author: WADDILL, Commissioner.

text:
    ARMCO STEEL CORPORATION, Appellant, v. John M. PERKINS et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 24, 1967.
    Robert T. Caldwell, Bunyan S. Wilson, Jr., Ashland, for appellant.
    Claude Asbury, Catlettsburg, for appel-lees.
   WADDILL, Commissioner.

The judgment entered herein permanently enjoins the appellees, members of a group calling themselves “Loyal Volunteers,” from committing violence (and other related acts) at or near the plant of appellant, Armco Steel Corporation, and, on the basis of lack of jurisdiction, denies a permanent injunction prohibiting peaceful picketing of Armco’s plant. Armco appeals from so much of the judgment as denies it a permanent injunction against all picketing by the appellees at its plant. Pending appeal, this court reinstated a temporary injunction prohibiting appellees from picketing.

Insofar as relevant to this appeal, the trial court found that: Armco’s 3900 non-supervisory employees are members of Local Union 1865, United Steelworkers of America, their exclusive bargaining agent with Armco; the collective bargaining contract between Armco and the union has a “no-strike” clause and provides a procedure for the settlement of all grievances; in April, 1966 individual employees of Armco, including appellees, formed a labor organization called the “Loyal Volunteers” which, without the sanction of their union, set up a picket line at Armco in violation of the “no-strike” clause of their union contract; when the other employees refused to cross the picket line Armco was forced to close for several days; the “Loyal Volunteers” alleged various grievances against Armco and sought, by the picket line, to force Armco to negotiate these grievances with them without resorting to the grievance provisions of their union’s contract with Armco.

Upon these findings the trial court concluded that the picketing was unlawful, constituting an unfair labor practice under 29 U.S.C. § 158, and that the National Labor Relations Board had exclusive jurisdiction under the pre-emption doctrine. San Diego Building Trades Council, etc., v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775, and R. H. Hobbs Company v. Christian, Ky., 325 S.W.2d 329.

The sole contention on this appeal is that the trial court erred in deciding that it has no jurisdiction .to enjoin unlawful picketing.

Armco asserts that the trial court did have jurisdiction under the provisions of § 301(a) of the Labor Management Relations Act of 1947 (29 U.S.C. § 185), which provides:

“Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.”

In Dowd Box Co. v. Courtney, 368 U.S. 502, 82 S.Ct. 519, 7 L.Ed.2d 483, the Supreme Court held that the Massachusetts court had jurisdiction under § 301 of an action based on violation of a contract between an employer and a labor organization. With respect to § 301, the court concluded that Congress “decided to make collective bargaining agreements enforceable only in the courts” and “the purpose of conferring jurisdiction upon the federal district courts was not to displace, but to supplement, the thoroughly considered jurisdiction of the courts of the various States over contracts made by labor organizations.”

While the Garmon case holds that the National Labor Relations Board has jurisdiction of disputes involving unfair labor practices “the authority of the Board to deal with an unfair labor practice which also violates a collective bargaining contract is not displaced by § 301, but it is not exclusive and does not destroy the jurisdiction of the courts in suits under § 301.” Smith v. Evening News Ass’n, 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246. The fact that the Garmon and Hobbs cases involved no contract violation distinguishes them from the instant one.

The appellees do not and cannot dispute the trial court’s findings that they have violated the “no-strike” provisions of their union’s collective bargaining contract. Hence, it is apparent to us that, under the cited Supreme Court decisions, the trial court does have jurisdiction of the instant action.

Appellees urge that under 29 U.S.C. § 104 the trial court has no authority to issue an injunction in this character of case. This statute only prohibits federal courts from issuing injunctions in labor disputes. Although not argued in this case, the effect of this statute, in light of recent Supreme Court decisions, on the right of a state to grant injunctive relief has been considered in other jurisdictions. In well-reasoned opinions it has been concluded that 29 U.S.C. § 104 does not apply to the state courts. See Dugdale Const. Company v. Operative Plasterers, 257 Iowa 997, 135 N.W.2d 656; Shaw Electric Co. v. International Bro. Electrical Workers, 418 Pa. 1, 208 A.2d 769, and cases cited therein.

It is our conclusion that the trial court has jurisdiction to grant the requested relief in this action and, under the facts found by the trial court, Armco was entitled to a permanent injunction against all picketing by the appellees at its plant.

The judgment is affirmed as to the granting of the permanent injunction prohibiting violence and it is reversed as to the dismissal of that part of the complaint seeking a permanent injunction prohibiting peaceful picketing and the case is remanded to the circuit court with directions to take jurisdiction and to hear and decide all issues presented and to enter a new judgment consistent with this opinion in light of any changed circumstances. The orders of this Court hereinbefore entered relative to picketing will remain in force pending further orders of the trial court.

All concur.


source: Caselaw Access Project

author: PALMORE, Judge.

license: Public Domain

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellants, v. Eugene SILER et a!., Appellees.
    Court of Appeals of Kentucky.
    Feb. 24, 1967.

      Robert Matthews, Atty. Gen., H. C. Smith, Frankfort, Eugene H. Clark, Paul L. Madden, Manchester, Dept, of Highways, for appellants.
    Eugene E. Siler, Jr., Williamsburg, for appellees.
   PALMORE, Judge.

Hon. Eugene Siler and his two sisters were the owners of a tract of land containing six acres, more or less, just within the city limits of Williamsburg. On it were located a 6-room frame house and some minor improvements. Incident to the construction of Interstate Highway 75 and a frontage road the state highway department condemned a substantial portion of the property, including the house, and a circuit court jury awarded the owners $8,000 as compensation.

The department appeals, contending that (1) the valuation testimony given by Mr. Siler and his witness, Hugh Steely, should have been stricken because it was based on prospective subdivision and sale of the property as lots without proof of an expectation or probability of such use within the near future, and (2) the evidence was not sufficient to support the verdict. We find both contentions to be without merit.

At the time of the condemnation the property was rented out for residential purposes. It was in a residential area and lay adjacent to the Cumberland College athletic field. In the process of describing it on direct examination Mr. Siler was permitted, over objection, to say that he had given consideration to subdividing the property and selling off 10 or 12 residential lots. It was his opinion that the value before the taking was $8,500 and the value afterward was $500. He did not undertake or purport to base these estimates on individual lot values, but was questioned on cross-examination as follows:

Q — “I believe you stated you considered that there could be some ten or twelve lots?”
A — “Yes, sir.”
Q — “What did you consider those lots worth per lot?”
A — “The way property is selling after you subdivide and get the street laid out, I think you could sell them without trouble for $1,500.”
Q — “Did you take that into consideration in arriving at your estimates of value?”
A — “Yes, to some extent, I guess I did, based on my plan to possibly do that.”

Obviously Mr. Siler did not figure the value of the property at $1,500 per lot. Had he done so, his estimate would have amounted to no less than $15,000 plus the existing residence. Whatever may have been misleading, as the highway department now complains, was purposely elicited by its own counsel. The mention of $1,500 per lot was not volunteered by the witness and would not have been competent on direct examination. Cf. Commonwealth, Dept, of Highways v. Evans, Ky., 361 S. W.2d 766, 771 (1962). Had the tactics of the cross-examiner succeeded in demonstrating that the witness had established his valuation figure wholly or substantially on the basis of what he thought he could gross per lot, the testimony would have been rendered incompetent, and properly subject to being stricken if not revised and corrected. But that did not happen, and we perceive nothing improper in his having merely considered future prospects and potentials in arriving at present value.

If property is adaptable to a particular use or development different from its existing use, and the prospect that it will be or could be so used or developed is sufficiently imminent to affect its present market value, that prospect not only is a proper but necessary factor in determining such value. Cf. Commonwealth, Dept, of Highways v. Doolin, Ky., 411 S.W.2d 44 (decided January 27, 1967); Louisville & N. R. Co. v. White Villa Club, 155 Ky. 452, 159 S.W. 983 (1913). Nothing in the terminology of Commonwealth, Dept, of Highways v. Vincent, Ky., 357 S.W.2d 678 (1962); Commonwealth, Dept, of Highways v. Gearhart, Ky., 383 S.W.2d 922 (1964); or Commonwealth, Dept, of Highways v. Riley, Ky., 388 S.W.2d 128 (1965), was intended to convey a different impression. Even if the Siler family had never thought of subdividing or selling the property (in which case, literally speaking, there could have been neither “expectation” nor “probability”), the evidence as to its location and topography was enough to suggest the probability of its having present value for residential development. That, with qualified opinion testimony to the same effect, provided adequate foundation for the evidence in question.

What has been said thus far applies equally to the Steely testimony, which again was elicited on cross-examination and is as follows:

Q — “Mr. Steely, what factors did you take into consideration in arriving at your before value of $9,000.00?”
A — “In my opinion, the more valuable part of the property and the more desirable part of the property for potential development is the end adjacent to Gatliff Field, and the dwelling house would have had a substantial portion of that value. That is my thinking on it.”
Q — “You say potential development?”
A — “I say the potential value of the property was in the part in the lower field. It laid better for lots.”
Q — “Is that one of the things you took into consideration, that it could be subdivided into lots?”
A — “Yes, I have seen lots sold off around in the area; that determined it to the most extent.”
Q — “Is that one of the main things you considered ?”
A — “Yes, one of the things, and the value of the house.”
Q — “Did you place a value on the house separately ?”
A — “No, just as a whole.”
Q — “Did you consider the price for which these potential subdivision lots might sell?”
A — “Not any specific lot.”
Q — “You didn’t place a specific price on each lot ?”
A — “No, I have seen lots sold within sight of that property and I know what they brought.”
Q — “And you thought these lots would sell similarly?”
A — “Yes, sir.”
Q — “What were some of the lots near this property selling for?”
A — “$1,000.00 or $2,000.00.”
Q — “That’s about what you thought these would sell for?”
A — “Well, they are not getting any cheaper.”
Q — “That is one of the main things you took into consideration in arriving at this value?”
A — “That’s one of the factors.”
Q — “One of the principal ones?”
A — “Perhaps.”

The witness Steely operated an insurance agency and was president of a local bank. He was well qualified to give valuation testimony. Mr. Siler was vice president of another local bank and also possessed ample qualifications to testify as an expert. There is no reasonable basis on which their evidence could be held so devoid of probative value as to render the verdict unsupportable.

The judgment is affirmed.

All concur.


text:
    Quillie PATTERSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Feb. 3, 1967.
    J. W. Jordan, Barbourville, for appellant.
    Robert Matthews, Atty. Gen., David Mur-rell, Asst. Atty. Gen., for appellee.
   PALMORE, Judge.

Quillie Patterson moves for an appeal from and reversal of a judgment entered pursuant to a jury verdict finding her guilty of selling alcoholic beverages in dry territory and fixing her punishment at a $20 fine and 30 days in jail. KRS 21.140(2); KRS 242.230(1); KRS 242.990(1).

The evidence, though given by only one witness, was sufficient to support a finding by the jury that Mrs. Patterson sold six cans of beer for $3 to Charles Pyle, the witness. However, it was not proved that the sale was made in dry territory. Such an omission is fatal on a motion for directed verdict, which motion was made in Mrs. Patterson’s behalf both at the close of the Commonwealth’s case and at the close of all the evidence and was overruled. Ramsey v. Commonwealth, 314 Ky. 702, 236 S.W.2d 930 (1951); Click v. Commonwealth, Ky., 247 S.W.2d 371 (1952).

In Click v. Commonwealth, Ky., 247 S.W. 2d 371 (1952), it was stipulated in the trial proceeding that the appellant twice before had been convicted of a similar offense, and in answer to the Commonwealth’s contention that the stipulation was sufficient proof that Floyd County was dry territory this court said:

“However, it seems clear that even though Floyd County was dry in 1949 when appellant was before convicted, that is not proof that prohibition was in effect in 1951 when the latest offense was allegedly committed. If the trial judge had taken judicial notice of the fact that Floyd County was still dry territory, and such cognizance had been affirmatively shown in the record, it might have cured the omission. In the absence of such showing or other proof, the judgment must be reversed on this ground for a new trial.”

In the instant case there was no affirmative showing of any kind that Knox County was dry territory. Appellant therefore was entitled to a directed verdict.

The motion for appeal is sustained and the cause reversed with directions for a new trial.


author: HILL, Judge.

text:
    Virginia Lee DAGUE (Now Virginia Lee Gardner), Appellant, v. Eldon Leroy DAGUE, Appellee.
    Court of Appeals of Kentucky.
    Feb. 24, 1967.
    John L. Arnett, Faurest & Collier, Eliza-bethtown, for appellant.
    J. Howard Holbert, Elizabethtown, for appellee.
   HILL, Judge.

This is an appeal from a supplemental judgment dated June 9, 1965, restoring to appellee a one-half interest in a house and lot, the title to which was originally taken in the joint names of the appellant and the appellee. The original judgment was entered June 21, 1963.

Appellant filed suit on April 8, 1963, for divorce, custody of the four children of the parties, and maintenance benefits for the children. She made no claim for alimony. Appellee did not appear in the divorce proceeding. Judgment was entered on the date aforesaid granting an absolute divorce to appellant, awarding the custody of the four children to her, and directing appellee to pay $100 every two weeks for the maintenance of their children.

A controversy arose in regard to some of the maintenance payments in which appellant sought a rule against appellee to show cause why he should not be punished for failure to pay according to the judgment, and it was at this time that the court allowed appellee to file an answer claiming restoration of the one-half interest in the house and lot.

We shall not burden this opinion with the evidence and contentions of the respective parties in regard to the contribution, if any, made by the wife toward the acquisition of the house and lot for the reason that we have concluded that this case must be remanded for further proceedings; and this question must necessarily be reviewed by the trial judge on the remand of the case.

It is provided by KRS 403.065 that:

“Every judgment for a divorce from the bond of matrimony shall contain an order restoring any property not disposed of at the commencement of the action, which either party may have obtained, directly or indirectly, from or through the other, during marriage, in consideration or by reason thereof; and any property so obtained, without valuable consideration, shall be deemed to have been obtained by reason of marriage.”

It is the contention of appellant that by reason of the delay of nearly two years on the part of appellee to file an answer asking for restoration of the property and due to the failure of appellee to appear and make any defense in the divorce proceeding, he is now in no position to obtain restoration. The appellant also argues that she should be allowed to retain title to a one-half interest in the property by way of alimony. The appellee comes back with the assertion that the appellant having declined to ask for alimony in her original complaint can not do so now.

The appellee also argues that, in view of the mandatory provisions of the statute requiring restoration in divorce proceedings, he does not lose that right by the passage of time or by his failure to seek such relief before the entry of the original judgment.

We agree with the appellee and the conclusion of the trial court that appellee is not barred from seeking restoration of the property. But we think this conclusion should reopen the door to the appellant to litigate the question of her claim for alimony.

True, appellant did not ask for alimony, but she had record title at that time to one-half interest in the house and lot which apparently she would be able to retain, especially in view of the failure of appellee to file answer demanding the restoration of her one-half interest.

Under our case law the fact that “a wife who makes the home, raises the children, gives succor and moral support to the husband and aids him in the saving and investment of his money, but who does not directly convert any individual effort or earnings into the form of property, in the event of divorce has no interest in the property accumulated through the husband’s earnings during the marriage is a travesty made tolerable only by the judicial power to correct it in the form of alimony.” Heustis v. Heustis, Ky., 346 S.W.2d 778, 780.

We are well fortified with precedents in the conclusion we have reached by authority contained in many cases, including Hanks v. Hanks, 282 Ky. 236, 138 S.W.2d 362, 364, wherein this court said:

“Ordinarily, when a wife is granted an absolute divorce without seeking a judgment for alimony she is precluded from thereafter recovering it. But this rule should, and does, admit of the exception that when the question of alimony has not been litigated and the judgment of divorce does not contain an order or restoration as required by Section 425, Civil Code of Practice (now KRS 403.065), and the husband subsequently by independent action seeks to recover property, the title to which at the time of the divorce was in the wife, the wife should be permitted to assert by counterclaim her right to alimony. Otherwise, an innocent wife might be deprived of property, the possession of which was the consideration which induced her to forego her right to support.”

We are of the opinion that the supplemental judgment of the trial court for the restoration of the property to appellee was proper under the evidence, and the judgment appealed from is affirmed in that respect, but the case is remanded with direction that appellant be allowed alimony consistent with the facts that may be developed and the law applicable thereto.

All concur.


author: McDONALD, Chief Justice.

text:
    NEUHOFF BROTHERS PACKERS, INC., Appellant, v. Thurman McCAULEY et ux., Appellees.
    No. 4585.
    Court of Civil Appeals of Texas. Waco.
    Feb. 16, 1967.
    Frank J. Scurlock, Dallas, for appellant.
    John B. McNamara, Jr., Vernon L. Smith, Waco, for appellees.
   OPINION

McDONALD, Chief Justice.

This is an appeal by defendant Neuhoff from a judgment for plaintiffs McCauley in a nuisance case.

The case was tried on the theory of personal damage to plaintiffs, and no evidence was offered in regard to damage to plaintiffs’ property or diminution in value thereof.

The trial court’s definition of “nuisance” in its charge, in part was: “ * * * a condition brought about by one party in the use of his property, so unusual and excessive that it necessarily causes damage or harm or inconvenience to another party in the use and enjoyment of his property, substantially, materially and unreasonably interfering with the latter’s comfort, and proper use and enjoyment of his property * *

Defendant objected to the charge on the ground that plaintiffs tried the case solely on the theory of personal injury, and that the language italicized above pertains to plaintiffs’ real property or diminution in value thereof. The trial court overruled defendant’s objection.

The jury found that the operation of the feed lot by defendant was a nuisance as to plaintiffs, and that plaintiffs were damaged $4,000. The trial court entered judgment on the verdict.

Defendant appeals, contending that plaintiffs tried the case on the basis of personal injury only, and that it was error for the trial court to submit the case to the jury on the basis of damage to plaintiffs’ property.

The definition of “nuisance” was subject to defendant’s objection that it submitted the element of property damage, whereas the case had been tried solely as one for personal injuries. The trial court should have sustained the objection to the charge. See: Vestal v. Gulf Oil Corp., 149 Tex. 487, 235 S.W.2d 440; Neuhoff Bros. Packers, Inc. v. Brooks, CCA, (n. w. h.) 410 S.W.2d 298.

Reversed and remanded.


author: BATEMAN, Justice.

text:
    Charles D. BRYANT, Appellant, v. TRINITY UNIVERSAL INSURANCE COMPANY et al., Appellees.
    No. 16840.
    Court of Civil Appeals of Texas. Dallas.
    Jan. 6, 1967.
    Rehearing Denied Feb. 10, 1967.

      William F. Billings, of Fanning, Billings, Harper, Pierce & Gilley, Dallas, for appel-ant.
    R. B. Cousins, of Thompson, Coe, Cousins & Irons, Dallas, for appellees.
   BATEMAN, Justice.

The appellant Charles D. Bryant sought by this suit to recover of the appellees, a group of insurance companies, his loss by fire of the contents of a building in which he conducted the Golden Pheasant Restaurant. The companies’ principal defense (and the only one involved on this appeal) was that the appellant himself had burned the property or caused it to be burned. By counterclaim the appellees sought to recover of appellant a substantial sum they had paid to certain holders of liens on the insured property. The jury gave a negative answer to Special Issue No. 18, inquiring as to whether they found from a preponderance of the evidence that appellant intentionally set fire to and burned the property; but in answer to Special Issue No. 19 they found that he did cause the fire to be intentionally set and to burn the restaurant. The jury also found the loss to be in the sum of $51,700. The court rendered judgment on the verdict, that appellant take nothing and that appellees recover on their counterclaim. We affirm.

By his first point of error on appeal the appellant asserts that the trial court erred in submitting Special Issue No. 19, “as there was no evidence of probative value to support its submission.” In passing upon this “no evidence” point we look only to that part of the record which is most favorable to appellees supporting the jury’s finding and disregard entirely that which is opposed to it or contradictory in its nature. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S. W.2d 609, 23 A.L.R.2d 1114; Greenfeld v. San Jacinto Ins. Co., Tex.Civ.App., 319 S.W.2d 134, 139, no wr. hist.; Jones v. Commercial Union Assurance Co., Tex.Civ. App., 405 S.W.2d 207, no writ hist. A summary of the evidence considered by us follows:

Appellant admitted that at the time of the fire he owed personal and business debts of more than forty thousand dollars. He acquired the Golden Pheasant Restaurant about the middle of 1962, and immediately began to lose money in its operation until October 1963. The fire occurred in February 1964.

There was evidence that the front door was the only entrance to the building and the restaurant, and appellant testified that Margaret Hill (the cashier), Joe Gayton, Ed Smart and he were the only four people who had keys to that door. There was also evidence accounting for the keys held by Mrs. Hill, Gayton and Smart the night of the fire. When the firemen arrived the door was locked.

Morton K. Smith had testified at the prior arson trial of appellant and, Smith having died in the meantime, his testimony was reproduced and admitted on the trial of this civil suit. This testimony was to the effect that Smith, a former employee: of appellant at another restaúrant, tried to borrow money from appellant in December 1963, that appellant told him he hadn’t made any money since he had been there and didn’t have a thousand dollars; that the witness asked him why he didn’t sell out and close up, to which appellant replied that he had tried to sell the place but the only offer he had was ten per cent of his investment, and that he couldn’t take that because he owed more than he would get out of it that way. Smith further testified that later that month he was with appellant who told him there was only one way for him to get out of the business, and that was by fire; that he was with appellant again within the first week of January 1964 when appellant told him that if he would come to the basement with him he would show him how he planned to start the fire; that they went to the basement, where the witness saw a food warmer hanging from a conduit six or seven feet above the floor; that appellant loosened the wire by which the food warmer was suspended and put it about three inches from some wood and asked Smith how long he thought it would take to catch fire, to which the witness replied that he didn’t think it would ever catch fire; that they then went back upstairs, where the discussion continued as to the possibility of the fire and how it could be set, and appellant asked him if he knew of some other way that it could be. done, and when the witness replied “no” the appellant said, “Would you consider setting this fire if I would give you one thousand dollars ?” The witness said he told appellant that he thought he was “nuts” and got up and walked out and never did go back.

Joe Gayton testified that he had worked for appellant as a cook approximately a year and a half; that in January 1964 appellant came in the kitchen and asked him what he thought about burning the place, to which the witness replied that it was his (appellant’s) business and that he could do what he wanted to do with it; that a few days later appellant asked him what he thought about getting a professional to come “to do it” and that the witness told him that if he (appellant) was going to burn the place he should do it himself. He also testified that when he went to work early on the morning of Saturday, the day before the fire, he smelled something burning and went to the basement and found a food warmer which was smoking, and he unplugged it and smothered out the fire, then went back upstairs and .called appellant on the telephone.

C. W. Parish testified that such a food warmer would start a fire under the right circumstances.

There was also testimony that when the firemen arrived the fire had been burning about three and a half to four hours, and Fire Chief Emerson testified as an expert that in his opinion the fire was of incendiary origin.

There was testimony that appellant, while under arrest, stated to D. G. Dabbs, an investigator of the Dallas Fire Department, and to Allen Sweatt, a deputy sheriff, that he (appellant) was responsible for the fire. Sweatt said appellant made that statement in his presence three different times.

This evidence, though wholly circumstantial, was in our opinion quite sufficient to warrant the submission of Special Issue No. 19 and to support the jury’s answer thereto. The probative value of that evidence outweighs the dangers incident to allowing verdicts to stand which are based entirely on circumstantial evidence. In balancing these intangible considerations, we must necessarily rely heavily on the wisdom and discretion of the trial judge, and unless it appears to us that the trial court has abused its discretion in this respect, we feel that its decision should not be disturbed. McCormick & Ray, Texas Law of Evidence, Vol. 2, § 1481, pp. 330-1. See also Stein v. Girard Ins. Co. of Philadelphia, Pa., 7 Cir., 259 F.2d 764, where importance is ascribed to the circumstance that all keys to the burned establishment were accounted for in the evidence but that of the owner.

The first point of error is overruled.

By his second point of error appellant asserts that the trial court erred in permitting the testimony of Morton K. Smith in the prior arson trial to be read to the jury. The general rule involved is thus stated in Me-Cormick & Ray, Texas Law of Evidence, Vol. 1, § 941, pp. 719-20:

“The rule considered in this chapter is as follows: statements made in evidence upon a previous judicial proceeding máy be received upon a subsequent trial as evidence of the truth of such statements where the witness who gave the evidence upon the former hearing is now dead or unavailable, provided the party against whom the evidence is now offered (or someone else claiming under the same right or title) had the opportunity to cross-examine the witness at the former trial upon the same issue as that upon which the evidence is now offered.”

So far as we can determine, our Texas courts have never passed on the question of whether, under the rule above stated, testimony given in a prior criminal case is admissible in a subsequent civil case involving substantially the same issues. The Supreme Courts of Illinois and Oklahoma, however, have written on it. In McInturff v. Ins. Co. of North America, 248 Ill. 92, 93 N.E. 369, it was held that such evidence was not admissible because the issue was not the same; that in a criminal case the issue was “guilt” and in a civil case the issue was “property”. We find ourselves unable to adopt that reasoning, but agree, rather, with the reasoning of the more recent decision of the Supreme Court of Oklahoma in Travelers Fire Ins. Co. v. Wright, Okl.Sup.Ct., 1958, 322 P.2d 417, 70 A.L.R.2d 1170, holding that such evidence was admissible. That was a suit on fire insurance policies, and it was held that to define the issues as “guilt” and “property” would be to determine the ultimate issue or result sought to be obtained by the litigation, whereas the “issue” sought to be established by the witness was whether or not one of the plaintiffs had actually procured the burning of the building.

We hold that in this case the issue was substantially the same in both cases and that, since appellant was a party to both suits and had full opportunity to cross-examine the witness in the criminal trial, there was no error in admitting the testimony. We consider this ruling to be in harmony with the rules laid down by our Supreme Court in Boyd v. St. Louis Southwestern Ry. Co. of Texas, 101 Tex. 411, 108 S.W. 813; Lone Star Gas Co. v. State, 137 Tex. 279, 153 S.W.2d 681, 697; and Houston Fire & Casualty Ins. Co. v. Brittian, Tex.Sup., 1966, 402 S.W.2d 509. Appellant’s second point of error is overruled.

Appellant’s third point of error is fragmented into what are really five separate points of error, all complaining of rulings of the court with respect to the testimony of the witness Joe Gayton. This witness was employed by appellant at the time of the fire and had testified for the state in appellant’s trial for arson. The five different contentions made by appellant under this third point of error are disposed of in the five following paragraphs, lettered to correspond with the five subdivisions of the third point in appellant’s brief.

(a) The first contention is that the court erred in permitting Gayton to testify, over proper objections, after stating that his written statements failed to refresh his memory. This part of the point is faulty and not in compliance with Rule 418, Vernon’s Texas Rules of Civil Procedure, in that the testimony complained of is not pointed out with any certainty. Old Colony Ins. Co. v. Messer, Tex.Civ.App., 328 S.W.2d 335, wr. ref. n. r. e.; Farris v. Moore, Tex.Civ.App., 293 S.W.2d 683, wr. ref. n. r. e. However, we have read all of the testimony of this witness and find therefrom that at first he insisted that he could not remember any of the details he was asked about. Even his signed statements, made shortly after the fire, failed to stimulate his memory. But when the witness was recalled following an overnight recess he was able to testify quite fully. However, appellant made no objection to his testifying to matters which he could not remember the previous day. Nor do we find that appellant requested that the testimony be stricken or curtailed on this ground. The trial court has considerable discretion in the matter of the examination of witnesses, and we do not find that this discretion was abused. Foster v. Guerra, Tex.Civ.App., 219 S.W. 295, wr. dism. We see no merit in this contention.

(b) Appellant says the court erred in permitting counsel for appellees to lead the witness by asking specific questions quoted from statements previously made by the witness. We do not agree with appellant. This witness was quite obviously a very reluctant witness. He ignored two subpoenas and was finally brought to court under an attachment. When interrogated he repeatedly stated that he could not remember what had happened. In the absence of the jury he testified to two threatening telephone calls received by him and his wife during the trial. The court then granted permission for this witness to be asked leading questions. This was within the discretion of the court. Travelers Ins. Co. v. Hurst, Tex.Civ.App., 358 S.W.2d 883, wr. ref. n. r. e.

(c) When this witness was first called the court, outside the presence of the jury, instructed him specifically not to mention the deaths of any persons. This instruction was requested by appellant, who felt that he would be prejudiced if the jury were informed that four city firemen had lost their lives in fighting this fire. While the witness was being examined by appel-lees’ counsel he was asked about a conversation he had had with appellant the morning after the fire. The witness stated that appellant “was just walking around like he was worried,” and when appellant’s objection thereto was sustained counsel for appellees said to the witness: “Don’t say what he looked like or how he acted. As best you can remember, tell us what he said to you.” The witness replied: “He said he was sorry about the four firemens.” Appellant immediately objected and first moved that the jury be instructed to disregard the testimony and then, after the jury was withdrawn, moved for a mistrial. The court instructed the jury not to consider the answer of the witness for any purpose whatsoever but overruled the motion for mistrial, which ruling is the basis of this complaint. We are of the opinion that the court did not abuse its discretion in overruling the motion for a mistrial. We think the court properly handled the matter. In any event, however, we do not consider the remark of the witness of such importance or its effect so harmful as to cause the rendition of an improper verdict or judgment. Rule 434, T.R.C.P.; Walker v. Texas Employers’ Ins. Ass’n, 155 Tex. 617, 291 S.W.2d 298.

(d) Before the witness Gayton took the stand he was instructed at appellant’s request not to mention any threatening phone calls he may have had during the trial. The witness obeyed this injunction, but while he was under direct examination appellees’ counsel, being unable to obtain any information from the witness, or to ask the witness any question without having the witness reply that he did not remember, asked the court, in the presence of the jury, to permit him to “go into the matter of the telephone threats.” This request was denied. Appellant did not move for a mistrial; he did not request the court to instruct the jury not to consider the statement; he did not even object to the statement. He cannot now be heard to say that the judgment should be reversed because the trial court did not on its own motion declare a mistrial and discharge the jury. Any right he may have had to complain of the statement was waived. Panos v. Jackson, Tex.Civ.App., 253 S.W.2d 705, wr. ref. n. r. e., and cases cited therein.

(e) While appellees’ counsel was examining the witness Gayton, and the witness was having difficulty remembering any of the details he was asked about, counsel offered in evidence certain written statements which the witness said he had signed shortly after the fire. Objections thereto were made and the court said, “Well, I will sustain the objection; I will allow you to prove it up in a different manner, Mr. Cousins. There is another way you can do it.” No objection was made by appellant until the next day, after Gayton had recovered his memory and testified at considerable length. Appellant then moved the court to instruct the jury not to consider the court’s remark, quoted above, on the ground that it left the jury with the impression that appellees’ counsel had been unable to figure out the way to get the statements in evidence and that, therefore, the jury was being deprived by appellant’s objections of a right to see evidence which might be material, and that the court’s statement was a comment on the weight of the evidence. Complaint is now made that error was committed in overruling that motion. We are of the opinion that the trial court properly held that the objection came too late and that the right to object had been waived. Moreover, we do not think the remark constituted a comment by the court on the weight of the evidence, or that it probably prejudiced or harmed appellant at all.

Appellant’s entire third point of error is therefore overruled.

By his fourth point of error appellant complains of the court’s refusal to admit evidence of the judgment of acquittal in the prior arson trial, which he offered for the limited purpose of showing that such proceedings were terminated. We fail to see the materiality of such evidence, and if it was immaterial there was no error in excluding it. Moreover, we hold that any error there may have been in the exclusion of the evidence was harmless. Rule 434, T.R. C.P. The fourth point is overruled.

Under his fifth point of error appellant contends that the court erred in refusing to strike, or instruct the jury not to consider, the testimony of Joe Dabbs and Allen Sweatt concerning statements made to them by appellant to the effect that he was responsible for the fire. Appellant’s position, as we understand it, is that these statements by appellant were not admissible in evidence because they were made while he was under arrest. We see no merit in this point. Since no objection was made thereto at the time it was offered, the right to object to the testimony of Dabbs was waived. The objection to the testimony of Sweatt, and the contention made under this point, are obviously based on the erroneous impression that the rules protecting a defendant in a criminal case from his admissions against his interest, made while under arrest and absent the statutory warning that they might be used against him, apply in a civil suit. We hold that they do not, and that the admissions of appellant that he was responsible for the fire were admissible against him. Greenfeld v. San Jacinto Ins. Co., Tex.Civ.App., 319 S.W.2d 134, 139, no wr. hist.; Evans v. Ball, Tex.Civ.App., 6 S.W.2d 180, wr. dism.; Koons v. Rook, Tex. Com.App., 295 S.W. 592.

Appellant also argues under this point that his statements that he was responsible for the fire were mere expressions of opinion or a conclusion on his part, rather than a declaration of fact. However, the record does not reveal that this contention was ever made in the trial court. It will not be considered when raised for the first time on appeal. “A party must stand or fall on the objection as made in the trial court.” Hooten v. Dunbar, Tex.Civ. App., 347 S.W.2d 775, 778, wr. ref. n. r. e.

Appellant’s sixth point is that the trial court erred in admitting testimony of Ernest A. Emerson that in his opinion the fire was of incendiary origin.

Before expressing that opinion, the witness had identified himself as Chief Fire Investigator for the Dallas Fire Department with rank equivalent to Battalion Chief. He detailed his education, training and experience in the matter of investigation of fires for the purpose of determining the causes and origins thereof. He also testified that in addition to talking to appellant he “routinely” talked to Chief Briscoe who was in charge of fighting the fire, as well as to a number of the men who were engaged in fighting the fire, also to Chief Briscoe’s superior and the fire marshal and some of the assistant chiefs. He also said that the day after the fire was out he made an investigation of the premises himself. He related the physical facts he found there which, without detailing them here, were in our opinion amply sufficient in themselves to justify his opinion as to the incendiary origin of the fire. He stated that in addition to what he found in the room he did talk to a number of people about the fire, but that his opinion as to the physical aspects of the fire was not based on what other people had told him. When asked whether his opinion that the fire was of incendiary origin was based on what other people had told him as well as what he found in the room, he answered “No, sir.” He was then asked whether that opinion was based solely on what he found in the room, to which he also answered “No, sir.” Shortly thereafter he stated, “Basically and primarily and by and large my opinion was based on the physical aspects, but not entirely.” He was then asked whether he based his opinion partly on what other people told him and what his investigators found and what other people told them, and he said, “Well, that had some bearing on it, yes. * * * naturally, it would have to.” Appellant then moved to strike all testimony with respect to the witness’ opinion because based on hearsay, which motion was overruled.

The Texas authorities on this question are not easily reconcilable. Some of them indicate that if it be shown that any of the information upon which the expert witness bases his opinion comes to him by hearsay his opinion is without value and inadmissible unless the hearsay information is shown by undisputed evidence to be true. Others announce the rule that the opinion is admissible unless based wholly on hearsay.

We do not think that the triers of the facts may properly be deprived of the opinion of an expert witness simply because in the course of an extensive investigation he may have received a bit of information from some unnamed person, the truth of which was not shown. We are unwilling to hold that the testimony of an expert witness, whose opinion is based largely on facts actually known to him or proved to be true, is automatically rendered valueless and inadmissible merely because in the course of his investigation he heard someone make a casual hearsay statement which perhaps had some slight part in the formation of his opinion. We do not think the law requires us to do so. Such a holding, in our opinion, would thwart criminal investigations and deprive courts of valuable evidence. “Strictly speaking,” said the Supreme Court of Oklahoma in Owens v. Oklahoma Turnpike Authority, 283 P.2d 827, 833, “practically all expert testimony is based at least in part upon hearsay.” An accident or arson investigator, if properly trained, must necessarily base his expert testimony on things that have been told him by his teachers. His ability to so utilize his training is what qualifies him as an expert.

It is our view that the admissibility of such expert testimony should be left to the sound discretion of the trial judge and that his decision should not be disturbed unless it be shown that he has abused that discretion. Urquhart v. Barnes, Tex.Civ. App., 335 S.W.2d 666, 669; Fulton Fire Ins. Co. v. First State Bank of Willis, Tex.Civ. App., 353 S.W.2d 937, wr. ref. n. r. e. We think the trial court has, or should have, the same discretion in this respect that it has in determining, before the expert witness is allowed to give his opinion, whether he is actually qualified as an expert witness, as was done in Bolstad v. Egleson, Tex.Civ. App., 326 S.W.2d 506, 519, wr. ref. n. r. e. See also Montgomery Ward & Co. v. Levy, Tex.Civ.App., 136 S.W.2d 663, 668, wr. dism., judg’t correct. No abuse of discretion was shown in this case, and we therefore hold that there was no error in admitting this witness’ expert opinion as to the origin of the fire.

If we be mistaken in so holding, however, we are nevertheless definitely of the opinion that no reversible error is shown. There was such a wealth of other evidence admitted on this point, as related above, that it cannot be said that the admission of Chief Emerson’s opinion as to the incendiary origin of the fire was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case. Therefore, if there was error in the ruling, it was harmless. Rule 434, T.R.C.P.

The judgment appealed from is

Affirmed.

      . 23 Tex.Jur.2d EVIDENCE, § 412, pp. 616, 618; Reed v. Barlow, Tex.Civ.App., 157 S.W.2d 933, 935, wr. ref.; National Security Bife & Casualty Co. v. Benham, Tex.Civ.App., 233 S.W.2d 334, wr. ref. n. r. e.; Fidelity Union Casualty Co. v. Dapperman, Tex.Civ.App., 47 S.W.2d 408, 417, wr. dism.; Republic Underwriters v. Lewis, Tex.Civ.App., 106 S.W. 2d 1113, no wr. hist.

      . Norris v. Lancaster, Tex.Com.App., 280 S.W. 574; Gray v. Bird, Tex.Civ.App., 380 S.W.2d 908, 912, wr. ref. n. r. e.; Urquhart v. Barnes, Tex.Civ.App., 335 S.W.2d 666, no. wr. hist.; Texas Employers’ Ins. Ass’n v. Rogers, Tex.Civ.App., 368 S.W.2d 21, wr. ref. n. r. e. Experts on property values may generally give their opinions though largely based on hearsay. 19 Tex.Jur., EXPERT AND OPINION EVIDENCE, § 290, p. 445; Fort Worth & R. G. Ry. Co. v. Thompson, Tex.Civ.App., 77 S.W.2d 289, no wr. hist.; Schooler v. State, Tex.Civ.App., 175 S.W. 2d 664, wr. ref. w. o. m.; Cole v. City of Dallas, Tex.Civ.App., 229 S.W.2d 192, wr. ref. n. r. e.; Kansas City Southern Ry. Co., v. Frederick, Tex.Civ.App., 276 S.W.2d 332, wr. ref. n. r. e.; City of Houston v. Huber, Tex.Civ.App., 311 S.W.2d 488, no wr. hist.; and Panhandle Eastern Pipe Line Co. v. Jackson, Tex. Civ.App., 306 S.W.2d 145, 148, no wr. hist.


author: WERLEIN, Justice.

text:
    Audrey Gillen KELLY et vir, Appellants, v. Nancy Kathryne KELLY et al., Appellees.
    No. 14987.
    Court of Civil Appeals of Texas. Houston.
    Feb. 16, 1967.
    Rehearing Denied March 9, 1967.

      Herman W. Mead, Houston, for appellants.
    Thomas J. Lykos, Michael A. Henry, Houston, for appellees.
   WERLEIN, Justice.

This is an appeal from a summary judgment in favor of appellees, Nancy Kathryne Kelly and her husband, Alvin Dale Kelly, in a suit brought against them by Audrey Gillen Kelly, joined by her husband, Maurice C. Kelly, for a partnership accounting, and against Chimney Rock National Bank as stakeholder of certain funds held by it as depository of a checking account styled “Kelly & Kelly Salon of Beauty.” The bank filed an answer and interpleader and paid into the registry of the court the money it held on deposit.

Appellants assert that the court erred in holding as a matter of law that their petition did not state a cause of action and also in granting appellees’ motion for summary judgment when there were disputed fact issues. Upon the hearing and in rendering judgment the trial court considered ap-pellees’ sworn motion for summary judgment, the pleadings of the parties, and the affidavits accompanying the motion for summary judgment and opposing affidavits.

The facts of the case may be briefly stated as follows: On July 1, 1956 appellant, Audrey Gillen Kelly, joined by her husband, entered into a written partnership agreement with appellee, Nancy Kathryne Kelly joined by her husband, to conduct a beauty parlor business known as “Kelly and Kelly Salon of Beauty.” Pursuant to such agreement the parties operated such partnership until on or about August 15, 1965, at which time appellant joined by her husband sold all of her interest in the partnership to a third party, one Beverly McMil-lon, who is not a party to this suit, for a total consideration of $5,000.00. Appellee consented to the sale. Without such consent appellant under the terms of the agreement could not have sold her interest. The bill of sale to Beverly McMillon is dated August 20, 1965 and describes the property sold and delivered as follows: “ * * * all of my interest in the Beauty Salon business located at 2616 Briarhurst Street, Houston, Harris County, Texas including good will and the name Kelly and Kelly, and specifically including the personal property located on such premises in which I own an interest.”

In her affidavit appellee, Nancy Kath-ryne Kelly, stated that she would not have given her consent to the sale by appellant, Audrey Gillen Kelly, had it not been her understanding from reading the bill of sale and from her conversation with Beverly McMillon and appellant, that appellant joined by her husband had sold all of her interest in the partnership. Appellee further stated in her affidavit that after the date of sale she continued in the operation of the business of Kelly and Kelly Salon of Beauty, under the same name and at the same place without cessation or liquidation of the business, and that there had not been any winding up of the business. Paragraph X. of the partnership agreement reads: “At the final dissolution of this partnership, an accounting shall be made by a Certified Accountant, preferably that person serving as auditor for said partnership, and said accounting shall be binding upon and final as to the parties hereto.”

It is appellant’s contention that the sale by her constituted a final dissolution of the partnership and that she was therefore entitled to an accounting; that the accounting as of August 15, 1965, which was the date of her sale to Beverly McMillon, indicated her net worth or interest in the partnership was $2,440.07, which appellee refused to turn over to her. Appellee, Nancy Kathryne Kelly, on the other hand, asserts that as a matter of law appellant was not entitled to an accounting, and that whether there was any dissolution of the partnership is also a question of law, but if there was a dissolution at all, it occurred as a result of the sale made by said appellant, and as a result thereof any rights that she may have had passed and became vested in Beverly McMillon with the sale to Beverly McMillon of all of appellant’s interest in the partnership. If appellant after selling and transferring to Beverly McMillon all of her interest in the partnership could later demand an accounting and recover a $2,440.07 interest in the partnership which the audit showed to be the full value of her entire interest in the partnership at the time, she would be recovering for something she had already sold and did not own.

The authorities relied upon by appellant are to the effect that a sale by one partner of his interest in the partnership property and his withdrawal from participation in the business dissolves the partnership. There can be no question that such authorities enunciate the general rule. Appellant further contends that the written partnership agreement provides for an accounting upon dissolution of the partnership. In support of this latter contention appellant cites Miller v. Howell, 234 S.W. 2d 925, Tex.Civ.App.1950, n. w. h. This case in effect merely states the well recognized rule that when a partner dies, it is the duty of the surviving partners to wind up the partnership affairs and that when the partnership is closed a cause of action for an accounting and settlement arises which necessarily involves an inquiry as to partnership debts and their payment out of partnership property. The case has no application whatever to the instant case in which appellant, Audrey Gillen Kelly, joined by her husband, sold and delivered to Beverly McMillon all her interest in the partnership. More in point are the following cases: Jarrott v. Stryker, 308 S.W.2d 145, Tex. Civ.App.1957, n. w. h.; Sherk v. First Nat. Bank, 206 S.W. 507, Tex.Com.App.1918; Zedrick v. Kosenski, 62 Wash.2d 50, 380 P.2d 870; Brown v. Burnam, 99 Ala. 114, 12 So. 606. See also 40 Am.Jur,, p. 357, Partnership, Sec. 324, and authorities cited.

The disagreement between the parties as to the correctness of the audit did not give rise to a genuine issue of material fact since as a matter of law appellant had no further interest whatever in the partnership after selling and delivering all her interest to Beverly McMillon, and hence she was not entitled to an accounting or any interest in the partnership assets. Since there was no material issue of fact in the case, the trial court properly rendered a summary judgment in favor of appellees. Lott v. Lott, Tex.Civ.App., 362 SW.2d 410, aff’d 370 S.W.2d 463, Tex. Sup.1963. See also Baxter v. Beaupre, Tex.Civ.App., 295 S.W.2d 718, Tex.Civ. App., n. w. h.; Perez v. Hernandez, Tex. Civ.App., 317 S.W.2d 81, writ ref., n. r. e.; Hartely v. Langdon & Company, 347 S.W. 2d 749, Tex.Civ.App., n. w. h.

Article 6132b, Sec. 27, of the Texas Uniform Partnership Act, enacted after the date of the partnership agreement in question, but several years prior to appellant’s sale of her interest in the partnership, modifies the effect of an assignment or conveyance of a partner’s interest in the partnership, but clearly states that in case of a dissolution of the partnership the assignee is entitled to receive his assignor’s interest. Upon dissolution of the partnership in question, all the interest that appellant had in the partnership at the time of the sale of such interest would under such provision belong to Beverly McMillon.

Judgment affirmed.


author: COLEMAN, Justice.

text:
    N. T. WOMACK, Jr., Appellant, v. BALLARD SALES COMPANY, Appellee.
    No. 14988.
    Court of Civil Appeals of Texas. Houston.
    Feb. 23, 1967.
    Martin & Black, John A. Black, Jr., Bel-laire, for appellant.
    Liddell, Austin, Dawson & Sapp, Marion Sanford, Jr., W. Robert Brown, Houston, for appellee.
   COLEMAN, Justice.

This is a suit on an account filed by ap-pellee against Charcoal, Inc. and N. T. Wo-mack, Jr. After a trial to the court without a jury, a judgment was entered against the defendants. Only N. T. Womack, Jr. has appealed. The questions presented are whether appellant’s agreement to guarantee the payment of the account due to appellee by Charcoal, Inc. is supported by consideration and whether the agreement is within the statute of frauds.

Appellant did not appear at the trial of this case. The statement of facts reflects J. K. Ballard, Jr., President of Ballard Sales Company, testified that the company sold certain merchandise to Charcoal, Inc., but that before the merchandise was delivered he determined that Charcoal, Inc. “was not entitled to credit”. He then discussed the matter with Mr. Womack, President of Charcoal, Inc., in the presence of Mr. Irby, and told him that Ballard Sales Company would not deliver the merchandise without “some additional assurances of being paid”. Mr. Womack then stated that he would assume responsibility for payment; that he would personally pay the account. Mr. Ballard then stated that “we would look to him for payment.” Mr. Irby, sales representative of the Ballard Sales Company, testified that he heard this conversation. The balance due on the account was proven. By deposition Mr. Womack testified that he guaranteed payment of the Charcoal, Inc. debt, and that he intended to perform his guarantee. He identified a letter, introduced into evidence, which he wrote to the attorney for the Ballard Sales Company, in which he stated that he had personally guaranteed the account. There was evidence that he had paid the sum of $200.00 on the account.

By an invoice dated August 10, 1960, the date of shipment of the merchandise was shown as August 3, 1960. Appellee alleged that “on or about August 10, 1960” appellant guaranteed the payment of the account by an instrument in writing. The only instrument in writing in evidence by which the account was guaranteed by appellant is the letter referred to above, which was dated December 10, 1960.

There was evidence of probative force that both Charcoal, Inc. and N. T. Womack, Jr. were indebted to appellee, and that N. T. Womack, Jr. had guaranteed payment of the debt of Charcoal, Inc. Appellant’s First and Second Points cannot be sustained.

Appellant’s Third Point is that there was no consideration for any promise that appellant might have made to guarantee payment of the debt of Charcoal, Inc. The testimony that delivery of the merchandise was made in reliance on the guarantee, and that credit would not have been extended to Charcoal, Inc., together with the fact that the merchandise was thereafter delivered, establishes consideration for the parol agreement to guarantee the debt. Gulf Liquid Fertilizer Company v. Titus, 163 Tex. 260, 354 S.W.2d 378 (1962).

In his final Point appellant complains that the judgment of the trial court is erroneous in that no written promise to pay the debt of Charcoal, Inc. was introduced in evidence and any other promise that may have been proved contravenes the Statute of Frauds (Article 3995, Vernon’s Ann.Tex. Civ.St).

In Gulf Liquid Fertilizer Company v. Titus, supra, the court held that an oral promise creating primary responsibility in the promisor to the creditor-promisee is without the Statute of Frauds and is therefore enforceable. There is testimony that appellant agreed to pay for this merchandise. The merchandise was furnished on his credit. The promise, therefore, is without the statute, and was properly enforced by the judgment entered. Wells-Grinnan M A B v. Belton Sand & Gravel Company, 293 S.W.2d 70 (Tex.Civ.App. — -Austin 1956).

The judgment of the Trial Court is affirmed.


author: BELL, Chief Justice.

text:
    Barbara USSERY, Appellant, v. Jane NICHOLS, Appellee.
    No. 14985.
    Court of Civil Appeals of Texas. Houston.
    Feb. 16, 1967.

      John D. Bradshaw, Houston, for appellant.
    J. M. Heidelberg, Houston, for appellee.
   BELL, Chief Justice.

Jane Nichols, the grandmother of Michael Wayne Hill, a five year old boy, filed a petition asserting that Michael was a dependent and neglected child. After a trial before the Court without a jury, the boy was declared to be a dependent and neglected child. He was, however, left in the home of his stepfather and his mother, Mr. and Mrs. Ussery. The Court fixed visitation privileges for Mrs. Nichols. The judgment also appointed Mr. Fultz of the Harris County Probation Department to make an investigation to aid the Court in determining future custody.

Appellee raises the question of our jurisdiction because notice of appeal was not given within five days after the date of judgment, it being contended that Article 2338-1, Sec. 21, Vernon’s Ann.Tex. Civ.St., applies and requires notice to be given within five days. Notice was actually given within ten days. Rule 353, Texas Rules of Civil Procedure, provides for such notice within ten days. Article 2338-1 deals with proceedings in delinquent child proceedings and not dependent and neglected child proceedings. Oldfield v. Lester, District Judge, 144 Tex. 112, 188 S.W.2d 982. Rule 353, T.R.C.P., therefore, governs. We thus have jurisdiction.

We will only briefly notice the evidence. It suffices to say that we have carefully read the entire statement of facts.

Indisputably the home of the Usserys is a clean, well kept one where Michael lives with his mother, stepfather and his half brother who is but a baby. No evidence reflects adversely on the moral character of Mr. or Mrs. Ussery. While there was some evidence that Mr. Ussery on occasions drinks beer, there is none from which a reasonable inference can be drawn that there is any excess in this. The evidence indisputably reflects that Michael is well fed and well clothed and is kept clean. The evidence also shows, particularly from the neighbors, that the Usserys are careful to see that in his play he remains off the streets. While the grandmother and great grandmother felt that on a few occasions Mrs. Ussery should have taken Michael to a doctor and she refused, there is no evidence of probative force that his health has really been neglected. In fact the evidence shows he is a normally healthy boy.

By way of brief and argument here, appellee really seeks to sustain the trial court’s judgment on two grounds. First, appellee says the evidence shows the parents permit Michael to “use intoxicating liquor other than for medicinal purposes.” The evidence at the most shows that on three or four occasions, when Mr. Ussery had been drinking beer and when there was but a very small amount in the bottle, Michael would place the bottle to his mouth and at the most take a sip, and then go away. Actually it but shows the curiosity of a child to taste a beverage its parent was drinking. The child, according to the evidence, really only wet his mouth with the beer. There is no evidence of probative force to evidence the child was being permitted to use intoxicating liquor within the meaning of Article 2330, V.A.T.S.

Second, appellee urges cruelty as evidenced by excessive whippings by the stepfather, the stepfather employing a belt. It was testified to by the great grandmother and the grandmother that after one whipping that the great grandmother witnessed as she looked through a window some two hundred feet away, the next day she found blue marks on the little boy’s buttocks, thighs and side. She said the whipping was with a belt but she had not actually seen the belt allegedly used. There is evidence that a light weight ladies’ belt was on occasion used. We suppose the testimony of the marks appearing the next day constitutes evidence of probative force that there might be excessive punishment so as to amount to cruelty. However, when all evidence is considered, particularly that of the neighbors who were in the home from time to time and whose children played with Michael, and who had repeated opportunity to observe Michael’s condition, we are of the view that a conclusion that there was cruelty or depravity on the part of the parents toward Michael is so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong.

Reversed and remanded.


author: PER CURIAM.

text:
    Albert SMITH, Petitioner, v. Larry Lon PAINTER et ux., Respondents.
    No. B-23.
    Supreme Court of Texas.
    March 1, 1967.
    Rehearing Denied March 29, 1967.
    Clayton, Kolander, Moser & Templeton, J. M. Kolander, Amarillo, Crenshaw, Du-pree & Milam, J. H. Milam, Lubbock, for petitioner.
    Miller, Sanders & Baker, Oth Miller, Amarillo, for respondents.
   ON APPLICATION FOR WRIT OF ERROR

PER CURIAM.

Larry Lon Painter and Patricia Ann Painter were married, and to this union was born one child, Larry Lynn Painter, who is now five years of age. The parents were divorced in 1962, and the mother died about three years later. In the meantime the father married Cora Painter, who adopted Larry Lynn after his mother’s death.

The present suit was instituted by the father of Patricia Ann Painter against Larry Lon Painter and Cora Painter to require the defendants to permit Larry Lynn to communicate and visit with the plaintiff. Summary judgment was rendered by the trial court in favor of the defendants, and the Court of Civil Appeals affirmed. 408 S.W.2d 785.

The Court of Civil Appeals quoted and relied upon certain language from the opinion in Succession of Reiss, 46 La.Ann. 347, 15 So. 151. It is unnecessary to determine here whether the opinion or holding in Reiss accurately reflects the law of Texas, since the facts in the instant case are quite different. In view of the provisions of Article 46a, Section 9, Vernon’s Ann.Tex.Civ.Stat, it is our opinion that summary judgment was properly rendered in favor of the natural father and the adoptive mother. The application for writ of error is accordingly refused, no reversible error.


author: CALVERT, Chief Justice.

text:
    Anna Goldlustova FRANCIS, Petitioner, v. Garnet P. FRANCIS, Jr., Respondent.
    No. A-11768.
    Supreme Court of Texas.
    March 1, 1967.
    Rehearing Denied March 29, 1967.

      Gerald B. Shifrin, El Paso, for petitioner.
    Doyle H. Gaither, El Paso, for respondent.
   CALVERT, Chief Justice.

Respondent and petitioner were formerly husband and wife. Their marriage was dissolved by a judgment of a district court of El Paso County, entered on May 5, 1959, which granted a divorce to petitioner on her cross-action. The judgment also approved a property settlement agreement entered into by the parties.

The property settlement agreement was executed by respondent and petitioner on April 29, 1959. It dealt with several matters. Only one provision is of concern to us in this case. By that provision petitioner agreed to relinquish all right, title and interest in and to the property of respondent in consideration of his agreement to pay her the sum of $15,000, the obligation to be evidenced by a non-interest bearing promissory note. The $15,000 obligation was payable in monthly installments of $50 each for the first eight months and $100 each thereafter until it was fully paid. The first $7,500 of the obligation was to be paid regardless of petitioner’s marital status, but the remaining $7,500 was to be paid only if petitioner remained unmarried. The 1959 judgment found the property settlement agreement to be fair, just and reasonable and ordered it “approved and filed herewith.”

This suit for a declaratory judgment was filed by respondent. He had paid $7,500 on the obligation before he filed the suit. He alleged that the provision in the settlement agreement for payment of the remaining $7,500 “is nothing more than an agreement to pay alimony and is contrary to the law of the State of Texas, contravenes public policy of the State of Texas, and is void.” He prayed that the court declare “that the conditional $7,500 * * * is unenforceable and void and that the note * * * be declared void.” The trial court denied respondent the relief he sought, and by its judgment the court declared the property settlement agreement, the note, and the 1959 judgment approving the agreement to he valid. At the request of respondent, the trial judge filed findings of fact and conclusions of law. Among other things, the trial judge found and concluded that at the time of the divorce respondent received all of the community property of the parties, including $2,500 in cash; that neither the agreement of respondent to pay $15,000, the note for that sum, nor the judgment approving the agreement imposed an obligation to pay alimony; that petitioner had never remarried, and that respondent was estopped to assert invalidity of the instruments. The court of civil appeals reversed the judgment of the trial court. In so doing, however, it did not decide whether the agreement and the note were valid or invalid; it declared only that the portion of the 1959 judgment which approved the provision for payment of $15,000 required the payment of alimony and was void. Tex.Civ.App., 407 S.W.2d 295.

The declaratory judgment rendered Ly the court of civil appeals does not fully dispose of the questions in the case. For, assuming for the moment that the portion of the 1959 judgment which approved the provision in the settlement agreement obligating respondent to pay $15,000 was, in effect, an order to pay alimony and therefore void, the question still remains whether the contractual obligation is an obligation to pay alimony and equally void. Before a correct answer to this question can be formulated, we must answer a preliminary question: What is “alimony”?

Courts have ascribed to the word “alimony” different legal meanings, the meaning given usually being attuned to the particular fact situation with which the particular court was dealing. See cases cited in 3 Words and Phrases p. 178, et seq. (Perm.Ed.1953). The meaning which we deem to be correct and which is most comprehensive is found in the following excerpt from 24 Am.Jur.2d 641, Divorce and Separation § 514:

“In the English law the term ‘alimony’ was originally used to signify the allowance judicially granted to a wife for support during a divorce a mensa et thoro [divorce from bed and board] or during separation, but it has come generally, in legal parlance, to include also the provision or allowance, whether periodical or in gross, judicially made to a wife upon an absolute divorce * * *. Consequently, •every provision in a judgment of divorce or separation made solely for this purpose [food, clothing, habitation and other necessaries for support] is to be regarded as alimony, whether expressly designated as such or not, and irrespective of whether it requires payment of money at intervals or in a gross sum * * *.

The central idea to be drawn from the excerpt is that to be alimony the allowance to or provision for the wife’s support, whether during pendency of the suit, during a divorce from bed and board (divorce a mensa et thoro), or after an absolute divorce (divorce a vinculo matrimonii), must have been made by a judgment or decree of a court. That this is so finds support in a host of decided cases. Examples: “Generally the term ‘alimony’ is used to designate payments which the husband makes to the wife under a court order for her support pending a divorce action or after a divorce has been granted.” Miller v. Miller, 88 Idaho 57, 396 P.2d 476, 479 (1964). “Alimony is an allowance in a decree of divorce, carved out of the estate of the husband for the support of the wife.” Adler v. Adler, 373 Ill. 361, 26 N.E.2d 504, 508 (1940). “Alimony, as that term is used in the law, is an allowance made for the support of the wife out of the estate of the husband by order of court in an appropriate proceeding, and is either temporary or permanent.” Bunn v. Bunn, 262 N.C. 67, 136 S.E.2d 240, 242 (1964). “Alimony is but the judicial admeasurement of the husband’s obligation to maintain his former wife periodically out of his income.” Madden v. Madden, 136 N.J.Eq. 132, 40 A.2d 611, 614 (1945). “Alimony is an allowance which, by order of the court, the husband is compelled to pay the wife from the date he has been legally separated or divorced, for her support and maintenance.” Henderson v. Henderson, 37 Or. 141, 60 P. 597, 599, 61 P. 136, 48 L.R.A. 766 (1900). “Comprehensively considered, that term [alimony] is generally used and understood by the courts and elsewhere as meaning an allowance to be paid by the husband to the wife for her support and maintenance, and often their dependent children, pursuant to an order or decree by the court in a divorce proceeding.” Van Dommelen v. Van Dommelen, 218 Mich. 149, 187 N.W. 324, 325 (1922).

The foregoing authorities exclude the idea that a mere contractual obligation of a husband to make future periodic or lump sum payments for the support and maintenance of his wife is a provision for alimony. As a matter of fact, courts of other jurisdictions which recognize and authorize alimony after a divorce is absolute, as the law of this State does not, make a distinction between alimony and contractual obligations. Solomon v. Solomon, 149 Fla. 174, 5 So.2d 265 (1942); Mesler v. Jackson Circuit Judge, 188 Mich. 195, 154 N.W. 63 (1915); Miller v. Miller, 88 Idaho 57, 396 P.2d 476 (1964); Hayes v. Hayes, 191 Ga. 237, 11 S.E.2d 764 (1940); Dickey v. Dickey, 154 Md. 675, 141 A. 387, 58 A.L.R. 634 (1928); Bunn v. Bunn, 262 N.C. 67, 136 S.E.2d 240 (1964). The question has usually arisen in contempt proceedings against a husband based on his failure to make alimony payments as directed in a prior divorce decree. In Solomon a separation agreement between husband and wife obligated the husband to make monthly support payments. The divorce decree contained a recital that the agreement “is hereby approved and ratified in all respects and incorporated by reference into this Decree and made a part hereof.” The Supreme Court of Florida held that the decree so fully incorporated the agreement that the payments constituted alimony and were enforceable by contempt proceedings. The same holding was made by the Supreme Court of Michigan in Mesler in which the divorce decree specifically ordered payment of an agreed sum for support of the wife. In Miller, on the other hand, the Supreme Court of Idaho upheld the right of a divorced wife to recover monthly sums which the husband had obligated himself in a separation agreement to pay “as alimony” against a contention that the obligation was neither alimony nor valid since it had not been included in the divorce decree. In Bunn the Supreme Court of North Carolina had occasion to distinguish between consent judgments for the payment of subsistence to the wife in which the divorce decree merely approves the agreement and those in which the divorce decree adopts the agreement as the court’s judgment and orders the payments made. The court said judgments of the first type were enforceable only as ordinary contracts whereas the latter type were enforceable by contempt proceedings.

The statutes and public policy of this State do not sanction alimony for the wife after a judgment of divorce has been entered. See McElreath v. McElreath, 162 Tex. 190, 345 S.W.2d 722, 747 (1961); Cunningham v. Cunningham, 120 Tex. 491, 40 S.W.2d 46, 75 A.L.R. 1305 (1931); Art. 2328b-l, Sec. 2(6); Art. 2328b-3, Sec. 7. In this State as in other states, alimony is an allowance for support and sustenance of the wife, periodic or in gross, which a court orders a husband to pay; but in this State, unlike in other states, such support payments may be ordered only “until a final decree shall be made in the case.” Art. 4637; Cunningham v. Cunningham, supra. Support payments ordered to be made after divorce from the income from the husband’s property, although considered alimony in many jurisdictions, is not considered alimony in this State. Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21 (1923); Keton v. Clark, 67 S.W.2d 437 (Tex.Civ.App.—Waco 1933, writ refused). When its true meaning is distilled from the statutes and the court decisions of this State, alimony which contravenes the public policy of the State is only those payments imposed by a court order or decree on the husband as a personal obligation for support and sustenance of the wife after a final decree of divorce.

From what has been said, it follows that obligations assumed by the husband in separation agreements or contracts to make payments for the support of the wife after a divorce decree becomes final, are not obligations to pay alimony and do not violate the public policy of this State. The contractual obligation of respondent to pay to petitioner the remaining $7,500 of his $15,000 obligation and his promissory note evidencing his obligation are, therefore, not void as being in violation of the public policy of this State. Obligations of this type may be void or unenforceable for other reasons but none are urged here for so declaring.

There remains the question of the validity of the provision of the judgment of May 5, 1959, which approved the agreement of the parties. The provision reads:

“It further appearing to the Court that the parties hereto have arrived at a community property settlement agreement which the Court has examined and finds to be fair and reasonable and just, the Court hereby ORDERS it APPROVED and filed herewith.”

On the face of it, the provision did not purport to order respondent to pay the sum of $15,000 to petitioner in install-ments after the judgment became final; it merely approved a property settlement agreement which the parties themselves had made. While Art. 4638 directs courts granting divorces to “order a division of the estate of the parties in such a way as the court shall deem just and right,” it is not the purpose of the statute to proscribe amicable division and settlement by the parties. And if as a part of their settlement the parties agree that the husband will make support payments to the wife after a divorce is granted, approval of the agreement by the court should not be held to invalidate it as alimony. Amicable settlement by the parties of their property rights should be encouraged, not discouraged. The agreement will then have whatever legal force the law of contracts will give to it. See Ex Parte Jones, 163 Tex. 513, 358 S.W.2d 370 (1962).

A number of decisions of courts of civil appeals beginning with McBride v. McBride, 256 S.W.2d 250 (Tex.Civ.App.—Austin 1953, no writ) have held that contracts made in contemplation of divorce which impose a personal obligation on a husband to make payments for support of his wife after divorce are void as against the public policy of this State. They need not be cited. In so far as they conflict with what we have said here, they are disapproved. In McBride the trial court ordered the divorced husband to pay certain monthly sums for the support of the wife after divorce. Only the validity of that part of the judgment, not the validity of the agreement between the parties, was in issue. The opinion indicates that the court thought the agreement of the husband to pay was also alimony and void. From what we have said in this opinion, it is obvious that we do not agree with that conclusion.

The judgment of the court of civil appeals is reversed and the judgment of the trial court is affirmed.

      . Emphasis ours throughout.

      . All references to articles are to Vernon’s Ann.Texas Civil Statutes.


text:
    Al SCHULMAN et al., Petitioners, v. CITY OF HOUSTON et al., Respondents.
    No. A-11738.
    Supreme Court of Texas.
    Feb. 8, 1967.
    Rehearing Denied Feb. 8, 1967.
    Joseph D. Jamail and John Gano, Houston, for petitioners.
    Fulbright, Crooker, Freeman, Bates & Jaworski, Alton F. Curry, DeLange, Hud-speth, Pitman & Katz, M. Marvin Katz, Eugene J. Wilson, William A. Olson, City Atty., and Homer T. Bouldin, Trial Supervisor, Houston, for respondents.
   ON REHEARING OF APPLICATION FOR WRIT OF ERROR

PER CURIAM.

This is a temporary injunction case. The Court of Civil Appeals affirmed upon the express holding that the trial court had not “abused its discretion in denying appellants’ (petitioners’) application for [temporary] injunction”. 406 S.W.2d 219. Upon original submission, we approved this holding and refused the application for writ of error, no reversible error. Rule 483, Texas Rules of Civil Procedure.

Upon rehearing, petitioners complain of the following statement in the opinion of the Court of Civil Appeals:

“Appellee, United Compost Services, Inc., contends that the trial court properly denied the application for temporary injunction as appellants have no standing to maintain this suit. The City of Houston joins in this contention. We sustain this contention.”

This statement must be construed in context with others appearing in the opinion. We do not construe the opinion as holding that petitioners may not under any circumstances maintain the present suit because of an absence of a justiciable interest.

Petitioners’ motion for rehearing is overruled.


author: WALKER, Justice.

text:
    CITY OF HOUSTON, Petitioner, v. R. H. FORE, Respondent.
    No. A-11500.
    Supreme Court of Texas.
    Feb. 22, 1967.
    Rehearing Denied March 29, 1967.

      Homer T. Bouldin, Trial Supervisor, City of Houston, Houston, W. P. Dobbins, San Antonio, for petitioner.
    Danny R. Edwards, Joel B. McCarty, Jr., Houston, for respondent.
   WALKER, Justice.

The question to be decided is whether, under the facts of the present case, constructive notice by publication of the hearing on the assessment of costs of street improvements against abutting owners as provided in Article 1105b, Vernon’s Ann.Tex.Civ. Stat, satisfies the requirements of the due process clause of the Constitution of the United States. We hold that notice by publication was not sufficient as to the particular owner who is involved in this action.

Suit was filed by the City of Houston, petitioner, against R. H. Fore, respondent, to recover the amount of two paving assessments and for foreclosure of the lien thereof. The jury found, in effect, that the published notice identified the highway sufficiently to inform the abutting owners that their property was to be improved. Respondent’s motion for judgment notwithstanding the verdict was granted by the trial court, and the Court of Civil Appeals affirmed. 401 S.W.2d 921.

There is no dispute as to any of the material facts. After determining to make certain paving improvements on Delz Street and adopting the plans and specifications therefor, the city council passed an ordinance approving the estimate of costs and declaring the rate per front foot at which it proposed to assess a part of such cost against the abutting property. This ordinance also ordered a hearing and directed that notice be given the interested property owners by publication three times in the Houston Press. The notice was published and the hearing was subsequently held as provided in the ordinance. At the conclusion of the hearing assessments were levied against the abutting properties, including two tracts owned by respondent Fore. Respondent did not attend the hearing. He had not read the published notice, and had no knowledge of the hearing from any other source. It also appears from the undisputed evidence that he had resided at 505 Delz in Houston for 24 years. He owned the property there; his address was on the tax rolls and was known to petitioner. As a matter of fact, the city had previously sent communications to him at that address.

The assessments were made under the authority of Article 1105b, the material provisions of which are as follows:

“Sec. 3. That the governing body of any city shall have power to * * * provide for the payment of the cost of such improvements by the city, or partly by the city and partly by assessments as hereinafter provided.
“Sec. 4. * * * and in no event shall more than all the cost of constructing, reconstructing, repairing and realigning curbs, gutters and sidewalks, and nine-tenths of the remaining cost of such improvements as shown on such estimate be assessed against such abutting property and owners thereof.
“Sec. 7. The part of the cost of improvements * * * which may be assessed against abutting property and owners thereof shall be apportioned among the parcels of abutting property and owners thereof, in accordance with the Front Foot Plan or Rule provided that if the application of this rule would, in the opinion of the Governing Body, in particular cases, result in injustice or inequality, it shall be the duty of said Body to apportion and assess said costs in such proportion as it may deem just and equitable, having in view the special benefits in enhanced value to be received by such parcels of property and owners thereof, the equities of such owners, and the adjustment of such apportionment so as to produce a substantial equality of benefits received and burdens imposed.
* * * * * *
“Sec. 9. No assessment herein provided for shall be made against any abutting property or its owners * * * until after notice and opportunity for hearing as herein provided, and no assessment shall be made against any abutting property or owners thereof in excess of the special benefits of such property, and its owners in the enhanced value thereof by means of such improvements as determined at such hearing. Such notice shall be by advertisement inserted at least three (3) times in some newspaper published in the city where such special assessment tax is to be imposed * * *»

The notice published in the Houston Press complied in all respects with the requirements of this statute. Our problem is to determine whether the statutory notice meets the test of constitutional due process as to respondent. An amicus curiae brief suggests that a hearing in connection with a paving assessment such as we have in the present case is not required by the 14th Amendment to the Constitution of the United States, and that the Legislature was thus free to prescribe any notice of a hearing that they might consider proper.

In support of his basic premise that a hearing is not constitutionally required, our amicus cites decisions such as French v. Barber Asphalt Paving Co., 181 U.S. 324, 21 S.Ct. 625, 45 L.Ed. 879, and Withnell v. Ruecking Construction Co., 249 U.S. 63, 39 S.Ct. 200, 63 L.Ed. 479. In each of these cases the cost of the improvements was apportioned among the abutting property owners on the basis of a fixed rule, such as front footage or area, prescribed by legislative act. The court reasoned generally that a legislative determination of the lands benefited by the improvement and the manner in which the cost shall be apportioned among the different parcels is, unless palpably arbitrary or grossly unfair, conclusive upon the owners and the courts. It accordingly held that the owners were not entitled to be heard in advance on the amount of the assessment or the benefits conferred.

For the purpose of this opinion then, we begin with the premise that under the United States Constitution an owner ordinarily is not entitled to notice or hearing before assessment of the cost of public improvements in accordance with an inflexible legislative formula. The rule is otherwise, however, where the legislature, instead of prescribing an inflexible formula, authorizes an administrative determination of the lands benefitted and the amount of benefits accruing to each tract. Londoner v. City and County of Denver, 210 U.S. 373, 28 S.Ct. 708, 52 L.Ed. 1103; Browning v. Hooper, 269 U.S. 396, 46 S.Ct. 141, 70 L.Ed. 330. See also Rhyne, Municipal Law § 29-7. In holding a paving assessment void because the owners were not given a hearing, the Supreme Court of the United States said in Londoner:

“In the assessment, apportionment, and collection of taxes upon property within their jurisdiction, the Constitution of the United States imposes few restrictions upon the states. In the enforcement of such restrictions as the Constitution does impose, this court has regarded substance, and not form. But where the legislature of a state, instead of fixing the tax itself, commits to some subordinate body the duty of determining whether, in what amount, and upon whom it shall be levied, and of making its assessment and apportionment, due process of law requires that, at some stage of the proceedings, before the tax becomes irrevocably fixed, the taxpayer shall have an opportunity to be heard, of which he must have notice, either personal, by publication, or by a law fixing the time and place of the hearing. * * ”

Article 1105b does not prescribe a fixed rule, and there has been no legislative determination of benefits. Subject to the limitations set out in Section 4, the governing body is authorized by Section 3 to provide for payment of the cost of the improvements by the city or partly by the city and partly by the owners of abutting property. Under the provisions of Section 7, assessments against the abutting property are to be apportioned on a front foot basis unless it appears that injustice or inequality will result from an application of that rule. In such event the assessments are to be adjusted by the governing body so as to produce substantial equality of benefits received and burdens imposed. It is also provided in Section 9 that no assessment shall be made in excess of the special benefits to the property assessed. The governing body is thus authorized to determine benefits and adjust the assessments on the basis of such determination. When the statutory procedure is followed, moreover, the conclusions of the governing body as to the amount of benefits may not thereafter be set aside except on the ground that they are arbitrary or the result of fraud. City of Houston v. Blackbird, Tex.Sup., 394 S.W.2d 159. Under these circumstances an opportunity for the interested owners to be heard prior to a determination of benefits and the amounts to be assessed against their properties is a constitutional necessity and not a matter of legislative grace. This brings us to the question decided by the trial court and the Court of Civil Appeals.

It has been generally assumed that the requirements of due process were satisfied by notice published in accordance with the provisions of Article 1105b. On several occasions our courts have said that the statutory notice was sufficient, but it does not appear that the issue of due process was considered or decided in those cases. In some of them the court was concerned with the contents of the published notice; in others the property owner who questioned the assessment had actual notice of the hearing. See Realty Trust Co. v. Lindsey, 129 Tex. 516, 105 S.W.2d 210; Realty Trust Co. v. Harris, Tex.Civ.App., 59 S.W.2d 914 (wr. ref.); Texas Pac. Coal & Oil Co. v. Guthrie, Tex.Civ.App., 100 S.W.2d 125 (affirmed as to personal judgment against property owner, 132 Tex. 180, 122 S.W.2d 1049); Stevens v. W. J. Lackey & Co., Tex.Civ.App., 179 S.W.2d 435 (no writ) ; Bauer v. Texas Pac. Coal & Oil Co., Tex.Civ.App., 100 S.W.2d 122 (no writ); McAlexander v. Smith Bros., Tex.Civ.App., 62 S.W.2d 530 (wr. dis.); Beatty v. Panhandle Const. Co., Tex.Civ.App., 275 S.W. 716 (wr. ref.); Elmendorf v. San Antonio, Tex.Civ.App., 223 S.W. 631 (reversed, Com.App., 242 S.W. 185). It is necessary then to examine another line of decisions by the Supreme Court of the United States.

In Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L. Ed. 865, the court considered a New York statute which authorized notice by publication to beneficiaries on the application for judicial settlement of accounts by the trustee of a common trust fund. In holding that the statutory notice failed to accord due process to beneficiaries whose names and whereabouts were known, the court said:

“As to known present beneficiaries of known place of residence, however, notice by publication stands on a different footing. Exceptions in the name of necessity do not sweep away the rule that within the limits of practicability notice must be such as is reasonably calculated to reach interested parties. Where the names and post-office addresses of those affected by a proceeding are at hand, the reasons disappear for resort to means less likely than the mails to apprise them of its pendency.”

It has now become clear that the court was speaking there of the requirements of the due process clause as related to notice in any proceeding where a person might be deprived of property rights. As pointed out in Walker v. City of Hutchinson, 352 U. S. 112, 77 S.Ct. 200, 1 L.Ed.2d 178, the decision in Mullane “establishes the rule that, if feasible, notice must be reasonably calculated to inform parties of proceedings which may directly and adversely affect their legally protected interests.” See also Fraser, Jurisdiction by Necessity — An Analysis of the Mullane Case, 100 Pa.Law Rev. 305.

If there were any doubt as to the applicability of these decisions to a proceeding for the assessment of costs of public improvements, it was dispelled by the action of the Supreme Court of the United States in Wisconsin Electric Power Co. v. City of Milwaukee, 352 U.S. 948, 77 S.Ct. 324, 1 L.Ed.2d 241. The plaintiff there owned property abutting a street which the city decided to improve. The cost of the improvements was assessed against the abutting properties and apparently was apportioned, at least in part, on the basis of benefits. Notice of the hearing was given by publication as required by the provisions of the city charter, and the plaintiff brought suit to set aside the assessment on the ground that the notice was inadequate. The Supreme Court of Wisconsin was evenly divided on the question, and accordingly affirmed the judgment of the circuit court upholding the assessment. Wisconsin Electric Power Co. v. City of Milwaukee, 263 Wis. 111, 56 N.W.2d 784. The Supreme Court of the United States noted probable jurisdiction and remanded the cause for consideration in the light of Walker v. Hutchinson, supra. The Supreme Court of Wisconsin held upon remand that the notice by publication of the proposed special assessments against the plaintiff’s property did not meet the requirements of due process. Wisconsin Electric Power Co. v. City of Milwaukee, 275 Wis. 121, 81 N.W.2d 298.

It is clear that respondent was entitled to notice and an opportunity to be heard before the city council determined the portion of the costs that would be assessed against his property. His name and address were known to the city, and he could have been readily notified by mail. He did not have actual notice of the hearing. We agree with the Court of Civil Appeals that under these circumstances the publication did not constitute adequate notice to respondent.

Petitioner says that even if the notice was insufficient, the cause should be remanded to give petitioner an opportunity to reassess the paving costs. The right to reassess was not urged in the trial court, and we cannot reverse an errorless judgment in the interest of justice or to permit the losing party to have another trial. City of Houston v. Blackbird, supra. No attempt is made to determine whether petitioner is now precluded from reassessing the costs as authorized by Section 13 of Article 1105b.

The judgment of the Court of Civil Appeals is affirmed.

      . It is unnecessary for us to determine at this time whether the Texas Constitution requires a hearing on benefits before the levy of an assessment computed and apportioned on the basis of a fixed rule prescribed by legislative authority. See Hutcheson v. Storrie, 92 Tex. 685, 51 S. W. 848, 45 L.R.A. 289, 71 Am.St.Rep. 884.

      . See opinion in Wisconsin Electric Power Co. v. City of Milwaukee, 275 Wis. 436, 82 N.W. 2d 344.


text:
    Donald Wayne LAWRENCE, Relator, v. The STATE of Texas et al., Respondents.
    No. A-11760.
    Supreme Court of Texas.
    March 8, 1967.
    Sam Houston Clinton, Jr., Austin, for relator.
    John R. DeWitt, Asst. Dist. Atty., Jefferson County, Beaumont, for respondents.
   ORIGINAL MANDAMUS PROCEEDING

PER CURIAM.

This is an original proceeding in this court in which relator seeks a writ of mandamus to compel

“HONORABLE GEORGE D. TAYLOR, Judge, and the Criminal District Court of Jefferson County, Texas, to proceed to trial in Cause No. 25023 and requiring all Respondents to secure the presence of Relator at such trial by issuing a proper writ of habeas corpus ad prosequendum and causing the same to be served on the appropriate United States Marshal and the Warden of the Federal Correctional Institution at Texarkana, Texas, and by issuing such other and further orders as may be necessary to cause THE STATE OF TEXAS and Jefferson County to make necessary arrangements for payment of expenses required by the United States Marshal in the premises; or, in the alternative, directing appropriate Respondents to dismiss the indictment in Cause No. 25023. * * * ”

Relator is confined in the Federal Correctional Institution at Texarkana by virtue of a sentence imposed by a United States District Court in California. He contends that the failure and refusal of respondents, Honorable George D. Taylor, Criminal District Judge of Jefferson County, Honorable W. C. Lindsey, Criminal District Attorney of Jefferson County, the Commissioners Court of Jefferson County, and Honorable R. E. Culberson, Sheriff of Jefferson County, to take all necessary steps to obtain his production and to bring him to trial on the felony indictment pending against him in Jefferson County is an infringement of his constitutional right to a speedy public trial.

We had occasion to consider and decide this exact question in Cooper v. State, Tex., 400 S.W.2d 890 (1966). A majority of the Justices of the court adhere to the views there expressed, and the petition for writ of mandamus is accordingly denied. The four Justices who dissented in Cooper adhere to the views expressed in the dissenting opinion in that case and for the reasons there stated would grant the writ in this case.