author: CHADICK, Chief Justice.

text:
    Iman OTWELL and Carol Otwell, Appellants, v. C. S. SCOTT, d/b/a C. S. Scott Truck Lines et al., Appellees.
    No. 7856.
    Court of Civil Appeals of Texas. Texarkana.
    Feb. 20, 1968.

      Don Friedman, Harry Friedman, Harkness, Friedman & Kusin, Texarkana, for appellants.
    James Robert Hubbard, Wheeler, Watkins, Hubbard, Patton & Peek, Texarkana, for appellees.
   CHADICK, Chief Justice.

This is a common law tort action arising out of a collision between two motor vehicles, a truck and a station wagon, meeting on an open highway. The jury answers to special issues acquitted the defendant truck driver and his employer of all negligent acts and omissions charged by the plaintiffs. The trial court entered a take nothing judgment and it is affirmed.

The plaintiffs in the trial court, appellants here, have briefed four points of error. The first two are grouped for argument. The statement and argument in support of the points divides appellants’ complaint into three parts. First. Jury misconduct necessitating a reversal because the jury found there were three separate sole proximate causes of the injury in question, despite the trial judge’s instruction that there could be but one sole proximate cause of such injury. Second. That after submitting a series of issues presenting the truck driver’s sudden emergency doctrine defense, the trial judge over the objections of the plaintiffs submitted shades and variations of the same basic issue in two other separate special issues. Third. That submission of Special Issues 10, 11 and 12 embracing the sudden emergency defense and Special Issues 13, 14 and 15 tended to overly emphasize and give undue prominence to the defensive theory and the facts thereof constituting a defense to plaintiffs’ cause of action.

The appellants’ first contention under points 1 and 2 is that answers to Special Issues 12, 13 and 15 evidenced a form of jury misconduct because the trial judge specifically instructed the jury that there can be but one sole proximate cause of injury and the jury misunderstood, overlooked or ignored the instruction and by it’s answers found three separate sole proximate causes of the injury in suit. Although the answers of the jury might be characterized as jury misconduct, it does not appear to be of such a nature as to require a reversal when the entire record is examined. See Texas Rules of Civil Procedure, rule 327. The jury answers in this respect are not the basis of the judgment the trial court rendered. This is made apparent in the discussion of the next two phases of the appellants’ complaint.

With reference to the second basis of reversal urged in appellants’ statement and argument under the first two points, their objection to submission of Special Issues 13, 14 and 15 appear to have been well taken. Such issues are shades and variations of Issues 10, 11 and 12, embracing the sudden emergency defense. The excerpt from the defendants’ answer next quoted clearly shows the relationship of the issues.

“B. That the sole proximate cause of the accident was the manner in which traffic immediately ahead of Billy Jeff Robins maneuvered and/or made a sudden reduction in speed.
“C. That the maneuvering and/or sudden reduction in speed on the part of traffic immediately ahead of Billy Jeff Robins caused him to be faced with a sudden emergency which called for immediate action on his part with no time for deliberation. That after the emergency arose, Billy Jeff Robins did what an ordinarily prudent person would have done under the same or similar circumstances.”

The very facts inquired about in Special Issues 13 and 14 are the same facts the ap-pellees, as defendants, pled to raise the defense of sudden emergency which was submitted in Special Issues 10 and 11. However, because of the jury’s verdict on other facts in the case, that is to say, because the jury found no issues of primary negligence against the defendants, under Tex.R.Civ.P. 434 the error does not necessitate a reversal, unless for the reasons next to be discussed in considering the third phase of the appellants’ complaint.

Phase three complains of undue emphasis of the defensive theory and the facts inquired about in Special Issues 10 through IS. Undoubtedly, in slightly different language, the factual substructure of a single theory of defense was submitted in different ways. Such repetition was erroneous. Lone Star Gas Co. v. Ballard, Tex.Civ.App., 138 S.W.2d 633 (Fort Worth 1940 writ ref’d); Attaway v. Fort Worth and Denver Railway Co., Tex.Civ.App., 334 S.W.2d 845 (Forth Worth 1960, writ ref’d n. r. e.); 57 Tex.Jur.2d Trials Section 488 (1964). However, repetition in the submission of issues is not necessarily reversible error. 4 Tex.Jur. Appeal in Error— Civil Section 954 (1959). Hodges, Special Issue Submission in Texas 133 (1959). The following quotation from Attaway v. Fort Worth and Denver Railway Co., supra, where a similar question was considered is adopted as aptly stating the solution to the last problem presented by points of error 1 and 2.

“When a plaintiff in a suit for damages has not been able to obtain any jury findings upon which a judgment in his behalf for damages in some amount could be entered, and where the special issues submitting said plaintiff’s theory of the case and upon which any recovery would necessarily be founded were placed in the charge ahead of issues, if any, which submitted his opponent’s defensive theory, it would be difficult, if not impossible, to demonstrate the existence of reversible error under the provisions of Texas Rules of Civil Procedure 434 because the defensive issues were unduly emphasized to the prejudice of the plaintiff. Such difficulty would be enhanced when there is not extrinsic evidence demonstrating that by reason thereof some juror was induced to return a verdict other than that which he would have returned but for the nature of the charge.”

The record in this appeal contains nothing ' from which harm to the plaintiffs due to over emphasis may be inferred. The points are overruled.

Next for consideration is appellants’ third point of error.

“POINT 3: The jury verdict and the judgment of the Court should be set aside for the same are grossly inequitable, unjust, and unfair under the evidence presented in such cause. The Court should grant a new trial under the powers of Rule 326, Rules of Civil Procedure, because of the insufficiency and weight of the evidence being contrary to the verdict and the judgment. (Germane to Assignment of Error Nos. 2, 4, 16, 24 and 29).”

The point, as written, requires this Court to examine all evidence in the record as it bears upon all unfavorable jury responses to the plaintiffs’ special issues, as well as to all favorable responses to the defendants’ issue. Technically, the broad sweep of the point is objectionable, but, with it, as with the two prior points of error, this Court has not stood on the formalities of briefing.

An examination of all evidence has been made in conformity with the guide line of In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1961). The poignant story of tragedy, the untimely death of an innocent 12 year old child — a dainty little girl riding in a funeral procession, is found. A reader is filled with sympathy and confounded at the thought that such calamitous occurrences are the inescapable toll of modern highway transportation, if they are. Surely not, such havoc on the highway must be preventable. However, the parties charged by the aggrieved with negligently causing the fatal collision and those making the charge were before the jury unhindered in presenting their proof. The jury considered the evidentiary facts and found testimony satisfactory to it to support its verdict on the numerous fact issues. This Court has not been shown nor can it point to evidence or circumstances that demonstrate that the jury’s verdict was against the overwhelming weight and preponderance of the evidence on the numerous issues supporting the judgment rendered. Appellants’ point three must be overruled.

The following excerpt from the appellants’ brief explains the position of the appellees with reference to the trial judge’s exclusion of certain testimony from consideration by the jury.

“ * * * [Attorneys for the appellants attempted to call as a witness, Mrs. Ted Milkey, at which time the attorneys for the Appellees requested to take the witness on voir dire in chambers pursuant to a Motion in Limine which they had previously filed. Out of the presence of the hearing of the jury it was determined that the attorneys for the Appellants desired to interrogate Mrs. Milkey for the purpose of showing that she had a claim against the Defendants for injuries which she sustained in the same accident, and that she had been paid a specified amount for that claim. It was not the intention of the attorneys for the Appellants to question her regarding a compromise or settlement; all they wished to learn from the witness was whether or not she had a claim against the same Defendants growing out of the same accident, whether she was paid for such claim, and, if so, the amount of such payment.
“The attorneys for the Appellees had previously filed a Motion in Limine for the purpose of objecting to the asking of these questions of the witness by the attorneys for the Appellants, even though the attorneys for the Appellants desired to ask such questions for the sole purpose of showing that there was an admission of liability on the part of the Defendants. * *

The truck that struck the station wagon in which Marsha Lynn Otwell was fatally injured also struck a second automobile driven by Mrs. Lucy Milkey. Mrs. Milkey and her husband in a separate action sued the appellants here for damages in excess of $113,000.00. This separate suit ended in a compromise settlement agreement. The Milkeys were paid $36,537.63. The agreement contained this language, to-wit:

“That there is a bona fide controversy between Plaintiffs and Defendants, and the extent of the damages of said Plaintiffs * * * and that in order to avoid the uncertainty of further litigation * * * the parties to said suit do hereby agree that said suit and all controversies and issues by the parties growing out of the injuries to Lucy Milkey and the alleged damages be fully compromised and be settled for the sum of $36,537.63.
* * * * * *
It is further stipulated that only the consideration herein stated has been paid or agreed to be paid for this release and agreement, and it is further understood by all parties hereto that this settlement is the compromise of doubtful and disputed claim, and that this payment is not to be construed as an admission of liability on the part of C. S. Scott Truck Line, C. S. Scott, individually d/b/a C. S. Scott Truck Lines, Billy Jeff Robins, and Western Casualty & Surety Company * * * ff

Proof before the jury of this compromise settlement was inadmissible. Hyde v. Marks, Tex.Civ.App., 138 S.W.2d 619 (Dismissed Judgment Correct 1940), Vol. 27 Texas Law Review 555, Skyline Cab Company et al. v. Bradley et al., 325 S.W.2d 176 (Ref. N.R.E. 1955); City of Coral Gables v. Jordan (Fla.App.1966) 186 So. 2d 60; Jordan v. City of Coral Gables (Fla.1966) 191 So.2d 38; Hawthorne v. Eckerson Co. (1935) 2 Cir., 77 F.2d 844, wherein the Court said:

“Settlements have always been looked upon with favor, and courts have deemed it against public policy to subject a person who has compromised a claim to the hazard of having the settlement proved in a subsequent lawsuit by another person asserting a cause of action arising out of the same transaction.”

See also Price v. Atchison, Topeka and Santa Fe Railway Company, 1958, 164 Cal.App.2d 400, 330 P.2d 933; Sheets v. Davenport, 181 Neb. 621, 150 N.W.2d 224 (1967); Lewis v. Dixie-Portland Flour Mills, Inc., 6th Cir., 356 F.2d 54 (1966). For comprehensive discussion 20 A.L.R.2d 304. It is well to point out also that the collision between the truck and the Otwell station wagon and the collision between the truck and the Milkey automobile are not identical occurrences. Separate instrumentalities are involved. In a collision between several vehicles as shown here, the operator of one might in justice concede negligence with respect to damages to one vehicle, its driver or occupant, and in good faith deny liability to another because the facts, circumstances and actions of the drivers and their vehicles could very well support liability in one instance and negate it in another. Appellants’ point four must be overruled. The judgment of the trial court is affirmed.

       The several special issues mentioned in this paragraph, the jury’s answers and special instructions connected therewith are as follows:
      “SPECIAL ISSUE NO. 10
      Do you find from a preponderance of the evidence that on the occasion in question Billy Jeff Robins was acting under an emergency?
      In connection with the foregoing special issue, you are instructed that ‘EMERGENCY’ means a condition arising suddenly and unexpectedly, and not proximately caused by any negligent act or omissions, if any, of Billy Jeff Robins which called for immediate action on Billy Jeff Robins’ part without time for deliberation.
      Answer ‘Yes’ or ‘No’.
      Answer: Yes

      If you have answered the preceding special issue ‘Yes’, then answer the following special issue; otherwise, do not answer it.
      “SPECIAL ISSUE NO. 11 Do you find from a preponderance of the evidence that after such emergency, if any, arose, Billy Jeff Robins did what a reasonably prudent person in the exercise of ordinary care would have done under the same or similar circumstances ?
      Answer ‘yes’ or ‘no.’
      Answer: Yes

      If you have answered the preceding special issue ‘Yes,’ then answer the following special issue; otherwise, do not answer it.
      “SPECIAL ISSUE NO. 12
      Do you find from a preponderance of the evidence that such emergency, if any, was not the sole proximate cause of the occurrence in question?
      Answer ‘It was the sole proximate cause’ or ‘It was not the sole proximate cause.’
      Answer: It was the sole proximate cause.

      “SPECIAL ISSUE NO. 13
      Do you find from a preponderance of the evidence that the manner in which traff’c operated and maneuvered ahead of Billy Jeff Robins at the time and on the occasion in question was not the sole proximate cause of the accident in question?
      Answer ‘It was the sole proximate cause’ or ‘It was not the sole proximate cause.’
      Answer: It was the sole proximate cause.

      “SPECIAL ISSUE NO. 14
      Do you find from a preponderance of the evidence that the traffic ahead of Billy Jeff Robins made a reduction in speed immediately before the accident in question?
      Answer ‘Yes’ or ‘No’.
      Answer: Yes

      “SPECIAL ISSUE NO. 15
      Do you find from a preponderance of the evidence that the manner in which traffic ahead of Billy Jeff Robins made a reduction in speed at the time and on the occasion in question, if you have so found in answer to the preceding special issue, was not the sole proximate cause of the accident in question?
      Answer ‘It was the sole proximate cause’ or ‘It was not the sole proximate cause.’
      Answer: It was the sole proximate cause.


source: Caselaw Access Project

author: O’QUINN, Justice.

license: Public Domain

text:
    James O. GERST, Savings and Loan Commissioner of Texas et al., Appellants, v. Christopher GOLDSBURY et al., Appellees.
    No. 11557.
    Court of Civil Appeals of Texas. Austin.
    Feb. 21, 1968.
    Rehearing Denied March 13, 1968.

      Crawford C. Martin, Atty. Gen., George M. Cowden, 1st Asst. Atty. Gen., A. J. Carubbi, Jr., Staff Legal Asst. Atty. Gen., Sam Kelley, Ray McGregor, Asst. Attys. Gen., Heath, Davis & McCalla, Dudley D. McCalla, Austin, for appellants.
    Clark, Thomas, Harris, Denius & Winters, Conrad P. Werkenthin, Austin, Bobbitt, Brite, Bobbitt & Allen, Robert L. Bobbitt, Max Allen, San Antonio, for ap-pellees.
   O’QUINN, Justice.

Christopher Goldsbury and eight associates organized Mission Savings and Loan Association with nearly 200 stockholders in May, 1966, and applied to the Savings and Loan Commissioner for a charter to operate in San Antonio, with proposal to serve a primary trade area consisting of the northeast quadrant of Bexar County.

The Commissioner on September 13, 1966, refused the application, after a hearing held in July.

The application was opposed before the Commissioner by Bexar County Savings and Loan Association and six other savings associations located in San Antonio.

Christopher Goldsbury and associates filed suit in district court, appealing from the action of the Commissioner. The trial court entered judgment May 18, 1967, setting aside the order denying the application and remanding the application to the Commissioner with instructions to grant the charter. The trial court found that the order of the Commissioner was not supported by substantial evidence. The Commissioner and the seven protesting savings associations have appealed from judgment of the district court.

The Commissioner found (1) that there was “insufficient evidence of a public need for the proposed association,” (2) that the “volume of business in the community in which the proposed association would conduct its business [was] not such as to indicate a profitable operation,” and (3) that “authorization of this charter application would result in undue harm” to Bexar County Savings and Loan Association.

The only question presented is whether the trial court erred in holding that such findings by the Commissioner were not reasonably supported by substantial evidence. The Commissioner’s order must stand or fall upon the evidence before the Commissioner in July, 1966. Gerst v. Nixon, 411 S.W.2d 350 (Tex.1967).

We affirm the judgment of the trial court and hold that the negative findings of the Commissioner are not supported by substantial evidence.

The term public need, as used in the Texas Savings and Loan Act, means a “substantial or obvious community need for the proposed association in the light of attendant circumstances, as distinguished from a mere convenience on the one hand and an absolute or indispensable need on the other.” Gerst v. Nixon, supra, construing section 2.08(3) of Article 852a, Vernon’s Ann.Civ.St.

It is clear from his order that the Commissioner believed existing savings and loan facilities were adequate to serve Bexar County and the primary trade area prcu posed to be served by Mission Savings. It is also apparent that the Commissioner regarded this conclusion sufficiently important to justify, if not compel, the finding that public need for an added service did not exist.

“The evidence presented clearly indicates,” the Commissioner stated, “that in key economic indices, Bexar County shows to be more than adequately served by savings and loan associations, and this holds especially true for the primary trade area delineated by the applicants.”

This conclusion is repeated later in the Commissioner’s order in this language: “It is clear that the existing associations in San Antonio are doing a more than adequate job of serving the residents of applicants’ proposed trade area.” After employing the phrase, “In addition to the demonstrated adequacy of service currently existing in applicants’ proposed trade area * * * ” the Commissioner concludes that:

“In light of known and predicted national economic conditions and their effect upon the Bexar County market which is being adequately served at the present time, and in view of the effect the chartering of an additional institution would have upon the newest, uninsured Association in San Antonio, the Commissioner finds that the chartering of Mission Savings and Loan Association is not warranted nor justified at this time.” (Emphasis added)

We do not understand that merely because the Commissioner concludes that savings and loan facilities sufficiently take care of the savings and loan business in the community he may not under the statute grant an additional charter. Stated another way, public need as used in the statute does not mean that existing facilities are not meeting present savings and loan necessities of the community. If the general economy of the area and its reasonable potential justify an additional institution, without causing excessive competition with resultant harm to an existing association, the Commissioner may not rely alone upon adequacy of existing services to find a lack of public need. Chimney Rock National Bank of Houston v. State Banking Board, 376 S.W.2d 595 (Tex.Civ.App., Austin, no writ); Gerst v. Nixon, supra, 411 S.W.2d 350, 358, col. 2, and footnote 6.

The Commissioner found that “the character, responsibility, and general fitness of the persons named” by Mission Savings in its articles of incorporation were “such as to command confidence and warrant belief that the business of the proposed association would be honestly and efficiently conducted in accordance with the intent and purpose” of the statutes, and that the association “will have qualified full time management.” (Section 2.08(2), Article 852a).

It was shown at the hearing that of the nearly 200 stockholders, forty were residents of the primary trade area to be served by the association. With one exception, all others lived within Bexar County. Subscriptions, which at the date of hearing amounted to $856,000, were obtained under a policy that no subscriber was allowed to contract for more than two and one-half percent of the authorized capital. The directors were shown to be men of diversified business interests and experience and persons of financial substance.

The primary trade area proposed to be served extends from Alamo Heights and Terrell Hills, northeasterly to the Bexar County line. It includes a part of San Antonio and the municipalities of Wind-crest and Universal City. Randolph Air Force Base was not included for population purposes, but is within the primary trade quadrant.

The population of the primary trade sector in 1965 was 48,756, showing an increase of 53.2 percent since 1960, when the population was 30,252. The population almost tripled during the decade from 1950 to 1960. While this area showed better than 53 percent increase in the five years before 1966, the overall growth of Bexar County in the same period was 15.1 percent. A projection of the population in the primary trade area showed an increase of nearly 45 percent by 1970, when the population would be 70,515. Population figures were tested against school enrollments, with established ratio to total population, and increases in telephone connections and residential electrical connections.

The median family income in the primary trade area was shown to be $7,165 in 1960, compared to $4,766 for the county. Average value of homes in the area was $15,200, and $9,300 for Bexar County as a whole. More than 72 percent of the homes were owner-occupied in 1960, with less than 59 percent so occupied in the county. More than 75 percent of the housing units in the primary trade area in 1960 were less than ten years old. The percentage for the county was less than 36 percent.

The population of Bexar County at the end of 1965 was shown to be 771,451, an average increase annually of 2.3 percent over a population of 687,151 in 1960. The rate of growth for the state during the same five-year period was 1.5 percent. Dallas County’s average annual growth rate was 3 percent and Harris County 2.5 percent in the same years.

Total residential building permits in San Antonio were shown to have increased each year from 1961 through April, 1966, except in 1963 when the number was 99.4 percent of 1961. Declines in such construction were noted in the state as a whole and in all other major areas during the same period, except in Houston in 1962 and 1963.

In approximately the same period, some 5,000 deeds of trust were filed from the primary trade area for construction in 46 subdivisions. The number of deeds of trust in this quadrant increased from 731 in 1962 to 1,222 in 1965. The monthly average of more than 100 in 1965 was being maintained for the first five months of 1966.

Both the applicants and the opponents presented evidence through qualified economic experts, as well as through individuals who were personally, or by reason of employment, interested in the outcome of the hearing.

With reference to the established and projected economic and population characteristics of the primary trade area, Dr. Gene C. Lynch, associate professor of finance at Texas Christian University, testifying in behalf of the applicants, used the following language:

“Housing values and income levels in the primary market are both significantly higher than those in Bexar County or San Antonio. Population of the primary market is increasing rapidly, as indicated by new homes built, school enrollment, electric connections, telephone connections, deeds of trust filed. Population of the primary market will continue to grow rapidly because of the availability of attractive home sites, presence of high quality and well organized housing developments already in the area, availability of schools and ease of access to the central business district and other points in Bexar County.”

Applicants proposed to locate the home office of Mission Savings on Austin Highway, within the primary trade area, in a shopping section known as North Hill Center. Austin Highway is located about equidistant between Interstate Highway 35 and Loop 410 and joins these two traffic arteries as the apex of a triangle about one and one-half miles from the proposed Mission Savings location. Austin Highway, on either side of the proposed location, is connected to both Interstate 35 and Loop 410 by several major lateral streets. After merging with Interstate 35 northeast of the proposed location, this route continues through the primary trade area. Universal City and Randolph Air Force Base are accessible from Interstate 35 by State Highway 218. It appears that all residential subdivisions within the primary market area are within not to exceed ten minutes driving time of the Mission Savings proposed location in North Hill Center.

North Hill Center at the time of the hearing had about seventeen commercial tenants, including a branch post office, variety store, and large grocery store, with parking accommodations for 350 to 400 automobiles. The traffic count on Austin Highway at this point in 1964, after Interstate 35 had been completed and opened to traffic, was 12,468 cars daily. It was shown that a commercial bank previously occupied the same quarters proposed to be occupied by Mission Savings, and, from the time it opened in 1962 until the bank moved to new quarters in the same market area two and one-half years later, this institution accumulated about $1,000,000 in time and savings deposits.

Mission Savings presented evidence of extensive residential and commercial development in the primary market area over a period of several years prior to the date of hearing in 1966. While it appears that most of the subdivisions had been developed for medium priced homes, at least six of the subdivisions were developed with homes ranging in price from $11,000 to $60,000. Quincy Lee, a stock subscriber in Mission Savings who qualified as a developer and builder with twenty years experience in San Antonio, testified that in his opinion the access to downtown San Antonio afforded by Interstate 35 would cause the primary trade quadrant “to grow quite rapidly.” More specifically, it was Lee’s testimony that “ * * * in the medium price bracket, this will be the area San Antonio will grow.”

Opponents before the Commissioner offered expert testimony of Dr. Norman E. Bailey, assistant professor in the finance department of the University of Texas, who was of the same opinion as Quincy Lee regarding growth of the primary market area. Dr. Bailey testified, “It seems to me that the entire northern crescent of San Antonio is a developing area on the fringe of the city.” He specifically included the Mission Savings proposed market quadrant.

Dr. Lynch, testifying for the applicants, calculated that personal savings generated in the primary trade area in 1966 amounted to $5,800,000. Dr. Bailey, testifying for the opponents, found a figure of $5,700,000 for that year. Both experts testified to a high demand by the public for mortgage loans in the primary market area and in Bexar County. Dr. Lynch projected personal savings generated in the market area to 1970 and testified that with increases each year the minimum new savings in the area would reach a figure of $8,900,000, for that year.

It is undisputed that no full service savings and loan office is located within the primary market area proposed to be served by Mission Savings. The nearest such office is a branch office operated by Alamo Savings and Loan at 6021 Broadway, about three miles from applicants’ proposed location. The only savings and loan facility within the market area is primarily a savings facility, operated by San Antonio Savings in a grocery store about one mile toward downtown from the proposed Mission Savings location.

The Commissioner found no professional offices within the shopping district proposed as the location of the Mission Savings office and “a dearth of such offices” in the market area, compared to similar areas in San Antonio and Bexar County. The record shows 40 professional offices in the area, including doctors, lawyers, engineers, accountants, geologists, and realtors. The Commissioner also found “no significant commercial enterprises or developments in the area of the proposed location” and concluded that those of “any significant size” in the market quadrant were “at some substantial distances” from the proposed main office.

The record does show that the market area has within it twenty-two manufacturing firms producing a variety of products that include concrete, bricks, electricity, steel materials, printing, iron work, electric switches, cement, fertilizers, and others. The firms employ annually a minimum of 925 persons and a maximum of 2,331. The total payrolls range from a low of almost $4,000,000 to a high of close to $9,000,000. Also within the market area are about 485 commercial and professional facilities such as four banks, forty-two restaurants, thirty-four grocery stores, eleven appliance stores, six hardware firms, thirteen warehouses, twenty-four motels, two theaters, thirteen laundries, four furniture stores, seven clothing houses, seventy-seven service stations, six florists, and many others, as well as the forty professional offices already noted.

The Commissioner described the quadrant as “divided essentially into an area of developing residential construction in the outer reaches of Bexar County and a more fully developed neighborhood or community in the direction of downtown San Antonio.” The Commissioner concludes that residents of the close-in portion of the area will tend to take their savings and loan business into downtown San Antonio. The record shows that of the seven main offices of savings and loan associations in Bexar County, the nearest of such offices to the Mission Savings proposed location is six and one-half miles and the most distant is eight and one-half miles. Of the eight branch offices, the nearest, already mentioned, is three and one-half miles and the most distant is eight and one-half miles. With the exception of the limited facility office mentioned above as located in a grocery store within the proposed primary market quadrant, the remaining eight limited service facilities are five and one-half to eleven miles from the proposed Mission Savings location.

It appears that the Commissioner described the primary market area as the typical expanding urban and suburban community, with the built-up portions being nearer the heart of the city than the outer reaches of the quadrant. Ample evidence was before the Commissioner that with Interstate Highway 35 affording improved access to downtown San Antonio by residents of the outer reaches of this quadrant, the area would grow rapidly. This evidence, adduced from witnesses for applicants and opponents alike, we have already discussed.

The median income of the proposed primary market area in 1960 was shown to be $7,165, or about fifty percent higher than the median of $4,766 for Bexar County and $4,691 for San Antonio. Opponents offered evidence that in the market area personal savings accounts were about 80 percent of the number of households, an average about twelve percent above the Bexar County ratio of about 70 percent in personal savings. Dr. Bailey for the opponents testified that “total savings and loan per capita is $598 for the area and $477 for Bexar County.” He estimated that the trade area has “9.35 percent of the Bexar County income, but only 8.45 percent of the personal savings in savings and loan” institutions. It seems clear that with more than fifty percent greater income, compared with the county, residents of the proposed market area have only twelve percent more savings accounts than the average. This evidence does not tend to support the Commissioner’s view that the area is already adequately served with savings facilities of existing associations.

Dr. Lynch for the applicants testified that savings and loan associations are conceded to obtain about 57 percent of the flow of available personal savings. Dr. Lynch projected the 1967 available flow of savings in the primary market area to be $6,500,000. For the year 1965 it was his testimony that by the accepted formula the savings and loan institutions in Bexar County could have accumulated $2,900,-000 from the primary market. The budget of Mission Savings, the record shows, called for savings of approximately $1,000,-000 out of $6,500,000 available flow the first year of operation.

Dr. Lynch testified regarding a study he made of the proposed Mission Savings location in relation to the market area. He found that more than 50 percent of the primary market area was within ten minutes from the proposed Mission Savings location, and that this included all but one of the built-up sections of the trade area.

From a survey of persons using the North Hills Center, based on automobile license numbers from which residences were ascertained, Dr. Lynch found a wide dispersion of customers within the market area. The heaviest patronage came from sections south of Mission Savings’ proposed office, toward downtown San Antonio, hut from within the market area. It was these sections that opponents of the application contended would take their savings and loan business to downtown San Antonio. The second heaviest patronage was from the sections north of the proposed location and available to arteries leading south to North Hills Center. It was Dr. Lynch’s opinion that the survey indicated North Hills Center was convenient and was “being patronized by people living in the built-up areas of the primary market.” The hours of the survey were limited to the hours during which savings and loan facilities would be open for business.

The record shows that savings and loan associations having home offices in San Antonio have experienced consistent growth in the years 1962 through June, 1966, the month preceding the hearing. Total loans in 1962 were $233,569,000 and in June, 1966, amounted to $339,256,000, an increase in that period of $105,687,000. Assets climbed from $269,315,000 to $383,300,000 in the same period, showing an increase by $113,985,000. Savings in these institutions during these four and one-half years rose $87,947,000, from $224,365,000 in 1962 to $312,312,000 in June, 1966.

During the first six months of 1966, immediately prior to the hearing before the Commissioner, loans increased about $18,500,000, assets by almost $20,000,000 and savings by almost $14,500,000.

“If these increases were projected,” Dr. Lynch testified, “to make an annual figure for 1966, loans would have [an] increase by over $37,000,000, which is higher than any other increase during the period shown except during the year 1964, and it’s almost as large as that figure.”

By projecting this period through the balance of 1966 as to savings, Dr. Lynch testified that “ * * * savings will have gone up by almost $29,000,000 * * * which is larger than any increase during the period shown since 1962.”

In his order of September 13, 1966, the Commissioner found that, “In addition to the demonstrated adequacy of service currently existing in applicants’ proposed trade area, the evidence establishes beyond question that the ‘tight’ money market in the national economy as a whole is being felt in Bexar County.” In support of adequate penetration of the proposed market area by existing associations, the Commissioner found that these institutions “made approximately 32.4 percent of the mortgage loans in applicants’ selected area in 1965 * * The record shows that this “penetration” of “32.4 percent of the mortgage loans” is below the national average of 43.9 percent.

The Commissioner’s consideration of “tight money” as a factor felt in the Bexar County savings and loan market is without substantial value when weighed against the uncontroverted evidence in the record of continued gains by all the protesting associations, including Bexar County Savings, in a market of “tight money.”

In addition to finding no public need for the Mission Savings facility and a want of business in the community to indicate a profitable operation, the Commissioner found that “authorization of this charter application would result in undue harm to * * * ” Bexar County Savings and Loan Association, an existing association. This association obtained its charter from the Commissioner in the fall of 1965 and opened for business in April of 1966. Meanwhile, the association had applied for federal insurance of its savings accounts, which was denied early in 1966.

In his order the Commissioner stated that since its opening in April, about three months before the hearing, “This Association has operated as a loss * * * and has obtained its funds from savers only by paying a dividend rate higher than other associations in San Antonio * * * ”

The record does not disclose the reason for denial of federal insurance to Bexar County Savings and Loan. One of its officers testified at the hearing that, “As far as we could tell, we met nearly all of the requirements * * * ” but that the association was denied membership in both “Federal Home Loan” and “the Federal Savings and Loan Insurance Corporation.” It would appear that meeting “nearly all of the requirements” was not the compliance required to obtain federal insurance for the savings accounts.

The Bexar County Savings and Loan officer testified, however, that by the end of June, after operating three months, the association had loans amounting to approximately $233,000. Between the end of June and the date of his testimony before the Commissioner in July the loans had increased more than $300,000, bringing the total loans for less than four months of operation to about $558,000. In addition, the officer testified that the association at the time of the hearing had $275,000 in commitments. When completed, these commitments would make a total of $833,000 in loans for the association.

The record shows that the primary market area of Bexar County Savings and Loan Association is in the southeast portion of San Antonio, with its main office located in McCreless Shopping Center, about eight miles across town from the proposed Mission Savings location. The Bexar County Savings officer testified that none of the loans made by his association had been placed in the proposed market area of Mission Savings.

When asked what he thought “the effect would be on Bexar County [Association] if Mission gets their insurance and goes into business with Bexar County still uninsured,” the officer replied, “I think it would be a very adverse effect.”

The opposition of Bexar County Savings to the Mission Savings application appears grounded, not in need for protection from undue injury brought about by excessive competition, but because Mission Savings might qualify for federal insurance in which endeavor Bexar County Savings had failed.

The following testimony, given by Haden Grona, executive vice president for Bexar County Savings, indicates the associations’ opposition:

“Q (Counsel for applicants) Well, you don’t really think that association [Mission Savings], many miles from you, is going to cause you any serious harm unless they get insurance and you don’t?

“A (Grona) I think it certainly is going to, isn’t going to help us any at all. The degree to which it would hurt us, I think when anybody’s account — for the life of me I cannot understand how one could be granted while we are still vigorously hoping to obtain the insurance. I can’t see how I could sit down with people that we have accounts with now and justify this and explain to them that, well, there is another association charter in another section of the city and here you are still uninsured. We have a real bad situation in not having insurance. I think this would burden us still more in trying to open the accounts that we are opening, getting them opened.”

It is undeniable that uninsured associations are at some disadvantage in competing with insured institutions to secure savings accounts. But we are unwilling to accept this kind of rivalry as producing the “undue injury” contemplated by the statute. Article 852a, section 2.08 (4).

The rule was stated by the Supreme Court in Gerst v. Cain, 388 S.W.2d 168 (Tex.1965), that it is only because savings and loan associations are affected with a public interest that they are protected from undue injury brought about by excessive competition.

Bexar County Savings entered business m April, 1966, in general competition with six other associations already operating under state charters. At that time Bexar County Savings had kowledge that these institutions had federal insurance, an advantage Bexar County Savings had been unable to obtain. There is no evidence in the record that Mission Savings cannot qualify for insurance. Nor is there evidence to show why Bexar County Savings failed to obtain this advantage, except its own admission that it was able only to meet “nearly all of the requirements” for insurance.

It is recognized that chartering Mission Savings, especially if this association should meet all requirements and obtain federal insurance, would place on Bexar County Savings the additional embarrassment of another state chartered institution having qualified for insurance which Bexar County Savings was unable to do. We doubt that this is the excessive competition, resulting in undue injury, condemned by the Supreme Court in Gerst v. Cain, supra, and in Brazosport Savings and Loan Assn. v. American Savings and Loan Assn., 161 Tex. 543, 342 S.W.2d 747 and Southwestern Savings and Loan Association of Houston v. Falkner, 160 Tex. 417, 331 S.W.2d 917.

We think it clear under this record that there would be little direct competition between Bexar County Savings and an association operating eight miles away and proposing to service a market area already shown not to furnish loan business to the existing association and not logically expected to provide any significant number of savings customers.

We hold that there was no substantial evidence to support the negative findings of the Commissioner that there was no public need for the proposed association, that the volume of business in the community in which the association would conduct its business was not such as to indicate a profitable operation, and that to grant the charter would result m undue harm to an existing association.

The judgment of the trial court is affirmed.

Affirmed.


author: MOORE, Justice.

text:
    CITY OF HAWKINS, Appellant, v. E. B. GERMANY AND SONS et al., Appellees.
    No. 312.
    Court of Civil Appeals of Texas. Tyler.
    Feb. 15, 1968.
    Rehearing Denied March 14, 1968.

      Charles H. Clark, Tyler, for appellant.
    Thompson, Knight, Simmons & Bullion, Pinkney Grissom, George C. Chapman, Burford, Ryburn & Ford, Dallas, for ap-pellees.
   MOORE, Justice.

This is a suit for damages instituted by appellant, City of Hawkins, against appel-lees, E. B. Germany And Sons, G. H. Vaughn, Jr. and Jack C. Vaughn.

As grounds for its cause of action, appellant alleged that prior to 1961, the city owned and operated two water wells within the corporate limits of the City of Hawkins, which wells served as the municipal water supply of the city and that appellees were the owners and operators of a certain oil and gas well situated in the City Limits of the City of Hawkins, known as the Min-shew No. 1; that sometime during the year of 1961, gas and other hydrocarbons appeared in the city’s two water wells, causing a pollution of the water, rendering same unfit for human consumption, and causing the city to have to resort to other sources for its water supply at great expense and damage to the city. Appellant further alleged that after the pollution occurred, it caused tests to he made on all the oil wells in the immediate areas surrounding the water wells, including the Minshew No. 1, to determine which wells, if any, were leaking and causing the pollution; that as a result of such tests, it was found that the Minshew No. 1 was leaking and appellees were requested to take immediate steps to correct same; that appellees delayed making repairs to correct the leak for some fifteen months, and as a result, the city was deprived of the use of its water wells for a period of approximately two and one-half years, causing the city to suffer considerable damage; that such damages were proximately caused by the negligence of appel-lees in (1) failing to test their well for leaks; and (2) permitting gas and other hydrocarbons to escape from the Minshew No. 1 and pollute the city’s water wells. Appellees denied generally the allegations in appellant’s petition and ffirmatively alleged that appellant’s damages were not caused by any negligence on their part, but such damages, if any, were the result of acts and omissions of others, and in the alternative alleged that the damages were the result of an unavoidable accident.

Trial was before a jury. In response to the special issues as numbered in the court’s charge, the jury made the following material findings: (1) that gas and other hydrocarbons escaped from the Minshew No. 1 and (2) polluted appellant’s water wells; but (3) that appellees were not negligent in permitting the gas and other hydrocarbons to escape from their oil wells; (5) that ap-pellees did not fail to test their oil well for leaks; and (8) that pollution of the city’s water wells was the result of an unavoidable accident. Based upon the verdict, the trial court rendered judgment for appellees.

After its motion for new trial was overruled, appellant perfected this appeal and has attacked the judgment by five points of error. Since none of appellant’s points attack the judgment as being unsupported by the evidence, a detailed discussion of the facts will not be necessary.

Under the first point, appellant contends that the trial court erred in sustaining appel-lees’ motion to disqualify three members of the jury panel solely on the ground that they were resident, tax-paying citizens of the City of Hawkins. In connection with this point, it was stipulated that the population of the City of Hawkins was somewhere between eight hundred and one thousand, and that the city had between three hundred fifty and four hundred water meters. According to the pleadings, the city contended that the pollution affected the water supply of all residents of the city.

The record shows that at the conclusion of the voir dire examination, there were thirty jurors on the panel. Thereafter, ap-pellees filed a motion to disqualify three members of the panel for cause. In connection with their motion, appellees alleged that in view of the evidence showing that each of the jurors in question was a resident, taxpaying citizen of the city, appellees believed that the financial interest of the three jurors was such that it could not help but weigh on their minds during the trial and thereby result in prejudice to the appellees. Over the objection of appellant, the court granted the motion and excused all three jurors. In this connection, however, the record shows that only two of said jurors, Moore and Kirkpatrick, were within the first 24 on the list and the third juror, Van Horn, was No. 27 on the list. Since juror Van Horn could not have been reached, the action of the court in excusing this juror would not be material under this point.

Article 2134, Vernon’s Ann.Tex. Statutes, provides:

“The following persons shall be disqualified to serve as jurors in any particular case:
h ⅜ ‡ ⅜ ⅜ ⅝ ⅝
“2. Any person interested, directly or indirectly, in the subject matter of the suit.
<< ⅜ ⅝ ⅜ ⅜ }{c ⅝
“4. Any person who has a bias or prejudice in favor of or against either of the parties.”

In addition to such statutory disqualifications, the trial court has discretion to determine whether the juror is disqualified for some other cause not mentioned in the statute. Bennett v. Jackson, (Tex.Civ.App.) 172 S.W.2d 395; McDonald, Texas Civil Practice, Vol. 3, Sec. 11.11, p. 984.

The general rule is that the interest of a resident, tax-paying citizen of a city is too remote and contingent to render him disqualified to serve as a juror .in a suit in which the city is a party. If, however, the interest in either case, even though indirect, was immediate, real and substantial, it would doubtless be sufficient to disqualify. Moore v. City of Dallas, (Tex.Civ.App.) 200 S.W. 870; City of Marshall v. McAllister, 18 Tex.Civ.App. 159, 43 S.W. 1043.

The ultimate question of whether a prospective juror is in fact disqualified by reason of interest, bias or prejudice or for some other cause, must depend upon the evidence. The record before us does not contain any of the testimony produced before the court upon voir dire examination, nor does the record show that appellant preserved the error complained of by way of a bill of exception. Without the testimony of the jurors on voir dire examination or a bill of exception, we cannot say that the trial court erred in impliedly finding that the jurors in question were disqualified. The court had an opportunity to see, hear and size up the jurors and was in a much better position than we to determine their qualification. McBroom v. Brown, (Tex.Civ.App.) 277 S.W.2d 310. We cannot assume or surmise that there was no evidence to support the trial court’s finding. On the contrary, in the absence of any testimony produced on voir dire examination or a bill of exception, it must be conclusively presumed that there was sufficient evidence to support the trial court’s finding. Lane v. Fair Stores, 150 Tex. 566, 243 S.W.2d 683. Such finding is binding on this court and may not be disturbed on appeal. Bashrum v. Vinson, (Tex.Civ.App.) 330 S.W.2d 538; Woolam v. Central Power & Light Co., (Tex.Civ.App.) 211 S.W.2d 792.

While we believe appellant’s failure to properly bring forward in proper manner the error complained of is determinative of the point, there is yet another reason why the point cannot be sustained. Appellant does not allege or attempt to demonstrate how any harm resulted by reason of the adverse ruling. It has long been the established rule in this state that even though the challenge for cause was improperly sustained, no reversible error is presented unless appellant can show he was denied a trial by a fair and impartial jury. Rule 434, Texas Rules of Civil Procedure; Galveston, H. & S. A. Ry. Co. v. Thornsberry, Tex., 17 S.W. 521; Woolam v. Central Power & Light Co., supra, citing cases; also see Hammon v. Texas & New Orleans Railroad Company, (Tex.Civ.App.) 382 S.W.2d 155. The record brought forward by appellant fails to show appellant objected to any juror on the panel. Since it was not shown that the city was forced to try the cause before an objectionable juror, it must be presumed that the city was afforded a fair and impartial jury. Consequently, no harm could have resulted to appellant by reason of the action of the court in excusing the two jurors.

In the second point of error, the appellant asserts that the court erred in admitting appellees’ Exhibits Nos. 212-217. In related points of error three, four and five, appellant asserts that the court erred in permitting appellees’ witness, Morris Brown, over its objections, to testify with reference to the aforesaid Exhibits and in failing to strike his testimony. The objection to the Exhibits was on the ground that the same constituted results of tests and experiments conducted on other oil wells which bore no similarity to the tests to the Minshew No. 1, and were therefore not admissible because same were hearsay and were also immaterial. Appellant’s objection to the testimony of Morris Brown was on the ground that his testimony with reference to Exhibits 212-217 was hearsay and irrelevant and immaterial to any issue in the case.

In order to place these points in their proper perspective, a brief statement of the evidence offered by the city will be necessary. The evidence shows that when the city became aware of the pollution of its water wells, it called upon the Texas Railroad Commission to conduct certain tests of the oil and gas wells located in the vicinity of the city’s water wells in order to determine which, if any, of the oil wells were leaking. The evidence shows that in the immediate vicinity of the city’s water wells, there were approximately 100 oil and gas wells. The evidence further shows that either the railroad commission or the owners of the various wells within the city tested practically all of the wells for leaks. The method used for testing for leaks was a method known as “temperature survey.” This test was conducted by lowering a device into the well known as a “bomb” or a “Humble bomb.” The “bomb” device contained a thermometer and a recording device so that the temperature of the well could be recorded as the bomb descended into the depths of the well. After all the tests had been completed, the railroad commission’s report showed that the only well found to be leaking was the Minshew No. 1. The evidence further showed that the railroad commission forwarded its report to the appellees advising them that their well was leaking. During the trial, the city offered in evidence plaintiff’s Exhibit No. 191, which contained sub-surface depth-temperature charts prepared by the Railroad Commission upon each well in the city. These charts were in the form of gradients and showed the results of the temp j.'"re tests conducted on all wells, includ’-’Y- the Minshew No. 1. According to th officials of the Texas Railroad Commission, these charts showed that the only well leaking in the area was the Minshew No. 1. They admitted, however, that the tests were somewhat inconclusive.

Appellees maintained throughout the trial that the tests performed by the Railroad Commission did not show that their well was leaking. In an effort to rebut the Railroad Commission’s report, appellees offered the testimony of Morris Brown, a qualified expert in the field of petroleum geology and engineering. Brown testified that in his opinion the tests performed by the Railroad Commission failed to show that the Minshew No. 1 was leaking, or at least, the tests were inconclusive in that they failed to show (1) the condition of the well at the time of the test; (2) how long the well had been shut in at the time of the test; and (3) how long the “bomb” was stopped at specific depths. He testified that prior to the time of trial, he had obtained from various sources, certain temperature charts or gradients on five other oil wells which were found to be leaking, none of which were in the City of Hawkins. He testified that after studying the results of the temperature surveys on those five wells, he was of the opinion that the circumstances under which temperature tests were conducted were important and could vary the results of the tests. He took the position that since the Railroad Commission reports failed to show the circumstances under which their tests were conducted, such tests were inconclusive and of no value. In connection with his testimony, he referred to five charts showing the result of the tests conducted on the other wells and testified that each showed the temperature tests to vary according to the circumstances under which they were taken. These charts, over appellant’s objection, were introduced in evidence as defendants’ Exhibits 212-217. The evidence shows that two of the Exhibits in question were taken from the files of his employer and the other three were taken from trade journals. Brown did not participate in making any of the tests. Nowhere in his testimony does he state that he has any personal knowledge of any of the facts shown on the charts, nor did he undertake to testify as to the accuracy of the same. He testified that these Exhibits demonstrated and supported his contention that the temperature of a well tends to vary according to the various circumstances, even though none of the tests were conducted by the use of a “bomb” device. As we view the record, these Exhibits were introduced for the primary purpose of supporting Brown’s conclusion that all temperature tests tend to vary according to the circumstances under which they are taken and to thereby bolster his opinion that the Railroad Commission tests were of no value because they did not show the circumstances under which the tests were conducted.

Ordinarily, a party is entitled to support the opinion testimony of his expert witness by proof of facts which tend to show its accuracy. 32 C.J.S. Evidence § 570, p. 659. However, an expert witness is not permitted to narrate facts and circumstances of a special transaction, outside the case on trial, and thereafter demonstrate the result thereof by graphs or exhibits, for the purpose of enabling the jury to compare the facts and results of such transactions with those of the case on trial, the object being to impress the jury with the soundness of the witness’s opinion or judgment; 32 C.J.S., supra, citing Bollman v. Lucas, 22 Neb. 796, 36 N.W. 465, especially where the witness does not vouch for the accuracy of such outside tests or transactions.

For this reason, we believe the Exhibits offered by appellees should not have been admitted. However, we fail to see how the error, if any, could have been harmful and caused the rendition of an improper judgment. The record, in this respect, conclusively shows that all of Brown’s testimony was offered for the purpose of rebutting the city’s evidence showing that the Minshew No. 1 was leaking. The main thrust of his testimony was that the well was not leaking and that the tests conducted by the Railroad Commission were inconclusive and consequently of no value. But the verdict of the jury shows that the jury rejected his testimony by finding that the well was leaking. Since the jury apparently placed no credence in his testimony and answered the issue in appellant’s favor, neither his testimony nor the Exhibits could have resulted in any harm to appellant. Nor can we perceive how such testimony could have affected the jury in answering any of the other issues adversely to appellant. While the jury found the oil well was leaking, the jury also found that the city had failed to discharge its burden of proof in establishing negligence. The jury further found that the city failed to discharge its burden of proving that the pollution was not the result of an unavoidable accident. Appellant does not undertake to demonstrate how the error, if any, in admitting this evidence could have influenced the jury in finding adversely to the city upon the liability issues and we fail to see how it could have had such an effect.

The great weight of authority in cases similar to this in Texas requires that appellant not only show that the admission of such objectionable evidence was error, but that such error constituted a denial of the rights of the complaining party as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case. Rule 434, Texas Rules of Civil Procedure; Condra Funeral Home v. Rollin, 158 Tex. 478, 314 S.W.2d 277; Calvert v. Beazley, (Tex.Civ.App.) 403 S.W.2d 905. After a review of the record as a whole, we do not believe the error, if any, was reasonably calculated to cause and probably did cause the rendition of an improper judgment.

The judgment of the trial court is affirmed.


author: COLLINGS, Justice.

text:
    Cramer REYNOLDS and Oris Reynolds, Appellants, v. Billy C. HAYNES, Abilene Livestock Auction Commission, a Corporation, and W. T. Sadler, Appellees.
    No. 4195.
    Court of Civil Appeals of Texas. Eastland.
    Nov. 10, 1967.
    Rehearing Denied Feb. 2, 1968.

      Wagstaff, Alvis, Charlton & Alvis, John Alvis, Abilene, for appellants.
    Scarborough, Black, Tarpley & Scarborough, Beverly Tarpley, Abilene, for appel-lees.
   COLLINGS, Justice.

Cramer Reynolds and Oris Reynolds brought suit against Billy C. Haynes, Abilene Livestock Auction Commission Company, a corporation, and W. T. Sadler, seeking to recover lost rentals under a lease contract to Haynes and alleged damages to land, improvements and a cattle auction business operated thereon, owned jointly by Cramer, Reynolds and Haynes. Plaintiffs alleged that the defendant Sadler acted jointly and in concert with Haynes in causing their damages and wrongfully interfered with the contractual relationship between them and Haynes. The defendant Haynes filed a cross-action seeking reimbursement for expenditures necessarily made by him for the preservation of the jointly owned property.

The motion of W. T. Sadler for a summary judgment was granted. Based upon a jury verdict, judgment was rendered that plaintiffs take nothing from the defendant Haynes and the corporation and that Haynes have judgment as prayed on his cross-action. The plaintiffs have appealed.

The record shows that in 1956, Cramer and Oris Reynolds and Billy C. Haynes, as equal partners, commenced the operation of a cattle auction business on their jointly owned ten acre tract of land in Abilene. Such relationship constitutes the background for this suit. The purchase price for the property in the amount of $100,000.00 was advanced by Oris Reynolds and by Dr. W. T. Sadler who is the father-in-law of Haynes. Repayment of such purchase price was duly made so that Cramer and Oris Reynolds and Billy C. Haynes each became owner of his one-third interest in the property and business free of any indebtedness. The three owners jointly operated the business for a time and each received one-third of the profits therefrom.

On April 25, 1959, Haynes leased his one-third interest in the property to the Reynolds who operated the livestock sales business until the lease expired on April ’62. Thereafter in June of 1962, Haynes again leased his interest in the property to Reynolds at an increased rental for a period of one year with options to extend the lease to 1965. In August of 1962, there was a fire at the south barn on the property which held the main ring for sales of cattle but repairs were made and paid for by the parties out of joint insurance proceeds in the amount of $30,000.00. In February of 1963, the Reynolds gave up their lease on the Haynes interest and leased their two-thirds interest in the property to Haynes for the purpose of operating a livestock auction business thereon. The consideration for this lease was Haynes’ agreement to pay 22⅜⅜ per head for all livestock sold, with an accounting to be held weekly. Haynes also agreed to keep the property in repair and not to change the established sales day or the name of the operation, that is, the Abilene Livestock Auction Commission. On the same date Oris Reynolds, for a consideration of $60,000.00 sold and conveyed his interest in the property to Cramer Reynolds, who is the sole appellant of interest on this appeal.

In March of 1963, Haynes formed a corporation entitled Abilene Livestock Auction Commission Company and thereafter operated the business under that name. He instituted some innovations in the conduct of the business in an effort to increase sales, one of which was a weekly newsletter distributed through the mail to several thousand prospective customers. Haynes was president of the corporation and it was his alter ego. He operated the auction through the corporation until February 15, 1964, when the south barn, including the sales ring, office and cafe and a number of adjacent pens were destroyed by fire. This fire was much more extensive than the previous one. The evidence shows that the cattle sales business could not have been continued with the remaining facilities. Insurance proceeds amounted to $95,199.50, which was divided i/jrd to Haynes and %rds to Cramer Reynolds according to their interest in the property. Haynes was concerned about rebuilding and discussed the matter with Reynolds the day after the fire, but Reynolds stated he was not interested. Reynolds stated to one witness that he was going to put his money in the bank and “wasn’t going to have any part of putting any building there.” Cramer Reynolds definitely refused to participate in rebuilding the destroyed facilities and Haynes then began efforts to secure a new location with adequate facilities for operation of a livestock auction business.

Rentals were paid by Haynes as provided by the lease to the date of the fire. An older building known as the north barn which contained an auction ring, small office and very limited facilities was also located on the ten acre tract. This north barn and some other pens and facilities were not destroyed by the fire. After the fire two sales on which commitments had been previously made were held in the north barn. The evidence indicates, however, that the north barn and remaining facilities were not adequate for a continued operation of the business. Haynes promptly, on March 4, 1964, mailed a check for rentals due on the two sales at the north barn together with a letter to Cramer Reynolds stating that because of the fire the lease had terminated. Reynolds, with an accompanying letter from his attorney, returned the check to Haynes on July 28, 1964.

On February 28, 1964, after the fire on February 15th, and after Reynolds had refused to participate in rebuilding, Haynes in his livestock auction news letter announced plans to build a new sales barn. In March of 1964, W. T. Sadler, the father-in-law of Haynes, bought a tract of land on northeast interstate 20 in Abilene and caused to be erected thereon a sales barn and other facilities suitable and adequate for the operation of a livestock sales business. In June of 1964, Haynes acting through his alter ego corporation began the operation of a new cattle auction sales business on the land and facilities owned by his father-in-law.

It was found by the jury, in effect, that plaintiff suffered no damages by lost rentals or damage to his ^rds interest in and to the land, improvements and business in question for the period of the lease remaining after the fire because of Haynes’ failure to continue livestock sales at the old location; that the south barn and adjacent pens were substantially destroyed by fire; that cattle sales could not have been continued on the leased premises by utilizing the facilities remaining after the fire; that Cramer Reynolds refused to participate in rebuilding the destroyed facilities; that Cramer Reynolds after the fire abandoned the good will of the business; that the good will of the business in question was personal to Billy C. Haynes, and that clearing the premises after the fire was necessary for preservation- of the property. The evidence, in our opinion, supports these findings and the findings support the judgment.

In appellants’ 6th point it is contended that the answer to special issue 1 is not supported by any evidence and is contrary to the great weight and preponderance of the evidence. Special issue number 1, the instructions given in connection therewith and the answer of the jury, were as follows :

“SPECIAL ISSUE NUMBER 1
From a preponderance of the evidence, what amount of money, if any, if paid now in cash would reasonably compensate the plaintiff, Cramer Reynolds, for lost rentals, if any, for the period from February 20, 1964, until the end of the lease period on February 11, 1968?
Answer in dollars and cents, if any.
ANSWER: $ None
In answering the foregoing issue, you are instructed that you will take into consideration what, in reasonable probability, would have become due and payable to Cramer Reynolds, computing such rentals at twenty-two cents a head for animals that in all reasonable probability would have been sold through the auction, had Billy Haynes continued the place of sale at 700 Almond Street.”

In other points appellants complain of the action of the court in refusing to submit his requested special issues on damages by reason of lost rentals. These points are not well taken. The lease in question provided for no specific or guaranteed rental. It simply provided that Haynes would pay 22^ per head on all animals sold through the auction ring. Haynes, by the terms of the lease, would therefore owe nothing in the way of rentals until animals were sold through the auction ring. The auction ring referred to was the auction ring and facilities specially designed for conducting a cattle sales business located on a 10 acre tract of land at the east end of north 7th Street in the City of Abilene. The property and the facilities thereon were owned by Billy Haynes, Oris Reynolds and Cramer Reynolds.

The fire which occurred on February IS, 1964, destroyed the auction ring and facilities, including the office, cafe, shaping barn and a large number of pens used in connection with the operation of the auction sales business. The jury found upon sufficient evidence that such facilities (the south barn, et cetera) were substantially destroyed by the fire and that the auction sale of livestock could not be continued on the leased premises by utilizing the facilities remaining after the fire.

We cannot agree with appellants’ contention that because two sales were held after the fire that the evidence conclusively shows that Haynes did and could have continued operating his business on the leased premises. The evidence shows that the two sales in question were based upon commitments made prior to the fire and were made after the fire with great difficulty and inconvenience. There was ample evidence showing that the remaining facilities were not adequate for a continued operation of the auction sales business on the premises without a major rebuilding operation. Since the auction sales could not be continued on the premises with the remaining facilities, and for that reason sales of livestock were not made, then, under the terms of the lease contract Haynes was under no obligation to pay rentals or other consideration for the lease. He promised only to pay 22‡ per head on livestock actually sold.

Appellants’ points complaining of the refusal of the court to give his requested special issues on damages for lost rentals assumed that the destroyed facilities were to be rebuilt and replaced. As previously noted appellant had refused to participate in rebuilding the destroyed facilities urging that he was under no obligation to do so. Appellants’ contention that Haynes had a duty to rebuild the destroyed facilities at his own expense is not tenable. Since neither party had the duty to rebuild, any continued sales on the premises would necessarily have to be made by utilizing the facilities remaining after the fire. The jury found, however, upon ample evidence, that the auction sales could not have been continued by utilizing the remaining facilities. We come again to the conclusion that since the contemplated livestock auction sales could not be continued on the premises and no livestock were thereafter sold thereon, appellee was not obligated to pay rentals of 220 per Jiead upon estimated future livestock sales. If under the circumstances it could be held that Haynes was obligated to attempt a continued operation on the premises, any standard by which to measure his conduct of such an operation and the amount of livestock which he could or would have sold would, in our opinion, be an uncertain and questionable basis upon which to compute appellants’ damages, if any. Weil v. Ann Lewis Shops, Inc., 281 S.W.2d 651, (Tex.Civ.App.1955, writ ref.). In any event the jury has found upon sufficient evidence that appellant suffered no damages because of lost rentals.

Appellants’ points relating to his claim for damages for loss of good will because Haynes ceased operations on the old premises and opened a new place of business at a new location, and his point contending that the court erred in overruling his motion for judgment non obstante veredicto are also overruled. The lease under consideration unquestionably contemplated the operation of a livestock auction sales business on the described premises. All the facilities and improvements on the property were appropriate and suitable for the operation of such a business. The Reynolds and Haynes together and individually had operated such a business thereon. The lease in question provided for rentals calculated on the basis of 220 per head for animals sold in the operation of such business. The evidence supports the-conclusion and the jury found that such business could not have been continued on the premises with the facilities remaining after the fire, and that appellant refused to participate in rebuilding the destroyed facilities. Appellants claim for damages because Haynes ceased to operate the business on the premises after the fire is not tenable. Appellants’ own conduct in refusing to participate in rebuilding was responsible for the fact that there was a termination of the business on the premises.. These circumstances support the finding' that after the fire Cramer Reynolds abandoned the good will of the business.

Appellee Haynes by counterclaim sought to recover ^rds of the expense of clearing the premises at the location where the fire occurred. The jury found that such clearing of the premises was necessary for the proper preservation of the property. Based upon the verdict, judgment was rendered for Haynes against appellant for ^rds of such expense. We overrule appellants’ point complaining of the lack and insufficiency of the evidence to support the finding of the jury. We, likewise, do not agree with appellants’ contention that since Haynes was in possession of the property when the work was done he was obligated under the lease contract to do all necessary repairs to the premises. Clearing the premises after a fire such as the one shown by the evidence in this case was not contemplated by the provision of the lease that Haynes would “keep the property in reasonable repair.” The duty to clean the premises after the fire rested upon the owners of the property in proportion to their interest therein. 15 Tex.Jur.2d 169. The court did not err in holding that appellant was liable for ^rds of such expense.

We overrule appellants’ point contending that the court erred in granting summary judgment for appellee Sadler. No material fact issue is raised by the record concerning Dr. Sadler’s right to a summary judgment. Sadler filed his motion for summary judgment with a supporting .-affidavit stating that he was not a party to the lease contract in question, that he was not a party to any agreement with Cramer Reynolds or Oris Reynolds concerning the livestock auction business; that he had never had any part in the operation of the business known as the Abilene Livestock Auction Commission Company -and that he did not have in his possession rany property belonging to appellants. Un•der the pleadings these facts if established entitled Sadler to a summary judgment. Appellants did not properly controvert Dr. 'Sadler’s affidavit asserting the existence of such facts. Appellants did allege that Sad-ler was fully informed as to the contractual relationship between Haynes and appellants; that he acted jointly and in concert with Haynes so as to seriously damage appellants; that Sadler made large sums of money available to Haynes for the operation of a livestock business, of which %rds was and is owned by appellants. Appellants’ affidavit in this connection was general and set out no specific facts upon which the liability of Dr. Sadler could be based.

It was also alleged by appellants that Sadler exercised proprietary influence upon said business and received benefits therefrom in the way of payments from the gross sales of livestock in connection with the operation of said business. In this connection also appellants’ affidavit in opposition to Sadler’s motion for summary judgment set out no specific facts in support of their general allegation. No controverted material issue of fact was raised. The court did not err in granting Dr. Sadler’s motion for summary judgment.

Appellants’ points are all overruled. The judgment is affirmed.


author: MASSEY, Chief Justice.

text:
    COMMERCIAL INSURANCE COMPANY OF NEWARK, NEW JERSEY, Appellant, v. Paul P. COLVERT et ux., Appellees.
    No. 16895.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 23, 1968.

      Nelson & Sherrod and Charles Oldham, Wichita Falls, for appellant.
    Friberg & Parish and J. Walter Friberg, Wichita Falls, for appellees.
   OPINION

MASSEY, Chief Justice.

Suit was by persons insured under windstorm coverage against the insuring company. There was no dispute concerning the fact that a loss had occurred or that an amount was due and payable because thereof. The dispute was upon the amount which was claimed because of the loss.

Judgment was rendered, upon a jury verdict, in favor of Paul P. Colvert, et ux.r plaintiffs, and against the Commercial Insurance Company of Newark, New Jersey, defendant, for the amount of $10,114.22 plus legal interest. Defendant insurance company appealed.

Judgment reformed and affirmed.

Neither the insured nor the insurer ever at any time considered measuring the amount of loss to be recompensed under the policy contract by the difference in value of the dwelling before and after the occurrence of the loss and damage. Rather did they treat it as a loss to be measured by the reasonable cost of necessary repairs.

The rule of measure of common law damages is stated in 17 Tex.Jur.2d, p. 148, “Damages”, sec. 74, “Partial destruction of or injury to building,” viz:

“The proper measure of damages for permanent injuries to a building, short of total destruction, is the difference between the market value before the injury and its market value immediately after the injury. And the measure of damages for a repairable injury to a building is the amount necessary to restore the building to its condition immediately prior to the injury, with interest from the date of injury to the time of the trial. If the building is shown to be old, a question of some difficulty is presented. It may be impracticable to reconstruct it in the same form and dimensions without betterment both in material and in structure. Furthermore, the changed conditions may be such that the cost of repairing the building would be greater than its value. If the evidence leads to the conclusion that the plaintiff, acting as an ordinary man, and without expectation of reimbursement, would have repaired the injury, he should be allowed the cost of repairing; but, if he would not in the circumstances have done so, he should be-allowed only the depreciation in the value of his property.”

Of course it is commonly found in insurance policies that the parties thereto have contracted relative to the matter of a measure of damages. For example it is not uncommon to find that the measure prescribed is for repair and/or replacement of damaged parts with reduction applicable by way of depreciation, coupled with the provision that the reasonable and necessary cost thereof shall not exceed the difference in market value of the property before as compared with after the occurrence of loss.

In the instant case, however, the policy of insurance is silent relative to the measure of damages applicable in case of loss, though there is provision that at the option of the insured, upon satisfaction of certain provisions and conditions, the measure of the loss will be based upon “replacement cost” without deduction of depreciation because of any betterment resultant therefrom. Coupled therewith, however, is the proviso that such shall not apply in the case of wall-to-wall carpeting attached to a huilding or to cloth awnings. The inference is clear that as applied thereto depreciation would be applicable in the event of loss.

From the whole record it is made to appear that the construction placed upon the insurance contract by both the insured and the insurance company, at least prior to the time the company answered plaintiffs’ suit, was that the applicable measure of damages was the reasonable .cost of necessary repairs and/or replacements to restore the building. See 13 Tex.Jur.2d, p. 300, ■“Contracts”, § 128, “ — Construction placed on contract by parties themselves”. We believe that it is undisputed that the injury to the building was “repairable”.

That it was proper that the insured plaintiff bring and prosecute the suit on that theory is in our opinion evident when any doubt thereof is resolved under the principles of contractual construction discussed in 13 Tex.Jur. pp. 269 and 285, “Contracts”, § 113, “Construction of agreement as entirety”, and § 121, “Strict construction of agreement against party drafting it”. There having been no limitation of liability for damages under the loss as by difference in “before and after” market value, and, in any event no evidence offered by the insurance company to show that the claim for damages under the measure submitted exceeded the difference in a “before and after value”, the charge' given' by the court upon the matter of damages sustained by the insured upon loss to the building was proper. The court was correct in refusing to submit specially requested issues relating to market values. Judgment based on the jury’s answer was proper. We find evidence to support the verdict and same was not against the greater weight and preponderance of the evidence.

It follows that all points of error related to the loss and damage to plaintiffs’ building should be and are overruled.

Special Issue No. 6, and the reply thereto is as follows:

“From a preponderance of the evidence, what do you find to be the reasonable cost of repairs, if any, of the items of damage, as a direct result of hail and windstorm, if any, to the home of the Plaintiffs in Wichita County, Texas, with material of like kind and quality within a reasonable time after said loss, if any, was sustained by the Plaintiffs, Paul C. and wife, Irma B. Colvert ?

“Answer: In dollars and cents, if any, or none.

“Answer: $8,167.11”.

Special Issue No. 15, and the reply thereto is as follows:

“Do you find from a preponderance of the evidence that the cost of the repairs made by J. L. Hair and Sons included repairing damage or deterioration that existed prior to the hail of May 27, 1965 ?

“Answer: ‘Yes’ or ‘No’

“Answer: Yes”.

Special Issue No. 16, and the reply thereto is as follows:

“What do you find from a preponderance of the evidence was the cost of repairing said pre-existing damage or deterioration, if any, inquired about in the preceding issue?

“Answer: In dollars and cents, if any, or none.

“Answer: $6,380.00.”

The repairs to the house were by contractor J. L. Hair and Sons. The contract amount for which repairs were accomplished was $12,500.00.

The judgment rendered in the case was based upon the jury’s answer returned to Special Issue No. 6, i. e. that reasonable cost of repair of items damaged by the hail and windstorm was $8,167.11. The insurance company contended there was a mistrial in that the answers returned to Issues Nos. 6 and 16 were in conflict. Under the company’s theory it was determinable, through mathematical calculation of subtracting the cost of repair of pre-exist-ing damage or deterioration from the total charge for repairs made by the contractor, that the reasonable cost of repairs necessary as result of the hail and windstorm was only $5,120.00 and that there would be a resulting conflict between the answer returned to Issue No. 16 and to Issue No. 6, in which the jury found the reasonable cost of repairs to be $8,167.11.

It is a matter of common knowledge that in instances of repair done to property in correction of both the recent damage and also older pre-existent damage or obso-. lescence it is often difficult and sometimes impossible to use the figure representing the reasonable cost of such combined repairs in any determination of what the reasonable cost of necessary repairs to either the recent damage or to pre-existent damage or obsolescence if considered separately. A common example is where damage is done to a portion of an automobile which makes it necessary in the repair process that repair of the damaged portion involves repainting. The cost to repaint the entire automobile would be the same before as after the damage was done and many automobile owners prefer to have the entire automobile repainted, thus saving money on a “complete paint job”. This does not mean that there would be any necessary correlation of the amount necessary to repaint the part damaged and necessary to be repainted to the entire painting cost. The cost to repaint the portions of the automobile which had not sustained damage necessitating any painting would not be properly calculable by deducting the cost of painting the portion essential to be repainted by reason of repair of the recent damage. Neither would the cost to repaint the portion which had sustained damage be properly calculable by a converse method. Repainting the entire automobile with a resultant saving to the owner would not mean that there was any unjust enrichment in instances where he-was entitled to be made whole as applied to the damage to only a portion of his vehicle, as from a tort-feasor or from his own collision insurer.

The same thing would have application in the present instance as applied tO' the house of the plaintiffs. Special Issues Nos. 15 and 16 are valueless for purposes of arriving at an amount for which judgment should be rendered. It was the jury’s-answer to Special Issue No. 6 which controlled, and the court did not err in disregarding the jury’s answers to the other issues mentioned for purposes of fixing the amount of plaintiffs’ judgment, nor in overruling the company’s motion for judgment non obstante veredicto. In any event the-answers to No. 6 and No. 16 are not in conflict. Little Rock Furniture Mfg. Co. v. Dunn, 148 Tex. 197, 222 S.W.2d 985 (1949), The points of error to which the foregoing discussion is germane are overruled.

Special Issue No. 8 and the instruction following it, reads as follows:

“What do you find from a preponderance of the evidence to be the reasonable value of the damages, if any, sustained to the draperies, and carpets in the Plaintiffs’ home on or about May 27, 1965, as a direct result of hail and windstorm, if you have found that damage was sustained to them?

“Answer: In dollars and cents, if any, or none.

“Answer: $1600.00

“In arriving at the value of the loss, if any, to the personal property as a direct result of hail and windstorm, if any, you may take into consideration the cost of the property, the reasonable depreciation thereon, the cost of replacing such property and its reasonable cash market value in Wichita County, Texas, at said time and place, just prior to the loss. By ‘reasonable cash market value’ is meant the price that would be paid by a person who was not compelled to purchase for an article purchased from a seller who was not compelled to sell at a cash price in Wichita County, Texas.”

Special Issue No. 17 and the reply thereto read, as follows:

“What do you find from a preponderance of the evidence was the actual cash value of the rugs and the drapes at the time of the loss ascertained with proper deduction for depreciation?

“Answer in dollars and cents, it any, or ‘none’.

“Answer: $1,600.00.”

The court refused to submit the company’s specially requested Special Issue reading as follows:

“What do you find from the preponderance of the evidence was the reasonable cash market value of the rugs, drapes and carpets in question immediately following the hail in question?

“Answer in dollars and cents, if any.”

The company has grouped several points, by which it is contended that the trial court erred in overruling the objection that Special Issue No. 8 was global in nature and amounted to a general charge on a portion of the case; in overruling the objection to the instruction submitted in ' connection with the issue because of failure to include an instruction that the jury would consider the reasonable cash market value of the carpets and drapes after the hail and windstorm; and in refusing the specially requested issue inquiring into the reasonable cash market value of the carpets and drapes immediately thereafter.

It appears that the jury found that a complete and total loss was sustained as applied to the draperies and carpets, since they found not only that $1,600.00 represented their actual cash market value immediately prior to time of the loss, and that the damage done thereto as result of the hail and windstorm was the same figure of $1,600.00. The company contends that there was salvage value, at least, as applied to the rugs and carpets. From evidence in the record it appears that these were retained and stored in the insured’s servant quarters building. Presumably they are ready to be delivered to the company upon payment of the judgment in the case as applied to the award of damages to plaintiffs on the basis of the constructive “total loss” found by the jury. As applied to provisions of the insurance policy the items were “replaceable” rather than “repairable”. They were replaced by the plaintiffs in the refurbishment of their home. Under these circumstances the plaintiffs were entitled to receive of and from the company the replacement cost, with the company correlatively entitled to the articles themselves or the salvage value thereof. In our opinion, if the company be unwilling to receive the articles themselves upon payment for the damage to them on the basis of “total loss”, it was their burden to establish any salvage value and why such value should be charged against the amount to be paid to the plaintiffs rather than to be delivered to the company.

As applied to the curtains and draperies the evidence, in our opinion, establishes the fact of a “total loss” thereto without salvage value. It is shown in the evidence that portions of one or two curtains were cut out so that there was some use made on small windows of the plaintiffs’ home after the loss, and some curtains and/or draperies given to the plaintiffs’ colored servant for such use of them as she might be able to make. We are of the opinion that the record adequately reflects so nominal a value of these articles after the loss and damage thereto was sustained that the judgment should not be overturned or disturbed. To reverse the case because thereof would be for an unsubstantial reason, and judgments are not to be reversed for other than substantial reasons.

In connection with the foregoing it is noticed that a special issue reading as follows has been approved: “‘From a preponderance of the testimony, what pecuniary loss or damage, if any, do you find was caused to the household furniture, wearing apparel and personal property of the plaintiff by reason of the fire * * * ? ’ ” Fidelity & Guaranty Fire Corporation v. Ormand, 62 S.W.2d 675 (Austin, Tex.Civ.App.1933, writ dism.). The issue was cited with approval in Crisp v. Security National Insurance Company, 369 S.W.2d 326, 329 (Tex.Sup., 1963).

The points of error are overruled.

During the course of the repairs plaintiffs took lodging at the Marchman Hotel in Wichita Falls. The amount of their hotel bill was not disputed. The coverage of the insurance policy provided for payment to plaintiffs of the reasonable and necessary cost of lodging commencing with the date of loss and extended for the time required, with the exercise of due diligence and dispatch, to repair or replace such damaged or destroyed property.

In answer to the special issue purporting to resolve the amount to which the-plaintiffs were entitled to be reimbursed because of hotel expenses for lodging the jury found the amount of $380.00. From the record it is observed that there is no evidence which supports the finding because of absence of proof of the time for which substitute lodging was necessary. Furthermore, the issue as submitted was one upon answer to which no proper judgment could' be founded as a part of the whole liability collectible by plaintiffs of the insurance company under its contract. Accordingly,, the amount of the judgment rendered in the case was excessive by the amount of $380.00.

Judgment is reformed by reducing the-award thereby made to plaintiffs by the amount of $380.00. As so reformed the judgment is affirmed.