author: DIXON, Chief Justice. DIXON, Chief Justice.

text:
    Charles ROMICK, Guardian, Appellant, v. Jane Ellen COX (Haley) et al., Appellees.
    No. 16029.
    Court of Civil Appeals of Texas. Dallas.
    July 27, 1962.
    On Remittitur Sept. 28, 1962.

      Harold W. McCracken, Dallas, for appellant.
    Daugherty, Bruner, Kelsoe & Thorp, and Jerry Lastelick, Dallas, for appellees.
   DIXON, Chief Justice.

This is an appeal by Charles Romick, successor guardian, from a judgment denying him compensation for his services in closing a guardianship following the removal of the ward’s disabilities of minority and her subsequent marriage.

William T. Cox had originally been appointed guardian of the estate of his two minor children, William Bond Cox and Jane Ellen Cox. The guardianship as to William Bond Cox had been terminated prior to the present controversy and is not involved in this litigation.

On March 24, 1958 the Probate Court of Dallas County on its own motion pursuant to Vernon’s Ann.Tex.St. Probate Code, § 222(b) and (c) removed William T. Cox as guardian and appointed appellant Charles Romick, an attorney-at-law, as successor guardian. The grounds for the removal as stated in the court’s order were in substance that the guardian (1) had failed and refused to file an accounting showing fully the condition of the estate; (2) had failed and refused, after numerous requests by the court, to file annual accounts; (3) had ignored duly served notices citing him for contempt and had refused to appear for hearing thereon; and (4) had failed and refused to appear, after being duly served with notice to show cause why he should not be removed as guardian.

The record discloses that on April 25, 1957 the disabilities of minority of Jane Ellen Cox, the ward, then 19 years of age, had been removed by court order. Further, Jane Ellen Cox on June 22, 1957 had married Charles D. Haley. The record also discloses that the estate, of an estimated net value of $128,000, had been delivered to the ward, Jane Ellen Haley, who was in full possession and control thereof. Neither the Probate Judge nor Charles Romick was aware of these facts when nearly a year later the Judge signed the order of March 24, 1958 removing William T. Cox as guardian and appointing appellant Ro-mick as successor guardian.

Following his appointment Romick tried unsuccessfully to obtain from William T. Cox the books and records pertaining to the estate. Cox refused to cooperate. After several lengthy telephone conversations Cox agreed to send and did send W. J. Cannon, his agent and accountant, to confer with appellant. On or about May 14, 1958, either in a telephone conversation with Cox or in a conference with Cannon, appellant learned for the first time that the ward, Jane Ellen Cox had married and that her disabilities of minority had been legally removed nearly a year before appellant’s appointment as successor guardian.

Thereafter with such information as he could glean from annual reports of 1953, 1954 and 1955 together with information he could obtain from W. J. Cannon, appellant, prepared a final report in order to close the estate. This report was filed in Probate Court on May 20, 1958 in behalf of Romick as successor guardian and William T. Cox as former guardian.

Appellant also forwarded to the ward, Jane Ellen Haley and her husband, Charles D. Haley, a copy of the final report and the original and copies of an instrument to be signed by them approving the final report and releasing W. T. Cox, and appellant from liability in connection with the handling of the estate.

This instrument, executed and acknowledged .by Jane Ellen Haley, the ward, and her husband is of sufficient importance for material parts to be quoted:

“WHEREAS on or about the 25th day of April, 1957, by a Judgment of the 68th District Court of Dallas County, Texas, my disabilities as a minor were removed, after which date I married CHARLES D. HALEY; and
“WHEREAS WILLIAM T. COX, my father and Guardian of my estate during my minority, has delivered to me, or in trust for me, all of the property of my Estate, and has accounted to me for all of the income of my Estate, and none of the income from my Estate was delivered to Charles Ro-mick, Successor Guardian; and
“WHEREAS CHARLES ROMICK, Successor Guardian, has furnished me and delivered to me a carbon copy of the Final Account filed by him as Successor Guardian, both for himself and for William T. Cox, the removed Guardian.
“NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS:
“That I, Jane Ellen Cox Haley, joined by my husband, Charles D. Flaky, for and in consideration of the premises and the receipt by me from the said William T. Cox, the former Guardian of this Estate, of all of my property in said Estate and all of the income from said Estate.
“(1) Waive all irregularities in the management and handling of my Guardianship;
“(2) Ask the Probate Court to approve in all things the Final Account of Charles Romick, Successor Guardian, filed for and in behalf of himself and for and in behalf of William T. Cox, my former Guardian;
“(3) Release both William T. Cox, my former Guardian, and Charles Ro-mick, the Successor Guardian, and all the Sureties on their respective bonds, from any and all liabilities arising from or pertaining to their services as my Guardian and Successor Guardian, respectively ;
“(4) I hereby consent to the approval by the Probate Court of the aforesaid Final Account, and to the closing of this Guardianship Estate, and I hereby waive personal citation on me.
“WITNESS our hands at Dallas, Texas, this 15th day of May, 1958.
“/s/ JANE ELLEN COX HALEY
“Jane Ellen Cox Haley
7s/ CHARLES D. HALEY
“Charles D. Haley.”

After a hearing the final report was approved by the Probate Court on July 27, 1958. In substance this order recited among other things that the conduct of William T. Cox, as guardian, had resulted in a loss of $2,500 and additional sums to the estate and the ward, Jane Ellen Haley; and that a reasonable fee for appellant Romick, “who also acted in good standing at the Dallas County Bar,” was $2,500. It was then ordered, adjudged and decreed that a surcharge of $2,500 plus $60 for the premium on the bond of the successor guardian be fixed against William T. Cox, the removed guardian; and that a fee of $2,500 plus $60 and other expenses be charged against the property of the ward, Jane Ellen Haley, and against W. T. Cox and Jane Ellen Haley “individually, jointly and severally”, for which a writ of execution should issue in behalf of appellant.

From the above order of the Probate Court Jane Ellen Cox Haley and the removed guardian, William T. Cox, duly perfected an appeal to the District Court of Dallas County.

In a trial in the District Court a jury returned a verdict finding that $6,065 was fair and reasonable compensation for Charles Romick for reasonable and necessary services performed as Successor Guardian.

Thereafter Jane Ellen Haley and William T. Cox filed their motion for judgment non obstante veredicto. On May 2, 1961 the District Court sustained the motion. Accordingly judgment was rendered that Charles Romick, as successor guardian, take nothing. As grounds for said judgment the court in its decree recited that “ * * this Court is of the opinion that the Probate Court was without jurisdiction to appoint Charles Romick as Successor Guardian, because of the marriage and removal of disabilities of Jane Ellen Cox and was without jurisdiction to surcharge the Successor Guardian’s compensation against W. T. Cox in his individual capacity.”

OPINION

In his first point on appeal appellant Romick asserts that the court erred in holding that the order appointing him successor guardian was void for want of jurisdiction where said order was not appealed from and was final. We do not agree with the legal proposition upon which appellant bases his first point. If an order is void for want of jurisdiction of the court entering it, it does not become a final, valid, enforceable order merely because no 'appeal from it was taken. A really void order is subject to collateral attack anywhere and any time. 34 Tex.Jur.2nd, 177-180. Of course, a valid order not appealed from does become final and is immune from collateral attack. Dallas Joint Stock Land Bank of Dallas v. Forsyth, 130 Tex. 563, 109 S.W.2d 1046. Later in this opinion we shall hold that the order in question is not void. But appellant’s first point as worded and drawn must be overruled.

In his second and third points on appeal appellant Romick contends that the District Court erred in holding that because the ward had already obtained removal of her disabilities of minority and had married, the Probate Court’s order appointing Rom-ick as successor guardian was void.

The order removing Cox as guardian and appointing Romick as successor guardian was not void. V.A.T.S. Probate Code, § 222(b), paragraphs (2) and (3) expressly provide that the coitrt on its own motion, may remove a guardian when he fails to return an account required by law, or fails to obey any proper order of court having jurisdiction with respect to the performance of his duties. Legler v. Legler, Tex.Civ.App., 189 S.W.2d 505. The order of removal in this case recited as grounds (1) the failure and refusal of Cox to file an accounting showing fully the condition of the estate, and (2) his failure and refusal to file annual accountings of his guardianship. V.A.T.S. Probate Code, § 222(c) plainly contemplates that a successor guardian may be appointed following removal of a guardian on any of the named grounds.

It is true that V.A.T.S. Probate Code, § 404(b) (1), provides that a guardianship of an estate shall be settled and closed when the minor becomes an adult by removal of disabilities or marriage. But the occurrence of either or both of such events does not automatically and immediately conclude the duties of a guardian. There remain the duties of filing a final account and settling and closing the estate. These duties are important indeed for the sake of the ward to see that the guardian proper2y accounts for all of the ward’s property, and important too for the sake of the guardian and the sureties on his bond, for they cannot be discharged from liability until the final account has been approved.

It has often been held that the Probate Court retains jurisdiction to compel a guardian to file a final account though the ward dies, or becomes of age, or marries. Heyn v. Massachusetts Bonding & Ins. Co., Tex.Civ.App., 110 S.W.2d 261, 265; Massie v. De Shields, Tex.Civ.App., 62 S.W.2d 322, 324; Bolton v. Baldwin, Tex.Civ.App., 57 S.W.2d 957, 962; Whitfield v. Burrell, 54 Tex.Civ.App. 567, 118 S.W. 153, 156. These cases were decided before the present Probate Code was adopted, but they interpreted statutes substantially like the pertinent sections of the Probate Code. William T. Cox refused to file annual accounts for 1956 and 1957, and he failed and refused to file an account showing the condition and state of the estate. The latter account, in view of the ward’s marriage and removal of disabilities, would have been a final account if Cox, the guardian, had done his duty. It was proper to remove Cox as guardian; and if it was proper to remove him it was proper to appoint a successor guardian to complete the guardian’s duties of preparing and filing a final account and settling the estate. Rom-ick performed these duties.

The District Judge in an oral opinion brought forward in the statement of facts, and appellees in their brief on appeal cite four cases among others in support of the court’s holding that the Probate Court was without jurisdiction to appoint Romick as successor guardian. Longoria v. Alamia, 149 Tex. 234, 230 S.W.2d 1022; Thompson v. Crim, 132 Tex. 586, 126 S.W.2d 18; Easterline v. Bean, 121 Tex. 327, 49 S.W.2d 427; and Pure Oil Co. v. Clark, Tex.Civ.App., 37 S.W.2d 1088.

We do not disagree with the holdings in the above cited cases, but they do not support the contention of appellees here. In fact two of them may well be cited in support of appellant’s position. For example in the Easterline case, our Supreme Court held void the attempt of the Probate Court after the ward’s death to approve a guardian’s application to sell real estate. However, in so holding the Court in effect also held that when the ward dies the Probate Court loses jurisdiction of the guardianship matter save and except the guardianship shall he immediately settled and closed and the guardian discharged as provided by law. We shall not further prolong this opinion by a discussion of each of the cases cited and relied on by the trial court and appellees. Suffice it to say that none of them holds that a guardian, following the removal of a ward’s disabilities, or her marriage, is thereby relieved of his duty to file a final account and to settle and close the estate.

Appellees did not appeal from the order appointing Romick as successor guardian. Since said order was not void it became a final order, immune from collateral attack in the absence of an appeal to the District Court. Dallas Joint Stock Land Bank of Dallas v. Forsyth, supra. In fact the former ward Jane Ellen Haley, in executing the release heretofore quoted, recognized Romick as successor guardian, expressly waived all irregularities in the management and handling of her guardianship, released Romick and Cox and their sureties from all liability, approved the successor guardian’s final account and asked the Probate Court to approve said account. Appellant Romick in his amended application for compensation and reimbursement pled ratification and estoppel as to the former ward, Jane Ellen Haley. Under the circumstances, neither William T. Cox, former guardian, nor Jane Ellen Haley, former ward, was in position to complain in District Court of the appointment of Charles Romick, as successor guardian.

Appellant’s second and third points on appeal are sustained.

In his fourth and fifth points on appeal appellant complains because the court overruled his motion for judgment and sustained appellees’ motion for judgment non ob-stante veredicto. For reasons heretofore stated in this opinion we sustain appellant’s fourth and fifth points.

In his sixth point appellant complains that the District Court erred in holding that the Probate Court had no power to assess a surcharge of $2,500 against Cox, the former guardian, for damages caused the estate by his neglect and misconduct.

There is no merit to appellant’s sixth point. We shall not pass on the question whether the Probate Court had the power to assess the surcharge. The real party in interest, Jane Ellen Haley, the former ward, now in full possession and control of her estate, expressly waived all irregularities in the management of the estate and expressly released William T. Cox, the removed guardian, and his sureties from all liability. That being so, it would not have been proper to enter a judgment against Cox for damages suffered by the ward’s estate caused by his neglect and misconduct. Appellant’s sixth point is overruled.

Appellees have presented three cross-points in which they assert that the court erred (1) in not limiting the jury’s consideration of Charles Romick’s fee to the period of March 24, 1958 to July 27, 1958, and (2) in not submitting an instruction to the jury as requested by appellees prior to the submission of the court’s charge; and that (3) the fee found by the jury was excessive and if this court finds that appellant is entitled to compensation a remittitur should be required.

The special issue submitted to the jury inquired what amount of money would fairly and reasonably compensate Charles Romick for reasonable and necessary services performed “as the successor guardian of the Estate of Jane Ellen Cox?”

Appellees objected to the issue because it did not limit the guardian to the period of time from March 24, 1958, the date of his appointment, until July 27, 1958, “the date of the filing of his final account.” Ap-pellees asked the court to add to the special issue the words “in the probate court from March 24, 1958 to July 27, 1958?”

It would have been well for the court to have added the additional words requested by appellees, but the court’s failure to do so was not reversible error. The issue as worded limited the compensation to services performed by appellant “as the successor guardian of the Estate of Jane Ellen Cox.” It was made plain by the undisputed testimony that appellant was appointed on March 24, 1958 and that his final report and discharge as successor guardian was approved by the court on July 27, 1958. Romick himself testified as to what he did following his appointment in obtaining information and filing the final account. He further testified that after filing the final account all he did, and the only time he spent on the estate, was to arrange for the hearing which was finally held on July 27, 1958, in which hearing his account was approved and he and the sureties on his bond were discharged. Under the circumstances we cannot say that the court’s failure to add the words requested by appel-lees was calculated to cause and probably did cause an improper verdict to be returned by the jury. Appellees’ first cross-point is overruled.

We see no merit in appellees’ second cross-point. Appellees requested that the court submit an instruction as follows:

“In answering the foregoing issue, you are to consider only the reasonable and necessary expenses incurred by the successor guardian in the preservation, safekeeping and management of the estate, and all reasonable attorney’s fees necessarily incurred in connection with the proceedings and management of such estate during the dates above. You may further consider the necessary services performed by Charles Romick, as successor guardian, during the dates above.”

It was not necessary to give the requested instruction. The undisputed testimony was that the estate had already been turned over to the ward when appellant was appointed successor guardian. The estate was never entrusted to Romick for “preservation, safekeeping and management.” All appellant did was to prepare and file a filial account and obtain the release and discharge of himself and William T. Cox, the removed guardian; and all this was done to the satisfaction of appellees. The issue as worded was more limited than it would have been if appellees’ requested instruction had been given. The issue did not ask the jury to include any attorney’s fees in its consideration. It limited the compensation to appellant’s services as successor guardian. Appellees’ second cross-point is overruled.

We agree with appellees when they say in their third cross-point that the amount of $6,065 found by the jury as compensation for appellant was excessive. Appellant testified that he spent 200 hours in the performance of his duties. He filed seven instruments in the Probate Court including his final account. -He did indeed meet with frustration and a provoking lack of cooperation from William T. Cox and the ward, Jane Ellen Haley and her husband. When he sought to interview the ward and her husband he was informed that they would not confer with him without their father’s consent, and their father would not consent. The record discloses that William T. Cox suffered from mental illness. Two witnesses, both practicing attorneys, gave it as their respective opinions that a reasonable fee for the services performed by Romick as successor guardian was $15,000 and between $10,000 and $15,-000.

Nevertheless, we are faced with the fact, as we have hitherto pointed out, that Ro-mick’s activities as successor guardian went no further than the preparation and filing of the final account, obtaining the approval of the account and the release and discharge by the ward and the court of himself and the removed guardian. These were important duties performed in the face of very great difficulties, but we are forced to the conclusion that the sum of $6,065 is excessive compensation for the duties performed. We think that a remitti-tur of $3,500 would be fair. Appellees’ third cross-point is sustained to that extent.

The part of the judgment decreeing that appellant as successor guardian should take nothing against William T. Cox individually as a surcharge is affirmed.

The part of the judgment of the court denying appellant any compensation should be reversed and appellant should have judgment rendered in his favor if it were not for the excessive finding of the jury. However we think the jury’s finding of $6,065 is excessive by $3,500. Therefore if within ten days from the date hereof appellant files a remittitur of $3,500 we shall reverse the trial court’s judgment and render judgment in favor of appellant for $2,565. Should appellant refuse to file such remittitur within ten days we shall reverse that part of the trial court’s judgment awarding appellant $6,065, and remand said part of the cause of action for another trial.

The trial court’s judgment is affirmed in part; and reversed and rendered in part on condition that appellant file a remittitur of $3,500 within ten days of this date as above stated.

WILLIAMS, J., not sitting.

ON REMITTITUR

DIXON, Chief Justice.

On July 31, 1962 appellant filed a remit-titur in the sum of $3,500. Therefore that part of the judgment decreeing that appellant as successor guardian take nothing against William T. Cox individually as a surcharge is affirmed, that part of the judgment denying appellant any compensation is reversed and judgment is here rendered in favor of appellant for the sum of $2,565.00 principal.

Costs of appeal will be taxed equally, that is, one-half of the costs of appeal against appellant and one-half against appellees.

WILLIAMS, J., not sitting.


source: Caselaw Access Project

author: COLLINGS, Justice.

license: Public Domain

text:
    M. F. CONNOR et ux., Appellants, v. Edith PURCELL, Appellee.
    No. 3718.
    Court of Civil Appeals of Texas. Eastland.
    Sept. 7, 1962.
    Rehearing Denied Sept. 28, 1962.
    Kelley, Looney, McLean & Littleton, William S. Bell, Edinburg, for appellants.
    B. R. Stewart, Edinburg, for appellee.
   COLLINGS, Justice.

Edith Purcell filed an application in the Probate Court to have admitted to probate an alleged Nuncupative Codicil to the will of Hubert C. Drawe. The application was ■opposed in the Probate Court by Dorothy Lee Drawe Connor, joined by her husband, and by W. H. Drawe, individually and as independent executor of the will of said deceased Hubert C. Drawe. The application to probate the codicil was denied by the County Court and Edith Purcell appealed to the 93rd Judicial Court of Hidalgo County. That court, after a trial, ordered that the codicil be admitted to probate. From such judgment Dorothy Lee Drawe Connor and her husband have brought this appeal.

The deceased, Hubert C. Drawe, left a written will by which he gave everything to his wife. She predeceased him. W. H. Drawe made - application to probate such will and was appointed independent executor of the estate according to the terms of the will. Appellee, Edith Purcell, after discovering the existence of the alleged Nuncupative Codicil, filed her application to probate which was refused. At the trial in the District Court Mrs. Purcell offered as witnesses in support of her application to probate Mrs. Mildred Edwards, Mrs. Carolyn Nabinger and W. H. Drawe. Appellants objected to the use of W. H. Drawe as a witness contending that he was not a credible witness. The court overruled appellants’ objection and allowed W. H. Drawe to testify. The value of the estate of Hubert C. Drawe was shown to be in ■excess of $200,000.00. W. H. Drawe did not submit the Nuncupative Codicil for probate. The application to probate the codicil was filed by Edith Purcell. W. H. Drawe has not paid out any money on the basis of such codicil nor will he pay anything to appellee on the basis thereof without an order from the court.

In numerous points appellants contend that the court erred in ordering the alleged Nuncupative Will to probate, asserting that the undisputed facts show that one of the three .required witnesses, to-wit, W. H. Drawe was not a credible witness because he was named executor of the estate of the deceased, Hubert C. Drawe, and as such was a party in interest and disqualified to act as a witness in support of the alleged Nuncupative Codicil; that he was further disqualified from testifying concerning any transaction between himself and the deceased Hubert C. Drawe by reason of the provisions of Article 3716 Vernon’s Ann.Tex.Civ.St.

We cannot agree with appellants’ contention and his points in this connection are overruled. W. H. Drawe was not disqualified to testify by Article 3716. That statute specifically excepts from its provisions executors in such cases when they have been called to testify by the opposite party. W. H. Drawe was a defendant or contestant of the application to probate the codicil of Hubert C. Drawe. He was called as a witness by the opposite party and was under the circumstances competent to testify, Sanders v. Kirbie et al., 94 Tex. 564, 63 S.W. 626.

The court did not err in holding that W. H. Drawe was a credible and qualified witness to testify in support of the Nun-cupative Codicil in question. Sec. 64 of the Probate Code, V.A.T.S. provides that:

“Any person who is competent to make a last will and testament may dispose of his personal property by a nuncupative will made under the conditions and limitations prescribed in this Code.” ('Emphasis added)

Section 65 of the code provides that:

“No nuncupative will shall be established (1) unless it be made in the time of the last sickness of the deceased, (2) at his home or (3) where he has resided for ten days or more next preceding the date of such will, (4) except when the deceased is taken sick away from home and dies before he returns to such home; nor when the value exceeds Thirty Dollars, unless it be proved by three credible witnesses that the testator called on a person to take notice or bear testimony that such is his will, or words of like import.”

Section 86 states:

“When the value of the estate exceeds Thirty Dollars, a nuncupative will must be proved by three credible witnesses that the testator called on a person to take notice or bear testimony that such is his will, or words of like import.”

Section 61 provides:

“Should any person be a subscribing witness to a will, and also be a legatee or devisee therein, if the will cannot be otherwise established, such bequest shall be void, and such witness shall be allowed and compelled to appear and give his testimony in like manner as if no such bequest had been made. But, if in such case the witness would have been entitled to a share of the estate of the testator had there been no will, he shall be entitled to as much of such share as shall not exceed the value of the bequest to him in the will.”

Section 62 provides:

“In the situation covered by the preceding Section, the bequest to the subscribing witness shall not be void if his testimony providing the will is corroborated by one or more disinterested and credible persons who testify that the testimony of the subscribing witness is true and correct, and such subscribing witness shall not be regarded as an incompetent or non-credible witness under Section 59 of this Code.”

Appellants’ contention is that W. H. Drawe was not a credible witness to establish the will as required by the provisions of the Probate Code, because he was named executor of the estate of the deceased ; that he was therefore an interested witness and was disqualified. The above quoted provisions of the code show not only the requirement that witnesses to Nun-cupative Wills are to be credible but also certain qualifications and exceptions to the disqualification of a witness because of interest. Section 61 of the Code is applicable to subscribing witnesses to a will generally and in our opinion should be held to apply to witnesses to a Nuncupative Will. That section provides that a devisee in a will is a competent witness to prove its execution although the legacy as to him is void. The witness Drawe was an opponent to the application to probate the codicil. Such a witness may even be compelled to appear and give his testimony. W. H. Drawe was, under the circumstances, not an incompetent or non-credible witness under the provisions of the Probate Code, and appellants contention to the contrary is overruled. Martin v. McAdams, 87 Tex. 225, 27 S.W. 255; Moos v. First State Bank of Uvalde, Tex.Civ.App., 60 S.W.2d 888; Richardson v. Bean, Tex.Civ.App., 246 S.W. 1096, (Writ Ref.); Ridgeway v. Keene, Tex.Civ.App., 225 S.W.2d 647.

In appellants’ points No. 5 and 6, it is contended that the court erred in ordering the Nuncupative Will to probate because, the testimony of the three witnesses concerning the facts surrounding the making of such will are not in substantial agreement, and that the court erred in finding that there was a substantial agreement in the testimony of such witnesses. Appellant also contends that such finding of the court is contrary to the preponderance of the evidence.

The record shows that all of the witnesses to the making of the claimed Nun-cupative Codicil testified to the fact that the deceased Hubert C. Drawe had been involved in an accident and taken to the hospital, and that the matters involving the making of such codicil occurred in the afternoon of July 14, 1959, between 2:00 and 3:00 o’clock P.M.; that during that period the alleged codicil, which was introduced in evidence as Exhibit “1”, was reduced to writing by Mrs. Mildred E. Edwards, one of the witnesses thereto, and was as follows:

“Statement of Hubert C. Drawe:
“ T want my brother W. H. Drawe, to see that Edith Purcell and daughters get enough of my estate to buy a little home, not to exceed $12,000.00.
“ ‘The money is to be put into a home and not given in cash, unless used for educational purposes.
“‘2:40 Mildred E. Edwards
“ ‘July 14,1959 Carolyn E. Nabinger.’ ”

It is undisputed that Hubert C. Drawe died between 11:00 and 12:00 o’clock P.M. of that same day. The witnesses agreed that the writing was signed by Mrs. Edwards and Mrs. Carolyn Nabinger in the presence of the witness W. H. Drawe. The parties were agreed that such writing substantially reflected the words said by Hubert C. Drawe on the afternoon of July 14, 1959. The witnesses were in agreement that the writing was read at least once to the decedent Hubert C. Drawe and that he stated in the presence of all three witnesses that it set out what he wanted done; that after the statement had been made by the said Hubert C. Drawe, had been reduced to writing and read to and approved by him and signed by Mrs. Edwards and Mrs. Nabinger, it was delivered into the keeping of W. H. Drawe. Appellants contend that there are statements by the witnesses which are in direct conflict and that there is no substantial agreement between them concerning the facts necessary to establish the Nuncupative Will. We cannot agree with this contention. The testimony of the witnesses as above substantially set out is not in conflict concerning any material matter and is sufficient to establish the making of the Nuncupative Will. There was no disagreement by any one of the witnesses concerning any provision of the codicil regarding the disposition of the estate of Hubert C. Drawe. The only conflict, if any, in the testimony of the witnesses involved surrounding facts and circumstances. An examination of the testimony shows that some of the so called conflicts were, or could have been, statements concerning occurrences which happened at different times. In any event, the conflicts were not of such a material nature as to prevent a substantial agreement among the witnesses concerning the facts material to establish the making of the Nuncupative Will. The finding of the court in this respect was not, as appellant contends, against the preponderance of the evidence.

Section 64 of the Texas Probate Code, as hereinabove set out, provides for the disposition by a Nuncupative Will of personal property. Under this statute it is held that real property cannot pass by a a Nuncupative Will. 44 Tex.Jur. 660, 661. Appellants contend, in numerous points, that the Nuncupative Codicil here involved, directs the executor to convey real estate contrary to the code and the laws of this State and that the court erred in finding and holding that the effect of the language of the codicil was to devise personal property. The contention is not well taken. The first paragraph of the codicil devises “enough of my estate to buy a little home, not to exceed $12,000.00.” This is a devise of money with limitation as to the amount and upon its use. In the last paragraph of the codicil the devise to ap-pellee is described as, “money.” The instruction to the executor that the money was “to be put into a home and not given in cash” does not alter the fact that the devise was one of money. The provision in the second paragraph was in accord with the limitation of use of the money indicated in the first paragraph but with the further provision, in effect, that such money might be used for educational purposes. The court properly found that Hubert C. Drawe intended to devise personal property and not realty.

Appellants’ points to the effect that the court erred in admitting the Nuncupa-tive Codicil to probate because the undisputed evidence showed that Hubert C. Drawe was physically able to sign a written will at the time, and that there was no .evidence to support the finding of the court that Hubert C. Drawe was physically unable to sign a written will had no support in the evidence and are overruled. The provisions of Section 64 and 65 of the Probate Code, concerning the making of a Nuncupative Will, do not require that the maker must be physically unable to sign a written will. The evidence does show one of the alternate requirements of Sec. 65, authorizing the establishment of such a will when “ * * * made in the time of the last sickness of the deceased * * * when [he] is taken sick away from home and dies before he returns * *

In other points appellants contend that the evidence showed that it was the intention of the deceased, Hubert C. Drawe, to make a written will, incorporating therein" the substance of his statement of intention, to be executed by him in the presence of two "witnesses, and in the absence of such á duly executed written will, his statement of intention is void and unenforceable. Appellants further contend that the wording and statements of the alleged Nun-cupative Will are vague, indefinite and uncertain and amount to: no more than words of intrigue and request and are unenforceable.

The evidence plainly shows an intention on the part of the deceased, Hubert C. Drawe, to demise a portion of his estate. It shows a present testamentary intent and not a mere indication by the decedent of the terms of a contemplated written will. It shows that he called upon the three named witnesses to take notice of and to bear witness that such expressed desire on his part was his will. In our opinion this evidence and the evidence concerning other facts in connection with the matter under consideration amply supports the finding of the existence of all the facts and requirements of a Nuncupative Will as set out in Sections 64 and 65 of the Probate Code.

The wording of the Nuncupative Will of Hubert C. Drawe does show an intention to vest in his brother, W. H. Drawe, discretion with reference to the bequest to appellee. This fact does not make-file will void. 96 C.J.S. Wills § 1037; Lightfoot v. Poindexter, Tex.Civ.App., 199 S.W. 1152. Appellants’ points in this respect are overruled.

The judgment is affirmed.


author: McDONALD, Chief Justice.

text:
    Lois FOREMAN, Appellant, v. DALLAS CREDIT CORPORATION, Appellee.
    No. 4044.
    Court of Civil Appeals of Texas. Waco.
    July 26, 1962.
    Rehearing Denied Sept. 6, 1962.

      J. L. Turner, Jr., Dallas, for appellant.
    Barbara L. Welz Carpenter, Dallas, for appellee.
   McDONALD, Chief Justice.

Appellant gave notice of appeal from an adverse judgment rendered by County Court at Law No. 2, of Dallas County, and caused Transcript and Statement of Facts to be filed on 25 May 1962 in the Fifth Court of Civil Appeals. Such cause was transferred to this court by order of the Supreme Court of Texas.

Appellant has filed no brief nor requested additional time for filing same. See Rules 414, 415, Texas Rules of Civil Procedure.

Appeal is accordingly dismissed.

Dismissed.


author: WILSON, Justice.

text:
    O. D. SMALL, et ux., Appellants, v. The STATE of Texas, Appellee.
    No. 3988.
    Court of Civil Appeals of Texas. Waco.
    Sept. 6, 1962.
    Rehearing Denied Sept. 27, 1962.
    Odeneal & Odeneal, Wm. C. Odeneal, Jr., Dallas, for appellants.
    Henry Wade, Dist. Atty., A. D. Jim Bowie, Don T. Cates, Homer G. Montgomery, Ted Z. Robertson, Emmett Colvin, Jr., Asst. Dist. Attys., Dallas, for appellee.
   WILSON, Justice.

Appellants say the temporary injunction restraining them from conducting for profit a commercial day care center without a license is unauthorized because Art. 695c, Sec. 8(a) subd. 11, Vernon’,s Ann.Civ.Tex. Stát., provides that the operation may be enjoined only “for cause,” and not for mere failure to obtain a license.

Art. 695c, Sec. 8(a), subd. 2 requires that such facility “shall obtain a license to operate.”- The Act does not make its violation in this respect a-penal offense, nor does it prescribe a penalty. Subds. 7 and 9 contain provisions concerning regulation of denial and granting of licenses. The statute was enacted for the protection of children and for the public welfare, and in its observance the public has an interest. In our opinion the court was empowered to grant the injunction. Rule 693, Texas Rules of Civil Procedure; Hexter Title & Abstract Co. v. Grievance Committee, 142 Tex. 506, 179 S.W.2d 946, 949, 157 A.L.R. 268; Nichols v. Park, Tex.Civ.App., 119 S.W.2d 1066; State ex rel. Jackson v. Lindsay, 85 Kan. 192, 116 P. 207, 35 L.R.A., N.S., 810; 17 Words & Phrases, “For Cause”, pp. 344, 346; 81 A.L.R. 292; 43 C.J.S. Injunctions § 122, p. 663; 28 Am. Jur. Sec. 165, p. 666.

Affirmed.


author: GRISSOM, Chief Justice.

text:
    J. R. HITCHCOCK et ux., Appellants, v. SOJOURNER DRILLING CORPORATION et al., Appellees.
    No. 3741.
    Court of Civil Appeals of Texas. Eastland.
    Sept. 7, 1962.
    Rehearing Denied Sept. 28, 1962.
    R. J. Balch, Seymour, for appellants.
    Whitten, Harrell & Wilcox, Abilene, Turner, Rodgers, Winn, Scurlock & Terry, Dallas, Ratliff & Ratliff, Haskell, for ap-pellees.
   GRISSOM, Chief Justice.

On June 11, 1949, J. R. Hitchcock and wife executed an oil lease on 156.7 acres of land owned by them in Haskell County, including 24 acres which they had conveyed to John Covey in 1958. The lease was for a primary term of ten years with a provision that it should continue so long thereafter as oil was produced from said land. Thereafter, under a 40 acre spacing rule, a well was drilled and oil was produced in paying quantities on the 24 acre tract sold to Covey. The Hitchcocks sued Covey and wife, the oil and gas lessee and the operator of said well contending that they were entitled to ^oths of the ⅜⅛ royalty because they own 16 of the 40 acres in the spacing unit fixed by the Railroad Commission. The facts were undisputed. The court held that the Hitchcocks were not entitled to any part of the royalty from oil produced from the 24 acres sold to Covey and rendered judgment accordingly. The Hitchcocks have appealed.

As stated, appellants contend that they are entitled to ^oths of the ⅛⅛ royalty to be paid from the oil produced from a well on Covey’s 24 acres because the Railroad Commission in fixing the 40 acre spacing unit used 16 acres of their land and 24 acres of Covey’s land. They say that a denial of that claim conflicts with Article 1, Section 19, of the Constitution of Texas, Vernon’s Ann.St. which provides that no citizen shall be deprived of property or privileges except by due course of the law of the land. They further contend that such spacing arrangement constituted a forced pooling of their 16 acres with Covey’s 24 acres and that, therefore, they should share with Covey in said proportion in the royalty from oil produced anywhere on the 40 acre spacing unit. They ask us to apply the dissenting opinion in Ryan Consolidated Petroleum Corp. v. Pickens, 155 Tex. 221, 285 S.W.2d 201, 210.

The judgment is in accord with the rule of law long approved by our Supreme Court. In Japhet v. McRae, (Tex.Com.App.), 276 S.W. 669, the owner of a 15 acre tract subject to an oil lease sold 5 acres to the plaintiff and 10 acres was retained by the defendant. Thereafter, a producing oil well was drilled on the 10 acre tract. The purchaser of the 5 acre tract claimed %sths of the ⅛⅛ royalty from oil produced solely from the 10 acres retained by the defendant. There Japhet took the same position that the Coveys take in this case. The Commission, in an opinion adopted by the Supreme Court, said:

“Where the lessor of land for oil and gas, subsequently to the execution of the lease, but prior to the development of the land and the production of oil or gas under the lease, sells a portion or portions of the land to others, and oil and gas are thereafter produced under the lease from some portion of the leased premises, the royalties therefrom belong to the owner of the particular tract upon which the well is located, and the owner or owners of other portions of the leased premises have no interest therein.”

In Garza v. De Montalvo, 147 Tex. 525, 217 S.W.2d 988, 993, it was held that where a portion of the leased premises is sold by the lessor that the royalties will not be apportioned on the basis of acreage “in the absence of an express contract to that effect, but the owner of each separate tract will be entitled to receive royalties only on oil and gas produced from his tract.” See also McKinnon v. Lane, Tex.Civ.App., 285 S.W.2d 269, 272, (Ref.N.R.E.); 31-A Tex. Jur. 494. The regulations of the Railroad Commission in fixing spacing units cannot effect a change of property rights. Mueller v. Sutherland, Tex.Civ.App., 179 S.W.2d 801, (Ref.W.M.). Notwithstanding the hardships asserted by the Hitchcocks, the applicable law is established and supports the judgment. It is affirmed.


author: CHADICK, Chief Justice.

text:
    H. N. THOMAS, Appellant, v. ATLANTA LUMBER COMPANY, Appellee.
    No. 7440.
    Court of Civil Appeals of Texas. Texarkana.
    Aug. 28, 1962.

      Robert F. Salmon, Linden, for appellant.
    Carney & Mays, Atlanta, Tex., for ap-pellee.
   CHADICK, Chief Justice.

This is a suit for debt. Judgment was rendered for the plaintiff in the trial court; such judgment is affirmed.

Appellee, Atlanta Lumber Company, a co-partnership, as plaintiff, sued appellant, H. N. Thomas, as defendant, to recover the face amount of an unpaid check for $258.69 and the balance of an open account in the amount of $1,421.76, alleging that the unpaid balance of the account accrued from the sale to Thomas of lumber salvaged from buildings the Atlanta Lumber Company purchased from Grogan Manufacturing Company, a corporation. The account involved transactions in the period between Dec. 14, 1950 and April 19, 1952. Thomas answered by general denial. All issues were submitted to the judge of the trial court for determination.

The four points of error briefed are concerned with the exclusion from evidence of four exhibits offered by Thomas, to-wit: Exhibit 1, Bill of Sale dated June 16, 1950, from Grogan Manufacturing Company to Thomas “for a big rough shed west of the plainer at Bivens, Texas”, containing 79,554 board feet of lumber; Exhibit 2, Bill of Sale dated July 17, 1950 from Grogan Manufacturing Company to Thomas for the fuel house and the north and south annex to rough shed at Grogan’s mill; Exhibit 3, Bill of Sale from Grogan Manufacturing Company to Thomas, dated August 25, 1950, for the dress lumber shed, dry chain shed, green chain shed, and sawmill shed at Grogan’s mill, reciting total consideration as $1,431.72; Exhibit 4, a receipt dated October 20, 1950, from Grogan Manufacturing Company to Thomas for $1,431.72 reciting payment for material listed in the Bill of Sale dated August 25, 1950.

A partner in Atlanta Lumber Company was the first witness. During cross examination the partner testified the lumber invoiced to Thomas, was largely salvage from sheds which the Atlanta Lumber Company acquired from the Grogan Manufacturing Company, with the possibility that a small part was new lumber manufactured by Atlanta Lumber Company. This witness identified defendant’s Exhibit No. 1 as bearing the genuine signature of W. R. Grogan, President of Grogan Manufacturing Company at the date shown on the Bill of Sale. Counsel for Atlanta Lumber Company objected to the admission of the exhibit for the reason that transactions between Gro-gan Manufacturing Company and Thomas were transactions between a stranger to the suit and Thomas, and were immaterial and irrelevant to any issue in the lawsuit between Atlanta Lumber Company and Thomas. In an effort to overcome the objection counsel for Thomas stated to the court: “Our contention, your honor, is that he is charged with lumber he had already purchased himself from Grogan Manufacturing Company, and we consider this sale -”. Thereupon the court asked the witness: “Is that correct? Is this man being charged with lumber he bought from someone else other than you?” The witness answered in the negative. Counsel for Thomas tendered Exhibit 1 as evidence and the court excluded it by sustaining the objection previously voiced. With substantially this same background, Exhibits 2, 3 and 4 were excluded when tendered. At no time before both parties rested their case did Thomas re-offer the excluded exhibits.

Appellant Thomas makes the following argument in his brief:

“ * * * The defendant under his denial plea, tendered evidence to dispute the ownership by plaintiff of the property charged to him, and at the same time to establish in himself the ownership thereof, by virtue of his purchase thereof from Grogan Manufacturing Company. Such purchase by defendant from Grogan Manufacturing Company was well known to the plaintiff. S.F. Pg. 22 Lines 19 through 25. Ownership thereof, that is of the lumber in question becoming the very gist or crux of this suit. Title to the substance matter thereof, becoming the main issue. The defendant offered a bill of sale, or similar instrument in writing to establish his ownership thereof. The court excluding such tender, failed to consider the best evidence rule, and for authority for the best evidence rule, reference is here made to Baily v. Trammell, 27 Tex. 317; Ricketson v. Best, Tex.Civ.App., 134 S.W. 353. The exclusion of such testimony, preventing the defendant an opportunity to establish ownership, was and is prejudicial to the rights of this defendant, and was and is an abuse of discretion.”

The appellee contends that the exhibits were properly excluded as they did not tend to prove of disprove any fact in issue and were without pleadings to support the theory upon which they were offered; asserting that in any event exclusion was harmless. It appears that the court’s judgment may be affirmed upon the narrow basis that the court’s ruling was correct at the time it was made. This opinion need not be prolonged for a discussion of the other theories.

Ordinarily a party making an objection to the admission of evidence is entitled to an immediate ruling admitting or excluding the evidence. There is no error in the exclusion of evidence which is not admissible when offered. It is permissible for trial courts to admit testimony before its relevancy is established upon assurance from counsel that other evidence establishing relevancy of that prematurely tendered will be offered subsequently or when the pleadings of the parties indicate the tendered evidence will probably become admissible as the case is developed.

The condition of the record at the time the exhibits were tendered was this: Thomas was before the court on his plea of general denial, his counsel was suggesting that the lumber invoiced to Thomas was salvaged from sheds at the Grogan Manufacturing Company and the instrument offered pertained to the sale of sheds purchased by Thomas from that company. The evidence in the record showed the salvaged lumber invoiced to Thomas was not the same lumber Thomas .bought from Grogan Manufacturing Company. Clearly, the objection at the time the court ruled was well taken as Grogan Manufacturing Company was a stranger to the cause No assurance was given that the pertinency and admissibility of the instruments would be shown later in the development of Thomas’s defense.

Assuming, without deciding, that later evidence made admissible the excluded exhibits, the rule now quoted, taken from Corpus Juris Secundum, applies. “Where the evidence is immaterial, its exclusion is not ground for reversal even if it would have been pertinent to the case as subsequently developed and its rejection if offered subsequently would have been erroneous.” In this context it is emphasized that the excluded exhibits were not again proffered before the parties rested their case. Thomas was not entitled to treat the trial judge’s ruling as final under the circumstances here shown.

Appellant’s points of error are overruled and the judgment of the trial court is affirmed.

      . 1 Tex .Law of Evidence, p. 29, See. 29.

      . Appeal and Error, 5A C.J.S. Appeal & Error § 1739, page 1078; “Evidence” 23 Tex.Jur. (2) 202 Sec. 139.

      . Huckins v. Kapf, 4 Willson Civ.Cas.Ct.App. 16, 14 S.W. 1016; Hooss v. Willingham, Tex.Civ.App., 35 S.W.2d 847, “Evidence” 23 Tex.Jur. 202, See. 139.

      . Watson v. Walker et al., 67 Tex. 651, 4 S.W. 576; Gruss v. Cummins, Tex.Civ.App., 329 S.W.2d 496, N.W.H.; American General Insurance Company v. Sims, Tex.Civ.App., 278 S.W.2d 586, N.R.E.; Williams v. Texas Employers’ Ins. Ass’n., Tex.Civ.App., 218 S.W.2d 482, N.R.E.

      . “Appeal and Error”, 5A C.J.S. Appeal & Error § 1740, page 1078.

      . 1 Texas Law of Evidence, p. 29, Sec. 29; “Evidence”, 23 T.J.2d p. 320, Sec. 207.


author: BIRD, Judge.

text:
    CHARLES SELIGMAN DISTRIBUTING COMPANY, Appellant, v. Russell BROWN et al., Appellees.
    Court of Appeals of Kentucky.
    June 22, 1962.
    As Modified on Denial of Rehearing Sept. 21, 1962.
    Ware & Ware, James A. Nolan, Coving-ton, for appellant.
    R. Howard Smith, Newport, for appel-lees.
   BIRD, Judge.

The Workmen’s Compensation Board awarded Russell Brown, a truck driver, compensation for total permanent disability. The employer appealed to the Kenton Circuit Court where the Board’s award was upheld and the petition for review dismissed. The employer now appeals to this Court.

It is first contended by appellant that it was error to award total permanent disability.

The employee introduced two physicians. One evaluated the extent of the injury as 50% to the body as a whole. The other said there would be some permanent injury but declined to evaluate the extent because sufficient time had not elapsed.

It is admitted that the employee did engage in his occupation as truck driver for some two or three different employers for relatively short intervals after his injury.

Appellant insists this subsequent employment together with the testimony of the two physicians was sufficient to completely nullify the employee’s testimony as to total disability, thus leaving no evidence upon which the Board could award permanent disability of more than 50% as stated by one of the physicians.

We find this testimony concerning his subsequent employment:

“I lied to him — I was forced to go to work — my wife and kids didn’t have anything to eat — I couldn’t pay my rent — my bills was running up — and I had to do something — regardless of how bad I felt.
“I had bill collectors riding on my neck — I’d been sued and had judgment against me — I couldn’t pay my house rent — my utilities — my doctor bills— my wife had cancer and heart trouble and with me with no job and not able to work — I didn’t know where the money was coming from — there wasn’t no money coming in.”

He later stated that he had to do what he did, able or not.

The record shows that he had to give up his subsequent employment because of the injury for which the Board awarded him compensation.

“A claimant, like any lay witness, may not undertake to make a prognosis, but he may state facts concerning his condition and these facts may be of such a nature as to enable the Board to determine the extent and duration of the disability even in the absence of medical testimony.” Yocum Creek Coal Co. v. Jones, 308 Ky. 335, 214 S.W.2d 410, 412. In this case the evidence of the employer’s medical witness nearly two years after the accident that the claimant had an over-all permanent physical impairment of 50%, with the employee’s own testimony that he was incapable of any sustained performance at his regular occupation as a semi-trailer operator, substantially support the finding of total permanent disability under the Workmen’s Compensation Act. We have held repeatedly that courts will not overrule the Board’s findings of facts so long as there is competent evidence of probative value to support the findings. Brown Coal Co. v. Mays, Ky., 307 S.W.2d 934.

Contractors Service & Supply Co. v. Chism, Ky., 316 S.W.2d 840, held that where the evidence indicates a lighting up or aggravation of a pre-existing latent infirmity or disease the percentage of incapacity attributable to the accident calls for expert medical testimony, but this does not mean that in the ordinary case the employee’s testimony may not be considered in determining the degree of impairment.

Having examined all of the record we are of the opinion the employee sufficiently explained his subsequent employment to the Board and provided sufficient competent testimony of probative value for the Board to find total and permanent disability regardless of his subsequent employment in like or similar work. It should be noted that the employee has managed to secure his own rig and hires a driver.

Perhaps it should further be noted that this case was reopened before the Board on the employer’s motion and that no effort was made by appellant to produce further medical testimony as to the employee’s then current condition.

The employee in this case sued a third party for damages growing out of the same injury. He recovered damages. The sum recovered in the court action, less the attorneys’ fees, was credited on the compensation award. Appellant claims it was error not to credit the compensation award with the entire court recovery. We have held to the contrary in Southern Quarries & Contracting Co. v. Hensley, 313 Ky. 640, 232 S.W.2d 999, where the compensation award exceeds the amount recovered against the tort feasor, as it did in this case. Moreover, regardless of the respective amounts recovered, where the employer or its insurer has a reasonable opportunity to intervene in the employee’s action against the third party tort feasor, but chooses not to do so, it would be inequitable to require the employee to bear the attorney fee on that portion of the recovery which KRS 342.055 obliges him to pay over to the employer or its insurer. To the extent that Aetna Casualty & Surety Co. v. Snyder, Ky., 291 S.W.2d 14, and Spinner v. Fidelity & Casualty Co. of N. Y., 245 Ky. 519, 53 S.W.2d 946, indicate otherwise they are overruled.

We find no prejudicial error. The judgment is affirmed.


author: STEWART, Chief Justice.

text:
    DEBY COAL COMPANY, Appellant, v. Bill ROARK et al., Appellees.
    Court of Appeals of Kentucky.
    May 18, 1962.
    As Modified on Denial of Rehearing Oct. 19, 1962.
    Scott Reed, Wallace, Turner & Reed, Charles M. Tackett, Turley, Tackett & Geralds, Lexington, for appellant.

      Will C. Hoskins, Denver Adams, Hyden, for appellees.
   STEWART, Chief Justice.

On August 14, 1959, Bill Roark, appellee herein, while working for appellant, Deby Coal Company, as a coal cutter and loader, was injured in the latter’s mine. The accident occurred when appellee was caught between a coal car and a mine timber. For five days appellee was paralyzed from the hip down. He was hospitalized for ten days and released, with instructions to sleep on a hoard. On December 22, 1959, as a result of his examination by Dr. Harvey Chenault of Lexington, he was fitted with a combination truss and brace, the brace supporting his waist and hips up to his ribs, and was told to wear the brace for a period of at least four to five months.

On January 8, 1960, Roark filed a claim for compensation. He is 49 years old and has been a coal miner for nearly 30 years. His deposition was taken on February 12, 1960, and is the only testimony in the record. He stated therein that his injuries consisted of a rupture across the pit of his stomach, the dislocation of his right hip, and a “back injury according to the doctor”; that he was unable to do any work requiring lifting, bending, or stooping; and that he first noticed the hernia as soon as the feeling came back to his stomach after the accident, which was four or five days later.

On June 8, 1960, a stipulation was filed by the parties to the effect that appellant’s bookkeeper would testify, if subpoenaed, that the records kept by him showed Roark returned to work in appellant’s mine on March 10, 1960, as a coal loader (his occupation at the time of his injury) and had worked continuously and regularly in that capacity up to the date the stipulation was filed. The record does not indicate whether appellee has remained on his job down to the present.

On August 16, 1960, the referee for the Workmen’s Compensation Board issued an opinion and award, finding appellee was totally and permanently disabled as a consequence of his injuries and that he should receive full compensation for 425 weeks and that his medical expenses should be paid by appellant. The referee did not mention the stipulation but stated that appellant had the right to reopen the case if appellee’s condition improved. On review, the full Board upheld the referee and on appeal the Leslie Circuit Court also confirmed the award.

On this appeal, appellant contends there is no competent evidence of probative value on which to base the award. The position is taken that Roark did not undertake to testify as to the extent or duration or permanency of his impairment and, as a consequence, there is no basis for a finding of total and permanent disability. There is evidence that Roark returned to work shortly after testifying in this proceeding and prior to the submission of the case to the Board. Appellant points out that there is no evidence explaining in anywise Roark’s return to work, so as to justify a total permanent disability award.

Appellant’s contention raises the one issue to be resolved in this appeal, namely, whether the undisputed testimony of appel-lee is of such a substantial nature and has such probative worth as to uphold the finding of the Board.

On this question, the referee said: “While he (Roark) presents no evidence of the probable duration of his disability to do work, the record shows that he was totally disabled to work on February 12, 1960, and that his physical condition was such that foreseeable recovery is not indicated. While the doctor had told plaintiff that the back brace would be removed in four or five months, there is no indication that plaintiff would then be able to work, or that the hernia would have been repaired by that time.”

The full Board, after recounting appel-lee’s injuries and treatment, made this statement on tire matter of proof of permanent disability: “When we take into consideration such injuries and the absence of controverted evidence, we are of the opinion that he (Roark) will be permanently and totally disabled, as the referee found.”

Upon an appeal from an award of the Board the courts are authorized merely to examine the record in order to determine if the evidence introduced is relevant and substantial and, if so, they have no choice except to sustain the award, even though there may be considerable proof pointing the other way. Stated somewhat differently, it may be said that the award must stand unless there is an absence of material evidence of probative force to buttress the Board’s finding. Jenkins v. Tube Turns, Inc., Ky., 321 S.W.2d 48; Clear Fork Coal Co. v. Gaylor, Ky., 286 S.W.2d 519; Black Mountain Corporation v. Myers, 289 Ky. 49, 157 S.W.2d 488.

Appellant admits that the testimony of a claimant, standing alone, may be sufficient to support an award for total and permanent disability under the Workmen’s Compensation Act. In Olive Hill v. Parsons, 306 Ky. 83, 206 S.W.2d 41, this Court considered the question of the sufficiency of the testimony of an employee to uphold an award by the Workmen’s Compensation Board of 75% disability, allegedly caused by a hernia received in an accident. No medical proof was introduced. The opinion in 206 S.W.2d at pp. 43 and 44 said: “ * * * Disability is a question of fact to be determined by the Board, and we know of no rule which requires the employee to produce medical proof. * * * ”

In United Electric Coal Company v. Adams, Ky., 299 S.W.2d 246, the employee, Adams, was injured while working in a coal mine. Testifying in support of his claim for compensation, he said his injury gave him much pain, prevented him from doing heavy lifting and impaired his working capacity 50%. None of the examining doctors could, or did, give an opinion as to the extent of Adams’ disability, since his condition was caused by subjective symptoms of pain and suffering.

The Board fixed the amount of Adams’ disability at 50%. The employer argued he was not a competent witness to testify as to the extent of his incapacity to do his work. This Court rejected this argument, saying on page 248 of the opinion: “* * * When Adams testified his injury prevented him from working half the time, the Board had evidence of probative value upon which it could, and did, fix his permanent disability at 50%. * * * ”

In the present case appellee testified that due to his injuries he was unable to do any work of any kind; that he could not stoop, squat or lift anything; and that he had soreness and pain. The effect of his testimony, and the Board so found, was that he was totally disabled.

If the testimony of the claimant alone in the Adams case fixed his impairment at 50% and that proof was held sufficient to grant an award measured by that degree of disability, then the testimony of appellee alone, in the case under consideration, constitutes evidence of substance upon which to base an award of total disability.

Although it is conceded by appellant that under certain conditions an injured employee may return to work and still retain his status as a person totally and permanently disabled under the Workmen’s Compensation Act, it is contended no qualifying circumstances are present in appellee’s case. Appellant relies wholly upon the stipulation of its bookkeeper to disprove appellee’s claim of total permanent disability by the statement therein set forth that appellee came back to its mine on March 10, 1960, and has worked continuously and regularly ever since in the same capacity as before he was injured.

There is something obviously incomplete in this stipulation. For one thing, it does not state the number of hours worked by the employee each day for the approximately two-month period covered by it. Nor does it disclose the amount he was paid during the time involved. Unquestionably the full Board gave the stipulation due regard and chose to find nevertheless in favor of appellee. As the weight and sufficiency of the evidence in workmen’s compensation proceedings is for the Board alone to determine, Black Star Coal Co. v. Hall, 257 Ky. 481, 78 S.W.2d 343, we must abide by the conclusion reached by the Board on the point raised.

Wherefore, the judgment is affirmed.


author: CULVER, Justice.

text:
    Willis R. WINTERS, Petitioner, v. C. H. LANGDEAU, Receiver of State National Life Insurance Co., Respondent.
    No. A-8968.
    Supreme Court of Texas.
    Oct. 3, 1962.
    John F. Tomlin, Pecos, for petitioner.
    Cecil C. Rotsch, John R. Grace and Horace Wimberly, Austin, for respondent.
   CULVER, Justice.

C. H. Langdeau was appointed Receiver of the State National Life Insurance Company on July 6, 1960. He brought this suit against Willis R. Winters to recover on a promissory note executed by Winters and payable to the Insurance Company and to foreclose a deed of trust lien on certain real property given to secure the payment of the note. Winters in answer pleaded total failure of consideration and sought cancellation of the deed of trust.

The trial court granted the Receiver’s Motion for Summary Judgment. The Court of Civil Appeals has affirmed. 354 S.W.2d 606.

On December 29, 1959, Winters executed and delivered to the Insurance Company his promissory note in the sum of $67,500.00, payable in monthly installments, secured by a deed of trust upon certain real estate which was promptly filed for record. The note recites that it represents that amount of money borrowed by Winters from the Company. On the same day the Company issued its check payable to Winters for the sum of $67,500.00. This check was endorsed only by Winters and by stamped bank endorsements shows to have been paid.

Stripped of hearsay and conclusions, Winters in his first affidavit asserts that it was agreed between him and W. L. Bridges, Jr., an officer of the Company, that the Company would retain the consideration expressed in the note and deliver the same to him when needed in February of the following year; that he relied upon that promise in executing and delivering the note and deed of trust; that when he demanded the funds according to the agreement the demand was refused and that he has never at any time received any funds whatsoever from the Company in consideration for the note and deed of trust.

This suit was filed by the Receiver shortly after his appointment in July, 1960. The Receiver’s Motion for Summary Judgment was filed March 7, 1961. The Company’s check payable to Winters and endorsed by him was attached to the Receiver’s affidavit. The check itself would seem to he conclusive proof that it was not deposited to the credit of the Company and that the funds represented by the check were paid out of the Company’s bank to someone. The check is also proof, though not conclusive, that the proceeds were paid to Winters, the endorser. Possibly in some undisclosed manner the funds were returned to the Company.

In.respect to the circumstances concerning the issuance of and his endorsement of the check, Winters, in his supplemental affidavit asserts that he never received the proceeds thereof; that the check was never delivered to him but was retained by Bridges with the understanding and agreement that the funds would remain in Bridges’ hands as an officer and agent of the Company until such time as he, Winters, should demand the same.

Winters further avers that it was his understanding that the check was issued purely as a matter o'f record and for the purpose of making a bookkeeping and accounting entry thereon. Just why the parties would enter into such a wholly fictitious transaction is not clear, unless it were for the purpose of fraudulently bolstering the book assets of the Company in order to deceive the examiners for the State Board of Insurance, all as charged in the Receiver’s supplemental petition and which if true would estop Winters from claiming failure of consideration.

Though contrary to any reasonable business practice and as naive as these allegations appear, we cannot say that the Receiver had discharged his burden of proof that there is no genuine issue of any material fact since any doubt as to its existence is resolved against him. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929. Though the question is close it seems that there exists a doubt as to whether or not the money was ever redeposited to the Company’s credit or according to the terms of the alleged agreement retained by Bridges for the Company’s use and benefit. This appears to us to be at least one of the critical issues to be decided, and doubtless the books of the Company would be the best evidence.

Of course the burden of proving failure of consideration is upon the pleader. Vol. 1 McCormick & Ray, on Evidence, § 113; Tolbert v. McBride, 75 Tex. 95, 12 S.W. 752; Newton v. Newton, 77 Tex. 508, 14 S.W. 157; Kothmann v. Southwest Co., Tex.Civ.App., 1935, 92 S.W.2d 272.

The judgments of both courts below are reversed and the cause remanded.


author: PER CURIAM.

text:
    The STATE of Texas, Petitioner, v. Bevie F. BIGGERS, Trustee, et al., Respondents.
    No. A-9129.
    Supreme Court of Texas.
    Oct. 3, 1962.

      Will Wilson, Atty. Gen., Austin, William R. Hemphill, C. J. Taylor, Jr., and Morgan Nesbitt, Assts. Atty. Gen., for petitioner.
    McKool & McKool, Dallas, for respondent.
   PER CURIAM.

The opinion of the Court of Civil Appeals is reported in 358 S.W.2d 188. The application for writ of error is Refused, No Reversible Error. Rule 483, Texas Rules of Civil Procedure.

We approve the holding of the Court of Civil Appeals that the trial court erred in refusing to permit respondents, who tendered payment of a reasonable fee, to interrogate the witness Cowley with respect to his opinion, if any, of the value of the land taken in the eminent domain proceeding and the diminished value, if any, of the remainder of respondents’ land. Summers v. State, 5 Tex.App. 365, 32 Am.Rep. 573; City of Houston v. Autrey, Tex.Civ.App., 351 S.W.2d 948, writ refused, n. r. e. We also approve the holding that refusal to permit respondents to have the testimony of the witness included in a bill of exceptions for the purpose of showing the harmful and prejudicial effect of the first ruling was such a denial of the substantial rights of the respondents as to authorize reversal of the trial court’s judgment. Texas Employers’ Ins. Ass’n v. McCaslin, 159 Tex. 273, 317 S.W.2d 916, 921; Texas & P. Ry. Co. v. Van Zandt, 159 Tex. 178, 317 S.W.2d 528, 530-531.

By refusing the application for writ of error we are not to be understood as holding that the trial court erred in refusing to permit respondents to prove by the witness, or independently, that the witness was employed by the State Highway Department to make an appraisal of the property, that his appraisal was made for the State Highway Department, or that he was paid by the State Highway Department for making the appraisal. That proof could have no relevancy to the issues in the case. As we view the matter, its tender could only be for the purpose of supporting the credibility of the witness or of creating the impression with the jury that the State was suppressing evidence. It would not be admissible for either purpose. By calling Cowley to testify respondents make him their witness, and once his competency as an expert is established, they have no right to shore up his credibility until he is impeached or his credibility is attacked. Western Union Telegraph Co. v. Tweed, Tex.Civ.App., 138 S.W. 1155, 1157, affirmed, 107 Tex. 247, 166 S.W. 696; International & G. N. R. Co. v. Lane, Tex.Civ.App., 127 S.W. 1066, 1067, no writ history; 45 Tex.Jur. 40-43, Witnesses, §§ 202, 203. And a decision not to call as a witness one employed to investigate and evaluate facts and report an expert opinion is not a suppression of evidence.


text:
    Charles H. MEYER, Relator, v. The Honorable Bert TUNKS et al., Respondents.
    No. A-9143.
    Supreme Court of Texas.
    Oct. 3, 1962.

      Gilbert T. Adams, Beaumont, for relator.
    W. C. Lindsey, Dist. Atty., W. G. Walley, Jr., Beaumont, Will Wilson, Atty. Gen., and Norman V. Suarez, Asst., Austin, for respondents.
   CULVER, Justice.

In Jefferson County there is now pending a suit brought by the State of Texas on relation of certain citizens for the removal of Charles H. Meyer from the office of Sheriff of that county. The District Judge in that case overruled the motion filed in behalf of the defendant, Meyer, to quash the State’s application and notice to take the defendant’s oral deposition, without prejudice to his right to assert his constitutional privilege against answering any question which might tend to incriminate him.

This is an original petition for mandamus to require the District Judge to revoke his order overruling that motion.

The grounds alleged in the petition for the removal of this officer are: (1) that he accepted the sum of $200.00 on two separate occasions from the same person with the understanding that he would permit that person to operate gaming devices; (2) that Meyer was guilty of official misconduct in respect to the use of and duties assigned to prisoners entrusted to his care, appropriating their labor to private use, and permitting others to be at large and to escape; (3) that he knowingly permitted the open and notorious operation of public houses of prostitution and places to which people com-' monly resort for the purpose of gambling. At all times pertinent herein Meyer has been under five indictments, the first two charging bribery and the last three charging false statements made in his report of election campaign expenses and contributions.

Relator first contends that the notice of intention to take his oral deposition should be quashed because it violates his rights under Art. 3, Vernon’s Ann.Code of Criminal Procedure, and Art. 1, § 10 of the State Constitution, Vernon’s Ann.St. in that it is tantamount to requiring him to take the stand and testify in a criminal action against him since this removal action charges him with the willful commission of penal offenses. Further he represents that the attempt to take his deposition is in bad faith and for the purpose of obtaining’ evidence to be used in the criminal cases now pending against him.

He relies heavily on State ex rel. v. Alcorn, 78 Tex. 387, 14 S.W. 663, 665, which terms the removal statute as penal in character “and must be construed as though it were one defining a crime and prescribing its punishment.” We quoted that statement with approval in State ex rel. Edwards v. Reyna, 160 Tex. 404, 333 S.W.2d 832, 835. Aside from any implications that might be drawn from this statement the court is saying only that to justify removal from office the allegations of the petition shall be specific and certain and the official misconduct must be willful or in other words with evil intent or without reasonable grounds to believe the act lawful. But all of this is no more than is required by Arts. 5973 and 5977, Vernon’s Civil Statutes.

County officials may be removed from office for incompetency or for official misconduct or for becoming intoxicated. Art. 5970. The State Constitution stipulates that: “The Legislature shall provide by law for the trial and removal from office of all officers of this State, the modes for which have not been provided in this Constitution.” Art. 15, § 7. County officials fall into this category. Accordingly the Legislature has enacted the rules governing the trial and removal of those officials. The action may be brought by an individual citizen and must be conducted in the name of “The State of Texas”, upon the relation of that person. The verified petition is to be filed in the district court and shall set forth plainly the grounds of removal. The defendant is guaranteed the right of trial by jury. Appeals are given precedence over the ordinary business of the court. Art. 5981 provides that “the trial and all proceedings connected therewith [removal actions] shall be conducted as far as it is possible in accordance with the rules and practice of the court in other civil cases.” The Legislature has thus in effect denominated the action as a civil proceeding. It is one triable in a civil court. An appeal lies to the Court of Civil Appeals. The prosecution has the right to appeal from an adverse judgment. The degree of proof necessary for a finding of a verdict of guilty or judgment of removal is by the preponderance of the evidence rather than “beyond a reasonable doubt”. No question of former jeopardy is involved. The officer may be prosecuted criminally on the same charges either before or after the removal proceedings.

While the removal petition will ordinarily charge the officer with the violation of a criminal statute, yet the character of the action is to be determined by the object sought to be accomplished and the nature of the judgment to be entered. It reasonably appears from the constitutional and statutory provisions authorizing this proceeding that the object is not to punish the officer for his derelictions or for the violation of a criminal statute but to protect the public in removing from office by speedy and adequate means those who have been faithless and corrupt and have violated their trust. The law imposes no other penalty. It has been said that an officer has a property right in the office but that applies merely to the privilege of asserting his right to gain and hold the office in an election contest and in similar political affairs. The office belongs to the people and is given to him temporarily in trust. Even so an action to deprive him of this or any other property right would be essentially a civil action.

In McDaniel v. State, (1928) Tex.Civ.App., 9 S.W.2d 478, 481, wr. ref., the court, in pointing out that a removal action is essentially a civil suit although the result may have a punitive effect, says:

“ * * * Its determination constitutes no bar to the subsequent indictment and prosecution of the defendant for any criminal offense he may have committed in the misconduct with which he is here charged. While his removal from office may cause him an injury, the infliction of that injury is not the primary object of the proceeding. The principal purpose in such proceeding is to relieve the state of an unfit public official. If there were any informality in the manner in which the court in this instance presented the issues to the jury, the defect was not of a fundamental character, and was waived by the failure of the appellant to object at the proper time.”

In so far as the terminology applied to this character of proceeding is concerned, the courts of other jurisdictions are not in harmony, some classifying it as a civil action, others, as quasi criminal, and still others, as criminal. Actually the terminology is not altogether important or controlling for the results reached in ruling on the various questions are more uniform than the terminology used would seem to indicate. California in Thurston v. Clark, 107 Cal. 285, 40 P. 435, viewed the matter as equivalent to a criminal prosecution. In that case the removal action was said to be of such a criminal nature that the defendant officer was to be shielded from becoming an enforced witness against himself by reason of constitutional provisions both national and state. On the other hand in Cline v. Superior Court, 184 Cal. 331, 193 P. 929, the same court determined that in such cases the constitutional safeguards do not forbid the denial of a jury trial to the officer and that pronouncement is expressly made regardless of the holding in Thurston v. Clark and in other earlier cases that the proceeding is in effect a criminal prosecution. In fact the general rule seems to be that a public official has no constitutional right to a jury trial in a proceeding to remove him from office. See Gay v. District Court, 41 Nev. 330, 171 P. 156, 3 A.L.R. 224 and other cases annotated in 3 A.L.R. 1089. With that premise in mind it is hardly logical to contend that in a removal action the defendant officer cannot be called to the witness chair since the right of one charged with a criminal offense to a jury trial is basic in all jurisdictions.

In addition to California, Idaho and Montana are said to take the view that a removal action is criminal in nature while other Western states, namely, Nevada, New Mexico, North Dakota, Oklahoma and Utah, consider the matter as a civil action. See 81 A.L.R. 1089.

In Skeen v. Craig (1906) 31 Utah 20, 86 P. 487, the court aligns itself with what it terms the great weight of authority and the better reasoned cases in expressly holding that such actions are civil. State v. Borstad (1914) 27 N.D. 533, 147 N.W. 380, held that the trial court did not err in permitting the examination of the defendant as an adverse party upon the trial, subject of course to his right of refusing to answer on the ground of self incrimination. In North Dakota the statute provides just as in this jurisdiction that the trial shall be conducted in the same manner as a trial by jury in a civil action. Also in that state in civil actions generally a defendant may be compelled to testify.

The gist of Art. 1, § 10 of the State Constitution is the same as that of the Fifth Amendment to the United States Constitution, namely, that the defendant in a criminal case shall not be compelled to give evidence against himself. The protection thus afforded is not against the propounding of the question but is the right to refuse to answer if he claims that privilege.

Article 710, Vernon’s Ann.Code of Criminal Procedure, does provide that the failure of a defendant to testify shall not be considered against him nor shall that failure be commented on by opposing counsel. Meyer cannot avail himself of the protection afforded by this article because the Legislature has plainly provided that this case is to be tried under the Rules of Civil Procedure rather than of the Code of Criminal Procedure.

Since this removal cause is a civil action and is to be conducted according to the Rules of Civil Procedure we see no reason to make an exception or to say that all the rules will control except that the defendant cannot be called as a witness. We therefore hold that Art. 3 of the Vernon’s Ann. Code of Criminal Procedure does not apply ip. this case nor does § 10, Art. 1 of the State Constitution exempt this officer from being examined as an adverse witness, though he may claim the protection afforded to him by this constitutional provision. Should he later be prosecuted criminally under the indictments now pending or under any that may be subsequently returned he has the protection that the Constitution and Statutes of the State give to a defendant in a criminal case.

Secondly, Meyer contends that the order of the court in refusing to quash the notice to take his deposition is in violation of Rule 186b of our Rules of Civil Procedure and thus constitutes a clear abuse of discretion on the part of the trial judge. Rule 186b effective September 1, 1957, is substantially the same as Federal Rule 30(b), 28 U.S.C.A. Petitioner maintains therefore that we are bound by the construction placed upon that rule by the federal courts. That construction, so it is claimed, is to the effect that while an indictment is pending against one who is a defendant in a civil action which involves the same subject matter complained of in the criminal case, the defendant’s deposition may not be taken by the adverse party.

The decisions relied on all issue from a United States District Court. So far as we can ascertain the point has not been tested on appeal.

In Paul Harrigan & Sons, Inc. v. Enterprise Animal Oil Co., Inc. (D.C., 1953) 14 F.R.D. 333, a conspiracy prosecution under the Sherman Anti-Trust Act was pending against persons who were named defendants in a civil action under such Act, based upon the same alleged conspiracy. The court stayed the taking of the depositions of those persons in the civil action on the ground that the same would contravene rights guaranteed by the Fifth Amendment.

In National Discount Corporation v. Holzbaugh, D.C., 13 F.R.D. 236, the court held that where the fabric of the fraud sued upon in the civil proceeding is identical with the fraud embraced in the pending criminal proceeding, to require the defendant to submit to oral examination in the civil case would be oppressive and constitute an indirect invasion of his constitutional rights.

In the third case, United States v. Bridges, D.C., 86 F.Supp. 931, the facts were somewhat in reverse. Bridges was under indictment in a denaturalization proceeding against him based upon substantially identical facts to those forming the criminal indictment, Bridges sought under Rule 33, Federal Rules of Civil Procedure, to take the deposition of the Attorney General of the United States and of the Chief of the Federal Bureau of Investigation. The court stayed all proceedings in the denatu-ralization case until the final disposition of criminal proceedings on the following ground:

“Apart from the assertion by Government counsel that the defendant, Bridges, is attempting, through the medium of the civil proceedings, to explore and otherwise canvass matters that would not be obtainable in the criminal proceeding, it is manifest from a general outline of the Discovery sought that most, if not all, of the material requested is beyond the scope of rule 33. Federal Rules of Civil Procedure.”

Actually the only authoritative construction, we think, given by the Federal courts to Rule 30(b) is that the trial judge is vested with judicial discretion in acting upon a motion to stay the taking of the deposition of a party and before his ruling may be set aside there must be shown a. clear abuse of discretion. Whether we are bound by this construction or not is immaterial since that is exactly the way we construe our Rule 186b.

In National Bondholders Corporation v. McClintic, 1938, 99 F.2d 595, the Court said:

“ * * * the determination of the existence of the sufficiency of the cause against taking the depositions in this case was for the district judge in his judicial discretion. On this application for mandamus to reverse his ruling on an interlocutory matter, we cannot properly substitute our judgment for his as to the determination of what constituted good cause for the order even though if and when the case should ultimately be here on appeal, the court may be of a different opinion.”

In Landy v. United States (1960), 283 F.2d 303, the judgment of the trial court requiring Landy to respond to the administrative subpoena of the Internal Revenue Service was affirmed. We quote the holding in that case which we think is quite material to the situation we have before us:

“We hold that the trial court correctly decided that it could not quash the subpoena on the general allegation that it was intended for purposes other than those for which it purported to issue and that it might result in questions which the ‘subpoenaed witness could constitutionally refuse to answer. The privilege of the Fifth Amendment must be exercised in connection with precise questions and not as a general excuse for refusing to appear in response to subpoena. Rogers v. United States, 340 U.S. 367, 71 S.Ct. 438, 95 L.Ed. 344.”

Since the question of whether the taking of a deposition be stayed or not lies within the judicial discretion of the trial judge, it cannot be said with any degree of certainty that, if the trial judge had not granted the stay in Harrigan v. Enterprise and National Discount Corporation v. Holzbaugh, the Federal appellate courts would have held that the failure to do so would amount to abuse of discretion. Moreover, in the case here the factual situation differs. As pointed out above among the various grounds on which removal of the sheriff is sought only on one, namely, bribery, has he been indicted and Rule 30(b) even as applied by the Federal District Courts would have no application to the remaining charges.

Our Rule 186b as well as the Federal Rule 30(b) gives to the trial court broad powers and discretion to control the time, place and manner of taking the deposition and also the scope of the examination. The movant did not seek in the trial court any limitation or restriction upon the scope of the examination but rather took the position that he must not be examined upon any of the matters or charges specified in the removal action.

We cannot assume that the attempt to take Meyer’s deposition is in bad faith and for the purpose of obtaining evidence to be used in the criminal cases now pending against him.

Complaint is made of the fact that attached to the petition for removal is a copy of the indictment charging the defendant with false statements in his report of election contributions and expenses. This exhibit relates only to some alleged statement made by Meyer concerning the judge and the members of the grand jury. It forms no ground for removal. The trial judge will rule on its admissibility when the case comes on for trial. We see no prejudice in this that would result so far as the matter at issue here is concerned.

We hold that the Trial Judge did not abuse his discretion. Mandamus is denied.

      . See Arts. 5976 et seq., Vernon’s Ann.Civ.Stats.


author: HAMILTON, Justice.

text:
    The STATE of Texas, Petitioner, v. George E. WILLEY and Wife, Nellie Willey, Respondents.
    No. A-8804.
    Supreme Court of Texas.
    Oct. 3, 1962.
    Will Wilson, Atty. Gen., Austin, Morgan Nesbitt, Edward A. Cazares, L. P. Lollar, H. Grady Chandler, Joseph Rollins and Jot Hodges, Jr., Asst. Attys. Gen., for petitioner.
    Hustmyre & Harris, Malcom E. Dorman, Orange, for respondents.
   HAMILTON, Justice.

This is a condemnation suit by the State of Texas involving 3.221 acres of land out of a 104-acre tract belonging to George E. Willey and wife. The jury found the value of the condemned land to be $14,160.00. The value of the remainder of the land before and after the taking was found to be the same.

From the judgment on the verdict in favor of the Willeys the State appealed to the Court of Civil Appeals, complaining of the charge of the court and of the admission of certain testimony. The Court of Civil Appeals affirmed the judgment of the trial court, writing only on the point complaining of the charge. 351 S.W.2d 904. The points relating to the admission of testimony were overruled with the comment that they did not reflect error.

The State, petitioner here, brings to us no point relating to the charge of the court, but does complain of the admission, over objection, of testimony as to lot sales in subdivided areas as being comparable to the 3.221 acres condemned. We hold the admission of such testimony was reversible error.

It is undisputed that the 104-acre tract out of which the 3.221 acres were taken was adaptable to subdivision for residential and commercial purposes. However, at the time of the taking, January, 1958, there had been no subdivision or development of the 104-acre tract in question. The record reflects that the only sales of land in the vicinity of the condemned acreage were sales that were made by respondents. There was evidence of two sales of undeveloped acreage and of a number of sales of lots in subdivided areas. The highest price for which any undeveloped acreage was sold was $2,165.00 per acre. The highest price, per acre, for which any of the subdivided lots sold was $4,000.00. Petitioner objected to the admission in evidence of testimony as to the sale price of any lots in subdivided areas on the ground that they were not comparable in value to the condemned acreage taken out of the undeveloped 104-acre tract.

It has long been held in this state that even though a tract of land is adaptable to subdivision for commercial and residential lots one seeking to prove the value of such a tract of land may not show what the price of the lots would be if subdivided, or show the price for which already subdivided lots were selling. City of Austin v. Cannizzo, 153 Tex. 324, 267 S.W.2d 808; Minyard v. Texas Power & Light Co., Tex.Civ.App., 271 S.W.2d 957, error ref., n.r.e.; Dickey’s Estate et al. v. Houston Independent School District, Tex.Civ.App., 300 S.W. 250, error dism.; Wichita Falls, R. & F. W. Ry. Co. v. Cooper, Tex.Civ.App., 235 S.W. 927, no writ history; Denison P. & S. Ry. Co. v. Scholz, Tex.Civ.App., 44 S.W. 560; Silliman v. Gano, 90 Tex. 637, 39 S.W. 559, 40 S.W. 391.

The admission of the testimony as to the sale price of lots in the subdivided areas undoubtedly prejudiced the State’s case. On the question of value, in addition to the testimony of respondent Willey, there were two other witnesses who qualified as real estate evaluation experts. Willard Hall, who testified for the State, said that in his opinion the condemned acreage had a value of $7,086.00, or $2,200.00 per acre. Jess Davis, who testified for respondents, said that in his opinion the value of the condemned acreage was $14,160.00— slightly less than $4,400.00 per acre. On cross examination Willard Hall refused to accept the proposition that sale prices of the lots in the subdivisions were comparable to the value of the condemned acreage. Consequently, the effect of his testimony was completely destroyed by the court admitting in evidence the sale prices of the lots as being comparable. This left the testimony of respondent’s witness Davis unchallenged. It is no wonder that the jury found the value of the condemned land to be exactly, to the dollar, what Davis said it was, $14,-160.00.

The judgments of the trial court and Court of Civil Appeals are reversed, and the cause remanded to the trial court.