author: J. P. MORGAN, Special Commissioner.

text:
    UNION ELECTRIC COMPANY, a Missouri Corporation, (Plaintiff) Respondent, v. M. J. MOUNT and Florence C. Mount, His Wife, (Defendants) Appellants.
    No. 31544.
    St. Louis Court of Appeals. Missouri.
    Dec. 15, 1964.
    Motion for Rehearing or for Transfer to Supreme Court Denied Jan. 8, 1965.
    Application for Transfer Denied Feb. 8, 1965.

      Roberts & Roberts, Raymond R. Roberts, Farmington, for defendants-appellants.
    Schnapp, Cooper & Graham, J. B. Schnapp, Fredericktown, Thurman, Nixon & Smith, J. W. Thurman, Hillsboro, for plaintiff-respondent.
   J. P. MORGAN, Special Commissioner.

This action was commenced by Union Electric Company, herein called plaintiff, to condemn a right-of-way easement 100 feet wide across land of defendants for the purpose of constructing and maintaining an electric transmission line. A jury trial on the issue of damages resulted in a verdict for defendants in the sum of $1000.00. Defendants have appealed.

Plaintiff has now filed a motion to dismiss the appeal alleging that defendants’ brief fails to comply with Rule 83-.05(c) of the Rules of Civil Procedure, V.A.M.R. in that the statement of facts is primarily a recitation of the testimony of each witness. Defendants contend, “The evidence in this case, however, relevant to the issues of this appeal, is almost exclusively opinion and expert testimony * * * to lift such opinions out of context with the other statements of an expert witness, his qualifications, his knowledge of the facts and the cross-examination in order to make the ordinary statement is most misleading, unfair and meaningless.”

With the sole issue relating to damages and finding the statement does include all essential facts relevant to the appeal, the motion directed at the form and not the contents of the statement should be overruled and the appeal decided on its merits.

The evidence revealed that defendants owned the 180 acre tract in question. That the right-of-way easement ran 699 feet diagonally across the northwest corner. No poles or other structures were placed on the property and the transmission line was all “overhang” at a minimum height of 48 feet consisting of three electrical lines with two wires protecting against lightning. From 1960 to 1962 a rock quarry had been operated on this land, but was now filled with water. The line is approximately 500 .feet from the nearest edge of the quarry. A railroad track was located on the north edge of the property with a telephone line and a smaller electrical line along either side. The older electrical line was 400 feet north of the quarry and the telephone line 340 feet. Much of the land was in the soil-bank and most of the testimony revolved around the effect, if any, the line might have on any possible future operation of the quarry.

Defendant (husband) charged the trial court erred in permitting plaintiff to cross-examine him concerning the assessed valuation of his farm lands, and that the error was compounded by allowing one Fred H. Long to testify what the assessed valuation actually was. At first blush, this assignment appears to have merit in that it is established that such evidence is irrelevant and incompetent, with a rather indefinite exception where the landowner has “participated” in such assessment. The general rule is stated in 39 A.L.R.2d 230:

“Although, as previously indicated, assessed valuation, as such, is not generally admissible on the question of the value of property, an owner’s valuation of his own property, or a valuation in which he has participated, for tax purposes, is usually held admissible in proceedings other than tax proceedings where the value of the property is in issue, in most instances on the ground that the owner’s valuation constitutes an admission against interest, where he seeks to establish a higher value for a purpose other than taxation. * * * ”

Our Supreme Court in Kansas City & G. Ry. Co. v. Haake, 331 Mo. 429, 53 S.W. 2d 891, 892, 84 A.L.R. 1477, recognized such exception, to-wit.

“ * * * If it can be shown that the landowner has himself placed a value on the property in question, whether for taxation or otherwise, or has in some way assented or even acquiesced in fixing the valuation, then such evidence might well be proper on cross-examination and as contradictory of such witness. * * * ”

It is apparent from the record that plaintiff planned the hazardous approach of attempting to bring such evidence within the uncharted limitations of such exception. This effort being based on the fact that defendant landowner happened to be a Judge of the County Court and that by the provisions of Section 138.010 V.A.M.S., 1959, was automatically a member of the County Board of Equalization. Plaintiff in its brief sets out in detail the duties of such Board, but the following portions of the applicable statutes will suffice to show what tempted such adventurous trial strategy:

Section 138.030 “The board shall hear complaints and equalize the valuation and assessments upon all real and tangible personal property taxable by the county so that all the property shall be entered on the tax book at its true value. * * * ” Section 138.050 “They shall raise the valuation of all tracts or parcels of land and all tangible personal property as in their opinion have been returned below their real value;

The evidence does not show that the lands involved were ever a subject of decision by the Board or that defendant’s assessment was not comparable to that of others in the county.

With the ultimate objective of the usual condemnation case being a determination of the difference between the fair market value of the property before and after the taking, it is difficult to justify any exception for purposes of impeachment or otherwise, which could only tend to mislead the jury. As stated in St. Louis Housing Authority v. Gordon, Mo.App., 382 S.W.2d 451, “ * * * The objection to this evidence is that the value was for tax purposes and not its value on the market. It simply was not evidence of market value. * * * ” Even if the exception is to he followed, it would appear that it should demand a more active “participation” than that here charged to defendant.

However, plaintiff’s argument that defendant did not object to this evidence necessitates extending this opinion to include all testimony relating to assessed value. (All objections, if any, being italicized.)

Defendant as witness:

“Q. Has there been any sickness or other reasons that’s caused you to miss a performance of some of your duties ?
“Mr. Roberts: If the Court please, I ■object to that for the reason it’s immaterial, we’re not trying to find out if Mr. Mounfs been sick and missed his duties with the County Court, we’re trying to find out how much Union Electric owes him for the land they’re taking.
“Mr. Schnapp: If it please the Court, I believe we can hook it up and it’ll come material.
“The Court: I don’t know how, but I’ll let you ask another question or two and see if you can.
“Q. Have you sir?
“Mr. Roberts: Well, go ahead, I’ll ■withdraw the objection, let him go, Your Honor.
“A. Ask that question again.
“Q. Has any sickness or other reason caused you to miss the performance of some of your duties?
“Mr. Roberts: You mean as ludge of the County Court?
“Mr. Schnapp: Yes, as Judge of the County Court.
“A. No.
“Q. And you have discharged the duties of your office according to the laws of the State of Missouri?
“Mr. Roberts: Now, if the Court please, I’m certainly going to object to that, this man is not a lawyer.
“The Court: Obj ection will be sustained, if you want to make your offer of proof come up here.
“Mr. Schnapp: May I ask another question, Your Honor?
“The Court: All right.
“Q. Are you a member of the St. Francois County Board of Equalization?
“A. Yes, sir.
“Q. That Board of Equalization meets on the second Monday of July of each year?
“A. Yes, sir.
“Q. And have you attended those meetings ?
“A. Yes, sir.
“Q. And St. Francois County Real Estate is assessed at 30% of its actual value ?
“A. Well, now, we, no, no.
“Q. What is it assessed at, sir?
“A. Well, I believe the Tax Commission says we’re 28)4o.
“Q. All right, sir, that’s what it’s assessed at 28%o, did you ever advise the other members of the Board of Equalization that this 180 acres of land that you own was under assessed ?
“A. No.
“Q. Did you ever advise the other members of the Board of Equalization that the assessed valuation of your 180 acre tract of land should be raised?
“A. No, sir.
“Q. And now I ask who this 180 acre tract of land, what is the assessed valuation for the year 1962?
“A. I wouldn’t be able to tell you.
“Q. You don’t know what the assessed valuation of your land is?
“A. No, it’s assessed in two or three different particles and I wouldn’t be able to tell you.
“Q. Can you total it up for us?
“A. I wouldn’t be able to without my records.
“Q. If I told you the total assessed valuation on all your property was $5,-000.00 would that seem right?
“A. I wouldn’t know until I see my records.
“Q. Do you know how much your total tax bill was?
“A. Oh, it was a little less than $300.-00.
“Q. Less than three hundred, how much less?
“A. Well, I don’t remember, it was less than three hundred last year.
“Q. Do you know what your assessed valuation was for 1961 ?
“A. The same as it was in 1960.
“Q. And in, well, do you know how much it was in 1960 ?
“A. The same as it was in 1959.
“Q. Do you know what it was in ’59 ?
“A. Same as it was in ’58.
“Q. Do you know the amount of taxes you paid in any of those years ?
“A. No, off hand, I do not
“Q. If I told you your property was assessed at $4,000.00, would that sound right ?
“A. I wouldn’t know until I looked at my records.
“Mr. Roberts: When?
“Mr. Schnapp: For any of those years that he says is absolutely the same, do you have those records with you?
“A. No, sir.
“Q. In the event that this case last more than one day, will you produce those records tomorrow?
“A. Sure, yes, sir.
“Q. Would you say, that your 1961 taxes were $168.81 on this property?
“A. I wouldn’t say what it is.
“Q. Is that approximately correct?
“A. I wouldn’t make a guess until I see my records, I have other property besides this farm property, quite a bit, and you just don’t keep those things in your head.
“Q. So you’re not sure?
“A. No, I’m not sure.
“Q. As to the assessed valuation?
“A. No, sir.
“Q. If the assessed valuation was $4,100.00 on your property.
“Mr. Roberts: If the Court please, I’m going to object to all this ifing, if Mr. Schnapp wanted those records he could have let know and we’d of brought them or he could have subpoenaed them.
“Mr. Schnapp: They’ll be here, Mr. Roberts, just asking this man.
“The Court: Go ahead, go ahead with your question let’s move along.
“Q. Now, at the rate of 28.5% of its true value, and assuming it’s assessed at $4,100.00, what would be the total value of your property?
“A. Well, you have a pencil, I don’t know.
“Q. Approximately $12,000.00, would that be about right?
“A. Well, I don’t know, I’d have to.
“Q. And you never once told the other members of the Board of Equalization that this land was under assessed ?
“A. No, sir.
“Q. And you’re the presiding judge of that body?
“A. Yes, sir.”
Long as witness:
“Q. Would you state your name, sir?
“A. Fred H. Long.
“Q. Where do you live, Mr. Long?
“A. St. Charles, Missouri.
“Q. Now then, have you recently had an occasion to check the assessed valuation of the property, the whole 180 acres belonging to M. J. Mount, St. Francois County?
“A. Yes, sir.
“Mr. Roberts: I object to that, because checking of the assessed valuation might be, we have it before this jury.
“Mr. Schnapp: If the Court please, Mr. Mount said he did not know when I asked him the other day and I want to ask him that today.
“Q. You did check it?
“A. Yes, sir.
“Q. You checked the assessed valuation of that ground, 180 acres tract owned by Mr. Mount for 1962, what is the assessed valuation?
“A. Well, sir, I don’t have it with me up here on the stand, I have it in the Courtroom.
“Mr. Roberts: If the Court please, we’re going to object to that, the records would be the best item, oh, go ahead.
“A. I can get it real quick.
“Mr. Robérts: Go get it.
“Q. Now, can you tell me what the assessed valuation of this whole 180 acre tract was for the year 1962?
“A. Yes, sir.
“Q. What was it?
“A. Forty-one hundred dollars.
“Q. How much was it for, for the year ’61?
“A. I believe it was the same.
“Q. For ’60?
“A. I believe it’s the same.
“Q. For ’59?
“A. I believe it’s the same.
“Q. $4100.00 for 180 acre tract?
“A. Yes, sir.
“Mr. Schnapp: No further questions.
“Mr. Roberts: No questions.”

In search of an objection the record as designated “Mr. Roberts” can be reviewed chronologically. The first objection as to whether or not defendant had been prevented by illness from performing his duties was made and later withdrawn. In any event the trial court could not have anticipated at this point where the interrogation was leading, and properly ruled to allow a few more questions. The objection with reference to defendant performing his duties as Judge of the-County Court according to law was sustained. At this time the questions asked began to reveal the objective of plaintiff. It must be noted that no objection at all was made to any question relating to assessments, and that the last complained only of the “if” nature of an incompleted question with the interesting suggestion that defendant would have provided such assessment if requested. During the testimony of Mr. Long, the first objection complained that the question was repetitious as the assessed valuation was already before the jury, and it made no complaint as to the answer sought. The failure of the court to rule on this objection is really not germane to that of which defendant now complains. The last objection related to the record being the best evidence, and if not withdrawn by “Oh, go ahead” and later “Go get it,” certainly left nothing upon which the trial court could have made an intelligent ruling. In addition to there being no objection, general or specific, to the subject matter of the inquiry, it must be noted that at no time was any motion made to strike any portion of this testimony. Unless the trial court is to be charged with the additional burdens of the advocate, this assignment of error must be ruled against defendant. Gerald v. Caterers, Inc., Mo.App., 382 S.W.2d 740; Supreme Court Rule 83.13(a).

Defendant contends the trial court erred in admitting improper evidence by witnesses called by plaintiff.

The first, Fred Weber, over objection of defendant, testified that he had supervised blasting operations much closer to electrical lines than those in the instant case, and picture exhibits of such experience were admitted in evidence. The objection was apparently based on the agreed fact that rock on defendant’s land was dolomite and the experiences related did not include this exact type. However, it did include dolomitic rock which was shown to be very similar in structure. The witness was shown to be president of a construction firm building highways all over the state and in quarry operations for over twenty years. Surely this experience would be beyond the realm of the average juror, and the court ruled correctly in finding that his testimony could be of assistance to the jury. Any dissimilarity should not exclude but merely go to the weight of this testimony. Carpenter v. Kurn, 348 Mo. 1132, 157 S.W.2d 213.

As shown by the record, defendant by extended cross-examination did bring out all such distinctions. It is consistently held that the qualifications of an expert to give an opinion on a proper subject is largely within the discretion of the trial court and its ruling is not to be overturned unless such discretion has been abused. Christian v. Jeter, Mo., 287 S.W.2d 768; Union Electric Company of Mo. v. Simpson, Mo.App., 371 S.W.2d 673.

Further error is charged reference testimony of witness John Mothershead who expressed the opinion there was no damage in that the value before and after taking was $28,000. Complaint is made that he failed to consider possible damage to the quarry. It should be sufficient to point out that if the so-called expert witness is aware of the full extent of the taking, there is no requirement that he must place a monetary figure on or even consider each itemized element of value claimed to have been damaged by the landowner, but may base his opinion on those items of damage apparent to him; and, more specifically, that no objection was made at the trial which preserved the point for appellate review. Bush v. Anderson, Mo.App., 360 S.W.2d 251.

Defendant’s argument that his witness, Arch Hall, was not allowed to place a value on the rock only is without merit. When the witness was first offered, the court did instruct the jury to disregard two-non-responsive voluntary statements that rock in the quarry was worth 10^ a ton. Without setting out the extended testimony, it is fair to say that the questions as asked made it obvious that the witness had no opinion as to the value of the land itself with or without rock. As stated in Union Electric Company v. Jones, Mo., 356 S.W.2d 857: “ * * * where land contains minerals, measure of compensation is value of land with minerals in it.”

The witness was dismissed and after others had testified was called again. The court at this time was very considerate in allowing him to express a new found opinion as to before and after values.

It is true as defendants now argue that a witness may properly be asked how he arrived at a total valuation given or to explain what items he considered. State Highway Commission, State ex rel. v. Clevenger, 365 Mo. 970, 291 S.W.2d 57; State Highway Commission, State ex rel. v. Flynn, Mo.App., 263 S.W.2d 854. However, as the record reveals, after the witness had resolved his thinking to such an extent as to be accepted as an expert witness, no such inquiries were made. The trial court cannot be charged with an error it had no opportunity to make.

Other allegations of error again refer to the court’s refusal of testimony by defendant himself. These were: (1) How far rock was actually blasted by the quarrying operation, (2) The uninsurability of the quarry after the erection of the high-line, and (3) That there was a marked interest in the quarry site among the quarrying industry. The first is answered by his own testimony that he was never present when they were shooting rock. As to the second, an objection was properly sustained on the grounds that relating what a broker had said he had been told by engineers of several insurance companies would be hearsay, and the court specifically encouraged defendant to offer any competent witness on this point. The third point is not an accurate reflection of the record. A marked or active interest in the land can be an element of value. City of St. Louis v. Vasquez, Mo., 341 S.W.2d 839. However, when the court sustained an objection to defendant’s effort to testify that individuals had come to lease the property, apparently on the grounds that offers to lease should not be admitted, Missouri Public Service Company v. Hunt, Mo.App., 274 S.W.2d 27; City of St. Louis v. Gerhart Realty Co., 328 Mo. 103, 40 S.W.2d 661; defendant’s offer of proof failed to advise the court the purpose of this testimony, and no attempt was made to show that the object was that which is now urged.

The last assignment is that the verdict was inadequate. In addition to the evidence previously related, other qualified witnesses expressed opinions that defendants did not suffer any damage. Where the verdict is supported by substantial evidence, it should not be disturbed. State ex rel. Kansas City Power and Light Company v. Gauld, Mo.App., 222 S.W.2d 940.

Your commissioner recommends that the judgment be affirmed.

PER CURIAM:

The foregoing opinion by J. P. MORGAN, Special Commissioner, is adopted as the opinion of the court

Accordingly, judgment of the trial court is affirmed.

RUDDY, P. J., and ANDERSON and WOLFE, JJ., concur.


source: Caselaw Access Project

author: STEAKLEY, Justice.

license: Public Domain

text:
    Elizabeth C. UNTHANK and F. M. Butler, Independent Executors of the Estate of C. P. Craft, Deceased, Petitioners, v. Iva RIPPSTEIN, Respondent.
    No. A-10288.
    Supreme Court of Texas.
    Dec. 31, 1964.
    Morehead, Sharp, Boyd & Tisdel, Plain-view, for petitioners.
    Stone & Stone and John C. Chambers, Amarillo, for respondent.
   STEAKLEY, Justice.

Three days before his death C. P. Craft penned a lengthy personal letter to Mrs. Iva Rippstein. The letter was not written in terms of his anticipated early death; in fact, Craft spoke in the letter of his plans to go to the Mayo Clinic at a later date. The portion of the letter at issue reads as follows:

“Used most of yesterday and day before to ‘round up’ my financial affairs, and to be sure I knew just where I stood before I made the statement that I would send you $200.00 cash the first week of each month for the next 5 years, provided I live that long, also to send you $200.00 cash for Sept. 1960 and thereafter send that amount in cash the first week of the following months of 1960, October, November and December.”; opposite which in the margin there was written:
“I have stricken out the words ‘provided I live that long and hereby and herewith bind my estate to make the $200.00 monthly payments provided for on this Page One of this letter of 9-17-60.”

Mrs. Rippstein, Respondent here, first sought, unsuccessfully, to probate the writing as a codicil to the will of Craft. The Court of Civil Appeals held that the writing was not a testamentary instrument which was subject to probate. We refused the application of Mrs. Rippstein for writ of error with the notation “no reversible error.” See Rule 483, Texas Rules of Civil Procedure.

The present suit was filed by Mrs. Ripp-stein against the executors of the estate of Craft, Petitioners here, for judgment in the amount of the monthly installments which had matured, and for declaratory judgment adjudicating the liability of the executors to pay future installments as they mature. The trial court granted the motion of the executors for summary judgment. The Court of Civil Appeals reversed and rendered judgment for Mrs. Rippstein, holding that the writing in question established a voluntary trust under which Craft bound his property to the extent of the promised payments; and that upon his death his legal heirs held the legal title for the benefit of Mrs. Rippstein to that portion of the estate required to make the promised monthly payments.

In her reply to the application for writ of error Mrs. Rippstein states that the sole question before us is whether the marginal notation constitutes “a declaration of trust whereby [Craft] agrees to thenceforth hold his estate in trust for the explicit purpose of making the payments.” She argues that Craft imposed the obligation for the payment of the monies upon all of his property as if he had said “I henceforth hold my estate in trust for [such] purpose.” She recognizes that under her position Craft became subject to the Texas Trust Act in the management of his property. Collaterally, however, Mrs. Rippstein takes the position that it being determinable by mathematical computation that less than ten per cent of the property owned by Craft at the time he wrote the letter would be required to discharge the monthly payments, the “remaining ninety per cent remained in Mr. Craft to do with as he would.” Her theory is that that portion of Craft’s property not exhausted in meeting his declared purpose would revert to him by way of a resulting trust eo instante with the legal and equitable title to such surplus merging in him.

These arguments in behalf of Mrs. Rippstein are indeed ingenious and resourceful, but in our opinion there is not sufficient certainty in the language of the marginal notation upon the basis of which a court of equity can declare a trust to exist which is subject to enforcement in such manner. The uncertainties with respect to the intention of Craft and with respect to the subject of the trust are apparent. The language of the notation cannot be expanded to show an intention on the part of Craft to place his property in trust with the result that his exercise of further dominion thereover would be wrongful except in a fiduciary capacity as trustee, and under which Craft would be subject to suit for conversion at the hands of Mrs. Rippstein if he spent or disposed of his property in a manner which would defeat his statement in the notation that a monthly payment of $200.00 in cash would he sent her the first week of each month. It is manifest that Craft did not expressly declare that all of his property, or any specific portion of the assets which he owned at such time, would constitute the corpus or res of a trust for the benefit of Mrs. Rippstein; and inferences may not be drawn from the language used sufficient for a holding to such effect to rest in implication. The conclusion is compelled that the most that Craft did was to express an intention to make monthly gifts to Mrs. Rippstein accompanied by an ineffectual attempt to bind his estate in futuro-, the writing was no more than a promise to make similar gifts in the future and as such is unenforceable. The promise to give cannot be tortured into a trust declaration under which Craft while living, and as trustee, and his estate after his death, were under a legally enforceable obligation to pay Mrs. Rippstein the sum of $200.00 monthly for the five-year period.

The controlling tests were stated by this Court in McMurray v. Stanley, 69 Tex, 227, 6 S.W. 412 (1887):

“It has been often said that, in cases of this kind, three things must be shown before a court of equity will declare a trust to exist, and enforce it: First, that the words of the testator ought to be construed as imperative, and hence imposing on the trustee an obligation; secondly, that the subject to which the obligation relates must be certain; thirdly, that tire person intended to be the beneficiary under the trust be also certain.”

In Fleck v. Baldwin, 141 Tex. 340, 172 S.W.2d 975 (1943), it was said:

“While the transactions under review are in the form of voluntary trusts, they are governed in general by the rules applicable to gifts. The principal difference between such a trust and a gift lies in the fact that in the case of a gift the thing given passes to the donee, while in the case of a voluntary trust only the equitable or beneficial title passes to the cestui qui trust. In each case the equitable title must pass immediately and unconditionally and the transfer thereof must be so complete that the donee might maintain an action for the conversion of the property. Absent a completed gift of the equitable title, no trust is created, for an imperfect gift will not be enforced as a trust merely because of its imperfection. A gift cannot be made to take effect in the future, for the reason that a promise to give is without consideration. Neither can the donor retain the right to use and enjoy the property during his lifetime and direct its disposition after his death in any manner other than by the making of a will. Unless Mrs. Baldwin, therefore, intended at the very time she opened these several accounts and purchased these various stock certificates to pass the equitable title thereto so that the exercise by her of any further dominion over same, except in the fiduciary capacity of trustee, would be wrongful, then no gifts were made or trusts created by such transactions. Each of the foregoing statements is supported by one or more of the following authorities: Chevallier v. Wilson, 1 Tex. 161; Harmon v. Schmitz, Tex. Com.App., 39 S.W.2d 587; Samuell v. Brooks, Tex.Civ.App., 207 S.W. 626, error refused; Peterson v. Weiner, Tex.Civ.App., 71 S.W.2d 544, error refused; Benavides v. Laredo National Bank, Tex.Civ.App., 91 S.W.2d 372; Chaison v. Chaison, Tex.Civ.App., 154 S.W.2d 961, error refused for want of merit; Botsford v. Burr, 141 Mich. 370, 104 N.W. 620; Coon v. Stanley, 230 Mo.App. 524, 94 S.W.2d 96; In re Allshouse’s Estate, 304 Pa. 481, 156 A. 69, 96 A.L.R. 379; Frazier v. Hudson, 279 Ky. 334, 130 S.W.2d 809, 123 A.L.R. 1331.”

Mrs. Rippstein relies principally on three decisions in support of her theory that the ten per cent of Craft’s property required to discharge the monthly payments can be carved out and made to constitute the subject of the trust: McMurray v. Stanley, supra; Estes v. Estes, 267 S.W. 709 (Tex.Com.App.1924); and Monday v. Vance, 92 Tex. 428, 49 S.W. 516 (1899). In Monday v. Vance the husband and wife deeded property in trust for the permanent support of the wife and the children, and for the education of the children. The deed did not prescribe how the property should devolve after the trust was executed, but there was no uncertainty, regarding the establishment of the trust itself. It was held that the effect of the deed was merely to carve out of the estate in the property the usufructu-ary interest for the support of the wife and the maintenance and education of the children, and to leave what remained unaffected by the conveyance. Estes v. Estes considered a will which created a life estate in B. T. Estes with a vested remainder in fee simple in Bennie Estes; and which also impressed the income from the property in the hands of B. T. Estes with an active trust in favor of Bennie. As relevant here, the court cited what it termed the “universal rule that, in the absence of express terms defining the estate conferred upon the trustee, the trustee takes exactly that quantity of interest which the purposes of the trust requires, and no more.” But there was no uncertainty regarding the intention of the testatrix. In McMurray v. Stanley this court considered a will under which the testatrix gave all of her property to her husband with full power of disposition, but directed that “at his death, should he have any of said property still remaining in his possession not disposed of or used by him, that the same shall be given by him” to her nieces. It was held that the intention to create a trust was manifested by the whole instrument, and that the property remaining in the possession of the husband at the time of his death could be shown with as much certainty as any other fact. Here, again, the court was enforcing clear intention, and in so doing it was held that the subject to which the trust attached was sufficiently certain.

We also note that Mrs. Rippstein presented the alternative point in the Court of Civil Appeals (which that court did not reach) that the marginal notation was an instrument in writing which imports consideration; and that she was entitled to summary judgment against the estate of Craft for the monthly payments since the executors of the estate wholly failed to meet their burden of proving a want of consideration. This alternative position was also asserted by counsel for Mrs. Ripp-stein in oral argument before this Court.

The common law rule was stated by this Court in Jones v. Holliday, 11 Tex. 412 (1854) :

“A consideration is essential to the validity of a simple contract, whether it be verbal or in writing. This rule applies to all contracts not under seal, with the exception of bills of exchange and negotiable notes, after they had been negotiated and passed into the hands of an innocent indorsee. * * * In contracts under seal a consideration is implied, in the solemnity of the instrument.”

In 1858 the Legislature enacted what became Article 7093 of the 1911 codification providing as follows: “Every contract in writing hereafter made shall be held to import a consideration in the same manner and as fully as sealed instruments have heretofore done.” It was said by this Court in Harris v. Cato, 26 Tex. 338 (1862), that “The object of this law was to dispense with a mere formality in the execution of a certain class of contracts. And as by the common law these instruments when under seal imported a consideration, it was provided, by the clause of the sentence under consideration, that the same effect should be given to them when subsequently executed without a scroll or seal.”

Article 7093 of the 1911 codification was omitted in the 1925 codification. Article 27 of the 1925 codification, however, read, and still reads, in part, as follows: “No private seal or scroll shall be required in this State on any written instrument except such as are made by corporations.” In an opinion adopted by this Court in Wright v. Robert & St. John Motor Co., 127 Tex. 278, 58 S.W.2d 67 (1933), it was stated that Article 27 of the 1925 codification included the substance of Articles 7092 and 7093 of the 1911 codification. It was further held that:

“If the seal was required under the common law on simple contracts such as this to import a consideration, and the statute now provides that no seal shall be required, it follows that the only effect the statute can possibly have on such a contract is to dispense with the common-law rule requiring the seal in order to import a consideration.”

It is apparent that Article 27 cannot be held to provide that all written instruments import a consideration, regardless of the kind or type of writing the instrument may purport to be. The marginal notation under consideration here does not purport to be a contract, or to embody a bilateral agreement between Craft and Mrs. Rippstein, or to be the result of a meeting of their minds, or to possess the element of mutuality of obligation. A contractual obligation to pay the monthly payments cannot be imposed against the estate of Craft on the theory that the executors thereof were under the burden in this proceeding, which they did not discharge, of alleging and proving a want of consideration.

The judgment of the Court of Civil Appeals is reversed and that of the trial court is affirmed.

      . In re Craft Estate, 358 S.W.2d 732 (C.C.A.1962, writ ref. n. r. e.).

      . Itippstein v. Unthank, 380 S.W.2d 155.

      . All italics arc added.


author: DICE, Commissioner.

text:
    Salvador GARCIA, Appellant, v. The STATE of Texas, Appellee.
    No. 37579.
    Court of Criminal Appeals of Texas.
    Jan. 13, 1965.

      No attorney of record on appeal for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

Appellant was convicted, upon a plea of guilty, of the offense of burglary and his punishment was assessed at confinement in the penitentiary for five years.

The judgment entered by the court ordered the imposition of sentence suspended and that appellant be placed upon probation upon certain terms and conditions.

This is an appeal from an order entered by the court, revoking the probation.

The record does not reflect that appellant has been sentenced in the trial court. Where no sentence has been pronounced in the trial court, this court is without jurisdiction to enter any order except to dismiss the appeal. Arts. 767 and 769, Vernon’s Ann.C.C.P.; Watson v. State, Tex.Cr.App., 244 S.W.2d 819; Aguirre v. State, Tex.Cr.App., 271 S.W.2d 819.

The appeal is dismissed.

Opinion approved by the Court.


text:
    Soloman Adams GONZALES, Appellant, v. The STATE of Texas, Appellee.
    No. 37628.
    Court of Criminal Appeals of Texas.
    Jan. 27, 1965.
    Wm. H. Hamblen, Thomas R. Bell, Edna, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

Appellant was convicted, upon his plea of guilty and waiver of a trial by jury, of the offense of operating a motor vehicle upon a public highway while his operator’s license was suspended, and assessed punishment at confinement in jail for six months and a fine of $250.

After the entry of judgment on such plea, a motion for new trial was filed by appellant in which he alleged that he was induced and persuaded to plead guilty by the promise of an officer that he would receive a fine, which he could pay and be discharged, and had he known he would be given a jail sentence he would not have entered a plea of guilty and waived the right of a trial by jury.

At the hearing, B. B. Burnell, a witness called by appellant, testified that he was appellant’s employer and that appellant called him from the jail, or sheriff’s office, and told him that he was being held for driving without a license; that the witness then talked to a deputy sheriff by the name of Anderson, who stated that appellant was charged with “driving while license suspended,” and upon being asked when the trial would be held the deputy answered: “In the morning * * * It won’t be anything to it other than a fine.” The witness testified that he then talked to appellant and told him if he did not have enough money to pay his fine to call him and he would send his bookkeeper over and pay the fine.

Appellant testified that he entered the plea of guilty upon the basis of his conversation with his employer in which he understood that upon entering such plea he would receive punishment of a fine. On cross-examination, appellant admitted that no one made any promises to him if he would plead guilty and no one told him if he would enter such a plea he would not receive jail time.

Deputy sheriff Ray Anderson testified that he was the officer who placed appellant in jail, and denied that he talked to appellant’s employer, Burnell. He further stated that he made no promises to appellant or to anyone else that if appellant would enter a plea of guilty he would not receive jail time.

Sheriff Louis Watson testified that he and highway patrolman Everette Hewett arrested appellant and brought him to the sheriff’s office and that he did not talk to appellant’s employer over the telephone.

Patrolman Hewett testified that he was present when appellant made the telephone call but he did not observe anyone else talk.

Under the record, the court did not abuse his discretion in overruling the motion for new trial. Berry v. State, 159 Tex.Cr.R. 492, 265 S.W.2d 86; Townsel v. State, 162 Tex.Cr.R. 221, 283 S.W.2d 944.

The contention is also urged by appellant that the punishment assessed is excessive. Where, as in the present case, the punishment is within the statutory limits, it is not within the province of this court to pass upon the propriety of the same. McGruder v. State, Tex.Cr.App., 377 S.W.2d 191.

The judgment is affirmed.

Opinion approved by the court.


author: BELCHER, Commissioner.

text:
    Bobby Ralph LOTT, Appellant, v. The STATE of Texas, Appellee.
    No. 37383.
    Court of Criminal Appeals of Texas.
    Jan. 6, 1965.
    Rehearing Denied Feb. 10, 1965.

      Walker Brents, Jr., Fort Worth (On Appeal Only), Pete Perez, Fort Worth (On Appeal Only), for appellant.
    Doug Crouch, Dist. Atty., Albert F. Fick, Jr., and Truman Power, Asst. Dist. Attys., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for robbery, with a prior conviction for an offense of like character alleged for enhancement; the punishment, life.

On a former appeal of this case, it was reversed on the ground that appellant’s arrest and search were unauthorized and the testimony relative thereto should not have been admitted in evidence. Lott v. State, Tex.Civ.App., 372 S.W.2d 325.

The appellant challenges the sufficiency of the evidence to support the conviction.

The evidence in this case and in the former appeal (Lott v. State, supra) and in the companion case of Lucas v. State, Tex.Civ.App., 368 S.W.2d 605, which was affirmed, is substantially the same, excluding testimony concerning money taken from appellant’s person at the time of his arrest for this offense.

The pertinent evidence introduced on this trial reveals that three men wearing plastic masks, two of whom were exhibiting pistols and one of whom was carrying a bag, robbed the manager of a grocery store about 8:20 P.M., in Fort Worth. They took $2,207, consisting of pennies, silver coins, bills, and two lay-away purchase tickets.

Within forty minutes after the robbery several officers went to an apartment house. While the officers were inspecting an automobile parked within five or six feet of the apartment building, James Parrot walked around the corner from the rear of the building, in the direction of the car. When Parrot was within four or five feet of the car an officer shined a flashlight in his face and he fled. During his flight and escape, Parrot dropped a large quantity of coins which he was carrying in two (men’s) socks. The radiator of the parked car was warm and a one-dollar bill was found in the back seat of the car.

Immediately after Parrot escaped, an ofiL cer knocked on the front door of the apartment. The appellant opened the door, and when the officer asked how he was, the appellant replied “not too good.” After three or four minutes appellant’s wife, and Johnny Lucas and his wife, came out of the apartment. In the bedroom of the apartment the officers found 38 one-dollar bills and two lay-away tickets on the floor, and 200 one-dollar bills, about fifty dollars in coins, some cotton gloves and a piece of rope in a drawer on top of a chest. Behind the chest in a hole used for plumbing inspection purposes, a bag containing money including several rolls of pennies, a .45 caliber pistol, and a plastic mask were found. Two plastic masks were removed from the commode, and several coin wrappers were found in the apartment.

While testifying, the person working as a checker in the store at the time of the robbery identified the appellant as the same person she picked out of five persons at the police station line-up because he had a walk similar to one of the men who committed the robbery.

The two lay-away tickets found in the apartment were positively identified by the store manager as being those he placed in the hag with the money during the robbery. The tickets at the time of the robbery had currency attached to them. The manager further testified that the plastic masks and the pistol found in the apartment, as shown by the evidence, were similar to those used by the robbers; and that coin wrappers found in the apartment were similar to those on some of the coins taken from the store.

Proof was introduced of the prior conviction as alleged and of the identity of appellant as the same person so convicted.

The appellant did not testify but called one witness who testified that he (the witness) and two others committed the robbery here charged and that the appellant was not of them.

The court charged the jury upon the law of principals and circumstantial evidence.

The facts and circumstances as shown by the evidence are sufficient to support the conviction.

On appeal, the appellant for the first time contends that he was denied due process by the reading to the jury of the allegations of a prior conviction contained in the indictment.

No stipulation as to the prior conviction appears in the record; and no objections were made to the reading to the jury of the allegations of the prior conviction.

Under the record as presented no error is shown. Oler v. State, Tex.Civ.App., 378 S.W.2d 857; Reyes v. State, Tex.Civ.App., 383 S.W.2d 804.

The judgment is affirmed.

Opinion approved by the Court


author: WOODLEY, Judge.

text:
    Michael Ray HARRELL, Appellant, v. The STATE of Texas, Appellee.
    No. 37478.
    Court of Criminal Appeals of Texas.
    Jan. 6, 1965.
    Rehearing Denied Feb. 10, 1965.

      Charles W. Tessmer, Dallas (On Appeal Only), Emmett Colvin, Jr., Dallas (On Appeal Only), for appellant
    Henry Wade, Dist Atty., A. D. Jim Bowie, Don Wills, George Milner and C. ML Turlington, Asst. Dist Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The offense is felony theft of an automobile; the punishment, 3^4 years.

Trial was before a jury on a plea of guilty. Appellant’s plea for suspension of sentence was rejected by the jury.

The indictment alleged the theft of an automobile of the value of over $50 from Melba Paul on or about October 5, 1963.

Miss Paul testified that on said date she owned a 1960 Chevrolet Impala white sports coupe automobile which she had purchased in May, 1963, for $1695.00 which had a reasonable market value of over $50. About 10 P.M. she parked said automobile in front of the apartments at 4211 San Jacinto, where she lived, and went inside. About midnight, when she went out to put the car in the parking area provided by the .apartments, it was gone.

She did not know the appellant and did not give him or anyone else permission to take her automobile. About 1 A.M. Officer Hogue called her and they had a conversation with reference to her automobile. She saw the car some three weeks later, “burned completely up, smashed all over— a complete total loss.”

Officer Claud Hogue testified that at ■about 12:45 A.M. he was at a service station in Royce City and saw a car coming from Dallas on Highway 67 at a very high rate of speed; saw the car hit the concrete esplanade at an overpass and flip over one and a half times, landing on its top. He described the automobile as “a white 1960 Chevrolet.” .

Deputy Sheriff Munce testified that he heard the noise; went to the scene and saw a blaze coming from under the hood of the upturned car. After a conversation with a colored boy, he went east some 400 yards and found the appellant. He asked appellant “if he was involved in this car that was burning,” and he said, “No, I am hitch-hiking, trying to catch a ride.”

Appellant’s written confession to Detective J. D. Byrom was offered in evidence after Officer Byrom had testified that he talked with him “with reference to the obtaining of a voluntary statement with reference to the theft of a 1960 Chevrolet Impala automobile which had been taken the previous night on San Jacinto Street here in Dallas County, Texas,” and had given him the warning which appeared at the top of the statement which complies with Art. 727 Vernon’s Ann.C.C.P.

The statement was admitted in evidence after it had been examined by appellant’s trial counsel and he had stated “No objection.”

The statement contains the following confession of appellant: “On the 5th of October at approximately 12 midnight I was walking down San Jacinto Street. I saw a 1960 white Chevrolet parked at the curb. I looked in the car and saw that the ignition was unlocked. I got in the car and drove it away. I was going to my sister’s house in Yantes, Texas. I was on U.S. Highway 67 when I hit a curb. I lost control of the car and it turned over two or three times. I got out of the car and it started burning. I got back on the highway and began hitching a ride and the police picked me up.”

Appellant’s counsel on appeal urges four grounds for reversal.

First, he contends that the trial court erred in directly submitting to the jury evidence as to the voluntariness of the confession.

The undisputed evidence was that the confession was voluntarily made in compliance with Art. 727 V.A.C.C.P. Also, appellant’s counsel, after hearing such evidence and examining the confession, stated “No objection.”

Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, cited by appellant, has no application to such facts.

It is next contended that the court erred in failing to withdraw appellant’s plea of guilty when the state introduced his statement made to Officer Hogue, when apprehended, that he was not involved in the car that was burning.

No request was made to have the plea withdrawn and there were no objections to the court’s charge submitting the case to the jury on the plea of guilty. We see no error in this regard.

The remaining contention is that the evidence is insufficient to support the conviction.

Upon a plea of guilty before a jury, evidence is submitted to enable the jury to decide upon the punishment to be assessed. Art. 502 V.A.C.C.P.

We do not agree that there was no proof that the automobile appellant confessed to taking was the automobile that Miss Paul testified about.

In addition to the evidence above set out, appellant’s father, A. T. Harrell, testified without objection:

“Q. Have you talked to Michael Harrell since he has been released on bond? A. Yes.
“Q. Did he tell you whether or not he stole this automobile?
******
“A. He discussed the case with me, yes, sir.
“Q. Did he tell you or not he stole the automobile?
“A. Yes, sir, he said he stole it.
******
“Q. The best you recall, what did he say about stealing this car?
“A. He said he was caught, the car turned over, something to that effect; he had taken it from somebody?”

Finding no reversible error, the judgment is affirmed.


author: McDONALD, Presiding Judge.

text:
    Dewey Buren DAVIDSON, Appellant, v. The STATE of Texas, Appellee.
    No. 37581.
    Court of Criminal Appeals of Texas.
    Jan. 27, 1965.

      Bob Tarrant, Houston, M. Gabriel Nahas, Jr. (On Appeal Only), Houston, King C. Haynie (On Appeal Only), Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, W. Louis White and Thomas C. Dunn, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

The offense is murder; the punishment, confinement in the state penitentiary for life. ;

The state adduced testimony from the deceased’s wife, Mrs. Linda Virginia Willis, who testified that on August 17, 1963, at approximately 6:30 p. m. o’clock, she and her husband (the deceased), and their two infant children, went to the appellant’s home located in Harris County, Texas. The appellant was the deceased’s stepfather, being married to the deceased’s mother, Dorothy Davidson. The appellant was not at home at the time the deceased and his family arrived.

Sometime after 9:00 p. m., appellant’s wife left her home going in the deceased’s car with him, his wife, and the two infant children to the Stingaree Lounge. The deceased and the group with him remained a few minutes and then returned to the appellant’s home just a little before appellant arrived.

The deceased let his mother out of the car and then got out himself. There was a brief conversation between the mother and son near the side of deceased’s car, and then the appellant’s wife went inside the house. Immediately thereafter, she and appellant came out of the house. The appellant had a .22 rifle in his hands. He and his wife began arguing. The deceased’s wife testified she saw the appellant hit his wife across the back and hips with the butt of the gun and say, “If you don’t move, I will kill you too”. The couple continued struggling with the gun. Appellant knocked his wife down and started to the fence, which was between him and the deceased. Meanwhile, appellant’s wife had gained her footing and had again reached him. Again, they struggled over the gun, but appellant shook her off.

During these struggles between the, appellant and his wife, the deceased was standing beside his car, outside the fence which was around the appellant’s house. As the appellant and his wife were struggling, the deceased said “Beau, (this is the name with which the deceased referred to the appellant) what is the matter? Beau, have you gone crazy?” Mrs. Willis further testified that her husband was unarmed.

The appellant finally got free of his wife and again started toward the fence (this, also, was in the direction of the deceased) and said, “You lying son-of-a-bitch”. Immediately after saying this, the appellant pointed the rifle at the deceased and commenced firing. After about three shots had been fired, the deceased told his wife to get the kids out of the way, that they might get hurt. The deceased’s wife drove the car off and heard more shots being fired as she left. She came back shortly and found the deceased shot, lying on the street in front of appellant’s house. The wife of the deceased did not see the appellant any more that night from the time she left when the shooting was taking place.

Three nearby neighbors of the appellant testified on behalf of the State. One neighbor testified that she heard the appellant’s wife scream to him, “Beau, don’t kill him please”. Two of the neighbors heard the deceased say, “Beau, don’t shoot any more. You have shot me once. You might hit the kids”. Also, two of the neighbors heard the appellant say shortly after the shooting, “Well, I hope I killed the son-of-a-bitch.”

Two neighbors testified that immediately after the deceased was shot, the appellant’s wife ran to the deceased, picked him up in her arms and said, “My husband has shot my son”.

Dr. Joseph A. Jachimczyk, Chief Medical Examiner of Harris County, testified that the deceased had six gunshot wounds in his body, and that death was caused from two of these gunshot wounds in the abdomen. These produced a hemorrhage in the abdomen, known as hemaperitoneum.

The appellant called seven witnesses who testified (including the appellant’s wife) that at various times shortly before the killing the deceased had made threats to harm the appellant. Each of these witnesses, except one, testified they had communicated the threats to the appellant before the time of the shooting. These witnesses testified that the deceased was looking for the appellant to collect a debt, and that he was going to collect one way or another.

The wife of the appellant testified in his behalf. Her testimony on direct examination covered the period of time from arrival of the deceased and his family, to the time of the shooting, and shortly thereafter. She testified that when she came back home and got out of the car, the deceased was determined to settle the debt. At that time, at the car, she noticed a gun in the hands of her son, the deceased. She went in and saw her husband. She testified deceased called him to come out and settle the matter, and as the appellant started out he picked up his .22 rifle. The wife testified that she stepped in- between the deceased and the appellant to keep the deceased from shooting the appellant, and that she struggled to get the rifle away from her husband. She testified that during this struggle, the rifle went off several times, and that at times her finger was on the trigger. She further related that at this time she was struck by appellant with the gun butt, because she felt he was afraid of her and wanted to keep the gun from her.

On cross-examination, the appellant’s wife was confronted with a written statement in affidavit form made the night of the shooting, which was materially different from her testimony. This statement was later admitted into evidence.

Appellant’s testimony in his own behalf was very similar to that of his wife.

The trial court fully instructed the jury upon the law of self-defense, accident, and threats, in his charge to the jury. No objections nor exceptions were taken to the court’s charge. There are no formal bills of exception.

We find nothing in the motion for new trial which merits our attention. The motion was overruled by operation of law.

The jury did not see fit to adopt any of appellant’s defensive issues but resolved the facts against him, and by their verdict, evidenced their adoption of the version of the transaction from the state’s viewpoint. We find the evidence abundantly sufficient to support their verdict.

Appellant urges four contentions as error, all of which are brought forward by informal bills of exception.

The first one complains of the admission in evidence of the testimony of one of appellant’s neighbors, Curtis L. Hamilton. Mr. Hamilton testified that he saw the shooting occur from his driveway, which was 150 feet away.. He stated that he immediately went to the deceased and that appellant’s wife arrived at the side of her son (the deceased) about the same time that he did. The witness then testified (this portion of his testimony being the portion to which appellant levelled his objection) that appellant’s wife said, “My husband has shot my son.” The witness’ testimony reflects that he arrived at the scene where the deceased was lying, not more than one minute after the last shot was fired. He stated that appellant’s wife was upset. Appellant’s objection was that the statement was hearsay and that it allowed the state to use appellant’s wife as a witness against him.

24 Tex.Jur.2d, p. 179, Sec. 616, states:

“Declarations or admissions of third parties are properly admitted when they are part of the res gestae.”

It is stated in 24 Tex.Jur.2d, p. 124, Sec. 593:

“Mere fact that utterance or act was that of wife of accused does not in itself render evidence inadmissible under res gestae rule.” Citing: Cook v. State, 22 Tex.Cr.R. 511, 3 S.W. 749; Holman v. State, 92 Tex.Cr.R. 364, 243 S.W. 1093; Davis v. State, 96 Tex.Cr.R. 367, 257 S.W. 1099; Bradford v. State, 122 Tex.Cr.R. 191, 54 S.W.2d 516.

We express the further view that the declaration of the mother of the deceased was made under circumstances sufficient to raise a reasonable presumption that it was spontaneously uttered by her in the tense moment of witnessing; her son writhing in agony from the bullet wounds, and so soon thereafter as to exclude the idea that the statement resulted from premeditation and design. We think it reasonable to conclude that the mother was here in the same category as an injured party who made an exclamation or expression of present pain and suffering. Such exclamations .are admissible as an exception to the hearsay rule and as part of the res gestae. Assuming for the sake of argument that the statement was not admissible as an exception to the hearsay rule or as part of the res gestae, we find that this same testimony was adduced from the neighbor, Mrs. Myrtle Clark, and was admitted without objection. The admission of improper evidence does not constitute reversible error if the same facts were proved by evidence which was not objected to. McCaine v. State, Tex.Cr.App., 211 S.W.2d 190; Davis v. State, 168 Tex. Cr.R. 588, 330 S.W.2d 443.

Appellant next complains of the admission in evidence of the testimony of the witness, Mrs. Myrtle Clark, because she had been present in the courtroom when another witness, Mr. Curtis L. Hamilton, was testifying.

It appears from the statement of facts that the witness Clark was in the courtroom. She testified on voir dire examination that she heard a portion of Hamilton’s testimony. It has long been the rule that the ruling of the trial court on an objection to a witness’ testifying when he has remained in the courtroom, after having been placed under the rule, may not be relied upon as ground for reversal unless an abuse of discretion is shown; and until the contrary has been made to appear, it will be presumed on appeal that discretion was properly exercised. Hammond v. State, 121 Tex.Cr.R. 596, 49 S.W.2d 779; Root v. State, 169 Tex.Cr.R. 382, 334 S.W.2d 154. No evidence was offered to show that the trial court abused its discretion in this regard. Fite v. State, 163 Tex.Cr.R. 279, 290 S.W.2d 897. The statement of facts indicate the testimony of Mrs. Clark can be distinguished from that of Mr. Hamilton, in that what she observed and testified about was seen from a different geographical location from that of Mr. Hamilton. The only matters which coincide with the testimony of both witnesses arc matters which are not in dispute and which do not harm the appellant. Hammond v. State, supra.

Appellant next complains that the testimony of the witness Cleboski about seeing some bruises on appellant’s wife was not admissible and tended to prejudice the appellant before the jury. It is undisputed that appellant hit his wife with the rifle. He testified to that himself. The nature and extent of the injuries to the wife were part of the transaction and were admissible as res gestae. Root v. State, 169 Tex.Cr.R. 382, 334 S.W.2d 154; Boyle v. State, 158 Tex.Cr.R. 468, 256 S.W.2d 574.

Lastly, appellant complains of the admission in evidence of the affidavit of appellant’s wife. His complaint is best answered by quoting from the opinion of this Court in Roberts v. State, 74 Tex.Cr.R. 150, 168 S.W. 100. On page 113 it is stated:

“From the statute and the decisions of this court and the Supreme Court, there can be no question but that the rule is that when the husband who is on trial introduces his wife to testify in his behalf, and she does so, that she is subject to cross-examination and impeachment just like any other witness, save and except that new incriminating evidence cannot be brought out from her against the accused, nor can wholly immaterial matter be brought out for impeachment of her any more than it can be from any other witness.” Dollinger v. State, 156 Tex.Cr.R. 397, 242 S.W.2d 891.

Appellant’s wife could be impeached by contradictory statements as to material matters developed on her direct examination. Hicks v. State, 97 Tex.Cr.R. 373, 261 S.W. 579; Escobar v. State, 121 Tex.Cr.R. 303, 51 S.W.2d 346. The former contradictory statements made by a witness in writing are admissible to impeach him. Mitchell v. State, 156 Tex.Cr.R. 128, 239 S.W.2d 384.

Finding no reversible error, the judgment is affirmed.


author: MASSEY, Chief Justice. RENFRO, Justice

text:
    Clarence L. CAGLE, Appellant, v. UNITED STATES FIDELITY AND GUARANTY COMPANY, Appellee.
    No. 16584.
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 18, 1964.
    Rehearing Denied Jan. 22, 1965.
    John W. Herrick and Massie Tillman, Fort Worth, for appellant.
    Brown, Day & Crowley and M. Hendricks Brown, Fort Worth, for appellee.
   MASSEY, Chief Justice.

Workmen’s Compensation Case. Clarence L, Cagle, the employee, obtained answers to special issues by the jury which found that on or about February 17, 1962, he sustained an accidental injury resulting in permanent total disability having its inception at such time. His employer’s insurance carrier was the defendant United States Fidelity and Guaranty Company. An amount was found as an average weekly wage, based upon which said employee’s compensation rate was computable. In other answers the jury found that the total disability of said employee was not solely caused by a prior injury he had experienced on August 29, 1961, and the treatment and surgery he had received on account thereof, but that said prior injury contributed to his total disability in the amount of 15%.

On January 27, 1964, the trial court rendered a judgment granting the employee $9,470.68 in compensation benefits, to be paid in a lump sum and accordingly reduced pursuant to statute. By motion and amended motion for new trial and motion for judgment notwithstanding the verdict, the court’s jurisdiction was continued

On April 2, 1964, the trial court entered an order setting aside the January 27th judgment. Finding that it should have granted the motions of the United States Fidelity and Guaranty Company for instructed verdict and to disregard findings of the jury and for judgment notwithstanding the verdict, the trial court entered judgment that the employee take nothing. In other words, the ultimate judgment was for the Insurance Company.

Therefrom the employee appealed, seeking to have the verdict of the jury sustained and judgment as first rendered reinstated through action of this appellate court reversing and rendering. The Insurance Company countered, seeking first to have us affirm the judgment, but, alternatively in the event we should reverse, to remand the cause for another trial.

We affirm the judgment.

Based upon the decision in Long v. Knox, 155 Tex. 581, 291 S.W.2d 292 (1956), the rule in Texas is stated to be: “A party who has made a sworn statement in the course of judicial proceedings may not be heard afterward to maintain a contrary position in the absence of proof that the averment was made inadvertently, or by mistake, fraud, or duress.” 22 Tex.Jur.2d 689, “Estoppel”, § 18, “Judicial estoppel”.

In 11 Southwestern Law Journal 96 (1957), under the title “Procedure — Judicial Estoppel — Sworn Statements”, David M. Woolley has discussed the case cited in relation to the matter of judicial estoppel along with many Tennessee cases in which the doctrine had origin. Some of these were referred to in Long v. Knox. Mr. Woolley concluded from all the opinions that application of the doctrine has been effected in conformity with its basic idea— that when a person willfully swears under oath to one thing in an attempt to gain an advantage, he will not be allowed subsequently to maintain an inconsistent position.

In 8 Baylor Law Review 41 (1956), under the title “Bars to Recovery by the Grantor of Fraudulent Conveyances in Texas”, Mr. John Webb has also discussed Long v. Knox, though somewhat more narrowly — as indicated by such title.

Public policy has been declared and established, pursuant to the decision in Long v. Knox. It seems to us that logical application of the rule to questions of the nature of that before us would require that a court disregard evidence in the record before it, whenever it is established by undisputed evidence that such was in contradiction of a previous oath (made in the course of judicial proceedings) made in an attempt to gain an advantage in the proceedings pursuant to which it had been made.

It would not matter whether the trial court had recognized the doctrine nor even whether the doctrine had been drawn to> the attention of such court. Upon discovery of the situation by an appellate court, after appeal, even independently of the litigants’ points and counterpoints, the-doctrine would have application which in a proper case would control its disposition. Public policy constitutes a condition of which the rules of society demand enforcement whenever and wherever requisite therefor is made to appear. See 4 C.J.S. Appeal and Error § 242, p. 748 “Limitations of, and Exceptions to, Rule (as to adherence to theory pursued below)”. subdivision on “Questions of public policy or public interest”; and S C.J.S. Appeal and Error § 1503, p. 872 “ — Nature and Theory of Cause and Grounds of Action or Defense”, sub. (b), “Limitations and Qualifications of Rule” (n. 77.5 and 77.10).

As applied to the case before us, once the doctrine is recognized and honored, the question remains: “In the test to be made of the sworn statement of the employee seeking compensation — relative to the event (s) and circumstance (s) giving rise to the disability by reason of which he ■claims entitlement — is same a categorical denial of his previous sworn statement of event(s) and circumstance(s) giving rise to the same disability?”

The employee sustained an injury to his back on August 29, 1961. By reason of incapacity allegedly flowing therefrom, he claimed right to compensation benefits for total and permanent disability of the Pacific Indemnity Company. By an appeal from the Industrial Accident Board, perfected in Federal Court on April 9, 1962, the pleadings filed in behalf of the employee alleged that the injury sustained on August 29, 1961 “was of such a nature that he has been rendered unable to perform the usual tasks of a working man in such a manner as to enable him to obtain or retain employment wherein he is required to perform the usual tasks of a working man, such as bending, lifting and stooping. He is, therefore, totally disabled within the meaning of the Workmen’s Compensation Act of the State of Texas. This disability will be permanent.” It is to be remembered that the case in which these pleadings appeared is not that from which any appeal was taken. It was finally disposed of in Federal Court ere that before us was ever filed.

On April 14, 1962, in said case, the attorney for the Pacific Indemnity Company took the employee’s deposition under the Federal Rules. During the process the employee testified to the fact that he had been in an automobile collision on February 17, 1962. It was also established that at time of the automobile collision the employee was recuperating from a “disc fusion”, an operation undergone to remedy the injured condition of his back caused by his injury of August 29, 1961. It was established that questions and answers incident to the taking of the deposition included the following:

Q. “Were you injured in that accident (the later automobile accident of February 17, 1962)?”

A. “No, sir. I don’t know that I was. My back was hurting, wasn’t hurting any worse before than it was after, only the accident did shake me up and sort of scared me.”

Q. “Before you had this accident, was the pain going up to your shoulder blade?”

A. “Yes, sir.”

Q. “Has it been that way all the time since the accident, since the time you got hurt in August of 1961?”

A. “Yes, sir. When I was over to see Dr. McDonald in February I told him about this up here and he said, well, don’t blame, and I said, you can’t blame all of that on me, he said, What I done to you, he says, you are going to feel like a mule walked up and down your back.”

Q. “He felt this was just residual from the operation?”

A. “Yes, I guess.”

During the course of the trial from which the instant appeal was taken, which trial began on December 4, 1963, the attorney for the United States Fidelity and Guaranty Company (appellee herein) was cross-examining the employee. It was by use of the deposition given by the employee in the case against the Pacific Indemnity Company that the testimony we have quoted was shown to have been given in that proceeding. We repeat the last question and answer quoted in the form in which the whole answer was given upon cross-examination.

Q. “Then the question was, ‘He felt this was just residual from the operation,’ and you said, ‘Yes, I guess.’ That was the position you were taking in April of 1962, wasn’t it?”

A. “Yes, sir.”

Further evidence in the record establishes that shortly after the Pacific Indemnity Company took his deposition (in April of 1962) the employee entered into and settled his claim and suit by compromise settlement. The employee then filed his claim for compensation against United States Fidelity and Guaranty Company on account of incapacity stemming from injury alleged to have been sustained on February 17, 1962, in the automobile collision. Upon denial of the claim by the Industrial Accident Board of Texas, he perfected his appeal to the District Court. There he claimed compensation for total permanent disability resultant from injury to the soft tissues in the lumbar area of his back, or in the alternative from injury which aggravated his preexisting condition so as to render him totally and permanently incapacitated.

We believe we are required to decide whether the employee’s testimony presented on trial of the case (now before us on appeal) amounted to a categorical denial of his testimony in the deposition taken by Pacific Indemnity Company in the prior case. The deposition testimony of April 14, 1962 must be viewed in its proper setting. Pleadings in his suit against the Pacific Indemnity Company were not sworn pleadings, though testimony given in the deposition was sworn testimony. Such pleadings alleged total permanent disability as result of his injury in August of 1961. Therefore, when he was asked whether he had been injured in the automobile accident of February, 1962, and replied, “No, sir. I don’t know that I was. My back was hurting, wasn’t hurting any worse before than it was after, only the accident did shake me up and sort of scared me”, we-believe he positively testified that the disability he was experiencing on date of the-deposition (and which he was then claiming amounted to total permanent disability) was not the result, in any degree, of the automobile accident of February, 1962. We believe he denied that he was injured in the automobile accident in the deposition, at least to a degree which occasioned incapacity.

His subsequent testimony, pursuant to-the conduct of the trial beginning December-4, 1963 (in prosecution of his suit against, the United States Fidelity and Guaranty Company), was therefore contradictory and amounted to a categorical denial of the truth of his statements given in the deposition. His testimony, and those of a. witness in his behalf, was to the effect that-his disability, allegedly total permanent,, had its origin — at least in part — in injuries flowing from the automobile accident of February, 1962. These, if any, had occurred some two months before his deposition' was taken. If his deposition testimony was erroneous or explainable he did not say so. There was no proof offered to show that such deposition testimony was given inadvertently, or by mistake, fraud or duress.

We believe that the situation presents an occasion where the requirements, of public policy demand that we honor the doctrine of judicial estoppel. To do this, we strike down the testimony of the employee and his witness to the effect that any part of his disability was caused by any injury claimed to have been sustained in the automobile accident of February, 1962.. Evidence to that effect has no probative-force and effect. From an evidentiary standpoint it might reasonably be argued that there was no evidence.

But for our decision that the proper determination of the case rests upon judicial' estoppel, we would sustain the points of' error of the employee and reverse the judg-ment of the trial court and render judgment for him upon the jury’s verdict. Wefind the counterpoints of the Insurance Company without merit. The trial court did not, in our opinion, rule erroneously when it permitted the testimony of Dr. McGrath, — and, with that testimony properly in the record, there was evidence of probative force and effect sufficient to support the jury’s findings of injury (on February 17, 1962), and that such was a producing cause of the total permanent •disability which the jury found, and which 'likewise has support in the evidence.

But we hold that the employee was judicially estopped to found support for his judgment in these jury’s findings.

Judgment is affirmed.

RENFRO, J., dissents.

RENFRO, Justice

(dissenting).

In my opinion the facts in this case are ■not such as to demand or warrant application of the doctrine of judicial estoppel.

I would render judgment on the verdict.


author: DENTON, Chief Justice.

text:
    Ruth COLLETT et vir, Appellants, v. SAFEWAY STORES, INC., Appellee.
    No. 7423.
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 4, 1965.
    Rehearing Denied Jan. 25, 1965.

      Witherspoon, Aikin, Thomas & Langley, Hereford, for appellants.
    Simpson, Adkins, Fullingim & Hankins, Amarillo, for appellee.
   DENTON, Chief Justice.

Ruth Collett, joined by her husband, Fred Collett, filed suit for personal injuries sustained when she slipped and fell in a store owned and operated by Safeway Stores, Inc. The trial court withdrew the case from the jury at the close of plaintiffs’ evidence and rendered judgment for the defendant.

Mrs. Collett, accompanied by her sister-in-law, Ida Mae Mann, entered the defendant’s super market in Gainesville, Texas, on November 2, 1961, for the purpose of purchasing some Metrecal. They both observed that the floor was, slick, and Mrs. Mann cautioned Mrs. Collett to, “Be careful, this floor is slick.” Mrs. Collett testified, “You had to step very distinctly” ; that the floor had a high gloss; and that it was obvious to her the floor was slick. After walking up and down some of the aisles of the stores, Mrs. Collett stopped at one of the counters while her sister-in-law left her to inquire of a store attendant the location of the Metrecal. When she returned and approached Mrs. Collet, she said, “Auntie, here it is.” Mrs. Collett then turned, stepped off on her left foot and stepped, “on a slick substance and fell.” Mrs. Collett testified she did not see what she had stepped on at the time of her fall, but that some three months later she discovered a substance on her left shoe, “that looks like wax and it smells like wax.” The shoe had not been worn since the fall, and it had remained in a container during that period. She described the pyramid type shelving she was standing beside at the time of her fall. The lower shelf protruded some four to six inches over the floor. The record does not indicate the clearance between the floor and the protruding shelf.

The real question is whether plaintiffs’ pleadings and evidence make out a case involving a structural defect of the defendant’s premises on the one hand, or the usual slip and fall case involving a foreign substance. There is no apparent disagreement among the parties concerning the application of the law in slip and fall cases involving a foreign substance. In such cases the plaintiff must prove by probative evidence that the defendant placed the substance on the floor; or that the defendant knew the substance was on the floor and negligently failed to remove it; or that the foreign substance had been on the floor for .such a period that it should have been discovered and removed in the exercise of ordinary care. Great Atlantic & Pacific Tea Co. v. Giles, (Tex.Civ.App.), 354 S.W.2d 410, (Refused, NRE), and the numerous cases cited therein.

Appellants contend this case is not a “slip and fall case” as such and does not come within any of the above-stated rules, but is instead a case of a permanent condition or structure making the premises reasonably unsafe for appellee’s customers. Appellants argue the protruding lower shelf was a latent defect which afforded a place for a hidden accumulation of floor wax or other foreign substance which could be picked up by customers’ shoes. There are no pleadings or evidence to support this contention. The only pleading relating to defendant’s shelving was: “That said defendant maintained the shelving in a pyramiding fashion, high, so that its customers were required to look upward for the merchandise sought.” This allegation is insufficient to raise the issue of a latent permanent defect urged by brief. Even though it might be said the pleadings are sufficient, there is no evidence Mrs. Collett s fall was caused by such structural condition or any foreign substance underneath the shelving. The record contains no evidence of the presence of wax under the shelves in question, or that Mrs. Collett got wax on her shoe by placing it under the shelving. In fact, it is not clear from her testimony whether her left foot was ever placed under the shelf. She testified, “I was real close” to the bottom of the display counter. On redirect examination her attorney asked the following question:

“Q Now, then, you were close to them [shelves] and you don’t know whether part of your foot was under it or not, if I understand you. That is what you are telling the jury, is that correct?
"A That is right.”

She later testified, “My foot was up maybe under it just a little bit, but I wasn’t up where my foot touched the wall.” She later replied in the affirmative to this question: “So your left foot was out in the aisle there when you fell, is that correct?” We conclude there are no pleadings or evidence to support the contention there were fact issues raised relative to a structural condition or defect which made the defendant’s premises reasonably unsafe. This case must therefore be decided under the familiar rules applicable to slip and fall cases set out above.

A review of the record leads to the inescapable conclusion there is no evidence that the defendant or its agents or employees placed the foreign substance on the floor; or that the defendant knew the foreign substance was on the floor and negligently failed to remove it; or how long it had been there; or that the defendant caused the floor to be waxed or polished. We therefore conclude there was no evidence to raise an issue of fact, and the trial court correctly instructed the verdict for the defendant. Great Atlantic & Pacific Tea Co. v. Giles, supra; Sherwood v. Medical & Surgical Group, Inc., (Tex.Civ.App.), 334 S.W.2d 520, (Writ Refused); Rogers v. Collier, (Tex.Civ.App.), 223 S.W.2d 560, (Writ Refused); Dill v. Holt’s Sporting Goods Store, (Tex.Civ.App.), 323 S.W.2d 644, (No Rehearing).

The judgment of the trial court is affirmed.


author: TIREY, Justice.

text:
    NORTH WACO WATER SUPPLY DISTRICT, Appellant, v. The CITY OF WACO, Appellee.
    No. 4291.
    Court of Civil Appeals of Texas. Waco.
    Dec. 31, 1964.
    Rehearing Denied Jan. 21, 1965.

      John B. McNamara, Jr.. Waco, for appellant.
    Thomas R. Hunter, City Atty., Earl Bracken, Jr., First Asst. City Atty., Bryan, Wilson, Olson & Stem, Wiley W. Stem, Jr., Waco, for appellee.
   TIREY, Justice.

The North Waco Water Supply District, a municipal corporation, created by an act of the 53rd Legislature of Texas, brought this suit against the City of Waco, a home rule city, to recover the sum of $24,985.76 paid by the District to the City under the provisions of Ordinance No. 1501 enacted by the City granting to the District a franchise to operate a water works system in a certain designated part of the City for a period of 25 years. Pertinent to this opinion it alleged that the foregoing ordinance was unconstitutional and void because the City was without legal authority to limit the water department carrying out the purposes for which it was so created, and that the City was without authority to levy or assess any tax against the District, and that the sums heretofore paid by the District to the City were paid without legal authority and contrary to the constitution and laws of the State of Texas, and that it violated Article 8280-150 of Vernon’s Ann.Tex.St. Appellant also, sought to recover certain sums alleged tO' be due by the City for damages to appellant’s water distribution service lines, and for certain expenses incurred by the District in removing and relocating its mains, service lines and meter boxes, which was. done in pursuance to the request of the City. The City answered that it had dominion and control over its streets and alleys by both legislative and charter provisions, and that appellant’s claim was-barred by the two and four year statutes of limitation; that Ordinance 1501 granted to appellant a franchise providing for payment of a reasonable rental for the use of the streets and alleys, and that appellant had accepted the benefits of the franchise provided in said ordinance; the city, by way of cross-action, alleged a right of recovery for unpaid charges due under the terms of said ordinance. The cause was tried on stipulations without the aid of a jury. There was no request for findings of fact and conclusions of law, and none were filed. The Court, in its judgment, found that Ordinance 1501 was valid and was, therefore, enforceable, and by reason thereof further found that appellant could not recover any of the sums paid for which it sued. It also found that appellant could not recover for the damages it claimed to have sustained to its water mains, nor for the costs of moving its property. The court further found that the City was entitled to recover the sum of $11,333.93 on its cross-action against appellant for the amount of unpaid charges for the calendar years of 1961, 1962 and 1963, with accrued interest thereon as specified in the judgment. The appellant, in open court, excepted to the judgment and gave notice of appeal to this Court and it has perfected its appeal.

The judgment is assailed on four points. They are to the effect that the Court erred in holding: (1) that Ordinance 1501 was a valid constitutional and enforceable act; (2) that the Ordinance constituted a valid and binding contract; (3) in failing to render judgment for the water district for the recovery of the payment unlawfully made to it by the City under Ordinance 1501; (4) in granting the City judgment on its cross-action in the absence of the issuance of citation and service upon the water district. We overrule each of these points for reasons hereinafter mentioned.

In appellant’s brief we find the following statement:

“The Trial Court’s basic and manifest error is embodied in the holding that the City and the District had the legal right to contract for the payment by the District to the City of a fee or charge for the usage of the city streets and alleys to operate the District Water Work system. It is apparent that the Trial Court proceeded upon the theory that since the City had dominion and control over its streets and the District had the power to contract that there was no impediment to their entry into a contract by way of Ordinance 1501 under which the District would be obligated to the City in the amount therein provided.
“The District is not required to pay any taxes or assessments on the project or any part thereof. Any effort to do so by direct or by indirect means is without lawful authority and void-The District Court failed to consider this important and limited restriction imposed by the legislature and the trial court erroneously concluded that the City’s statutory right to control its streets and alleys was of greater and more paramount significance than the immunity from tax or assessment granted to the District by the same legislative authority.
“Both the City and the District derived their authority and limitations from the legislature, each is of equal dignity and fully capable of exercising its respective rights and powers within the framework of its constituted charter, but neither can you usurp the rights of the other nor destroy and render ineffective the legislative purpose for their creation and existence.”

As we understand appellant’s brief and its counsel’s argument in court, its foregoing views are based on the provisions of Sections 13 and 17 of Art. 8280-150, V.A.T.S., which is the statute that created appellant. Said sections provide:

“Sec. 13. The District is authorized to enter into contracts with cities and others for supplying water to them. The District is also authorized to contract with any city for the rental or leasing of, or for the operation of the water production, water supply, and water supply facilities of such city upon such consideration as the District and the city may agree. Any such contract may be upon such terms and for such time as the parties may agree, and it may provide that it shall continue in effect until the bonds specified therein and refunding bonds issued in lieu of such bonds are paid provided however that none of the powers granted in this Section shall apply outside of this District.
“Sec. 17. The accomplishment of the purposes stated in this Act being for the benefit of the people of this State and for the improvement of their properties and industries, the District in carrying out the purposes of this Act will be performing an essential public function under the Constitution and shall not be required to pay any tax or assessment on the project or any part thereof, and the bonds issued hereunder and their transfer and the income therefrom, including the profits made on the sale thereof, shall at all times be free from taxation within this State.”

Appellant in its original petition on which it went to trial, among other things, alleged:

“ * * * that said ordinance is unconstitutional and void and that the defendant is without legal authority to limit plaintiff in carrying out the purposes designated by the Legislature in creating the said Plaintiff Water District; that the defendant is without lawful authority to levy and assess any tax or assessment against Plaintiff Water District and that the sum of Twenty-Four Thousand Nine Hundred Eighty-Five and 76/100 ($24,985.76) Dollars heretofore paid by plaintiff to the defendant was without legal authority and contrary to the Constitution and laws of the State of Texas and that the defendant is therefore due and owing and bound and obligated to pay to plaintiff said sum of Twenty-Four Thousand Nine Hundred Eighty-Five and 76/100 ($24,985.76) Dollars.”

Appellant in his oral argument said in effect that the Texas Water Company, who was the owner of the property of the Water District prior to the time the Water District took over the property of said company, paid to the said city of Waco ad valorem taxes for the year 1953 in the amount of $2,355.80 on the real and personal property which it thereafter conveyed to the North Waco Water Supply District, and that after the acquisition of these properties by the Waco Water District, such properties were removed from the tax rolls of the City of Waco, and thereafter the Water District entered into the rental contract as set out under the terms of Ordinance No. 1501, and that the purpose of the Ordinance in creating the rental contract between the Water District was in fact a subterfuge in order to evade the effect of the provisions of Sec. 17, of Art. 8280-150 aforesaid. We quote stipulations 5, 6, 7 and 8:

“No. 5. Prior to the enactment of Article 8280-150, V.A.T.S., the individuals who organized the North Waco Water Supply District and who were instrumental in securing the passage of the legislation creating the North Waco Water Supply District, had conferred with officials of the City of Waco and requested the cooperation and aid of the City of Waco to secure the passage of legislation creating the North Waco Water Supply District and also requested that the City of Waco grant a franchise or ordinance to the North Waco Water Supply District if said district was so created by act of the Legislature, said franchise ordinance to allow the North Waco Water Supply District to use the streets, alleys and public ways of the City of Waco for its water distribution system upon the payment of a reasonable rental charge for the use of the streets, alleys and other public ways of the City of Waco.

“No. 6. John B. McNamara, Jr., attorney for North Waco Water Supply District then and now, prepared an ordinance granting a franchise to the said North Waco Water Supply District and submitted the same to the Board of Commissioners of the City of Waco. The City of Waco requested changes in said ordinance, and said ordinance as changed, was approved by the attorney for the Water District and City of Waco, and was duly adopted by the City of Waco and is Ordinance No. 1501 (Exhibit ‘B’)-

“No. 7. After the creation of the North Waco Water Supply District by the Legislature of the State of Texas and pursuant to the request of the organizers of the North Waco Water Supply District, the Board of Commissioners of the City of Waco passed Franchise Ordinance No. 1501 on March 2, 1954. This ordinance granted a franchise to the North Waco Water Supply District for the operation of a water works distribution system in the streets, alleys and other public ways of the City of Waco for a period of twenty-five (25) years from the date of said ordinance.
“No. 8. The North Waco Water Supply District, by letter dated June 3, 1954, accepted Franchise Ordinance No. 1501 as passed by the Board of Commissioners of the City of Waco on March 2, 1954, said ordinance granting to the North Waco Water Supply District a franchise to use the streets, alleys and other public ways of the City of Waco for a period of twenty-five (25) years from the date of said ordinance.”

As we have previously stated, the trial court filed no findings of fact or conclusions of law, and in the absence of so doing, the court is presumed to have impliedly found against the appellant’s contention that the rental contract provided for in Ordinance 1501 was a subterfuge.

As we understand appellant’s pleading it attacked the constitutionality of the ordinance granting the rental contract on the ground that it was unconstitutional and void as a matter of law, in that it was in conflict with the provisions of Section 17 of Article 8280-150 aforesaid, but did not attack the ordinance on the ground that it was a subterfuge entered into by the city and the water district for the purpose of contravening the provisions of Section 17 in the passing of Ordinance 1501 and the making of the rental contract provided therein. We find nothing in the stipulations to indicate that the parties were trying to evade the provisions of Section 17, and the court in its judgment has impliedly so found. In Fleming v. Houston Lighting & Power Company, (Comm. Appeals, opinion adopted) 135 Tex. 463, 143 S.W.2d 923, our Supreme Court said:

“We sustained the ordinance upon the ground that same imposed a charge in the nature of a rental. If that holding is correct, then the amendment above copied does not apply at all. The authorities recognize a distinction between a rental charge and a tax or charge for the privilege of doing business. It is clearly pointed out in the leading case of City of St. Louis v. Western Union Telegraph Co., 148 U.S. 92, 13 S.Ct. 485, 37 L.Ed. 380.”

We think that is the exact situation here. Our Supreme Court has not seen fit to change the rule above stated.

Since counsel for appellant appeared in open court and submitted all the matters in controversy to the trial court he waived the issuance of citation and service and point 4 is overruled. See Sullivan v. Doyle, 108 Tex. 368, 194 S.W. 136, Pt. 2. Also Minnock v. Garrison, Tex.Civ.App., 144 S.W.2d 328, pt. 4, (n.w.h.) Mitchell v. Gooch, Tex.Civ.App., 210 S.W.2d 834, (n.w.h.).

All the other material facts and the recitals in the court’s judgment having been stipulated, and there being no attack thereon, except as hereinabove stated, the judgment of the trial court is affirmed.