text:
    Vernon P. WILLIAMS et al., Appellants, v. Joy Elsie THOMPSON et al., Appellees.
    No. 14294.
    Court of Civil Appeals of Texas. Houston.
    Feb. 13, 1964.
    Rehearing Denied Feb. 27, 1964.

      Peareson, Scherer & Roberts, Richmond, Eplen, Daniel & Dickson, J. Neil Daniel, Abilene, for appellants.
    Goff & Koonce, Robert C. Koonce, Angleton, for appellees.
   COLEMAN, Justice.

This is an appeal from a summary judgment. Both appellants and appellees filed motions for summary judgment and concede that there were no issues of fact to be determined in the trial court.

Appellees instituted this suit as an action to remove cloud from their title to certain mineral interests in 25.68 acres of land in Fort Bend County. The principal question to be determined is the validity of a deed executed by Lee Wright conveying the mineral interest in question to H. G. Williams under whom appellants claim. The validity of this deed depends on the construction to be placed on the will of J. E. Wright. It is not questioned but that at the time of his death J. E. Wright owned the minerals involved in this suit.

On the 27th day of September, 1922, the will of J. E. Wright was admitted to probate by order of the County Court of Brazoria County, Texas. This will, omitting formalities, reads as follows:

“Know all men by these presents: That I, J. E. Wright of the County of Brazoria and State of Texas, being of sound mind and disposing memory do make this my last will and testament as follows:
“I do give, will, and bequeath unto my brother R. L. Wright, all of my real estate, mortgages, notes, and all written obligations of every kind and description whatsoever.
“And all money now on deposit in the Citizens State Bank of Alvin, Texas or in any other bank, or in possession of any person together with all interest and rent accruing on said property and all personal property of every kind now owned by me, for the use and support of my said brother and family in the manner following to wit: to be paid to him at the rate of from $15.00 to $20.00 per month as seems to be necessary for his support and comfort according to the Judgment of my Trustee and Executor W. W. Ware whom I hereby nominate and appoint as Trustee and Executor, with authority to execute and carry into execution the terms of this my will.
“And I authorize him to take personal possession and charge of all of my Estate, collect all interest and rents accruing. Pay all my taxes accruing on said property and provide for the support of my said brother in the manner herein provided.
“And I desire that this will shall be left in the Citizens State Bank of Alvin, Texas and by said bank held in escrow until the time of my death, when said bank shall deliver the same to said W. W. Ware. But said will shall at all times prior to my death be subject to my disposition and revocation.
“In Witness Whereof I have this 3rd day of October, 1916 signed this will in presence of H. Grass and Jesse Hobbs.”

By general warranty deed, acknowledged November 24, 1930, and filed for record in the Deed Records of Fort Bend County, Texas, on February 25, 1931, Lee Wright conveyed the mineral interest in question to H. G. Williams. It is conceded that R. L. Wright was also known as Lee Wright. It is conceded that appellants own whatever title H. G. Williams thereby acquired, subject to an outstanding oil and gas lease subsequently executed.

The trial court granted appellees’ motion for summary judgment, and denied that of appellants. Appellees contend that this was proper for the reason that the will of J. E. Wright, properly construed, created an active trust, of which W. W. Ware was trustee, which could not have terminated prior to the death of R. L. Wright. It is their contention that because title to the minerals rested in the trustee at the time R. L. Wright executed the deed to H. G. Williams, this deed was void.

There is a presumption of law that J. E. Wright desired to make a full disposition of his estate, and his will must be construed to prevent partial intestacy if such construction is reasonably compatible with the words he used in writing his will. His intention must be given effect if it can be ascertained from the will itself. Briggs v. Peebles, 144 Tex. 47, 188 S.W.2d 147. If, however, the will is ambiguous, or is subject to more than one construction, that construction which will prevent intestacy should be adopted by the court. Ferguson v. Ferguson, 121 Tex. 119, 45 S.W.2d 1096. However, the primary rule of construction is to give effect to the intention of the testator ascertained by a consideration of all of the provisions of the will. McMurray v. Stanley, 69 Tex. 227, 6 S.W. 412; Calvery v. Calvery, 122 Tex. 204, 55 S.W.2d 527.

It seems clear that the primary intention of J. E. Wright was to provide a monthly income for life for his brother. It is equally clear that W. W. Ware was to be the trustee of a trust estate created by the will. This estate consisted of “all of my money, together with all interest and rent accruing on all of my property.” The trust estate was created for the purpose of creating a fund “for the use and support of my said brother and family.” Ownership of the real estate, mortgages, notes, and all written obligation, was vested in R. L. Wright, but possession of all of the property was to remain with the trustee to make effective his right to the interest and rents. This is suggested by the specific language of the will and the fact that no remainder-man was named. This view is further supported by the fact that the trustee is not given the authority to sell or reinvest the trust property by the terms of the will.

It is not essential to the purposes and continuance of the trust that legal title to the real estate be vested in the trustee. Estes v. Estes, Tex.Com.App., 267 S.W. 709. The will does not purport to vest title in him. We are not advised as to the amount of money in the estate or the amount of interest and rentals which the trustee might be expected to collect. While the will provides a minimum monthly support payment, it also provides that it be paid from the money on hand, interest and rents. There is no necessity that the will be construed so as to place title in the trustee since the trustee would not b.e authorized to sell the assets in any event. Kennedy v. Pearson, Tex.C.C.A., 109 S.W. 280, writ ref. Legal title would not be essential to the proper management of the trust consistent with the powers and duties of the trustee.

The fact that the trustee was directed to take possession of the property and to collect the rents and revenues thereof for the entire lifetime of the donee will defeat neither the estate vested in the donee nor the trust created by the will. In McClelland v. Rose, 5 Cir., 208 F. 503, the court said:

“There is no reason in the recognized ■ nature of property and in the owner’s right of disposition why a testator ‘who gives without any pecuniary return, who gets nothing of property value from the donee, may not attach to that gift the incident of continued use, of uninterrupted benefit of the gift, during the life of the donee. Why a parent, or one who loves another, and wishes to use his own property in securing the object of his affection, as far as property can do it, from the ills of life, the vicissitudes of fortune, and even his own improvidence or incapacity for self-protection, should not be permitted to do so, is not readily perceived.’ Nichols, Assignee, v. Eaton et al., 91 U.S. 716, 727 (23 L.Ed. 254); Wallace v. Campbell, 53 Tex. 229. We see nothing in the language of the codicil continuing the trust for the life of the plaintiff which deprives him of any estate conferred on him by the will or by law, * *

A will similar in many respects was considered in Houston Land and Trust Co. v. Campbell, Tex.Civ.App., 105 S.W.2d 430, writ ref., where the court said:

“The very first bequest is a gift to the city of Houston of ‘all my property, real and personal, that I own at my death.’ So far, therefore, as the corpus of the estate was concerned, this gift was absolute. As far as the testator could by his will do so, he put title in the city of Houston. Then in express words he subjected ‘the income thereof’ to certain payments as thereinafter ‘expressed and directed.’ * * *
“Strongly indicative of the testator’s intention, too, are his bequeathing title directly to the city, and limiting the authority of his executors and trustees to the power of ‘possession, management and control’ and payment of the income during the lives of the two legateés. He gave his executor and trustee no power to sell or encumber the whole or any part of the estate.’’

Where property was bequeathed to a trustee to be held by him for the support ■of testator’s daughters, it was held that “the real title has vested at all times since the testator’s death in said two daughters.” McMullen v. Sims, Tex.Com.App., 37 S.W.2d 141.

In McClelland v. McClelland, Tex.Civ.App., 37 S.W. 350, the Court of Civil Appeals of Texas construed the same will as that later construed in McClelland v. Rose, supra, and found that it was the intention of the testator to give his son only a life estate in his property with a remainder over to the testator’s heirs at law, and that the life estate was held by trustees in a spendthrift trust. That instrument is distinguishable from that under consideration by the fact that the testator had used words evidencing his intention to provide for the support of his son and also his intention that the property descend to testator’s heirs at law at the death of his son.

There is nothing in this instrument evidencing an intention that on the death of the testator’s brother the property should go to the testator’s heirs rather than the heirs of his brother. There was, indeed, no reason for the insertion of such a clause since the heirs at law of the brother were also the only heirs at law of the testator.

In any event it is clear that the equitable title to the property in question was vested in R. L. Wright at all times. Rust v. Rust, Tex.Civ.App., 211 S.W.2d 262, aff’d 147 Tex. 181, 214 S.W.2d 462; Schmidt v. Schmidt, Tex.Civ.App., 261 S.W.2d 892, error ref. The deed conveying the property to Williams was not void. Estes v. Estes, supra. The provision in the will that a specified monthly sum be paid the beneficiary for his support for life, together with the absence of provisions for the sale of the land, might be considered evidence of an intention to create a spendthrift trust, but the absence of any expressed intention to preserve the corpus of the estate for re-maindermen militates against such a construction.

It is our opinion that in the second dis-positive paragraph of the Will, the first sentence should begin: “And I give to W. W. Ware, Trustee, all money,” etc. This wording will make clear the intention of the testator as gathered from the entire instrument. The testator carved out of his estate in the property the usufructuary interest, which was made subject to the trust, and vested title to the estate in R. L. Wright. Estes v. Estes, supra.

It appears from the exhibits that the wife of R. L. Wright was deceased, and that all of his children were either above the age of twenty-one, married, or deceased in 1944 when the administration of the estate of R. L. Wright was closed. The words used in expressing the purpose of the trust “for the use and support of my said brother and family in the manner following to wit: “ * * * were qualified by a specific direction to the trustee to pay the amount determined to be needed to “him.” The trust terminated on the death of R. L. Wright since the purpose of the trust was to provide for his support during his lifetime. There was nothing in the will indicating a necessity or desire on the part of the testator to continue the trust beyond his brother’s lifetime for the protection of his family, particularly since at the death of the brother ownership of the property remaining descended to his heirs. Randall v. Estes, Tex.Civ.App., 218 S.W.2d 338, ref. n. r. e.; Rogers v. Nixon, Tex.Civ.App., 275 S.W.2d 197, ref.

The trial court erred in granting appel-lees’ motion for summary judgment. Since it is conceded that there is no question of fact to be determined by the trial court, the judgment of the trial court is reversed and the cause remanded with instructions to the trial court to grant appellants’ motion for summary judgment.

Reversed and remanded with instructions.


source: Caselaw Access Project

author: WERLEIN, Justice.

license: Public Domain

text:
    Nathalie SHULTZ et vir, Appellants, v. RESTHAVEN CEMETERY, INC., et al., Appellees.
    No. 14187.
    Court of Civil Appeals of Texas. Houston.
    Jan. 30, 1964.
    Rehearing Denied Feb. 20, 1964.

      J. Leonard Gotsdiner, Ranseler O. Wyatt, Houston, for appellants.
    Hamblen & Hamblen, W. P. Hamblen, Jr., Houston, for appellees.
   WERLEIN, Justice.

This suit was originally filed on April 30, 1952 by J. Popperman against Resthaven Cemetery, Inc., a dissolved corporation, and the former stockholders thereof as trustees for its creditors, based upon two promissory notes dated November 1, 1947, allegedly executed by Resthaven Cemetery, Inc., payable on or before May 1, 1948 to J. Pop-perman in the principal sums of $8,466.94 and $11,967.95, representing respectively services performed for, and loans advanced to, the Corporation by him.

The first trial of this case resulted in an instructed verdict in favor of the defendants on the ground that one of the purported directors of the Corporation executing the notes sued upon owned no stock in the Corporation and therefore was not qualified to act as a director. Such judgment was affirmed by the Court of Civil Appeals (341 S.W.2d 476), but was reversed by the Supreme Court (345 S.W.2d 715), the court holding in effect that said purported director could have acted if he was a de facto director. The court also held that the burden of establishing the fairness of the transaction to the Corporation was upon Popper-man.

During the pendency of the suit J. Pop-perman died and his daughter, Nathalie Shultz, joined by her husband, Herman Shultz, were substituted as party-plaintiffs and are appellants herein. Based upon the jury verdict, the court entered judgment that appellants take nothing against appel-lees.

Appellants’ first three Points, though peculiarly worded, can be construed only as “no evidence” points. They assert that the court erred in rendering judgment on the verdict of the jury and in overruling their motion for an instructed verdict, and in overruling their motion for judgment notwithstanding the verdict. Manifestly, the court did not err in such regard if there is any evidence of probative force in support of the judgment. In White v. White, 1943, 141 Tex. 328, 172 S.W.2d 295, our Supreme Court held, in determining whether it was proper to instruct a verdict, that if the record reflects any testimony of probative force, such an instruction would be improper. The court stated: “A peremptory instruction is warranted only when the evidence is such that no other verdict can be rendered and the winning party is entitled, as a matter of law, to a judgment. Stevens el al. v. Karr, 119 Tex. 479, 33 S.W.2d 725.” The trial court properly refused to grant judgment non obstante veredicto if there was any evidence having probative force upon which the jury could have made their findings. Burt v. Lochausen, 1952, 151 Tex. 289, 249 S.W.2d 194.

We gather from the statement, argument and authorities of appellants that it is their contention that they met their burden of proof by showing that the transactions between Popperman and the Cemetery, upon which their suit was based, were fair in every way, and that the notes in question were properly authorized and are valid legal obligations of the appellees. In order to understand what is involved, it is necessary to state briefly the facts leading up to appellants’ suit.

On June 4, 1942 one W. S. Swilley and members of his family, who were the owners of all of the capital stock of Resthaven Cemetery, Inc., sold such stock to one F. Swirsky for the sum of $25,000.00, evidenced by a promissory note payable in six years. The stock of the Corporation was pledged as security. The day after the sale F. Swirsky assigned 499 shares of the total 1000 shares of stock to J. Popperman subject to the terms of the purchase contract with W. S. Swilley. At the next meeting of the new directors of the Corporation held July 31, 1942, the minutes reflect that J. Popper-man had purchased the remaining stock owned by Swirsky and was the owner of all the corporate stock with the exception of two qualifying shares assigned by him to directors.

The note executed by Swirsky was not paid at its maturity, and appellees, as owners thereof, made demand for payment and upon default, made demand for the return of the pledged stock. At about that time appellees were informed by J. Popperman that Resthaven Cemetery, Inc. had executed and delivered to him said promissory notes in the sums of $8,466.94 and $11,967.95. Popperman refused to agree to the redelivery of the pledged stock unless the notes were paid and upon appellees’ refusal to acknowledge the validity of the debts evidenced by such notes, the issue was resolved by a non-prejudice agreement, being plaintiffs’ Exhibit No. 25. The capital stock of the corporation was thereupon redelivered to the heirs and devisees of W. S. Swilley, the individual appellees herein, he having previously died. Thereupon Resthaven Cemetery, Inc. was dissolved and appellees herein reincorporated under the name Rest-haven Memorial Gardens.

Appellees set up various defenses, including lack or failure of consideration, lack of authority on the part of the directors and officers of the Corporation who purported to execute such notes, limitation, and further that the execution of such notes was in fact the act and deed of J. Popperman, he being the alter ego of the Corporation, and that such notes were, therefore, void and constituted a fraud upon the Corporation.

In answer to the first 15 Special Issues, all of which were requested by appellants, the jury found that J. Popperman was not employed on or about June 5, 1942 to act as manager of the Cemetery; that the work performed by him in his managerial capacity was not exclusive of the duties performed by him as an officer and director of Rest-haven Cemetery, Inc.; that J. Popperman had not advanced or loaned to the Cemetery various amounts of money; that the note executed by Louis R. Jamail and Howard Hebert, acting as officers of Resthaven Cemetery, Inc. on November 1, 1947, in the sum of $8,466.94, did not represent the amount which said officers determined was the correct amount due J. Popperman for unpaid salary from June 5, 1942 to November 1, 1947; that said officers, Jamail and Hebert, were mistaken as to the correct amount of money which was due and owing J. Popperman for unpaid salary for the period of June 5, 1942 to November 1, 1947, and that no amount was due and owing him at the time said note was signed; that the note executed by Louis R. Jamail and Howard Hebert, acting as officers of Rest-haven Cemetery, Inc., on November 1, 1947, in the sum of $11,967.95, did not represent the amount which said officers determined was the correct amount due Popperman for money loaned to the Corporation during the period of June 5, 1942 to November 1, 1947; that said officers were mistaken as regards the correct amount of money, if any, which was due and owing said J. Popperman for money loaned or advanced to said Corporation during such period; and that no amount was due the said Popperman at the time said note was signed, for money loaned or advanced by him to Resthaven Cemetery, Inc.

Other Issues conditioned upon affirmative answers to some of the foregoing Issues were not answered by the jury.

To the four Special Issues requested by appellees the jury found that at the special meeting held on the 5th day of June, 1942, the Board of Directors of Resthaven Cemetery, Inc., in voting J. Popperman a salary of $-, did not intend that Popperman should decide the amount of compensation he should receive for his services as manager of the Company; that from June 5, 1942 until June 17, 1948 J. Popperman did not devote all his time to the conduct of the business of Resthaven Cemetery, Inc. ; that on November 1, 1947, when the Board of Directors of the Cemetery passed a resolution authorizing Howard Hebert, vice president, to execute two notes payable to J. Popperman in the amounts of $11,967.95 and $8,466.94, respectively, Louis R. Jamail had a personal financial interest in the passage of such resolution; and that the said Howard Hebert, in performing the duties of a director of Resthaven Cemetery, did so under the direction and in the interest of J. Popperman.

Appellants contend that there is no evidence in support of the jury findings. Ap-pellees assert that there is ample evidence of probative force in support of the findings upon which the court’s judgment is based. They take the position that J. Popperman was the alter ego of Resthaven Cemetery, Inc. and that in truth and in fact he was dealing with himself in his alleged transactions with the Corporation. In support of their contention that the Corporation was the alter ego of J. Popperman who owned all the corporate stock except 2 shares, and controlled all the assets of the Corporation, and who named the officers and directors of the Corporation who held office at his will and who controlled all of the acts of the officers and directors, appellees offered in evidence as an admission a portion of appellants’ second amended original petition wherein it is alleged:

“During all of the time from July 25th, 1942 to June 17th, 1948 Plaintiff owned all of the stock of said corporation excepting the shares of Mrs. Bryant, L. R. Jamail and Howard Hebert as above alleged and exercised all of such rights and privileges incident to such ownership and to the management and control and supervision of said corporation which rights and privileges included the right so exercised of electing Directors for said Corporation.”

They also offered in evidence certain testimony of Louis Jamail, an officer and director of the Corporation, who, when shown a draft in the sum of $250.00, dated March 8, 1944, drawn by Jamail on his bank and endorsed by J. Popperman and deposited in the First National Bank of Houston, testified as follows:

“Q Do you know where the other checks were deposited, sir?
“A First National. They were all the same.
“Q Do you know whether or not Mr. Popperman had a personal account in the First National Bank?
“A He did not.
“Q At any time at all? Do you know that for sure?
“A There is a possibility that I wouldn’t know, but from all my dealings with him, I knew he didn’t have one. If he had, it was a secret account he didn’t divulge to anyone. That I don’t know.”

On cross-examination the same witness testified :

“Q I understand, Mr Jamail, the tes-imony elicited by counsel for the plaintiff from you was to the effect that Mr. Popperman had only one bank account?
“A That’s right.
“Q That hank acount was the one upon which he drew checks on the account of Rest Haven Cemetery, Inc. ?
“A That’s right.
“Q Even though the two checks identified as Plaintiff’s Exhibits Nos. 42 and 43, are payable to Mr. J. Pop-perman and are endorsed only by Mr. J. Popperman, those moneys actually went into the cemetery account?
“A Yes sir.”

In further support of their contention, appellees offered in evidence from the books of account of the Corporation, kept under the direction of J. Popperman, establishing that out of the Cemetery bank account payments in excess of $8,700.00 were made either directly to J. Popperman or in payment of his personal obligations, including cash withdrawn by Popperman for personal expenses, totaling $2,812.42, a personal income tax bill in the sum of $484.64, Social Security and Withholding taxes in the amount of $879.66, principal payments upon the Swirsky $25,000.00 note totaling $3,125.-00, interest payments on such note totaling $1,220.66, one or two small doctor bills, a legal fee, and a $500.00 payment to Louis Jamail.

From such testimony it appears that the Corporation wás the alter ego of J. Popper-man. The jury, in answering the Special Issues, apparently accepted appellees’ theory of the case and concluded that Popperman was the Corporation for all practical purposes. They had before them evidence that J. Popperman used the Corporation to effectuate his own purposes and interests. He treated the money that was in the account of the Corporation as belonging to him and used the same to pay his hills. He exercised all rights and privileges incident to his ownership of all of the stock regardless of the two outstanding qualifying shares. He controlled and supervised the Corporation and exercised the right of electing directors for the Corporation, and directed and controlled the actions of such directors. The jury found that Popperman was not employed to act as manager of the Cemetery. Such finding could well be based upon appellees’ contention and the evidence hereinabove referred to, that the purported contract of employment of Popperman as manager of the Cemetery was in fact a contract between Popperman and himself, and that the moneys advanced by Popperman allegedly to the Corporation were in fact advancements to himself for his own personal use and benefit, since such funds were freely used for such purpose.

The law is well settled that a director of a corporation cannot with propriety deal in his own behalf in respect of the corporate property, or in respect of any matters involving the exercise of his duties as a director. In Texas Auto Company v. Arbetter, Tex.Civ.App., 1 S.W.2d 334, the court said:

"Such contracts, when made with the efficient aid of the contracting director, are presumptively invalid, and the burden of showing that they are entirely fair is upon those claiming under them; and they will always be subjected by courts of equity to the severest scrutiny, and set aside, unless all appearance of bad faith is removed by evidence. The courts will refuse to set aside such contract when, and only when, it is made to appear that it was openly and fairly made for an adequate consideration, and the corporation was adequately represented by other officers or directors. 14a C.J. pp. 112, 113, § 1880; Thompson, Corp. (1st Ed.) §§ 4042, 4043, 4059, 4060-4063, 4070-4077, 5650, 8500, 8501; San Antonio St. Ry. Co. v. Adams, 87 Tex. 125, 26 S. W. 1040; Fitzhugh v. [Franco-Texas] Land Co., 81 Tex. 306, 16 S.W. 1078; Nueces Valley Irr. Co. v. Davis (Tex.Civ.App.) 116 S.W. 633; Id., 103 Tex. 243, 126 S.W. [4], 5; Greathouse v. Martin (Tex.Civ.App.) 91 S.W. 385; Id., 100 Tex. 99, 94 S.W. [322], 323; Tenison v. Patton, 95 Tex. 284, 67 S.W. 92.”

In Felty v. National Oil Company of Texas, Tex.Civ.App., 155 S.W.2d 656, the court quoted from the opinion of the Supreme Court of the United States in Geddes v. Anaconda Copper Mining Co., 254 U.S. 590, 41 S.Ct. 209, 65 L.Ed. 425, as follows:

“The relation of directors to corporations is of such a fiduciary nature that transactions between boards having common members are regarded as jealously by the law as are personal dealings between a director and his corporation, and where the fairness of such transactions is challenged the burden is upon those who would maintain them to show their entire fairness and where a sale is involved the full adequacy of the consideration.” (Emphasis added.)

The jury in the instant case was warranted in finding in effect that no amount was due J. Popperman at the time said notes were signed, either for money allegedly loaned or advanced by him to the Cemetery or for alleged unpaid salary, since the dealings which he had with the Corporation were in fact dealings with himself and a man cannot contract with himself; and for the further reason that the advancements which he allegedly made to the Corporation were actually made to himself and largely used for his own personal benefit.

We are of the opinion that there was some evidence of probative force in support of the jury findings hereinabove set out, and that the court properly entered judgment based thereon.

Appellants’ next Point is directed to the alleged error of the court in admitting evidence of expenditures made in connection with the Cemetery after the capital stock was transferred to the Swilley heirs. Appellants contend that there was no pleading entitling appellees to an offset against appellants’ claim. The trial court did not err in admitting such evidence. It was offered in rebuttal of appellants’ evidence relative to improvements to the Cemetery allegedly made by Popperman. It was not offered as an offset against appellants’ claim. Appel-lees asserted they owed appellants nothing.

We find no merit in appellants’ Point with respect to testimony elicited from Mr. Hebert concerning the Corporation books. The witness was interrogated with respect to the Corporation making payments in excess of $3,700.00 upon the $25,000.00 note executed by Swirsky, which was not a Corporation obligation. Nor do we find any error in the admission of evidence elicited from Jamail relative to the transaction between Popperman and Swilley.

Appellants in their 7th Point of Error complain of appellees’ cross-examination of their witness, J. Howard Williams. This witness was a certified public accountant who had examined the books of the Corporation at appellants’ request for the purpose of ascertaining the alleged indebtedness of the Corporation to Popperman. On cross-examination he was interrogated with respect to numerous entries in the books of account. Appellees propounded this question : “If J. Popperman had advanced $10,-000.00 to the Corporation and had used the money to pay his own debts, therefore, there wouldn’t be any basis for any indebtedness?” Appellants’ witness was an expert in the field of accounting. We find no reversible error in the court permitting such interrogation. What is said here applies also to appellants’ Point 8.

In their Point 10 appellants complain of the admission in evidence of defendants’ Exhibit No. 21, a letter by appellees’ certified public accountant who audited the books of the Corporation, on the ground that ap-pellees did not offer in evidence the particular records supporting the letter which itemized certain payments made either directly to J. Popperman or in payment of his personal obligations. The record shows that .appellees offered in evidence all books of .account kept by the Cemetery Corporation during the time that Popperman was in ■control of its operations, consisting of the receipts & disbursements journal and gen■eral ledger, and that the same were duly .admitted and are now on file in this Court. There is no merit in appellants’ assignmént nor in their Point 11.

In the next Point appellants assert that there was error in permitting appellees to offer in evidence a statement made by .appellants in their motion for summary judgment and that the mention of such motion before the jury was prejudicial. We do not agree. In all likelihood the jury had no ■conception of what a motion for summary judgment was. The jury was not informed .as to the court’s ruling on such motion. 'The portion of the motion in question was ■offered in cross-examination of appellants’ witness Jamail.

We have carefully examined appellants’ Points 13 to 18, inclusive, which in the main part involve complaints similar to those above described, and, finding no reversible ■error, overrule the same.

Appellants’ Points of Error Nos. 19 to 23, inclusive, complain of the error ■of the trial court in the submission of the four Special Issues requested by appellees, asserting that such issues were not raised "by the pleadings of appellees or by evidence properly admitted in support thereof. The findings to these Special Issues are set out liereinabove. It is our view that Special Issue No. 16 was properly submitted under -the allegations in appellees’ pleading and the evidence adduced at the trial. It, in effect, inquires if the directors in voting Popperman a salary of $- intended -that he should fix his own salary. The law is well settled that an officer of a corporation cannot recover of the corporation any salary or compensation for services rendered, unless such salary or compensation was fixed in some authorized manner, before the performance of the services. Austin City R. R. Co. v. John M. Swisher, 1 White & Wilson, p. 33; 19 C.J.S. Corporations § 804, p. 192 et seq. J. Popperman, in answering questions with respect to the note given to him allegedly in payment of salary due by the Corporation, testified by deposition as follows:

“Q Was your salary fixed by the Board of Directors?
“A I don’t know; you will have to look at the minutes; I do not have them.
“Q You don’t know whether your salary was ever fixed or not ?
“A No, sir.”

Appellants also complain that Special Issue No. 17 was improperly worded because it inquired as to whether during the period from June 5, 1942 until June 17, 1948, Popperman devoted all his time to the conduct of the business of Resthaven Cemetery, Inc. The language employed in Special Issue No. 17 is taken directly from the minutes of the Corporation.

With respect to Special Issue No. 18, there was evidence from which the jury could have concluded that at the time the resolution was passed authorizing Howard Hebert, vice president, to execute the two notes in question, Louis R. Jamail had a personal financial interest in the passage of such resolution. Mr. Jamail testified that Mr. Popperman owed him $5,000.00; that he knew the Company didn’t have any money; that he thought the only way Pop-perman could be assured of getting the money owed him by the Corporation was to get the notes executed; and that the only way Mr. Popperman could pay him (Jamail) was to get some money. When asked, “So as a natural consequence, wasn’t it in your mind, or weren’t you just as interested in his getting his money in. order to pay you as you were interested for any other reason for him getting his money?” he answered, ^‘That could have been a part of it, but wasn't the main factor.”

Special Issue No. 19 inquired as to whether Howard Hebert in performing the ■duties of a director of Resthaven Cemetery, Inc. did so under the direction and in the interest of J. Popperman. Mr. Hebert testified that before the two notes sued upon were executed he personally checked the books of the Corporation to determine that the amounts of the notes were correct. On cross-examination, however, Hebert admitted that he did not know of any indebtedness owing to W. S. Swilley. He testified that payments by the Corporation on the $25,000.00 stock purchase money note, were never shown to him and he knew nothing about it at all. He admitted that he made no real good examination, but relied upon an adding machine tape exhibited to him by the bookkeeper. He admitted that he had never before seen the ledger account showing payments by the Corporation of interest •on the $25,000.00 purchase money note. He testified that if those accounts had come to his knowledge he didn’t know whether he would or would not have concluded that the amount of the notes was correct. He owned no stock in the Corporation. Mr. Popper-man asked him to become a director. He knew nothing about the stock ownership of the Corporation and apparently little about the Corporation’s operations. From Mr. Hebert’s testimony the jury might well have concluded that he performed his duties as a director under the direction and in the interest of J. Popperman. The jury might also have concluded that the notes in question were not authorized by a disinterested board of directors due to the financial interest of Jamail in the passage of such resolution.

Appellants complain of alleged misconduct on the part of the jury, asserting that the verdict returned was based on prejudice, ill-feeling, and contempt toward plaintiff, and plaintiff’s counsel, and in disregard by the jury of the instructions given by the court. The evidence elicited during the hearing on the motion for new trial, reflects that one of the jurors, Pearl M..Kornbluh, became ill during the trial and was excused by agreement of both parties. The misconduct complained of consisted of her testimony that during the trial and prior to her being excused, another juror seated directly behind her leaned over and whispered to her, “Do you know anything about handwriting ? I know all about handwriting and when we get in the deliberation room I am going to show you where those two signatures were by one person.”

The record shows that Mrs. Kornbluh identified the juror who whispered in her ear as Mrs. Emma Lawrence, who is shown by stipulation to have been seated in the jury box, not behind the witness, but several seats removed from her in the same row. In view of the seating arrangement of the jury, the court might well have found that such alleged misconduct did not occur. The court ruled:

“I shall rule the testimony of Mrs. Kornbluh does not show jury misconduct. * * * It shows mostly why she was feeling ill and why she asked me to excuse her, that she couldn’t go further in the case, and that I shouldn’t set aside the verdict on that or require the others to come in and testify.”

Mrs. Kornbluh did not participate in the deliberations of the jury, and she is the only one who could have heard the whispered words. If such misconduct occurred, it was not such as was probably calculated to cause and probably did cause the rendition of an improper verdict or judgment. Rule 434, Texas Rules of Civil Procedure.

Judgment affirmed.

COLEMAN, J., not sitting.


author: WILLIAMS, Justice.

text:
    CITY OF DALLAS, Appellant, v. Billie Jo Lane RASH et vir, Appellees.
    No. 16303.
    Court of Civil Appeals of Texas. Dallas.
    Jan. 31, 1964.
    Rehearing Denied Feb. 21, 1964.
    H. P. Kucera, City Atty., N. Alex Bickley and Kenneth C. Dippel, Asst. City Attys., Dallas, W. H. Frank Barnes, Terrell, for appellant.
    Wynne & Wynne, Wills Point, Clyde Elliott, Jr., Canton, for appellees.
   WILLIAMS, Justice.

In the exercise of its right of eminent domain (Art. 1109, Vernon’s Ann.Civ.St.) the ■City of Dallas instituted condemnation proceedings to take for pipeline purposes 8.2 acres of land out of a 210 acre tract of land in Van Zandt County, Texas belonging to the appellees. Prior to the taking of this land appellees had subdivided this property into lots. The property taken by the City •coincided with 38 lots leaving other lots both to the north and south of the pipeline. The title taken by appellant is that of a fee simple title, with the exception of the oil, gas and other minerals being reserved to the landowners and also reserving to the landowners certain rights to the use of the surface of the land. The date of taking is agreed to be March 17, 1961.

The pipeline for which the land was taken was officially known as the Iron Bridge Water Transmission Line and extended from the Iron Bridge Reservoir at Lake Tawakoni (located in Van Zandt, Rains and Hunt Counties) to the City of Dallas. Lake Tawakoni was constructed by the Sabine River Authority of Texas, and financed by the City of Dallas, for the purpose of supplying waters to the surrounding towns and particularly to the City of Dallas.

The trial court sustained a motion for summary judgment decreeing the right of the City to take the property leaving only the question of values of the land taken and the damages to the remainder. Appellant offered no evidence before the jury and the trial court submitted the case in conformity with the suggested issues by the Supreme Court in State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194, 201. The jury found, in answer to Special Issue No. 1, that the market value of the 8.2 acres of land, same being the 38 lots taken by the City of Dallas for pipeline purposes on March 17, 1961 and considered as severed land, was $19,000. In answer to Special Issue No. 2, the jury found that the market value of the remaining unsold acreage, constituting the lots adjoining the land taken, immediately before the taking was $9,000 and, in answer to Special Issue No. 3, the value immediately after the taking, was $7,200. The trial court rendered judgment in favor of appellees, based upon this jury verdict, and from such judgment the City of Dallas appeals. We have carefully considered the thirty points of error advanced by the City of Dallas and finding them to be entirely without merit we overrule the same and affirm the judgment of the trial court.

Appellant's principal contention on appeal is contained in its Points 1, 2, 3, 27 and 28. In essence these points complain of the refusal of the trial judge to allow appellant to present testimony in reference to the enhanced value of appellees’ property resulting from the construction of Iron Bridge Reservoir and the Iron Bridge Transmission Line, it being the theory of the City of Dallas that the concept, inception, planning, construction and completion of the projects known as Iron Bridge Reservoir and the Iron Bridge Transmission Line were so interrelated that it was one project and therefore condemnees would not, as a matter of law, be entitled to any enhancement of value of their property as a result of the improvements by the City of Dallas. By these points the City contends that the trial court should have permitted it to introduce evidence to demonstrate that but for the City of Dallas the Iron Bridge Reservoir and the transmission line would not have been constructed and that, in effect, both projects were one and the same and that these facts would bring into application the well recognized rule that the condemnee is not entitled to the benefit of the enhancement of value by the very project itself which resulted in condemnation.

Since these points do constitute the foundation of this appeal we deem it necessary and desirable to recite a portion of the testimony offered by the City, and refused by the court, as well as legislative history surrounding the Lake Tawakoni project.

The 51st Legislature, Acts 1949, Chapter 110, Page 193 (Art. 8280-133, V.A.C.S.) created a governmental agency of the State of Texas known as “Sabine River Authority” with the right to develop the water resources of the Sabine River and its tributaries. Thereafter, by Acts 1955, 54th Legislature, Chapter 93, Page 373 (Art. 8280-133, § 14(r), V.A.C.S.) it was provided that a dam shall be constructed on the Sabine River at Iron Bridge Crossing by January 1, 1958 and that if such construction was not started by that date any other political subdivision or municipal corporation within the watershed should be empowered to construct such dam. By Acts 1955, 54th Legislature, Chapter 101, Page 379, §§ 1 and 3 (Art. 8280-133, §§ 1(a) and 18(a), V.A.C.S.), the name of “Sabine River Authority” was changed to “Sabine River Authority of Texas” and such Authority was authorized to issue bonds in the sum of $50,000,000 to use in carrying out the purpose of the Authority.

Pursuant to Acts 1961, 57th Legislature, Chapter 38, Page 151 (Art. 1109h, § 4, V.A. C.S.), it was specifically provided that an eligible city may issue revenue bonds to cover the entire cost to be incurred by the Sabine River Authority of Texas in constructing the water supply project. It was therein specifically provided that the construction and operation of the water supply project will remain the responsibility of the Authority and that the City will have the responsibility of constructing and operating, and shall own all of such facilities and property, including the intake, pumping stations, pipelines and equipment, treatment and filtration plants, and all intermediate and terminal reservoirs.

The City attempted to offer evidence of James A. Cotton, an engineer, to the effect that after the severe water shortage in the City of Dallas in the early 1950’s, the City Council in June of 1953 appointed a citizens’ committee to undertake a long range water study for the City. This committee hired a consulting engineering firm who made . a study of the long range water needs of the City and made a recommendation which included the building of the Iron Bridge Dam and Reservoir. This recommendation, made in 1955, demonstrated the Iron Bridge Reservoir and the pipeline leading from such reservoir to the City of Dallas. The witness Cotton testified that the lake would not have been built except for the fact that there was a need for the City of Dallas to purchase this water. The City introduced in evidence, as a part of its bill of exception, the contract entered into between the City of Dallas and Sabine River Authority of Texas on July 14, 1956 whereby it was agreed that the Sabine River Authority of Texas would construct the Iron Bridge Reservoir and-that the City of Dallas would finance the same with the proceeds of revenue bonds issued by the City of Dallas. The contract further provided that the City would have the permanent right to 80 percent of the water impounded and withdrawn from the reservoir. The contract clearly delineated the division of duties in connection with the reservoir and appurtenant facilities. It was therein provided that: “The Authority shall acquire and own in its name, all land and flowage easements required for said reservoir and dam and for the operation thereof, shall construct and own the dam, spillway and outlet works, all of which land, flowage easements and properties collectively being known as the ‘Project’ ”. As to the City it was provided that: “Dallas shall construct and own the intake and pump station, together with the pipeline facilities connecting the intake with the pump station, all to be used for withdrawal of its share of the stored water, collectively known as 'Dallas-owned facilities’.”

The record reveals that the first contract for the construction of the dam was awarded by the Sabine River Authority of Texas in March of 1957 and the completion contract was awarded on January 3, 1958. The engineering phase of the pipeline work was begun by the City of Dallas in 1955 but the actual contract for the building and construction of the pipeline was first awarded by the City in July of 1961 after the completion of the dam and after it began to impound water in the reservoir.

The trial court refused the right of the City to allow its witnesses to testify as to the values of the land sought to be taken exclusive of the improvements caused by the construction of Lake Tawakoni, and such testimony is presented in the record by a hill of exception.

It is appellant’s position that all of this prior history, tendered by a bill of exception, clearly demonstrates that the lake would not have been built except for the pipeline; that the pipeline is a necessary part of the lake in order for the City of Dallas to obtain its 80 percent of the water belonging to it. The City further contends that since these facts were known to appellees at the time they planned and engineered their subdivision that appellees are not in a position to claim the enhancement of value of their property due to the construction of the lake.

Appellant contends that it was entitled to have the excluded testimony developed before the jury and also to have the court instruct the jury, in arriving at their answer to the value of the land taken, that they should not consider any enhancement of the value thereof caused by the construction of Lake Tawakoni and the pipeline project. Appellant relies upon such cases as United States v. Miller, 317 U.S. 369, 63 S.Ct. 276, 87 L.Ed. 336; United States v. Certain Lands in Town of Narragansett, 1 Cir., 180 F. 260; John L. Roper Lumber Co. v. United States, 4 Cir., 150 F.2d 329; Scott v. United States, 5 Cir., 146 F.2d 131; United States of America v. 158.76 Acres of Land, 298 F.2d 559, 92 A.L.R.2d 766; State v. Vaughan, Tex.Civ.App., 319 S.W.2d 349; Vey v. City of Fort Worth, Tex.Civ.App., 81 S.W.2d 228. These cases announce the rule, as demonstrated in United States v. Miller, supra, as follows:

“Since the owner is to receive no more than indemnity for his loss, his award cannot be enhanced by any gain to the taker. Thus although the market value of the property is to be fixed with due consideration of all its available uses, its special value to the condemnor as distinguished from others who may or may not possess the power to condemn, must be excluded as an element of market value.”

This rule is recognized in Texas as illustrated by the statement of the court in State v. Vaughan, supra:

“When property is taken for a public purpose by condemnation the con-demnor should not be required to pay for an increased value due to the public improvement. Housing Authority of City of Dallas v. Hubbard, Tex.Civ.App., 274 S.W.2d 165.”

While the authorities cited by appellant are strongly persuasive we do not believe that they are controlling of the factual situation presented on this appeal. In the first place it must be observed that most of the authorities relied upon by appellant are cases involving the construction and application of an act of Congress, as opposed to a Texas statute, or have to do with statutes of other states. The Texas cases relied upon by appellant are clearly distinguishable from the facts here presented.

We believe that the correct rule to be applied in the disposition of this appeal is laid down in the case of City of El Paso v. Coffin, 40 Tex.Civ.App. 54, 88 S.W. 502. In that case, the City of El Paso, with the right of eminent domain, and also the railroad companies also possessing this right, entered into an agreement for the construction of certain improvements within the City of El Paso. The railroad companies were to condemn and improve certain property as a depot site. The City was to condemn property not being condemned by the railroad companies for park purposes. The railroads proceeded with their condemnation and improvements but the City awaited the completion of these improvements and did not file condemnation actions until after the railroad improvements were completed. The City insisted before that court, as the City does in this case, that the proceedings were a joint project between the City and the railroad and they were therefore entitled to have the condemned land valued at a time before the improvements were made by the railroad. The court, in refusing this contention, laid down the general rule as follows:

“It is held generally, in cases presenting the appropriate facts, that, where a person’s entire property is included in one general proceeding of condemnation for a particular purpose, it is not permissible to consider that purpose, or the results thereof, in estimating the owner’s compensation. The reasons for this rule are apparent. To permit it would be to take into consideration the condemnation proceeding itself as a factor, which is not allowed. Further, it is evident in such a case that the taking, and the effect on the value from such taking, would be concurrent, and such increase would not exist when the taking occurs. The person’s property is taken and is absorbed in the purpose for which it is taken, and to allow him a compensation based on the value which the property would have had if not taken would be giving it a status it could not possibly have had in the very nature of the act.”

The court then said:

“Such, we think, would be the case here if this property and the other property acquired as a depot site were being condemned by the railway companies simultaneously in a common proceeding. But the property is not being condemned by the railway companies, nor is it being condemned for its purposes. Furthermore, at the time at which the law requires this property to be valued, the companies had already acquired the property to be used for their purposes. The case of the city could have no better footing than would have been the case had the railway companies, after acquiring the grounds for the erection of their depot, proceeded to condemn this proper- • ty as additional grounds. The case of [Gulf, C. & S. F.] Ry. [Co.] v. Brugger [24 Tex.Civ.App. 367] 59 S.W. 556, is, we think, an authority on this state of case.”

Continuing, the court concluded:

“It is true the original ordinance, the provisions of which were accepted by the railway companies, contemplated, and, we shall say, stipulated for, the acquisition of defendant’s land by the city for a public park, and, when acquired, that it should be kept in order by the said companies or the Union Depot Company. This, we think, is not a factor in respect to the rights of defendant. His constitutional right ini this involuntary proceeding, as further defined by our decisions, was to be awarded the value of this land at the time it was taken, and this time is not to be referred back to a previous time, when the taking was first contemplated or decided upon by the city.”

We also believe that the decision of this court in City of Dallas v. Shackelford et al., Tex.Civ.App., 200 S.W.2d 869, certified questions answered by Supreme Court, 145 Tex. 528, 199 S.W.2d 503, is directly controlling of this appeal. In that case the same appellant herein was attempting to present to the court practically the same contention which they are making now, namely, that a tract of land being taken should be valued as of a time when the City had originally contemplated taking the property. In that case the facts reveal that on June 28, 1941 the voters of the City of Dallas authorized the issuance and sale of tax supported bonds for the purpose of acquiring lands on which to erect and establish a public municipal market, designating certain lands to be taken for that purpose. On December 10, 1941 the City Council of Dallas adopted a resolution stating that since the adoption of the prior resolution the declaration of war against Japan and the general unsettled conditions do not make it advisable or advantageous, to embark upon the full realization of the ■public improvement and that certain property was designated for the present purpose. A portion of the property was acquired and a market erected. In 1944 •another resolution was adopted to take Shackelford’s property, being in the original area sought to be condemned, and in that proceeding of condemnation the City took the position that the value of the land •could not properly include the enhancement of the value caused by the erection of the market. This court rejected that proposition, and was sustained by the Supreme Court. In doing so we relied upon the authority of the City of El Paso v. Coffin, 40 Tex.Civ.App. 54, 88 S.W. 502, above discussed, and in doing so we said:

“If appellees’ property had been designated in the resolution of December 10, 1941, for immediate acquisition, by purchase or condemnation, along with the other properties so designated for that purpose, doubtless the condemnation could be considered simultaneous and in a common proceeding; but such was not the case. When, in the fall of 1944, the city finally decided to acquire the property by purchase or condemnation, it had already been benefited and enhanced in value as the result of improvements made by the city as the result of an entirely separate and disassociated proceedings. So we conclude that, in fixing the value of appellees’ property as of the date it was taken, — January 4, 1945, it was entirely proper for the jury to take into consideration its enhanced value due to the previous steps taken by the city towards the establishment of a public municipal market. This conclusion, in our opinion, is supported by the following Texas cases: City of El Paso v. Coffin, supra; Gulf, C. & S. F. R. Co. v. Brugger, 24 Tex.Civ.App. 367, 59 S.W. 556; McChristy v. Hall County, Tex.Civ.App., 140 S.W.2d 576; and San Antonio etc. Ry. v. Ruby, 80 Tex. 172, 15 S.W. 1040.”

In McChristy v. Hall County, Tex.Civ.App., 140 S.W.2d 576, the court held that if the condemnation is a part of an independent proceeding that the owner is entitled to tire enhancement of the value brought about by a previous taking. The court said:

“The rule is well established that the owner of property condemned for public use is entitled to a judgment based upon the fair market value of his property at the time it is taken. The fact that previous improvements have been made by the condemnor or others is a factor which it is proper to consider in arriving at its value.”

The court further said:

“The benefits ánd enhancements in value that had already accrued on account of the previous improvements or the enterprise that had already been initiated to establish and build the road are not matters to be considered as offsets when subsequent condemnations such as this are instituted. The owner is entitled to such compensation as is warranted by the facts shown to exist at the time the land is taken. (Citing cases).”

One of the most recent cases involving this subject is State v. Willey, Tex.Civ.App., 351 S.W.2d 900 wherein Justice Wilson of the Waco Court of Civil Appeals discussed the authorities and arrived at a similar conclusion. In that case. Orange County acquired a strip of land in 1951 from appellee as right-of-way for a designated free access state highway. In 1956 appellee subdivided land he owned adjoining the right-of-way and sold lots from this subdivision. At that time no highway construction had been commenced. After 1956 the State Highway Commission changed its plans and designated a limited access highway along the route earlier designated which required the acquisition of the additional track taken in the present proceedings. The State complained that the court erred in admitting opinion evidence as to the value of the last site taken based in part on the enhancement of its value due to the prior acquisition of the first tract for highway purposes. The court rejected the State’s contention and, among other authorities, quoted 4 Nichols, Eminent Domain, (3rd Edition 1951) Sec. 12.3151(3), Page 127:

“If a definite area has already been condemned, the market value of the neighboring property is naturally affected thereby. If an enhancement in value results such property is entitled to the benefit thereof. It follows that if the original project is subsequently enlarged so as to embrace additional property, such additional property as is involved in the supplemental taking is entitled to the benefit of any enhancement in value which resulted from the original taking.”

See also 1 Orgel, Valuation Under Eminent Domain, (2nd Edition 1953) Sec. 104, Page 443, wherein it is stated:

“While the decisions of courts are not in accord on the question of whether an enhancement in value caused by the very improvement for which the land is taken should be considered, they would probably all agree that an increase in value resulting from a prior and separate improvement should be allowed.”

In arriving at an answer to this problem it must be borne in mind that the two projects, the Iron Bridge Reservoir or Lake Tawakoni, and the Iron Bridge Transmission Line, are separate and distinct. The sole responsibility for the construction, ownership and management of the Iron Bridge Reservoir is designated by special act of the Legislature in the Sabine River Authority of Texas. The responsibility for the construction, ownership and operation of the pipeline is expressly granted by special act of the Legislature to the municipality. The contract between the City of Dallas and the Sabine River Authority of Texas is clear and explicit in dividing the areas of responsibility, not only for the construction of the two projects, but the ownership and management thereof. It should also be noted that the right of eminent domain is conferred upon the Sabine River Authority of Texas by special act of the Legislature and such right of eminent domain is different from that afforded the City of Dallas, Sabine River Authority of Texas v. McNatt, Tex.Civ.App., 337 S.W.2d 325, reversed on other points, Sabine River Authority of Texas v. J. P. McNatt, 161 Tex. 551, 342 S.W.2d 741. In accordance with designated authority the Sabine River Authority of Texas proceeded to acquire, by condemnation, the necessary lands-for the construction of the Iron Bridge Reservoir, or Lake Tawakoni. This it did prior to the time the City of Dallas decided to begin the acquisition of property by eminent domain for the construction of the pipeline project. At the time the condemnation was filed by the City of Dallas in this case the reservoir of Lake Tawakoni had already been completed and appellees had laid out and subdivided the property owned by them. It is undisputed in this record that the value of appellees’ property had undoubtedly been enhanced by the construction of the Iron Bridge Reservoir or Lake Tawakoni, but unless it can be said that the construction of the lake and the construction of the pipeline are one and the same thing, indispensible to the other, then, under the authorities above cited, we see no basis for appellant’s contention that appellees ought to be deprived of the enhanced value due to the construction of the pipeline itself. Under the facts as demonstrated in this record we do not believe that the pipeline was an indispensible or integral part of the lake itself. While it is true that Dallas is the principal beneficiary as a result of the construction of the lake yet the law is plain and explicit in its terms granting to other eligible cities and communities the right to also acquire water from the lake.

We think it also important to consider the timing in this case. While it is true that the City of Dallas completed its engineering phase of the pipeline as early as 1955, and told people, including appellees, where the pipeline would probably be laid, yet it did not actually begin construction of the pipeline until 1961, following the completion of the lake. There is no evidence that the City of Dallas was required or compelled to lay the pipeline at any particular time. While it had the right to 80 percent of the water in the lake it might reasonably, and for reasons best known to itself, refrain from taking the water until a later date. Also, it could have exercised its right of eminent domain at an earlier date, prior to the time appellees made the improvements to their property. As the Supreme Court said in Texas Western Ry. Co. v. Cave, 80 Tex. 137, 15 S.W. 786:

“If defendant is now compelled to pay more for a right of way than it would have been compelled to pay had condemnation been made at an earlier day, this results from its own failure to take such steps at an earlier period as it might and ought to have taken * * *»

See also Allen v. M. K. & T. Ry. Co., Tex.Civ.App., 25 S.W. 826; Gulf C. & S. F. Ry. Co. v. Brugger, 24 Tex.Civ.App. 367, 59 S.W. 556; and Panhandle & G. Ry. Co. v. Kirby, 42 Tex.App. 340, 94 S.W. 173.

The Commission of Appeals in State v. Carpenter (opinion adopted by Supreme Court), 126 Tex. 604, 89 S.W.2d 194, correctly enunciated the rules to be followed in condemnation cases. As there stated the jury is to assess the value of the property taken at the time it is taken and to consider the elements of damage which are properly contained in the court’s charge. The trial court in this case carefully followed the Supreme Court in submitting the issues suggested in the Carpenter case, including instruction on the elements of value. We think the trial court was correct in this regard.

Finding no error on the part of the court in refusing appellant’s tendered testimony we overrule appellant’s Points 1, 2, 3, 27 and 28.

By its next group of points (4, 5, 6, 7, 8, 10, 11 and 12) appellant complains of the action of the trial court in allowing witnesses for the appellees to testify concerning values of 38 separate and individual lots taken rather than a single parcel of 8.2 acres of land, and also by allowing" testimony concerning damages to the remainder as being 18 individual lots, rather than as one tract of land.

As stated above, the property owned by-appellees had been subdivided following the building of Lake Tawakoni but prior to the time of taking of the land for pipeline purposes. Upon the trial of the case the court permitted appellees’ witnesses to testify as. to the value of each separate lot as such, as 38 different parcels of land, and the remainder was treated as 18 parcels of land, being separate lots adjoining the tract taken. The testimony is uncontradicted that the highest and best use for the property was a subdivision within the area where it was located. Moreover, not only was the property suitable for this purpose, but it had actually been divided and lots, had been sold with reference to the plat within the subdivision. The position of appellant in this case has been decided against it in City of Denton v. Hunt, Tex.Civ.App., 235 S.W.2d 212, wr. ref. n. r. e., which involved a taking of divided lots, as in this-case. There, the court said.

“Where land not devoted to any special use has been divided into blocks and lots upon a map by the owner of a plot, and sales have been made with relation to streets shown on "that map, although reference is not made to it, the property should prima facie be treated as lots and blocks in ascertaining damage, * *

The court further said:

“We also note the rule laid down in 29 C.J.S., Eminent Domain, § 140, p. 984: * * * Where, however, the land has been laid out in blocks and streets for many years, and it has been recognized, treated, and dealt with by the owners and the people as blocks and streets, such blocks should be treated as distinct tracts. ”

We find no error reflected in these points and they are overruled.

By its 9th, 20th and 21st points of error, appellant contends that the trial court was not justified in permitting a consideration of damage to remainder because the part taken consisted of 38 lots and there was no remainder, as a matter of law.

The principal case relied upon by appellant in support of these points is City of Denton v. Hunt, Tex.Civ.App., 235 S.W.2d 212, err. ref. n. r. e., above discussed. In City of Denton v. Hunt, supra, the question presented was damages allowed to non-contiguous lots to the strip of land taken for highway purposes. The court, in that case, drew a distinct difference in law between contiguous and noncontiguous property to the land actually taken. In this case the court confined the jury’s consideration to damages to those lots actually contiguous to the strip of land taken by the city. There was sufficient evidence to justify the submission of these issues.

In its 13th and 14th points appellant bitterly assails the testimony of the witness Irby Mills, a real estate appraiser who testified for appellees, contending that such testimony was entirely inadmissible and unworthy of being believed. We have carefully reviewed the entire testimony given by this witness and while it is true that he did testify to considerable variances in values, and especially comparable values, yet we do not find that the admission of such testimony was of such a nature as to constitute reversible error. In the first place, the weight to be given to the testimony of the witness was for the jury and apparently the jury did not allow themselves to be influenced considerably by such testimony because their findings relating to value were less than that testified to hy Mills. . While we do not think it was error to admit the testimony of the witness yet if it was error the same was harmless. Rule 434, Texas Rules of Civil Procedure.

We have carefully considered each of appellant’s remaining points and find the same to he related to and are different shades of the same points previously argued and considered, and finding no merit to any of them we overrule them.

The judgment of the trial court is affirmed.

Affirmed.


author: BATEMAN, Justice.

text:
    ARGONAUT INSURANCE COMPANY, Appellant, v. J. W. SHAWVER, Appellee.
    No. 16298.
    Court of Civil Appeals of Texas. Dallas.
    Jan. 24, 1964.
    Rehearing Denied Feb. 21, 1964.

      L. W. Anderson, Dallas, for appellant.
    Peery & Wilson, Kearby Peery, Wichita Falls, for appellee.
   BATEMAN, Justice.

This is a workmen’s compensation case in which the jury found that the employee, J. W. Shawver, suffered total and permanent disability from injuries received when-he jumped from a maintainer or road grader which he was operating and wrenched his back. Judgment was for the lump sum due, the insurer, Argonaut Insurance Company, having agreed in its answer to discharge its liability, if any, in a lump sum. .

The insurer appeals, its first point of error being that the trial court erred in failing to allow appellant to introduce into evidence certain Veterans Administration records indicating that at the time of the accident appellee was drawing a forty percent disability pension. However, appellant does not demonstrate by a proper bill of exceptions just what the records would have shown if admitted, making it impossible for us to determine the materiality or admissibility thereof or whether the error, if any, prejudiced appellant’s right to the extent of probably causing the rendition of an improper judgment. Rules 372 and 434, Texas Rules of Civil Procedure; City of Kingsville v. Rivas, Tex.Civ.App., 355 S.W.2d 813, no writ hist. The point is therefore overruled.

By its second point of error appellant claims to have been prejudiced by the remarks of appellee’s counsel, evidence introduced by him and arguments to the jury concerning hardship, which the court allowed to occur in spite of appellant’s having agreed to redeem its liability in a lump sum. Counsel for appellee attempted to offset appellant’s showing of work done by appellee dttring the time he claimed to be totally disabled by offering testimony of the appellee and others that appellee returned to work while still disabled because of the economic necessity to do so in order to support his wife and two children and to continue to make payments on his home and car, having no source of income other than his labor. Appellant’s counsel objected that this was improper, and moved for a mistrial, on the grounds that such evidence was prejudicial and inflammatory since lump sum had been stipulated. The court sustained these objections several times and ruled that the evidence was inadmissible, but occasionally the witness would answer before the objection could be made, and in the course of the arguments on the objections appellee’s counsel made certain remarks to the effect that appellee was entitled to show that he worked “under despair of necessity” and because of his poverty. In his argument to the jury he spoke of appellee’s wife and two children in school, as well as the fact that appellant did not pay appellee any compensation for five months after the accident, and that the only source of income was what appellee could make, to all of which appellant continued to obj ect and at least twice moved for a mistrial. The court overruled the objections to remarks of counsel and his jury argument and, by implication, the motions for mistrial.

Appellant argues that the cumulative effect of all of the foregoing incidents was to so prejudice it that the judgment against it should be reversed, citing Traders & General Insurance Co. v. White, Tex.Civ.App., 320 S.W.2d 702, err. ref. n. r. e. In that case, however, the employee apparently did not take the position, as appellee does here, that he was entitled to show his impoverished and needy condition as an explanation of why he went back to work when he was actually not physically able to do so. Moreover in the case before us counsel for appel-lee made no effort to contrast his client’s poverty with the insurance company’s wealth, as was done in the White case. Therefore, we do not consider that case as controlling on this point.

More in point is Muro v. Houston Fire & Casualty Ins. Co., Tex.Civ.App., 310 S.W.2d 420, err. ref. n. r. e., wherein the insurer stipulated that weekly installments of compensation would work a manifest hardship and injustice upon the employee and agreed that he should have a lump sum payment. At the trial, the insurance company produced extensive evidence of the employee’s employment after the accident, taking that employment week by week, and employer by employer, and showing the strenuous nature of the work the employee performed. The employee then sought to explain those facts by proof that he was compelled to work by reason of economic necessity to support his family, but he was not permitted by the court to do so. The San Antonio Court of Civil Appeals held that this was error, that the tendered proof related to issues different from the lump sum and accelerated payment and that the employee was entitled to explain that he worked to support his family at a time when he was not physically able to do so, when he was hurting and in pain, because he needed the money. The court then said:

“Defendant, by admitting hardship which would permit a lump sum payment in the event it lost the case, then used the admission of hardship as a means to defeat the case itself. The admission was for the purpose of avoiding one issue, but it was used to permit the defendant to deny the extent and duration of the injury without an opportunity by employee for explanation. In our opinion, this was error.”

The same court later said, in Texas Employers Insurance Ass’n v. Tijerina, Tex.Civ.App., 354 S.W.2d 194, 196, err. ref. n. r. e.:

“Evidence is admissible on disputed issues. If hardship is denied, there is an issue. If hardship is admitted, but the insurer later proves that the employee is able to work and has worked, then hardship is yet an issue to prove that the work was done under the whip of necessity.”

Appellant’s second point is overruled.

The jury found in answer to Special Issue No. 5 that appellee’s disability was total, and in answer to Special Issue No. 8 that such disability was also permanent. Appellant objected to Special Issue No. 8 because there was no evidence and insufficient evidence to justify submission thereof and its third point of error here is that the trial court erred in failing to sustain such objections. Its fourth point of error is to the effect that the trial court erred in rendering judgment based upon the answer to Special Issue No. 8 because such finding was so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and unjust, there being no evidence, or insufficient evidence, to support such finding. These points will be considered together as they were in the briefs of the parties.

A careful study of the entire statement of facts reveals that in November 1961, while operating a maintainer for his employer, Flenniken Construction Company, the appellee jumped to the ground when the maintainer started to slip down the slope he was working on, and in doing so wrenched his back. He worked the remainder of that day, which was a Friday. On the next day, Saturday, his foreman came by to see him and tried to get him to return to work that morning, but appellee declined to do so stating that he could not get out of bed. On that same day he went to Dr. Rowland, the company doctor at Sherman, Texas, for examination and treatment. Dr. Rowland wanted to put him in the hospital but he declined to go until the following Monday, hoping to improve in the meantime. On the following Monday he went back to work and worked several days, seeing Dr. Rowland daily, and the following week he went to the hospital, where he stayed a week and was put in traction.

He stayed at home several days and then about December 10, 1961 went to work for Johnson, Drake & Piper, operating a crane which he says was easier work for him than operating the maintainer. He received $3.971/⅞ per hour as a crane operator, as compared to $2.25 an hour he had received as a maintainer operator. Appellee testified, with respect to his operation of the crane, that sometimes he would sit there on the job for half a day at a time and never make a lift or anything with the crane, that he was in the seat or he would get out and move around, that sometimes he would work three or four hours and then he would be through, and at other times he would have to “stay with it pretty closely.” He said his condition became worse as he continued on that job and that he finally concluded that it was unsafe for him to operate the machinery, which was the reason he did not seek further employment operating a crane. He worked for Johnson, Drake & Piper approximately five months, or until April 1962.

In June 1962, after being off thirty or forty days, he went to work for his brother on his ranch and received $100.00 a week over a period of about three months. On November 7, 1962 he went to work for T. L. James Construction Company in Dallas after taking a physical examination consisting of examination of eyesight and blood pressure and checking for a rupture, and tried to run a maintainer again, which he did for parts of two weeks, receiving $2.25 per hour, and worked there until shortly before the trial in February 1963.

He testified that during all of this time he was regularly taking “pain pills” which had been prescribed for him by Dr. Rowland. A friend, Mrs. McDaniel, testified that “he was always in a lot of pain” and took medicine for pain all the time. He was examined by Doctors Butte and Nash in Dallas in March or April 1962, haying been sent to Dr. Butte, an orthopedic specialist, by Dr. Rowland, and having been sent by Dr. Butte to Dr. Nash, a neurosurgeon. Dr. Rowland prescribed a brace which he has been wearing all of the time except at night. He testified that he was aware of his back all of the time, that if he takes care of himself and doesn’t slip on the floor and doesn’t do too much walking or lifting, or anything like that, he does “fine”, but has pain when he turns too quickly or stoops over to pick up something. He testified that he favored his left leg, which burns and goes numb or asleep, into his big toe; that he can bend over a little frontward if he has to, and can bend a little either way, but not half as much as he could before the accident, without pain; that he can lift but if he does it hurts him and he can feel it even on lifting a five-pound bag of sugar.

He further testified that since the accident he has been out to the Veterans Administration dance hall and has been dancing;' that he applied for unemployment compensation but did not collect anything; that in view of his previous experience in operating cranes he does not feel competent to get a job on that type of crane and retain it.

The superintendent' for T. L. James Construction Company testified that he hired appellee about November 6, 1962 as a maintainer operator, that appellee never ' complained of any condition and that his work was satisfactory; that he never saw him limp or give other evidence of injury, but that if he had known appellee was wearing a back brace the company wouldn’t have allowed him to be hired. It was also brought out that appellee had played poker on several occasions, about once each week, and sometimes played all night and worked next day.

Dr. Rowland testified that an x-ray of appellee’s back indicated to him that the back was normal; that he at first thought he had an acute lumbosacral strain with ra-dicular pain, evidenced by muscle spasms; that he didn’t know whether he had a ruptured disc or not, which was why he sent him to Dr. Felix Butte, an orthopedic surgeon in Dallas; that appellee did have limited ability to bend and the straight leg raising test was positive and there was a suspicion of sensory changes over the thigh. Dr. Nash testified that he first examined appellee in April 1962 and couldn’t find anything seriously wrong with his back, that he had no sign of a ruptured disc, that he saw appellee again in January 1963 and found little difference in his condition, and still found no evidence of a ruptured disc. Moving pictures were introduced showing appel-lee performing certain activities such as welding while in a sitting or squatting position, cutting certain metal pipe with a cutting torch, walking and carrying a saddle.

Dr. John Florence testified for appellee as to the details of his examination of him, as a result of which he was of the opinion that appellee had irritation to the nerve roots emerging from both the fourth and fifth interspaces of his spine, with more irritation at the fourth interspace on the left side, and that in his opinion appellee should not do any bending, lifting or stooping; that he could possibly get by with it for a day or two or maybe hours, but any time he attempted to do that he will have inore swelling about the nerves and more pain and be bedfast again for several days; 'that he thinks the swelling on the nerve roots is caused by a rupture of the disc; that he knows of no conservative treatment that would help this situation or cure it or bring it up to where this mail could do ordinary manual labor, that he thinks the patient has had all the conservative management he would know to use, without improvement, and that he feels there is no alternative other than surgery, that he would reject appellee for any type of employment, even light work, because he is going to continue to have trouble and will have more trouble with time.

The written report of the doctor who gave appellee his pre-employment physical examination for T. L. James & Company was introduced in evidence and is somewhat difficult to decipher, but it is clear there is no statement thereon to indicate an examination of appellee’s back. It does show that the doctor recommended him for employment.

There was also in evidence a copy of appellee’s application for unemployment compensation dated November 21, 1962 and which contains the following printed statements with no exceptions thereto noted: “(1) I am able to work; (2) I am available for work; * * * (4) I am not receiving nor are there now accruing to me any disability benefits under the Workmen’s Compensation Law of any state or similar law of the United States * *

Appellant contends that the findings of permanent total disability are improper in view of the evidence of appellee’s work for wages, his dancing, poker playing and other activities since the accident, but as said in Texas Employers Ins. Ass’n v. Pillow, Tex.Civ.App., 268 S.W.2d 716, 721, err. ref. n. r. e.:

“It is well settled that the fact that a worker is compelled to work by the spur of necessity after the injury is not conclusive on the issue of total and permanent disability. Texas Employers’ Insurance Ass’n v. Mallard, Tex.Civ.App., 192 S.W.2d 302; Davies v. Texas Employers’ Insurance Ass’n, Tex.Comt.App., 29 S.W.2d 987; Traders & General Insurance Co. v. Collins, Tex.Civ.App., 179 S.W.2d 525; Lott v. American Surety Co. of New York, Tex.Civ. App., 140 S.W.2d 928.”

To the same effect is the following language used by the U. S. Court of Appeals for the 5th Circuit in Mabry v. Travelers Ins. Co., 193 F.2d 497, 498:

“Pinched by poverty, beset by adversity, driven by necessity, one may work to keep the wolf away from the door though not physically able to. work; and, under the law in this case, the fact that the woman, worked to earn her living did not prevent a jury from finding, from the evidence before it, that she was totally and permanently disabled even while working.”

Other cases supporting this principle are: Smith v. Consolidated Casualty Ins. Co., Tex.Civ.App., 290 S.W.2d 589, err. ref. n. r. e.; Zurich General Accident & Liability Ins. Co. v. Johnson, Tex.Civ.App., 202 S.W.2d 258, affirmed 146 Tex. 232, 205 S.W.2d 353; Texas Employers Ins. Ass’n v. Mallard, Tex.Civ.App., 192 S.W.2d 302, err. ref. n. r. e.; Davies v. Texas Employers Ins. Ass’n, Tex.Com. App., 29 S.W.2d 987; Trinity Universal Ins. Co. v. Scott, Tex.Civ.App., 342 S.W.2d 348, err. ref. n. r. e., and the many cases cited therein.

The definition of “total disability” given by the court in the charge correctly stated that the term “does not imply any absolute disability to perform any-kind of labor, but a person disqualified from performing the usual tasks of a workman, in such a way as to enable him to procure and retain employment, is regarded as being totally incapacitated, or totally disabled.” This is the definition expressly approved by our Supreme Court in Texas Employers Ins. Ass’n v. Mallard, 143 Tex. 77, 182 S.W.2d 1000, 1001.

Our Supreme Court has also held that “if there be any reasonable doubt which may arise in a particular case as to the right of the injured employee to compensation, same should be solved (sic) in favor of such right.” Bailey v. American General Ins. Co., 154 Tex. 430, 279 S.W.2d 315, 318.

Appellant relies heavily on the cases of Indemnity Ins. Co. of North America v. Cady, Tex.Civ.App., 356 S.W.2d 323, no wr. hist., and Texas Employers Ins. Ass’n v. Vineyard, Tex.Civ.App., 316 S.W.2d 156, no wr. hist. However, we do not regard our decision here as being in conflict with those cases. In the Cady case the evidence showed that nine weeks after the injury the employee returned to oil field work as a “roughneck,” the same work he had been doing when injured, and worked fifty-six hours a week, and he testified that he had worked about as “steady since the accident” as he worked the year before. In the Vineyard case it was shown that the employee held a number of good jobs for several years after his injury and up to the time of trial, receiving several promotions and increases in pay. No such showing was made in the case now under review.

Accordingly, we hold that Special Issue No. 8 was properly submitted, and that both it and the jury’s answer thereto were supported by the evidence and were not contrary to the overwhelming weight and preponderance thereof. The third and fourth points of error are overruled.

By its fifth point of error appellant complains that the court erred in permitting appellee’s witness, Dr. John Florence, to testify: “I would reject this patient for any type of employment, even light work, because of the fact that the patient is going to continue to have trouble, he is going to have more trouble with time, and I don’t feel that any company should be liable for his condition,” over the objection that the proper predicate had not been laid with reference to the witness’ knowledge of the standards of employment in Grayson County in connection with the operation of maintainers or any other types of equipment. It should be noted that this witness was not asked his opinion as to whether appellee would pass the standard or customary requirement of a pre-employment physical examination, as in Texas Employers Ins. Ass’n v. Polk, Tex.Civ.App., 269 S.W.2d 582, err. ref. n. r. e., relied on by appellant, but only as to whether the witness himself would pass the appellee. The witness was an Oklahoma doctor and had had a great deal of experience in that state in giving people pre-employment examinations. The objection, therefore, went to the weight rather than the admissibility of the testimony. Texas Employers Ins. Ass’n v. Tucker, Tex.Civ.App., 165 S.W.2d 780, err. ref. w. o. m. The fifth point is overruled.

While Dr. Florence was on the stand appellee’s counsel asked him his opinion as to what the future held for appellee, in the absence of surgery, with respect to his ability to do ordinary manual labor. Objection was made that this question did not contain the proper test in law; i. e., was not restricted to appellee’s ability to perform the usual tasks of a workman; and appellant’s sixth point of error on appeal is that this objection was overruled and the witness permitted to say: “I don’t believe that this patient can do ordinary manual labor without a laminectomy. That is, opening up of the spine and removing the disc tissue.” The point is without merit and is overruled. That appellee could or could not do ordinary manual labor, we think, was an important question for the jury to consider, and they were entitled to weigh this doctor’s opinion thereon in determining the larger, ultimate issues of total and permanent disability.

As additional reasons for overruling the fifth and sixth points of error, we point out that this evidence complained of was cumulative of other testimony proving the same things; also that the errors, if any, in admitting it were not such as to have probably caused the rendition of an improper judgment and were harmless. Rule 434, T.R.C.P. •

Appellant’s seventh point of error complains of the testimony of the witness Bob Riley Ward, a co-worker with appellee at the time of the accident, to the effect that their foreman had told him that appellee had said that he was sore and that he would be back to work, over appellant’s objection that this was hearsay. The record shows that this testimony was merely cumulative of a similar statement brought out on direct examination of the witness by appellant’s counsel; also that no objection was made to the particular question so answered by the witness, and no motion to strike the same (although similar objections to somewhat similar questions had previously been made and overruled). Moreover, it clearly appears that if the court were in error in permitting the witness to so testify, the error was wholly harmless; the testimony could not possibly have prejudiced appellant or had any effect on the outcome of the case. Rule 434, T.R.C.P.

By its eighth point of error appellant complains of the testimony of Virgil Jones, who had been appellee’s foreman at the time of the accident, to the effect that he had been around appellee and noticed the way he gets around and heard him complain, and that from his observation and hearing the complaints he would not hire appellee to do construction work, over appellant’s objection that the witness had had no medical training and was not qualified to give an opinion as to whether a man is employable. This point will also he overruled. The witness was not expressing an opinion as to employability or disability of appellee but was merely making a statement as to what he himself would do in the matter of hiring appellee. Moreover, immediately following the admission of this testimony, and on cross examination by appellant’s attorney, the witness qualified his statement by testifying that ordinarily when people are hired they are referred to a doctor for pre-employment physical examination, and that he abides by what the doctor says with reference to whether or not the man can do the job, even though he might have a different opinion, and that what the doctor says with reference to whether or not the man might he employed is really what counts. The testimony was also cumulative of what Doctors Florence and Rowland had said. Therefore the error, if any, in admitting the same was harmless. Rule 434, T.R.C.P.

Finding no error requiring reversal, we affirm the judgment of the court below.

Affirmed.