm.

Of extreme interest is the fact that when the trial court heard the motion of T.R.A. (on January 16, 1961) there was pending in the District Court of Travis County a suit styled Northeast Tarrant County Water Authority v. Board of Water Engineers et al. (the “et al.” in said suit being T.R.A. as a party granted the right to intervene, over the protest of the plaintiff). In view of a 1962 amendment to Vernon’s Ann. Tex.St., Art. 7477, “Board continued; * * * ”, the Board of Water Engineers has undergone a change of name whereby it is now the Texas Water Commission. We will hereinafter, nevertheless, refer to it by the term “Board”. This Travis County suit was tried on its merits before the court without a jury on February 15, 1961 (while the Judge who had heard the motions in the Tarrant County case was holding his decision thereon in abeyance) and a judgment was entered in Travis County to the effect that plaintiff “take nothing” by its suit.

In Title 128, “Water”, Chapter 1, “Use of State Water”, Subdivision 2, “Board of Water Engineers”, and under Art. 7477, § (12), the venue of the Travis County suit was exclusively fixed in said county, the purport of plaintiff’s action being to review, set aside, modify, or suspend a ruling, order, decision, or other act of the Board. As noted, “plaintiff” herein was likewise the plaintiff in the Travis County case, and from the judgment therein in February, 1961, plaintiff perfected an appeal to the Austin Court of Civil Appeals. Opinion of that appellate court was rendered on April 24, 1963, and is published at 367 S.W.2d 720. Judgment of the trial court was affirmed, and has now become final.

An objective of the Travis County suit was to obtain a writ of mandamus which would compel the Board to enter its order permitting plaintiff to enter into negotiations with the Corps of Engineers concerning acquisition by it of water storage space in Grapevine Reservoir (for municipal water supply purposes by the Cities of Haltom City and Hurst) and to appropriate water therein for such purposes, with authority removed from T.R.A., which, under authority of an order in effect, had been designated as the agency empowered to negotiate with the Corps of Engineers.

Readily observable is the fact that if both suits were maintainable and, furthermore, suits in which plaintiff should prevail, a result would entail the duty of plaintiff to negotiate for itself in relation to water storage space while T.R.A. was at the same time under the duty to negotiate for it in relation to the same space.

It is either conceded or established that Grapevine Reservoir is under the control of the Federal Government. The agency for it in respect to the administration of the water storage space allocation, use of water from the reservoir, etc., is the Corps of Engineers of the United States Army. Mot under attack is the policy and rule of the Corps of Engineers that it will not ■deal or negotiate with anyone in relation •to the rights in the water and space in the reservoir unless the person or entity is ■designated as the Board’s agent for that purpose. The result is that the Corps of Engineers, having the control of Grapevine Reservoir and the allocation of storage rights, water use, etc. therein, stands ready to deal and negotiate with the Board or the Board’s designated agent, but refuses to treat with any other person or entity.

Prior to the time plaintiff instituted any litigation whatever, the Board had entered an order which designated T.R.A. as (its) agent having authority to negotiate with the Corps of Engineers in relation to Grapevine Reservoir. Said order was dated August 10, 1959. By it T.R.A. was authorized to enter into preliminary agreements with the Corps for water storage, which might or might not become merged into contracts, dependent upon action attendant thereupon taken by the Board itself. That T.R.A. was authorized to be so appointed as an approved agency (for the Board) to so enter into preliminary contracts for the benefit of other purchasers (such as the plaintiff in the instant case) is to be observed-in § 18(d) of V.A.T.S., Art. 8280-188, “Trinity River Authority”.

Subsequent to the time T.R.A. was so designated, plaintiff became wholly dissatisfied. The territory of plaintiff’s jurisdiction for the purposes of its creation was and is the Cities of Haltom City and Hurst, in Tarrant County. V.A.T.S., Art. 8280-173, “Northeast Tarrant County Water Authority”. Said territory lies wholly within the “conservation and reclamation district” for the purposes under which the “Trinity River Authority of Texas” was created. V.A.T.S., Art. 8280-188. According to plaintiff there remained some water storage space within Grapevine Reservoir suitable for use in the alleviation of existing and prospective water shortages in Hal-tom City and Hurst. Plaintiff, justifiably, considered that it was under the duty to act for those to whom it was responsible. It reached the conclusion that T.R.A., in dereliction of the duty incumbent upon it in view of the Board’s order, of August 10, 1959, to act in good faith and in plaintiff’s behalf concerning the water and storage space in the reservoir which could be and would in reasonable probability be made available to alleviate the needs of plaintiff, was instead busying itself in the promotion of navigation projects outside the scope of its legitimate interest.

Thus is explained the suit of plaintiff in Travis County to eliminate T.R.A. as the “middleman” and obtain direct authority from the Board to act for itself in negotiating with the Corps of Engineers, —and the suit in Tarrant County (which necéssarily or impliedly conceded inability to prevail by its Travis County suit) which sought to compel T.R.A. to perform a part of its designated duties as the agent for the Board, to-wit: to negotiate a contract which would, upon final accomplishment, make available to plaintiff (and those it represented) the water needed. Judgment in the Travis County case having become final, it is conclusive that plaintiff was not entitled to prevail by its suit there filed. Our problem is whether plaintiff was entitled to prosecute the Tarrant County case, as of the time the court abated and dismissed the same, either in whole or in part.

Concerning the propriety of dismissal of plaintiff’s count which complained of activities of T.R.A. outside the scope of its authority, we have no doubt that the court’s action was correct. Plaintiff could have no justiciable interest in the matter.

Entire abatement of plaintiff’s case was also correct on the premise that plaintiff could not sustain such cause of action during the pendency of the Travis County case, and so long as judgment therein had not become final.

On the matter of propriety of the abatement of the entire suit because of a want of necessary parties, rules relative thereto would have application without regard to whether the judgment in the Travis County case had become final. Neither the United States nor the Corps of Engineers would be a proper or necessary party, but the Board was a necessary party and abatement of plaintiff’s suit was proper since it had not been joined.

What we have said in the preceding paragraphs represents our decision on the questions presented in those points of error because of which the plaintiff, as the appellant, claims the right to a reversal of the judgment of dismissal. It should he apparent therefrom that we hold that the judgment order of the trial court was correct and should be affirmed. A major question, however, upon which we will take occasion to comment, is that relative to the propriety of suit abatement for want of the Board as a necessary party.

If we are correct in our attempted simplification, the question is this: “Is the principal a necessary party to a suit brought by the person against the principal’s agent to enforce action by said agent to the benefit of the plaintiff, when the agent was appointed to perform action intended to benefit him?” We believe that the answer should be in the affirmative.

Under study in 9 Texas Law Review 112, an article on “Pleading — Omissions of Necessary Parties”, was Butman v. Jones, 1930 (Tex.Civ.App., Eastland), 24 S.W.2d 796. The conclusion of the author was as follows : “It would seem that where the person who has the right or is responsible for the duty involved in the case is not made a party the defect is one of substantive law and not one of procedure, and objection to it should not be as readily waived as would be an objection regarding merely the convenience of the opposite party.” We believe that the Board would be a necessary party to plaintiff’s suit against T.R.A. because any dereliction of duty on the part of T.R.A. would be in respect to that for which it was made agent for the Board.

Other authorities from the reasoning in which we have been convinced that the Board was a necessary party in the instant case are: Town of Santa Rosa v. Johnson, 1944 (Tex.Civ.App., San Antonio), 184 S.W.2d 340; Burnett v. Masonic Grand Chapter of Order of Eastern Star, 1960 (Tex.Civ.App., Fort Worth), 340 S.W.2d 81; Hudspeth County Conservation & Reclamation District No. 1 v. Robbins, 1954 (CCA 5th), 213 F.2d 425; Miller v. Jennings, 1957 (CCA 5th), 243 F.2d 157; McCarty v. Jarvis, 1936 (Tex.Civ.App., Fort Worth), 96 S.W.2d 564, writ dism.; Oliphint v. Rigsby, 1951 (Tex.Civ.App., Galveston), 244 S.W.2d 293.

Judgment is affirmed.


author: FANNING, Justice.

text:
    HOOKS TELEPHONE COMPANY, Appellant, v. The TOWN OF LEARY, Appellee.
    No. 7493.
    Court of Civil Appeals of Texas. Texarkana.
    Sept. 3, 1963.
    Rehearing Denied Oct 1,1963.

      Ed. Gossett, Whitney R. Harris, Dallas, Grover Sellers, Sulphur Springs, J. H. Hand, Dallas, Moore & Lipscomb, Paris, Austin Guest, Clarksville, for appellant.
    William L. Peek, Jr., Wheeler, Watkins, Hubbard & Patton, Texarkana, for appel-lee.
   FANNING, Justice.

The Town of Leary brought suit to enjoin the operations of Hooks Telephone Company, a corporation, within the incorporated area of the Town of Leary. A temporary injunction was granted and the judgment of the trial court granting same was affirmed by this court. 352 S.W.2d 755, n. w. h. Trial was had on permanent injunction and the trial court granted plaintiff’s motion for instructed verdict, finding specifically (among other things) that defendant telephone company was not a long-distance telephone corporation, and that there was no evidence to raise such issue, and had no vested right to the operation of its business within the boundaries of the Town of Leary, and rendered judgment permanently enjoining defendant telephone company from conducting its operations upon and along any of the public roads, streets, highways, alleys and other public property within the incorporated area of the Town of Leary and the judgment required the immediate withdrawal and removal of all of the company’s lines, poles, wires, and other equipment and facilities from and off of the public roads, streets, highways, alleys and other public property within the incorporated area of the Town of Leary. Appellant telephone company has appealed.

Appellant has briefed the following four points of error, to-wit:

“FIRST POINT
“The trial court erred in granting appellee’s motion for an instructed verdict.
“SECOND POINT
“The trial court erred in granting appellee’s motion for an instructed verdict, because Hooks Telephone Company is furnishing a long distance telephone service.
“THIRD POINT
“The trial court erred in granting appellee’s motion for an instructed ver-diet, because the evidence raised an issue of fact with respect to the local or long distance character of appellant’s business.
“FOURTH POINT
“The trial court erred in granting appellee’s motion for an instructed verdict, because the evidence is undisputed Hooks Telephone Company-operated a telephone service between two incorporated areas, the Town of Leary and the Town of Hooks, and is therefore in the long distance telephone business.”

Although additional and more extensive evidence was adduced upon the hearing on permanent injunction than on the hearing on the temporary injunction, we have reached the conclusion that basically the controlling facts have not been materially changed since rendition of this court’s opinion in the earlier hearing upon the temporary injunction in this cause. Hooks Telephone Company v. Town of Leary, Tex.Civ.App.1961, 352 S.W.2d 755, n. w. h. It is our further view after carefully considering the record in this cause that Chief Justice Chadick’s announcement in the earlier case that Art. 1416, Vernon’s Ann. Civ.St., had no application was correct and also still remains the law under the basic controlling facts in this cause. We quote from the earlier case referred to above (352 S.W.2d 755) in part as follows:

“For several years before July, 1960, Mrs. Maud Dennis operated a telephone service in the Leary community of Bowie County. The service consisted of two five party lines connected with the Hooks, Texas, telephone exchange. C. L. Johnson, the owner of the Hooks Telephone system, purchased these two lines and the equipment, etc., appurtenant thereto from Mrs. Dennis July 1, 1960. At the time of sale the lines had eight subscriber patrons, and one has since been added.
“The Leary community voted at an election held September 27, 1960, to incorporate as a municipality. The results were certified thereafter on October 10th by the County Judge, and duly recorded October 14th. The telephone lines serving the Leary community were located generally within the incorporated area of the new town of Leary. The lines were erected along and across a State Highway with Highway Department permission.
“Following acquisition of the two lines Johnson began an improvement program. He negotiated a large loan and allocated $20,000 to extensions and improvements in the Leary area. A cable with capacity for handling a much larger volume of business than the two party lines was started, though it had not been extended into the Leary area at the time this litigation commenced. Poles for six miles of lines were set, though lines were not strung. Much of the hardware to be used in the completion of the improvement program was bought and stored. The program with its stockpiling and construction was in progress before and on the eve of the incorporation election in the Leary community.
“Johnson went forward with the program after the town of Leary incorporated. Beginning in November he operated as a private corporation, having so incorporated his business in that month. To avoid confusion reference to Johnson hereinafter is intended to mean his corporate enterprise. A letter dated December 1, 1960, signed by the Mayor and all five aider-men of the town of Leary requested Johnson to immediately stop construction and remove his telephone system from the town. A conference was arranged between the mayor, aldermen and Johnson. No agreement was reached and the conference adjourned. Johnson left with the impression that he would be accorded other opportunities to negotiate with the town officials for a franchise to operate within the incorporated limits. However, no further meetings were held, though there is some indication that informal conversations may have occurred from time to time.
“Shortly before April 5, 1961, Johnson commenced construction again, and on the Sth the Council passed the following resolution:
“‘Whereas, the Hooks Telephone Company of Hooks, Texas, operates a general telephone exchange with the City of Hooks and the contiguous area, and
“ ‘Whereas, said Company through its officers, agents, and employees has extended its poles and lines upon public and private property within the corporate limits of the Town of Leary, Texas, without request, invitation, contract or franchise; and
“ ‘Whereas, repeated requests have been made upon said Company to cease such operations and extensions within the Town of Leary, Texas, it being the desire of this Board as representative of the people of the Town of Leary, Texas, that such Company not operate within said Town nor maintain any of its poles, lines, fixed equipment or facilities within the corporate limits thereof:
“ ‘Now, Therefore, Be It Resolved by the Board of Aldermen of the Town of Leary, Texas,
“ T. That a copy of this resolution be forwarded to the Hooks Telephone Company as a final and formal request that it cease its operations within the Town of Leary, Texas, and withdraw all of its lines, poles, and other fixed facilities from within the corporate limits of the Town of Leary, Texas, within twenty (20) days from the receipt hereof, and
“ ‘2. That if within twenty (20) days from receipt hereof such request has not been complied with or the Hooks Telephone Exchange has not made arrangements therefor to the satisfaction of this Board, then the City Attorney is authorized and instructed to file suit in the name of the Town of Leary, Texas, as Plaintiff against such corporation in order to secure full compliance with the matters set forth herein.
“ ‘Unanimously Passed, Approved and Executed at a regular meeting of the Board of Aldermen of the Town of Leary, Texas, on this the 5th day of April, A.D. 1961 * *
Suit was thereafter instituted by the-town against Johnson. This appeal is in a proceeding ancillary thereto.
“The temporary injunction granted: was prohibitionary, enjoining the Hooks Telephone Company from constructing extensions or installing additional lines, etc., upon, along, over, or-across the highway, streets, alleys and public property within the corporate-limits of Leary. The appellant has-briefed the following four points of error, to-wit:
“ ‘First Point. Hooks Telephone-Company is entitled to use the streets, of tire town of Leary, as it furnishes, an out-of-town as well as a local telephone service.
“ ‘Second Point. The trial court: erred in granting the temporary injunction against Hooks Telephone-Company, as a local telephone company lawfully operating in an unincorporated area is entitled after-incorporation to continue its operation in that territory.’
* * * * * *
“The town of Leary has and may-exercise through its Board of Aider-men exclusive control over its streets, alleys and other public places within its. corporate limits. See Sec. 2, Art. 1146,. Vernon’s Ann.Tex.St. The Supreme-Court of Texas in Town of Ascarate v. Villalobos, 148 Tex. 254, 223 S.W.2d 945, 949, said: ‘No one has the inherent right to carry on his private business upon the public streets of a town or city.’
“In briefing his first two points appellant does not fault the statements in the paragraph above as an abstract statement of the law, but insists that the trial court erred in failing to recognize his operation in the Leary area' as being in the nature of long distance telephone service rather than local service. He claims that the facts in this case entitled him to the privileges Art. 1416 confers upon long distance telephone systems to erect lines over and across the streets and alleys of an incorporated town. In support of this position, City of Brownwood v. Brown Telegraph & Telephone Co., 106 Tex. 114, 157 S.W. 1163 and 40 T.J. Sec. 35, pp. 413^-15 are cited.
“At the hearing it was established that the telephone service rendered by the lines in operation and the service to be made available by the improvement and extension program Johnson inaugurated after acquiring the Dennis facilities was local service out of the Hooks exchange. Long distance telephone service had always been handled, and under Johnson’s program would continue to be handled by connections through the Hooks exchange with long distance lines of the Bell Telephone Company. Johnson’s program was to expand the existing operation, and improve the service with more modern equipment and facilities, but it is nowhere suggested that the fundamental nature of the local telephone service operation was to be changed. A local telephone system is not entitled to the privileges granted long distance telephone companies by Art. 1416, as it is interpreted by the courts. See, Alpine Telephone Corporation v. McCall, 143 Tex. 335, 184 S.W.2d 830; City of Brownwood v. Brown Telegraph & Telephone Co., 106 Tex. 114, 157 S.W. 1163; Athens Telephone Co. v. City of Athens, Tex.Civ.App., 163 S.W. 371, wr. ref.; Athens Telephone Co. v. City of Athens, Tex.Civ.App., 182 S.W. 42, wr. ref.; Fink v. City of Clarendon, Tex.Civ.App., 282 S.W. 912; Texas Telephone Company v. City of Mart, Tex.Civ.App., 226 S.W. 497.
"The cases cited next above clearly show that telephone companies in Texas fall into two classes, either local or long distance. A succinct definition clearly distinguishing a local telephone system from a long distance system under all circumstances might be difficult to formulate, but it is not called for here as Johnson continued to operate the identical local system that was purchased from Mrs. Dennis mid planned only to improve and expand it. A change from local to long distance telephone business would require a change in the type of service performed by the local system. The fact that a part of the area in which it operates has changed from rural to urban made no change in the nature of the service rendered or the purpose of the business the appellant is engaged in. Art. 1416 has no application in this case. (Emphasis added.)
“The appellant was and is operating its lines in the area later incorporated into the town of Leary. It had the permission of the State Highway Department to erect its lines along that part of the State Highway which later became a part of the municipality. Appellant argues that these facts give it a status which was unaffected by the incorporation of the area, and gave it the privilege of using the streets of the town without permission from its governing body. No authority is cited which will support this proposition. Use of the State highway right-of-way is at most a matter of permissive occupancy, and as between the appellant and the town of Leary, the appellant acquired no rights superior to those -exercisable by the town pursuant to Art. 1146. The first and second points of error are overruled.”

Appellant in the trial court also presented the witnesses Blanton, Maurer and Paxton, who were experienced in the telephone business as shown by their experience and qualifications as outlined in the record. Their testimony was extensive and will not be dealt with at length here. However as we understand their testimony, it was their view that there are now no longer any strictly local telephone exchanges in Texas, since such exchanges are connected with other exchanges whereby long distance telephone service can be and is given. And the thrust of appellant’s argument is that the highly technical development of the telephone industry has eliminated the concept of a purely local telephone exchange and that if the strict interpretation of earlier court decisions is to be followed in the case at bar, that Hooks Telephone Company, connecting and serving two incorporated areas, is furnishing a long distance telephone service and is entitled to the privileges granted long distance telephone corporations by Art. 1416, V.A.C.S. In this connection there was testimony from Mr. Johnson to the effect that he had lines from the incorporated town of Hooks to the incorporated town of Leary and that it was one mile from the city limits of Leary to the city limits of Hooks.

It is also undisputed that appellant does not now have and has never had a franchise from the incorporated Town of Leary to conduct a telephone business in Leary.

Appellant also offered proof to the effect that it had a contract with another telephone company (S. W. Bell Tel. Co.) and had connections with this company so that a person in Leary or Hooks could talk by long distance to points throughout the United States and the world. Proof was also shown of the amounts received for long distance calls placed from Leary.

In 40 Tex.Jur., Telegraphs and Telephones, Sec. 35, p. 413-6, it is stated in part as follows:

“The statute that authorizes telegraph and telephone companies to make use of “any of the public roads, streets and waters of the State” ’ does not in terms make any distinction between telephone companies with respect to the character of service rendered— whether local or long distance. But it seems that there is a very significant distinction, in so far as the regulatory rights of municipal corporations are concerned. In the case of telegraph companies and long distance telephone companies a city, town or village may make reasonable rules and regulations in respect of the location of the line, the kinds of poles that may be used and the height at which the wires may be strung; but it has no right whatsoever to deny to such corporations the use of its streets, at least in so far as out-of-town business is concerned; as to such business the right to use the streets is absolute.
“But the situation seems to be wholly different with respect to local telephone companies. Such corporations have no absolute right to use the streets, and can do so only with the consent of the municipal authorities. This consent is commonly manifested by the grant of a franchise which may fix the rates to be charged for telephone service and set forth the general conditions under which the company may transact its business. * * (Emphasis added.)

It is our view that the fact that a local telephone corporation has a contract with a long distance telephone corporation whereby long distance telephone service is furnished through connections made with the facilities of the long distance telephone corporation would not make the local telephone company itself a long distance telephone corporation.

It is also our further view that under the narrow facts in this case appellant telephone company is not a long distance telephone corporation and that Art. 1416, V.A. C.S., has no application in this case. The line (one mile in length) that appellant corporation has between the incorporated limits of Hooks and Leary was built when Leary was not an incorporated town, and when built it was merely an extension to the local Hooks telephone system and as held in our earlier opinion the fact that a part of the area in which the local Hooks telephone system operated had changed from rural to urban made no change in the nature of the service rendered or the purpose of the business that the appellant was engaged in.

While appellant very forcibly contends that under more modern views due to the highly technical development and improvements in the telephone industry that the concept of a purely local telephone company is outmoded and also that if the strict interpretation of earlier court decisions are to be followed in the case at bar, that Hooks Telephone Company by virtue of connecting and serving the two incorporated areas of Hooks and Leary is furnishing a long distance telephone service and is entitled to the privileges granted long distance telephone corporations under Art. 1416, V.A.C.S., it is our best judgment that the earlier opinion of this court forecloses appellant’s contentions in this respect.

While there is no writ history on the earlier opinion of this court, we are of the view that it is correct and supported by the authorities cited therein and we feel constrained to follow the same.

It is our view that under the record in this case the judgment of the trial court should be affirmed with the following modification : The appellant telephone company will have 60 days after this judgment becomes final, which we consider to be a reasonable time, to withdraw and remove all of the company’s lines, poles, wires and other equipment and facilities from and off of the public roads, streets, highways, alleys and other public property within the incorporated limits of the town of Leary, Texas. In connection with this modification see Incorporated Town of Hempstead v. Gulf States Utilities Co., 146 Tex. 250, 206 S.W.2d 227.

Affirmed as modified.