author: GREENHILL, Justice.

text:
    The STATE of Texas, Petitioner, v. SUNLAND SUPPLY CO., Inc., Respondent.
    No. A-10905.
    Supreme Court of Texas.
    June 8, 1966.
    Rehearing Denied July 13, 1966.
    Waggoner Carr, Atty. Gen., Austin, Robert C. Patterson, Asst. Atty. Gen., for petitioner.
    Irion & Rash, El Paso, for respondent.
   GREENHILL, Justice.

This is a condemnation case. Commissioners offered Sunland Supply Company $34,100 for its property. Sunland was dissatisfied only with the amount. Upon appeal to the court, the jury awarded Sunland $35,500. Sunland was still dissatisfied. The Court of Civil Appeals sitting at El Paso reversed the judgment of the trial court and ordered a new trial because it considered that the trial court had committed error in refusing to retire the jury and allowing counsel for Sunland to examine a State’s appraisal witness upon voir dire outside of the presence of the jury, and had committed fundamental error in admitting testimony as to a so-called “comparable sale.” 392 S.W.2d 369. We here reverse the judgment of the Court of Civil Appeals and affirm that of the trial court. Our holding is that it was not error to refuse to retire the jury under the circumstances and that the trial court did not commit fundamental error. We do not reach the question of harm.

The circumstances surrounding the request for the court to retire the jury and permit the voir dire examination were these: The State’s witness, Mr. Bart Col-well, qualified as an expert in the field of real estate appraisals. The property taken consisted of a city lot upon which there was an old building. The building had been remodeled into a store. As a predicate for his opinion as to the value of Sunland’s property, he stated that there were three ways to arrive at value: (1) the reproduction or cost approach, (2) the income approach, i. e., how much a person would be willing to invest in the property considering its net income, and (3) the market data approach, i. e., the amounts received from sales of comparable property in the vicinity. Mr. Colwell used all three methods.

Using the cost or reproduction method, he assigned $9,000 to the land and $26,829 to the building, and arrived at a total value of $35,829. Using the income approach, he arrived at a value of $35,473 which he rounded out to $35,500. In testifying upon this theory, Mr. Colwell recited the rental paid on several comparable properties, the rentals per square foot, the age and utility of the properties, the taxes and upkeep upon the property, and similar considerations. The testimony was not offered to prove the truth of the rentals received but to show Mr. Col-well’s mental processes. It was during this testimony that the request came for the retirement of the jury and voir dire examination. This will be elaborated upon below. Third, he testified as to sales of comparable properties. He listed six sales, one of which was the sale from Fuentes to Friedman which caused the Court of Civil Appeals to reverse the judgment of the trial court. The testimony of Mr. Colwell as to that sale was not challenged. It came in without objection, and there was no motion to strike it after counsel for Sunland developed that this sale was one upon the foreclosure of a mortgage. After having testified as to these six “comparable sales,” Mr. Colwell testified that upon the basis of this third method, the property was worth $35,000. After all of the above testimony, his conclusion was that the property was worth $35,500. No objection was made to his conclusion.

For us to judge the actions of the trial court in the handling of a trial, the particular action complained of on appeal must be put in proper context. Mr. Colwell had testified at some length on his reproduction-cost theory and expressed an opinion of a value of $35,829 which included a value of $9,000 for the land. No objection was made of that conclusion. Then he began his testimony regarding the income approach to value. He was of the opinion that $450 was a reasonable monthly rental value of this property. He was asked if he had pictures of other properties which he considered in arriving at the rental figure. He said he did. At this point, counsel for Sun-land requested that the jury be retired and that he be permitted to take Colwell on voir dire examination. The court asked why he wanted the jury retired. Counsel for Sunland said, “As to the comparables * * * he [counsel for the State] asked for the photographs, and he has had the photographs marked for the purpose of handing them to the witness [Colwell] to go into the comparables, and before he goes into the comparables we would like to exercise our right of having the witness on voir dire examination in the absence of the jury.” A colloquy between counsel and the court then took place at the bench outside the hearing of the court reporter. The record does not show what reasons were given, or what statements were made. The court’s ruling was that counsel for Sunland could take the witness on voir dire before the jury, but the court declined to retire the jury for such purpose. Counsel for Sunland noted an exception, but he said, “I don’t want to examine him in the presence of the jury.”

Thus the record shows that counsel did not give the court any particular reason why he wanted the jury retired. The sale from Fuentes to Friedman was not then before the court. It had not been mentioned. The testimony before the court was of comparable rentals of property on which there were buildings. In its argument, Sunland connects the request for the voir dire examination to the Fuentes-to-Friedman sale. The Fuentes-to-Friedman sale came up some 170 pages later in the Statement of Facts, and Mr. Col-well regarded that property as vacant land. It was not included in his “income approach.”

While the testimony as to the sale from Fuentes to Friedman was not objected to when it was offered, the complaint is that it was not a “comparable sale” because it was not made by a willing seller under no compulsion to sell; it was a sale by a trustee under a deed of trust. Assuming that this matter and these circumstances had been called to the attention of the trial court by voir dire examination at the time the trial court was required to make a ruling, the court would not have been compelled to retire the jury. Assuming that the trustee’s sale here would not qualify as a comparable sale, the fact that it was a trustee’s sale could have been brought out on voir dire before the jury with no prejudice to anyone ; i. e., if the trial court had been asked to rule, and he had ruled that the sale was not comparable, no opinion as to the value of that property or the amount received at the trustee’s sale would have gone to the jury.

In matters dealing with mechanics of the trial including the permitting of voir dire examination and the retirement of the jury, the trial court has discretion. Southwestern Bell Telephone Co. v. Johnson (Tex.Sup.1965), 389 S.W.2d 645. We find no abuse of his discretion here and hence no error. Bridges v. City of Richardson (1962), 163 Tex. 292, 354 S.W.2d 366, 367.

Apparently, aside from the question of the retirement of the jury and the right to voir dire examination outside of the hearing of the jury, the Court of Civil Appeals held that the admission of the evidence as to the sale from Fuentes to Friedman, though not objected to and fully exploited on cross examination, constituted a fundamental error. We disagree.

On direct examination, Mr. Colwell testified that he confirmed this Fuentes-to-Friedman sale at $228 per front foot for a total price of $13,675, with the purchaser, Mr. Friedman. The testimony on direct examination was brief and unobjected to. On cross examination, it was brought out at length that this was a trustee’s foreclosure sale. Colwell said he knew that, and so carried it on his records; but Mr. Friedman had told him that he had purchased the land for its market value; that Friedman had told him that he wouldn’t have paid a dime more for the property. It was developed that the unpaid debt for which the mortgage was foreclosed amounted to $9,000. There had been another bidder at the foreclosure sale. Mr. Friedman had outbid the other person, and the property sold for $13,675.

As the final witness in the trial, Sunland put on Mr. Friedman. He admitted that Col-well (whom he did not know) had called him to ask him about the sale. He said he told Colwell the price, but he denied telling Colwell that he had bid the market price. He testified that he told Colwell he had gotten “a steal” and that he had previously offered $24,000 for the property. On cross examination it was developed that Mr. Friedman was an El Paso attorney who was a friend of the counsel for Sunland. Friedman’s and Colwell’s credibility was put in issue. No motion was made to strike Colwell’s testimony, and no request was made that his testimony be disregarded by the jury. Counsel for Sunland emphasized this portion of Colwell’s and Friedman’s testimony in his argument to the jury. He argued that Colwell’s testimony was unreliable as shown by his testimony regarding the Fuentes-to-Friedman sale.

Assuming that it would have been error to admit, over proper objection, the testimony as to the sale from Fuentes to Friedman, its admission without objection was not a fundamental error. Ramsey v. Dunlop, 146 Tex. 196, 205 S.W.2d 979 (1947); McCauley v. Consolidated Underwriters, 157 Tex. 475, 304 S.W.2d 265 (1957) ; Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887 (1960); St. Paul Fire & Marine Ins. Co. v. Murphree, 163 Tex. 534, 357 S.W.2d 744 (1962).

As this Court stated in Wagner v. Foster, cited just above, the field of fundamental error is a narrow one. That opinion held that it did not extend to lack of proof as to the identity of property, the sufficiency of the description of the property there involved, or questions of “no evidence” to support the judgment. Similarly in the Murphree case, supra, it was held that the entry of a judgment upon conflicting findings did not constitute fundamental error. Generally speaking, thus far, this Court has limited its holdings of fundamental error to important matters directly and adversely affecting the public, and to questions of the jurisdiction, particularly jurisdiction of the court over the subject matter of the litigation. See, in addition to the cases above cited, Wagner v. Warnasch, 156 Tex. 334, 295 S.W.2d 890 (1956); Kim-brough v. Walling (Tex.Sup.1963), 371 S.W.2d 691; and Texas Employment Commission v. International Union of Electrical, Radio & Machine Workers, 163 Tex. 135, 352 S.W.2d 252 (1961).

While as was stated in Ramsey v. Dunlop, supra, we will not undertake to give an all-inclusive definition of fundamental error, the admission of the testimony here does not fall within its narrow limits.

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

      . The building, which was approximately 60 years old and had been remodeled, was at 1200 East Missouri Street in downtown El Paso. It was approximately 60 x 100 feet and contained 11,984 square feet. It was described as a two-story building, but it was brought out that it was of one story with a basement underneath. Colwell estimated an average rental value of 45 cents per square foot with the upstairs perhaps having more value than the downstairs [the basement]. The building was used for the retail sales and service of televisions, radios, phonographs and related equipment. A portion of the “lower floor” was used for storage.


source: Caselaw Access Project

author: McDONALD, Presiding Judge.

license: Public Domain

text:
    Mervin Leon REESE, Appellant, v. The STATE of Texas, Appellee.
    No. 39727.
    Court of Criminal Appeals of Texas.
    June 22, 1966.
    Mays & Mays, by Chas. Mays, Jr., Fort Worth, for appellant.
    Doug Crouch, Dist. Atty., Gordon Gray and Charles D. Butts, Asst. Dist. Attys., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

McDONALD, Presiding Judge.

The offense is burglary; the punishment, seven years confinement in the Texas Department of Corrections.

The state’s evidence establishes that the closed building of Mr. Joe Adams was broken into and entered by someone on or about April 8, 1965, and that certain numbered payroll checks were taken. The building was entered and the checks taken without the permission of the owner of this property.

The owner of the Village Market, a grocery store, testified that on April 9, 1965, appellant and a companion purchased groceries from that store and paid for them with ’ a check identified as one taken in the burglary, and that appellant endorsed the check. When appellant was first confronted with the fact that he was in possession of recently stolen property, he made no explanation of such possession, so far as the record reflects.

Appellant’s written statement was introduced into evidence without objection. In that statement, he admits acting as “lookout” while others burglarized the building, and further admits receiving part of the proceeds from payroll checks taken in the burglary and later cashed, as well as cashing one of the checks himself.

The jury was charged as to the law of principals, and the evidence is sufficient to support their verdict of guilty.

Appellant urges as error the action of the trial court in admitting his confession When the statement was offered, appellant, through his counsel, stated that he had no objection to its reception into evidence. Objection to the admissibility of the statement was first urged on motion for new trial. In the absence of timely objection, no error was preserved. Crowson v. State, Tex.Cr.App., 364 S.W.2d 698.

The judgment is affirmed.


author: CHAPMAN, Justice.

text:
    John BELL, Jr., et ux., Appellants, v. Joe CURRIE et al., Appellees.
    No. 7614.
    Court of Civil Appeals of Texas. Amarillo.
    May 30, 1966.
    Carnahan & Fields, Amarillo, O. P. Fields, Jr., Amarillo, of counsel, for appellants.
    Lair, Williams & Cox, Canyon, A. W. Lair, Canyon, of counsel, for appellees.
   CHAPMAN, Justice.

This is an appeal from an instructed verdict in a suit filed by appellant John Bell, Jr., and wife to recover from appellees, Joe Currie, Golden Currie and H. J. Price d/b/a Currie Drilling Company, the amount of money paid appellees for drilling a domestic water well appellants allege ap-pellees by oral contract were obligated to drill in a workman-like manner and which was not so drilled.

The jury having been instructed to find for appellees at the close of appellants’ testimony, we must view the evidence in the light most favorable to the losing party, indulging against the instruction every inference that may properly be drawn from the evidence. Dunagan v. Bushey, 152 Tex. 630, 263 S.W.2d 148; McCarty v. Moss, Tex.Civ.App., 225 S.W.2d 883 (error ref.) ; Houston Transit Co. v. McQuade, Tex.Civ.App., 223 S.W.2d 64 (error ref.); Speights v. Deon, Tex.Civ.App., 182 S.W.2d 1016 (error ref.); James v. Missouri-Kansas-Texas R. Co. of Texas, Tex.Civ.App., 182 S.W.2d 921 (error ref.).

Appellants testified that the only agreement they first had with appellees was to drill the well three hundred feet at the price of $1.50 per foot for drilling, “ * * * and we wanted good water.” When no water was found at three hundred feet to justify production appellees agreed to drill deeper at the same price. So far as we can tell from the record that is the only agreement between the parties concerning the drilling of the well proper, though there were agreements with respect to the casing, pump, etc. There is no showing in the record as to a meeting of the minds between appellants and appellees that the latter contracted to drill a well that would furnish “good water,” whatever that term means. Additionally, one of appellants’ witnesses, Mr. McCaskell, who finally drilled a satisfactory well for appellants and who testified he had drilled between three and four thousand water wells, testified that he never, in any experience as a well driller attempted to guarantee that the water would have a certain taste one way or another. We make this statement only because of the considerable amount of evidence to the effect that the wells rejected produced water with a salty, soda taste. Actually, Appellant Bell testified concerning the well ap-pellees drilled, that he had no agreement with them that if he was not satisfied with one strata of water they were to seal it off and go to another strata; had no complaint of the quantity of the water; but his only complaint was “ * * * dirty water and the filth it would pump out.” Yet, he testified he never had any agreement about sealing off any strata of water to keep it from running down the outside of the casing.

The explanation given by appellants’ witness, Campbell, for the murky, dirty condition of the water was that “ * * * the only thing I could figure, top water was running down the side of the hole through the red bed and washing clay and dirt down as it went.” However, this witness testified his experience in drilling water wells had been in the Hereford area and that he knew nothing of the formations where the subject well was drilled. Mr. McCaskell testified that in his opinion “ * * * there is not enough top water out there to indicate it would come down.” Mr. McCaskell also testified:

“Q. You heard the process described here that the Curries used in connection with the drilling of this well — have you heard anything described that indicated an unwork-man-like way of drilling a well?
“A. No, sir, I have not.
⅝ ⅝ ⅜ ⅜ ⅜ ⅝
“Q. And if there was top water there in that well that Mr. Currie drilled, there was a better way of sealing it off than what he used, wasn’t there ?
“A. No, sir, I wouldn’t say that. * * ”

The witness did not seal his well in the manner the Curries used but the testimony shows that he received $2.00 per foot for drilling. Appellants’ witness, Campbell, also testified that if appellants paid $1.50 per foot for the drilling of the first well he could not have paid for a “graveled well,” the term that seemed to have been used in the case for sealing off top stratas of water. He testified a “graveled well” would be $1.75 to $2.00 per foot. Mr. McCaskell testified he drilled his second well free of cost because the Bells were dissatisfied with the first well he drilled and the water was not suitable for domestic use.

The only testimony we have found in the record with respect to a “graveled” job on the Currie well is the conversation related by appellant between himself and H. J. Price as follows:

“Q. And did you have a conversation at that time with Mr. H. J. Price?
“A. Yes, I did.
“Q. All right—relate that, please.
“A. Well, I went in to Mr. Price and we exchanged greetings, and I said, ‘did you get a good well out there ?’ and he said yes. I said, ‘is the gravel packed, did you get a good gravel job?’ and he says, ‘yeah,’ and he says, ‘didn’t really have to, the gravel packed itself.’ I says, ‘the gravel packed itself ?’ He said yes;

This testimony taken in connection with Mr. Bell’s previous testimony to the effect that the only agreement he had was that the well would be drilled for $1.50 per foot furnishes at least no more than a scintilla of evidence that appellees were obligated at that price to do a “graveled well.” This is particularly true in connection with the other testimony placed in the record by appellants to the effect that they could not have paid for a “graveled well” at the price of $1.50 per foot. Of course, it is elementary that the parties could have contracted for such a well at that price or any other price, but there is just no probative evidence they did so. In fact, it is difficult to conceive of a contract to perform as important a service as the production of a domestic water well for one’s home, requiring as much expenditure, under an arrangement as casual and with as few specifics as this case shows. The mere statement by Mr. Bell “ * * * and we wanted good water” did not, in our opinion, obligate appellees to produce what Mr. Bell termed “good water” when there is no showing in the record of a meeting of the minds in that connection.

Appellants presented all the witnesses that were used. None were called as adverse witnesses.

The party who places testimony in evidence vouches for their credibility and is bound by their testimony. Pickett v. Dallas Trust & Savings Bank, Tex.Com.App., 24 S.W.2d 354; Whitefield v. Whitefield, Tex.Civ.App., 160 S.W.2d 306 (writ ref. w. m.); Mayflower Investment Company v. Stephens, Tex.Civ.App., 345 S.W.2d 786 (N.R.E.).

It has been held that one may contradict the testimony of his own witness by independent facts showing its falsity or inaccuracy, Whitefield v. Whitefield, supra, and Travelers Ins. Co. v. Blazier, Tex.Civ.App., 228 S.W.2d 217 (writ dism.), but this record nowhere shows the falsity or inaccuracy of the testimony to the effect that appellant could not have contracted for a “graveled well” at $1.50 per foot, and the only testimony even tending to show lack of proper workmanship is the failure to seal off the top strata in such manner. As heretofore stated, appellants’ own witness, Mr. McCaskell, stated there was not anything said in the courtroom that showed an un-workman-like manner on the part of ap-pellees in drilling the well.

We do not consider Westbrook v. Watts, Tex.Civ.App., 268 S.W.2d 694 (N.R.E.), cited by appellants, as any authority for .their contention in this case. There the parties were operating under a written contract that spelled out the obligations of each. Here appellants are in effect seeking to recover on the failure of appellees to do a “graveled well” which their own testimony shows they were not obligated to do at the price agreed upon for the drilling.

Appellants’ second point simply states that the court erred in sustaining defendants’ motion for instructed verdict for the defendants, and no more constitutes a point than a similar statement to the effect that the trial court erred in sustaining a motion for summary judgment, which has been held to be too general to constitute a point. White v. Great American Reserve Insurance Co., Tex.Civ.App., 342 S.W.2d 793 (N.W.H.). However, by looking to the statement and argument under the point, we are able to determine the complaint being made, and will give it our consideration.

If we understand appellants’ argument under their second point, it is to the effect that the motion for instructed verdict was not in writing and did not state the specific grounds upon which it was made.

Rule 268, Vernon’s Ann. Texas Rules of Civil Procedure, provides: “A motion for directed verdict shall state the specific grounds therefor.” The rule does not state it shall be in writing.

When the trial court announced it considered the testimony insufficient to go to the jury, counsel for appellants only stated: “The Plaintiffs except.” It does not appear in the record that exception was made for the reason that the motion did not state the specific grounds therefor.

Even if it should be said, arguendo only, that sufficient grounds were not stated, it does not follow that the granting of a judgment thereon constituted reversible error. In Harvey v. Elder, Tex.Civ.App., 191 S.W.2d 686 (writ ref.) the San Antonio intermediate appellate court held:

“When questions of law only are involved, a trial court may at the conclusion of the hearing of the evidence take the case from the jury and proceed to render judgment. This may be done on the court’s own motion and this power is in no way dependent upon a motion having been filed by a party litigant. Rudco Oil and Gas Co. v. Gulf Oil Corporation, Tex.Civ.App., 169 S.W.2d 791. We see no difference between the situation where the court on its own motion renders a judgment and one where the court upon an irregular or insufficient motion by one of the parties directs a verdict and renders judgment accordingly. In either instance, in determining the matter of reversible error, the question is the same, i. e., Was the prevailing party below entitled to judgment as a matter of law?”

Having held that the prevailing parties below were entitled to judgment as a matter of law, it follows that no error is shown in appellants’ second point. Informality in presenting such a motion and generality in specifying grounds therefor are matters which the complaining party may waive if he does not object thereto seasonably. Routte v. Guarino, Tex.Civ.App., 216 S.W.2d 607 (N.R.E.).

Accordingly, the judgment of the trial court is affirmed.


author: COLLINGS, Justice.

text:
    L. & L. INDUSTRIAL PRODUCTS COMPANY, Inc., Appellant, v. ALBERT E. KUEHNERT, AUCTIONEERS, INC., Appellee.
    No. 4003.
    Court of Civil Appeals of Texas. Eastland.
    May 6, 1966.
    Rehearing Denied June 10, 1966.

      John Holloway and Gerard Isken, Houston, for appellant.
    Dougal C. Pope, Houston, for appellee.
   COLLINGS, Justice.

L. & L. Industrial Products Company, brought this suit against Albert E. Kueh-nert, Auctioneers, Inc., seeking to recover upon an auctioneering contract whereby plaintiff was to receive a guaranteed minimum of $25,000.00 for the sale of various and sundry items belonging to plaintiff and listed in detail in the contract attached to plaintiff’s “Exhibit A”. L. & L. Industrial Products Company, Inc., hereinafter referred to as the Company admitted certain payments by defendant but alleged that defendant, hereinafter referred to as the auctioneer, was still indebted to the plaintiff Company in the sum of $10,-768.20, plus 10% interest. Based upon a jury verdict, judgment was rendered for the Company in the sum of $1,129.19. L. & L. Industrial Products Company, Inc., has appealed.

The material portion of the contract designated as “Exhibit A” attached to the plaintiff’s petition is as follows:

“EXHIBIT A
L & L Industrial Products Company, Inc., hereinafter called Company, hereby employs ALBERT E. KUEHNERT AUCTIONEERS, INC., hereinafter called Auctioneers and Auctioneers hereby accept such employment to sell at public auction all the equipment and materials listed on the attached inventory sheet and all other miscellaneous items of personal property belonging to and now located at L & L Industrial Products Co., Inc., at 234 McCarty Drive, Houston, Harris County, Texas, upon the terms and conditions as set out herein.
* * * * * ⅜
(2) Auctioneers guarantee to Company that Company will receive from such sale a minimum net cash guarantee of Twenty-Five Thousand Dollars ($25,000.-00) over and above all commissions and expenses. The first Twenty-Five Thousand Dollars ($25,000.00) realized from such auction, shall be delivered to Company without any deductions whatever. Auctioneers agree to furnish to Company a performance bond in the amount of Twenty-Five Thousand Dollars ($25,000.-00) guarantying Company in the full performance of this agreement by Auctioneers and guarantying in particular, the payment to Company of the minimum net cash guarantee in the amount of Twenty-Five Thousand Dollars ($25,000.00). This bond shall be upon terms and conditions acceptable to Company and executed by persons, firms or corporations acceptable to Company.
* * * * * *
(6) After Company has realized and has received the cash minimum sum of Twenty-Five Thousand Dollars ($25,-000.00) from the proceeds of the auction sale, Company shall pay from any further proceeds, from the auction sale, and to the extent of such further proceeds to Auctioneers, as compensation for its undertakings herein, commissions as follows:
7.5% commission on the first Twenty-Five Thousand Dollars ($25,000.00) proceeds from auction sale.
10% commission on the next Five Thousand Dollars ($5,000.00) proceeds from auction sale.
15% commission on the next Five Thousand Dollars ($5,000.00) proceeds from auction sale.
30% commission on any proceeds from the auction sale in excess of Thirty-Five Thousand Dollars ($35,000.00).
Based on the above commission schedule, the aggregate commissions payable to Auctioneers, in accordance of the terms of this agreement up to Thirty-Five Thousand Dollars ($35,000.00), will total Three Thousand One Hundred Twenty Five Dollars, ($3,125.00), and on any proceeds exceeding Thirty-Five Thousand Dollars ($35,000.00), the Auctioneers will receive a commission of thirty per cent (30%) on such excess.
(7) All proceeds of the sale until the sum of Twenty-Five Thousand Dollars ($25,000.00) has been realized, shall be delivered to Company upon its receipt. Thereafter, Auctioneers may deduct from the further proceeds of the auction sale, the commissions and expenses chargeable under the agreement to Company (Two Hundred Dollars ($200.00) as provided in paragraph 3) and shall deliver to Company immediately any proceeds in excess thereof. In the event the auction sale does not produce the minimum cash Twenty-Five Thousand Dollars ($25,000.00) guarantee, then the sureties on the performance bond shall pay to Company by June 30th, 1961, the deficiency in such sum of Twenty-Five Thousand Dollars ($25,000.00). All monies not paid to Company within the time herein provided, shall bear interest at the rate of ten per cent (10%) per annum until paid. In the event collection is through suit or if Company finds it necessary to employ an attorney to effect collection, then an additional ten percent (10%) of the amount collected shall be paid as attorney’s fees. * * * ”

The defendant auctioneer answered by general dénial, by amended original answer and by a cross-plaintiff trial amendment alleging that the Company breached the contract in that although the contract provided that all the equipment, materials and other property listed on the inventory was to be sold that there were many items so listed that the auctioneer was not permitted to sell, including all electrical switch boxes, wiring and many other items. The auctioneer further alleged that after the execution of the written agreement attached to plaintiff’s original petition and at various times before the auction sale, it was verbally agreed between the parties that the company would have all of its equipment in operative condition; that the auction sale should proceed in the ordinary and normal manner; that the auctioneer would not have to post the bond required in the above mentioned written contract because an agreeable surety could not be found and that no minimum guarantee to the company would be required; that auctioneer could sell the goods of others on consignment, but that neither the company nor any of its officers or representatives would bid at the auction sale. Appellee auctioneer further alleged that the company breached its contract by failing to permit the sale of the electrical wiring from the building, by allowing one Gren-ader to make purchases and thereby becoming a “shill”, thus affecting the proceeds of the sale, and in permitting garnishment to be served during the auction which affected the proceeds of the sale. We overrule appellant’s point complaining of the action of the court in allowing ap-pellee to file a trial amendment alleging an oral contract between the parties after the execution of the written contract. In our opinion such action was not an abuse of discretion. Rule 66, Texas Rules of Civil Procedure.

The jury findings which are the basis of the judgment are as follows:

“Special Issue No. 1
Do you find from a preponderance of the evidence that the plaintiff, L & L Industrial Products, Inc., acting through its duly authorized agents, substantially complied with the terms of the written contract executed June 9, 1961, in connection with the auction of the property of said plaintiff?
To which the jury answered, ‘We do not’.
Special Issue No. 2
Do you find from a preponderance of the evidence that after the execution of the written contract, Leslie and Kueh-nert agreed orally to have the auction sale with no minimum guarantee to Leslie?
To which the jury answered, ‘We do’.
Special Issue No. 3
Do you find from a preponderance of the evidence that Leslie refused to allow Kuehnert to offer for sale at auction that electrical equipment which was not sold?
To which the jury answered, ‘We do’.
If you have answered Special Issue No. 3 ‘We do’, and only in that event, then answer:
Special Issue No. 4
Do you find from a preponderance of the evidence that such conduct, if any, by Leslie constituted a breach of contract as that term is herein defined for you?
To which the jury answered ‘We do’.
If you have answered Special Issue No. 4 ‘We do’ and only in that event, then answer:
Special Issue No. 5
Do you find from a preponderance of the evidence that such breach of contract, if any, was substantial?
To which the jury answered, ‘We do’.
* * * * * *
Special Issue No. 9
Do you find from a preponderance of the evidence that before the auction was held Mr. Leslie and Mr. Kuehnert agreed to abandon the written contract?
To which the jury answered, ‘We do not’.
Special Issue No. 10
What amount of money, if any, if paid now in cash, do you find from a preponderance of the evidence to be the usual, customary and reasonable compensation for the type of services rendered by Mr. Kuehnert as auctioneer?
To which the jury answered ‘1,604.05.’ ”

Appellant’s contention on this appeal is, as it was in the trial court, that the guarantee of a minimum of $25,000.00 provided by the written contract is effective and binding against appellee, and that appel-lee failed to meet the guaranteed amount and failed to pay over to appellant the proceeds of the sale or to account therefor. The sale in question produced $24,-366.40, but there was included in that amount the sum of $2,917.00, representing consigned goods belonging to other persons and not to appellant company. It is undisputed that the proceeds from the sale of goods belonging to appellant company amounted to $21,449.40, which is $3,350.60 below the guaranteed amount of $25,000.00. It is undisputed that out of the $21,449.40, realized from the sale of property belonging to the company, appellee auctioneer is entitled to apply the following offsets:

Small Business Administration loan ... 14,329.62
Garnishment and attorneys’ fees expended .... 2,400.00
Total: $18,599.62

Appellant contends that after deduction of the above expense items it is undisputed that the auctioneer has in its hands $2,849.78 net from the sale of appellant’s equipment and property which, when added to the $3,550.60, the amount below the $25,000.00 guarantee, amounts to $6,400.38; that, as a matter of law, appellee auctioneer is indebted to the company in that amount, plus interest and attorney’s fees.

Appellant urges numerous points contending that the judgment should be reversed and rendered in its favor based on the undisputed amount of money retained from the sale in the hands of ap-pellee and the guarantee of $25,000.00 provided by the written contract, together with interest and attorneys’ fees as therein provided. Appellant urges in the alternative that the verdict be set aside and the judgment reversed because of the errors complained of, and that the cause be remanded for a new trial.

Appellee has not favored us with a brief. However, from the record and appellant’s brief, it is apparent that two general matters are involved in this appeal. First, whether appellant is entitled to recover the $3,550.60 difference between $21,449.40, the undisputed amount of the proceeds received by Auctioneer for the sale of appellant’s merchandise, and the $25,000.00 guarantee, and the interest and attorney’s fees provided for in the written contract and, second, whether the court erred in refusing to disregard the finding in answer to special issue number 10 that $1604.05 is the usual, customary and reasonable consideration for appellee’s services as an auctioneer in selling the merchandise in question, and in entering judgment permitting appellee to recover a sales commission on a quantum meruit basis because, appellee contends, there are no pleadings, no evidence and insufficient evidence to support such finding.

Appellant’s suit was based in part upon the provision of the written contract for a $25,000.00 guarantee by appellee auctioneer. In connection with this portion of appellant’s suit the jury found in answer to special issue number 1 that appellant did not substantially comply with the terms of the written contract. In answer to special issues 3, 4, and 5, the jury found that appellant refused to allow appellee to offer for sale at the auction the electrical equipment which was not sold, that such refusal was a breach of the contract and that such breach was substantial. Appellant contends that there is no evidence and that the evidence is insufficient to support the above findings and that such findings are against the great weight and preponderance of the evidence. We overrule these points. We do not discuss the evidence relating thereto because in our opinion these points are not controlling in the determination of this appeal.

In connection with appellant’s right to recover on the $25,000.00 guarantee, the jury found in answer to special issue number 2 that after execution of the written contract appellant’s president Mr. Leslie, and appellee Kuehnert agreed orally to have the sale with no minimum guarantee. This finding, if allowed to stand, precludes a recovery by appellant on the provision of the written contract for a $25,000.00 guarantee, regardless of whether appellant substantially complied with the written contract. We overrule appellant’s contention that there is no evidence that the parties orally agreed to waive the minimum guarantee. Mr. Kueh-nert testified that he would not have entered into the written contract guaranteeing the minimum if he had known that he would not be allowed to sell the electrical equipment and other major specific items. He stated in this connection that he was told by appellant’s president to “go on with the sale as usual”. However, the jury in answer to special issue number 9 found, in effect, that Mr. Leslie and Mr. Kueh-nert did not agree to abandon the written contract. In our opinion a fatal conflict exists between the findings in answer to issues 2 and 9. Even if appellant should be correct in its contention that the effect of the finding under issue 9 was that the sale was held under the contract, and that there is no evidence and insufficient evidence to support the findings that it did not substantially comply with the terms of the written contract, still appellant could not recover under the provision for a $25,-000.00 guarantee because of the finding in answer to special issue number 2 that the parties after the execution of the written contract agreed orally to have the sale with no minimum guarantee.

Appellant Kuehnert filed a trial amendment alleging that after the execution of the written contract there was an oral agreement between the parties that appellee should conduct the auction sale in the normal and usual manner for such sales without posting bond and without the minimum guarantee provided for in the original contract; that appellant would pay all garnishments, liens and internal revenue obligations and attorneys’ fees which appellee was required to pay as a result thereof, from the proceeds received from the sale. Based upon such allegations appellee Kuehnert sought to recover from appellant “a reasonable compensation for such service upon the doctrine of quantum meruit”.

The jury found in answer to special issue number 2 that the parties agreed to have the auction sale with no minimum guarantee and special issue number 10 submitted to the jury the question of “the usual customary and reasonable compensation for the type of service rendered by Mr. Kuehnert as auctioneer.” The answer of the jury thereto stated the amount to be $1,604.05. The submission of special issue 10 to the jury and the answer thereto was unquestionably based upon ap-pellee’s claimed right to recover on the doctrine of quantum meruit. Appellee’s right to recover on the doctrine of quantum meruit was based upon the finding under issue number 2 that the parties agreed to have the auction sale with no minimum guarantee to appellant. It is again noted that the jury in answer to special issue number 9 found that Mr. Leslie and Mr. Kuehnert did not agree to abandon the written contract. Appellant contends that a fatal conflict exists between the findings to issues 2 and 9. We agree with this contention.

The answer to special issue number 2, disregarding the conflicting answer to special issue number 9 but taking into consideration all the rest of the verdict required a judgment for appellee on the theory of quantum meruit. The answer to special issue number 9, disregarding the conflicting answer to special issue number 2, but taking into consideration all the rest of the verdict, destroyed appellee’s right to a judgment on the basis of quantum meruit. Ap-pellee had no right to recover on the basis of quantum meruit under the written contract. The judgment on the verdict containing such conflicting answers must be set aside. Little Rock Furniture Mfg. Co. v. Dunn, 148 Tex. 197, 222 S.W.2d 985.

For the reasons stated, the judgment is reversed and the cause is remanded.


author: McDONALD, Chief Justice.

text:
    Shelby SCOTT, Appellant, v. CITY OF ROBINSON et al., Appellees.
    No. 4476.
    Court of Civil Appeals of Texas. Waco.
    May 19, 1966.
    Rehearing Denied June 9, 1966.

      W. V. Dunnatn, Jr., Waco, for appellant.
    F. L. Kuykendall, Austin, E. H. O’Dowd, Waco, for appellees.
   McDONALD, Chief Justice.

This is an appeal from a judgment sustaining defendants’ plea in abatement, and dismissing plaintiff’s suit for injunction.

Plaintiff Scott, et al, filed suit against defendant City of Robinson and its Mayor, Honorable E. H. O’Dowd, alleging by sworn pleadings that plaintiffs own lands which they occupy as their homesteads; that defendant City is located several miles south of plaintiffs’ premises; that the City was making preparation to build sewage disposal plants which would discharge “effluent into 3 natural draws which slope toward and onto plaintiffs’ lands”; and cause noxious and offensive substance to invade plaintiffs’ premises, seep into and pollute the soil of plaintiffs’ properties, the water wells on plaintiffs’ properties * * * and will constitute a trespass and a taking of plaintiffs’ properties within the meaning of Article 1, Section 17 of the Constitution of the State of Texas [Vernon’s Ann.St.] without said City * * * having made any compensation to plaintiffs * * * therefor nor securing same to be made * *

Plaintiffs prayed that defendants be permanently enjoined from “discharging any effluent from any human sewage disposal plant into the natural draws that run and slope from a southerly direction towards and onto plaintiffs’ properties.”

Defendant City answered by plea to the jurisdiction; by plea in abatement; and by general denial.

Defendant’s plea in abatement asserted defendant was a municipal corporation and had secured the right to build its proposed sewage disposal system (under Art. 7621d, Vernon’s Ann.Tex.Civ.St.) from the State Water Pollution Control Board; that if plaintiffs’ properties are injured or damaged by the operation of the sewage system, such does not constitute a taking of plaintiffs’ properties within the meaning of Article 1, Sec. 17 of the Constitution of Texas, and injunctive relief will not be granted to prevent the City from discharging the waste as authorized by the State Water Pollution Control Board; and if plaintiffs are damaged, they will be relegated to suit for damages. Defendant City further asserted that plaintiffs’ suit was prematurely filed (because the sewage system had not been operated and no damage had been caused plaintiffs).

The parties stipulated that the City had filed application for a permit with the State Water Pollution Board pursuant to Article 7621d, V.A.T.S., “to discharge waste from sewage disposal plants into the areas claimed by (the City) to be Cottonwood Creek, Flat Creek and an unnamed tributary of an alleged Crow Creek, thence into Crow Creek and thence to Castleman Creek, which areas are claimed by plaintiffs to constitute mere areas of low grade with a natural slope onto plaintiffs’ property, and not to constitute water courses, creeks, streams or rivers. In support of said application, plans and specifications were prepared by registered, professional engineers on behalf of the City, and such were submitted to and approved by the Texas State Health Department. After notice and hearing * * the State Water Pollution Control Board * * * issued the City three permits * * * ” (to discharge effluent into Cottonwood Creek, Flat Creek, and on unnamed tributary of Crow Creek).

Defendant City’s sewage plant is to be entirely on land owned by the City, and plaintiffs plead their lands are “several miles” distant.

The trial court overruled defendants’ plea to the jurisdiction; sustained defendants’ plea in abatement; and dismissed plaintiffs’ suit for injunction.

Plaintiff Scott (only) appeals, contending: “The Trial Court erred in sustaining defendants’ plea in abatement.”

Article 1, Section 17, Texas Constitution provides: “No person’s property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made * * *, and, when taken, except for use of the State, such compensation shall first be made, or secured by a deposit of money * *

A “taking” of property within the meaning of the Constitution is an actual physical invasion or an appropriation of the property, and not simply the infliction of an incidental injury. “Damaging” imports that property has been injured without appropriation of or intrusion upon the land itself. An injunction will issue to restrain a threatened taking, (where compensation has not been made in advance). But an injunction will not issue to restrain a threatened “damage” or “injury,” as such may be repaired by damages, for the recovery of which an adequate remedy at law exists. Kahn v City of Houston, 121 Tex. 293, 48 S.W.2d 595; Stone v. City of Wylie, Tex.Com.App., 34 S.W.2d 842; Duvall v. City of Dallas, Er. Ref., Tex.Civ.App., 27 S.W. 2d 1105; Webb v. Dameron, Tex.Civ.App. (n. r. e.), 219 S.W.2d 581; McCammon & Lang Lumber Co. v. Trinity B. & V., 104 Tex. 8, 133 S.W. 247.

The threatened acts which plaintiff seeks to enjoin, constitute at most a threatened “injury” or “damaging” of plaintiff’s property, and not a threatened “taking” of it. Holderbaum v. Hidalgo County Water Dist., Tex.Civ.App., 297 S.W. 865, affirmed Tex.Com.App., 11 S.W.2d 506; Nussbaum v. Bell County, 97 Tex. 86, 76 S.W. 430; Tarrant County Water Dist. v. Reid, Tex.Civ.App., (n. r. e.) 203 S.W.2d 290; Houston v. Wall, Tex.Civ.App., (n. r. e.), 207 S.W.2d 664; Donna Irr. Dist. v. Piper, Tex.Civ.App., (n. w. h.), 269 S.W. 157; Williams v. City of Dallas, Tex.Civ.App., (n. w. h.), 52 S.W.2d 373.

In Holderbaum, supra, plaintiff contended the action of the Water District in flooding plaintiff’s land amounted to a “taking” of the land under the Constitution. The Court held: “It appears to be settled that the trespass here complained of was not a ‘taking’ * * * but * * * [a] ‘damage’ * *

In Nussbaum, supra, the County dug a ditch which diverted water across plaintiff’s property. The Court held plaintiff not entitled to injunction restraining the County from maintaining the ditch, but was relegated to a suit for his damages.

We think plaintiff is relegated to a suit for his damages after they occur; and that suit for injunction for such threatened acts was properly abated. See also: Chandler v. City of Olney, 126 Tex. 230, 87 S.W.2d 250; Rische v. Tex. Transp. Co., Er. Ref., 27 Tex.Civ. 33, 66 S.W. 324; City of Dallas v Megginson, (n. r. e.), Tex.Civ.App., 222 S.W.2d 349; Brazos River Auth. v. Graham, 163 Tex. 167, 354 S.W.2d 99.

We think the trial court correctly overruled defendant’s plea to the jurisdiction.

We further think the trial court correctly overruled plaintiff’s motion to strike In~ tervenor’s plea of intervention. See Rule 42, Texas Rules of Civil Procedure.

Plaintiff’s contentions are overruled.

Affirmed.


text:
    CITY OF SAN ANTONIO et al., Appellants, v. The CONGREGATION OF the SISTERS OF CHARITY OF the INCARNATE WORD, INC., Appellee.
    No. 3994.
    Court of Civil Appeals of Texas. Eastland.
    March 4, 1966.

      Sam S. Wolf, Crawford B. Reeder, San Antonio, Waggoner Carr, Atty. Gen., Austin, for appellants.
    Pat Maloney, San Antonio, Trueman O’Quinn, Austin, for appellee.
   COLLINGS, Justice.

This is an appeal from a temporary injunction enjoining the State of Texq®, the State Highway Department, the State Highway Commissioners, and the City of San Antonio from taking action of any kind that might be construed as being the inception of an attempt by any of the defendants to exercise the power of eminent domain over designated land belonging to ap-pellee in San Antonio for highway purposes. The case is a sequel to the case of City of San Antonio et al. v. Congregation of the Sisters of Charity of the Incarnate Word et al., 360 S.W.2d 580, (ref. n.r.e.), certificate denied 372 U.S. 967, 83 S.Ct. 1093, 10 L.Ed.2d 131.

Appellants urge points contending that the court erred in enjoining them (1) from taking any action in furtherance of the construction of a proposed northbound expressway across appellee’s lands in San Antonio, (2) from instituting any action designed to ultimately condemn appellee’s lands under the powers of eminent domain and (3) from taking any steps preliminary to the institution of an action or proceeding in eminent domain.

Appellee urges that the court properly granted the order temporarily enjoining the proposed condemnation proceedings, which appellee contends would be void; that the condemnation proceedings would be governed by Articles 3264 through 3271, Vernon’s Ann.Rev.Civ.St.; that Article 3265, which provides the manner in which the Commissioners shall determine the value of the condemnee’s property, is unconstitutional as applied to appellee because it does not allow for the special damages which will necessarily be sustained by appellee if its campus, church, convent and grounds are taken. Appellee urges Lone Star Gas Company v. City of Fort Worth, 128 Tex. 392, 98 S.W.2d 799, (Com., opinion approved by Sup. Ct.), and State v. Waco Independent School District, Tex.Civ.App., 364 S.W.2d 263, (ref. n.r.e. ), in support of its contention that the court properly granted a temporary injunction based upon the proposed condemnation proceedings.

It is well settled that the power of eminent domain is an inherent attribute of sovereignty and exists independently of the Constitution. It is held that the State in the exercise of its sovereign authority can take, damage or destroy property for public use subject to the right of the owner to recover adequate compensation. Texas Highway Department v. Weber, 147 Tex. 628, 219 S.W.2d 70, Vernon’s Ann.St.Const. Art. 1, § 17. It is further held, however, that an attempt or threatened attempt to take private property for public use may be restrained by injunction when the proceeding is for any reason void. Lone Star Gas Company v. City of Fort Worth, 128 Tex. 392, 98 S.W.2d 799.

This inherent power of eminent domain resting in the State as limited by the Constitution has been delegated by Legislative action to various subdivisions of the State. The delegation of such authority to the Highway Department was through Art. 6674w, V.A.C.S. and the delegation to the City of San Antonio, a home rule city, was through Article 1175, § 15. Article- 3264, 3265, and 3266 set out the procedure to be followed in condemnation cases by the State and its political subdivisions which have been delegated the power of eminent domain.

Appellee contends in its pleadings and on appeal that the statutes upon which appellants rely in their attempt to take appel-lee’s property under the power of eminent domain are void as applied to appellee. Appellee contends that Article 3265 is unconstitutional in that it does not provide just compensation for the special damages which appellee will necessarily sustain, if appellants are permitted to exercise the power of eminent domain in taking land belonging to appellee for highway purposes.

In our opinion Article 3265 is not unconstitutional because of the alleged failure to provide just compensation for any special damages which might be suffered by appellee and the condemnation proceedings contemplated by appellants are not void. Appellee contends that Article 3265 as interpreted by the Waco Court of Civil Appeals in State v. Waco Independent School District, supra, provides only for the replacement value theory in public schools and not in private schools, and that the statute is therefore unconstitutional as applied to private schools, such as that operated by appellee. Appellee’s contention in this respect is stated in its pleadings as follows:

“The Court of Civil Appeals sitting at Waco, Texas, in the case of State v. Waco Independent School District, 364 SW2d 263 (writ refused, n. r. e.), has determined that the proper measure of damages when a school is condemned is ‘ * * * what is reasonably necessary to restore the remaining * * * land and facilities to the same or reasonably equal utility for high school purposes as that to which the (land) and facilities were reasonably utilized immediately pri- or to the taking in question.’ However, the said Court of Civil Appeals limited its decision to Public Schools only. Therefore, such interpretation of the statutes in question excludes private schools, and is arbitrary and violative of the due process and equal protection clauses of the U. S. Constitution, Amend. XIV. The statutes in question, therefore, do not apply equally to public and privately owned schools. The distinction is based solely upon ownership and denies to private schools the rights which are accorded to public schools under the same circumstances. In that particular, they are unconstitutional as denying to private schools, in general, and this Plaintiff in particular, the equal protection of the laws.”

The Waco Independent School District case was a proceeding brought by the State against the Independent School District to condemn part of the high school campus, including buildings, for highway purposes. The evidence indicated that the school district in order to continue normal operation was of necessity required to replace the buildings that the State had destroyed by taking. Such buildings and classrooms were necessary to provide facilities needed by the school. There was no way to do this and at the same time utilize the valuable improvements remaining on the 18.35 acres not taken, except by replacement. The County Court at Law of McLennon County entered judgment for the school district for the sum of $850,000.-00. Upon an appeal by the State, the judgment was affirmed. It was held by the Court of Civil Appeals in an opinion by Associate Justice Tirey that the proper measure of damages for the taking of part of the high school campus and buildings for highway purposes was the amount reasonably necessary to restore the remaining land and facilities to the same, or reasonably equal utility for high school purposes to that which the taken and remaining land and facilities had immediately prior to the taking. The decision was limited in its application to a public school because a public school only was involved.

In our opinion the Waco Independent School District case does not support ap-pellee’s contention, but, on the contrary, is authority for appellants’ contention that the trial court erred in granting the temporary injunction. In the Waco ease the power of eminent domain exercised by the State was upheld and Art. 3265 was not interpreted in such a way as to render it unconstitutional even though special damages were shown. The Court of Civil Appeals simply held that the trial court did not err in holding as a matter of law that the property of the school district, as such, did not have a market value, and that the ordinarily accepted form of submission of damage issues in such cases would not adequately compensate the school district for the damages suffered. The appellate court then approved the manner of submission of the damage issue by the court and held that the evidence supported the finding of the jury in answer thereto.

Article 3265 does prescribe “market value” as the test of adequate compensation in condemnation proceedings. The provision of the statute is that when the whole of a tract is condemned the only damage shall be the market value of the tract. When only a part of a tract is condemned the commissioners shall estimate the injuries and benefits therefrom and determine the net result, assessing the damages accordingly. In State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194, it is stated that “the provisions of article 3265 are intended primarily for the guidance of commissioners, who are not under the supervision of a court, and are not intended to furnish a method of trying a condemnation case before a court and jury.”

In the instant case only a portion of appellee’s land was taken and there is no showing that any building or structure was injured or destroyed. The general rule in determining damages or in arriving at just compensation where only part of a tract is condemned, as set out in State v. Carpenter, supra, is that the jury should consider the fair market value of the part taken, considered as a separate tract, and damages occasioned to the remainder of the land by reason of taking and destruction of improvements thereon. However, it is well recognized that even though only a portion of a condemnee’s land is taken, if the land as a whole was being devoted to a unity of use, then such land should be considered as an entity for purpose of estimation of damages to the remaining land. See State v. South Main Baptist Church, Tex.Civ.App., 361 S.W.2d 898; Calvert v. City of Denton, Tex.Civ.App., 375 S.W.2d 522. These cases obviously contemplate instances where the landowner will suffer damages for which the application of the general rule will not ordinarily furnish adequate compensation. On motion for rehearing in the Carpenter case, (89 S.W.2d 979), the Commission of Appeals recognized that the general rule for determining damages where only a part of a tract is condemned would not be adequate in all cases. The court held and stated as follows on page 980 of the opinion:

“It is a general rule that improvements situated upon the portion of land taken are to be considered as a part of the realty. They ordinarily have no market value separate from the land. Therefore, when such improvements are taken or destroyed their value can be reflected in the finding as to the value of the land taken, and evidence of their value is admissible for that purpose. As an alternative, however, if the improvements which are situated upon the portion of land taken are essential to the Use and enjoyment of the remainder of the land, or if their replacement, by removal or reconstruction, is necessary in order to obviate depreciation in the value of the residue, the cost of removal, and/or reconstruction and/or replacement may be a proper inquiry in connection with the issue of diminished market value of the remainder.”

Assuming, without deciding, that the record shows, or that upon a hearing of the matter in the District Court as provided by the condemnation statutes it will be shown that the proposed taking of a portion of appellee’s land will result in special damages to its remaining land and that adequate compensation cannot be furnished under “the market value” rule, still appellee was not entitled to the injunctive relief granted.

In the Waco Independent School District case, there were special damages for which the “market value” rule would not provide adequate damages. Under State and Federal Constitutions a land owner whose land or a portion thereof is taken is entitled to adequate compensation. The Waco Court of Civil Appeals observed and complied with such constitutional requirement. That court also obviously and necessarily construed the provisions of Article 3265 in such a way that it would not be in conflict with the constitutional requirements in special damage cases. The Waco School case involved condemnation of land belonging to a public school, not condemnation of private property. The Court of Civil Appeals mentioned this fact in its opinion, and noted that a private owner owes no duty to the public to continue its operation at its original location or elsewhere, but that a public school does have such an obligation as a matter of law and has no other choice. This distinction might in some cases affect the amount of special damages suffered but it would not affect the right of the land owner to be compensated therefor.

We do not believe that it was the holding in the Waco case, even by Implication, that the owner of a private school whose land is condemned is, under the provisions of Article 3265, limited to a recovery under the market value test if the evidence shows that such test will not adequately compensate the owner for special damages suffered. In our opinion, a private school, such as appellee, the same as a public school, is not by reason of Art. 3265 denied the right to adequate compensation. The statute is therefore not void as contended by appellee. The proper measure of damages for taking part of the land of a private school, where special damages are suffered, is the same as it is in like cases where the land of a public school is taken. We believe this to be consistent with the reasoning in the Waco case and the Carpenter case. The court erred in granting the temporary injunction. Appellants’ points complaining of the granting of such temporary injunction are well taken and are sustained. The injunction should be and is hereby dissolved.

The judgment is reversed and judgment is rendered for appellants.


author: WILSON, Justice.

text:
    TEX-CRAFT BUILDERS, INC., Appellant, v. HOUSING AUTHORITY OF TEXAS CITY, Texas, Appellee.
    No. 4433.
    Court of Civil Appeals of Texas. Waco.
    April 28, 1966.

      Lockett, Embry, Sharp & Roberts, Aubrey L. Roberts, Jr., Houston, for appellant.
    John Shirley, Texas City, for appellee.
   OPINION

WILSON, Justice.

In a non-jury trial plaintiff recovered judgment for damages resulting from breach of a contract by which defendant contractor agreed to lay sewer lines in connection with construction of an apartment building. Findings of Fact were filed. We affirm.

Defendant complains of the overruling of its motion for judgment because it says plaintiff pleaded “defendant caused said sewer line to be improperly installed,” whereas the proof showed the line was installed by a third person. It is asserted there is a material variance between pleading and proof. Complaint is also made of admission of evidence that this third person was actually a subcontractor. The points are overruled. The suit is for breach of a contract executed by defendant by which defendant agreed to perform the work in accordance with detailed plans and specifications. The latter required it to properly lay the sewer line in question. The complaint as to variance concerns defensive matters not available and not.pleaded; it does not constitute a defense that the work defendant contracted to do was done by another. Defendant’s contract was fully established. It expressly provided that defendant “shall be fully responsible for the work” of subcontractors.

Reversal is sought because plaintiff did not report a defect in the sewer line until more than one year after the date of acceptance had elapsed. Defendant pleaded only a general denial. It has no point complaining of the court’s action in refusing to allow the filing three days before trial of its amended pleading in which it would have alleged the contract limited damages to defects appearing within one year.

This affirmative defense constituting a plea in avoidance is required by Rule 94, Texas Rules of Civil Procedure, to be alleged affirmatively. Failure to plead it constitutes a waiver of the defense, which is in the nature of a plea of limitation. Smith v. Nesbitt, 111 Tex. 186, 230 S.W. 976; Maher v. Gonzalez, Tex.Civ.App., 380 S.W.2d 764; Aetna Cas. & Sur. Co. v. Moss, Tex.Civ.App., 336 S.W.2d 748.

We have considered, and overruled appellant’s point that the evidence is inadequate to support the finding as to damages. Affirmed.


text:
    Myrtle OGLE et al., Appellants, v. Bill LOGUE et al., Appellees.
    No. 4493.
    Court of Civil Appeals of Texas. Waco.
    March 24, 1966.
    T. E. Kennerly, Houston, for appellants.
    George Clark, Leonard Gorin, Waco, for appellees.
   WILSON, Justice.

Petitioners ask leave to file a petition for writ of mandamus to require the district judge to render judgment sustaining their motion for summary judgment. The latter motion asserted that under our decision reported Thornhill v. Elskes, Tex.Civ.App., 381 S.W.2d 99 there was no genuine issue of material fact under Rule 166-A, Texas Rules of Civil Procedure.

While the Court of Civil Appeals may require the district court to proceed to trial and judgment under Art. 1824, Vernon’s Ann.Civ.St., it may not ordinarily prescribe the judgment to be rendered, particularly where the judgment rendered may be reviewed by appeal. Aycock v. Clark, 94 Tex. 375, 65 S.W. 665; Ben C. Jones & Co. v„ Wheeler, 121 Tex. 128, 45 S.W.2d 957; Thomason v. Seale, 122 Tex. 160, 53 S.W.2d 764; Crofts v. Court of Civil Appeals, Tex. 1962, 362 S.W.2d 101. The motion for leave to file is overruled.


author: PARKER, Justice.

text:
    Atley SHERMAN et ux., Appellants, v. PROVIDENT AMERICAN INSURANCE COMPANY, Appellee.
    No. 6841.
    Court of Civil Appeals of Texas. Beaumont.
    May 19, 1966.
    Rehearing Denied June 15, 1966.
    Daylee Wiggins, Beaumont, for appellants.
    Dale Dowell and John Rienstra, Jr., Beaumont, G. H. Kelsoe, Jr., Dallas, for appellee.
   PARKER, Justice.

Plaintiff, Atley Sherman, sued Provident American Insurance Company upon a contract of insurance, being a cash hospital indemnity policy, issued to him by said company, in connection with the hospitalization of his wife, Florence Sherman. Trial was to a jury but upon defendant’s motion for instructed verdict, after plaintiff had rested his case, judgment was entered that Atley Sherman have and recover nothing of and from the defendant, Provident American Insurance Company.

The insuring clause of this policy reads as follows:

“Provident American Insurance Company (herein called Company) HEREBY INSURES the Applicant, first named in the following Schedule, hereinafter called the Insured, and will pay, subject to all provisions and limitations herein contained, the benefits provided herein for expense of hospital confinement commencing while this policy is in force and other specified expenses incurred while this policy is in force by the Insured or any member of the Insured’s family, if any, named in said Schedule (all of whom, including the Insured, are hereinafter called the Family Group) (a) resulting from accidental bodily injury sustained while this policy is in force, hereinafter referred to as such injury; and (b) resulting from sickness, the cause which originates after the effective date of this policy and while this policy is in effect, hereinafter referred to as such sickness.”

We omit the details as to the hospital room rate and other expenses of the hospitalization set forth in the policy. The defendant insurance company pleaded a general denial and all of the provisions and limitations in said policy as defenses together with a specific pleading in defense to the plaintiff’s action of the exclusions and limitations contained in said policy including but not limited to part 9 as follows:

“1. This policy does not cover any loss or disability resulting wholly or partly, in or from (1) any attempt at suicide, while sane or insane; (2) rest cures, nervous or mental disorders, dental treatment; (3) participating in aeronautics, except as a fare-paying passenger in a licensed aircraft provided by a common carrier traveling on an established passenger route; (4) military or naval service or war; (5) venereal disease; (6) injury or sickness while confined to any institution wherein the Insured is entitled to services without cost to himself; (7) hospitalization for which the principal purpose is diagnosis.
2. Any loss or disability resulting wholly or partly in or from sickness or disease involving a kidney or kidneys, cancer, hernia, gall bladder, ulcers, tuberculosis, diabetes, arthritis, rheumatism, asthma, sinusitis, enteritis, gastritis, tonsillitis, bronchitis, apoplexy, loss or disability resulting wholly or partly from treatment, removal or repair of any of the generative organs, or any disease of the heart or circulatory system shall be covered only if the cause thereof originates after this policy has been in' force for the preceding six months; (2) any loss or disability resulting wholly or partly in or from any sickness or disease which results in a surgical operation shall be covered only if the cause originates after this policy has been in force for the preceding six months, (3) loss or disability due to childbirth, pregnancy or any complication resulting therefrom shall not be covered unless provided by supplement.
3. If any member is unmarried and under eighteen (18) years of age when this policy is issued, such member shall receive full benefits of -this policy until such member marries or attains age eighteen (18) at which time all benefits of this policy shall be reduced 50%; however the premiums may be increased if authorized by the Insured to provide full benefits.
4. This policy does not provide benefits for confinement or treatment in any facility contracted for or operated by the United States or State Government for the treatment of members or ex-members of the armed forces.”

The appellant Sherman has two points of error:

1. The trial court erred in granting an instructed verdict for the defendant, because the plaintiff did not have the burden to negative all the exceptions and limitations in their proof.
2. The trial court erred in granting instructed verdict for defendant because the burden of proof was on the defendant to plead and prove limitations and exclusions.

Before Rule 94, Texas Rules of Civil Procedure, it was a well settled law of this state that the plaintiff suing on such a policy had to negative all exceptions and limitations of the policy and prove his loss in order to recover. Under Rule 94 where an insurance company pleads the exceptions, limitations and exclusions as defenses, the same burden of proof is on the plaintiff in order to recover. Appellant admits he did not attempt to discharge this burden because he considered the burden was on the insurance company. As stated in Wood v. American Security Life Ins. Co., 304 S.W. 2d 559 (Tex.Civ.App.1957) the rule to be followed relative to plaintiff’s cause of action is stated in Travelers’ Ins. Co. v. Harris, 212 S.W. 933 (Tex.Com.App.) and International Travelers’ Ass’n v. Marshall, 131 Tex. 258, 114 S.W.2d 851. Other cases in point are Shaver v. National Title & Abstract Co., 361 S.W.2d 867 (S.Ct.1962); Hardware Dealers Mutual Ins. Co. v. Berglund, 393 S.W.2d 309 (S.Ct.1965). Appellant did not discharge his burden of proof under the above decisions. Appellant’s points of error are overruled.

Judgment of the trial court is affirmed.


author: WERLEIN, Justice.

text:
    Rollie B. HAMILTON, Appellant, v. Dr. Ralph LILES et al., Appellees.
    No. 14820.
    Court of Civil Appeals of Texas. Houston.
    May 26, 1966.
    John H. Holloway, Houston, for appellant.
    Baker, Botts, Shepherd & Coates, Finis E. Cowan, Houston, for appellees.
   WERLEIN, Justice.

This suit was brought by appellant, Rollie B. Hamilton, against Dr. Ralph Liles and Dr. Charles Wolf, individually and as partners, to recover damages allegedly resulting from the negligence of the appellees in failing to discover an alleged ruptured or severed Achilles’ tendon in appellant’s left leg. At the conclusion of all the evidence, the court withdrew the case from the jury and entered judgment in favor of appellees on the ground that appellant had not introduced sufficient evidence to allow issues to be submitted to the jury on negligence and proximate cause. In determining whether the court erred in withdrawing the case from the jury and entering judgment for appellees, this Court must look to the testimony most favorable to appellant’s contention and reject all that tends to disprove it. A peremptory instruction may properly be given only when there is no issue of fact in the case. Elder v. Aetna Cas. & Surety Co., 1951, 149 Tex. 620, 236 S.W.2d 611; Johnson v. Peckham, 1938, 132 Tex. 148, 120 S.W.2d 786, 120 A. L.R. 720; White v. White, 1943, 141 Tex. 328, 172 S.W.2d 295.

The evidence shows that on or about November 28, 1961, appellant consulted Dr. Charles Lee Wolf in connection with pain in the lower part of the baek of his left heel. At such time the leg was sore and there could have been some swelling. Dr. Wolf diagnosed the condition as Tenosyno-vitis as the result of too much walking engaged in by appellant on hunting trips. Dr. Wolf found no swelling but gave appellant an anti-inflammatory drug and advised him that it would be all right to go back to his deer hunting. There is no evidence that the treatment given appellant at such time was in any way improper or that it contributed to the injury later sustained by appellant.

At about one o’clock in the morning on January 1, 1962, appellant, while playing with his dog, side-stepped a lunge by the dog and immediately heard a sound like a little track gun or a .22 going off, and his leg went out from under him. He was helped into his home and in a few minutes he felt severe pain, and the calf of his left leg drew up in a knot. Appellant’s wife spent the night rubbing and massaging appellant’s leg and during this process she felt the muscles knotted up in the back of his leg She testified that she felt what she described as “kindly a dent in this place, but I didn’t know what it was for.” She did not pay much attention to it and did not mention it to Dr. Liles on the morning of January 1, 1962, when he first saw appellant. Dr. Liles examined appellant’s leg and found that it was considerably swollen and in fact was swollen to the extent that there was an extra half to three-quarters of an inch added to the diameter thereof.

There is considerable dispute concerning the extent of the examination made by Dr. Liles. Dr. Liles testified that he palpated the calf and the tendon area, took appellant’s temperature, and tested the appellant for Plantar flexion. On the other hand, appellant testified that his calf was so sore that one could hardly touch it, and that Dr. Liles asked him to put his foot in his hand and press against it, and also that Dr. Liles hit the bottom part of his foot with his hand and when he did appellant came very near passing out. Both appellant and his wife testified in effect that Dr. Liles did not palpate along the tendon in the back of appellant’s leg. After such examination, the evidence is that Dr. Liles applied an Ace bandage to appellant’s leg and gave appellant a set of crutches and told him to keep hot packs on it and stay off of his feet for fourteen days and then come back to the office.

Fourteen days later appellant went back to the office and returned the crutches. Between such time and January 23, 1962, appellant made a trip to New Orleans, but he still had a lot of pain and discomfort. He made most of his business calls from his bed. He was able to get around if he walked without bending his leg and by keeping his leg stiff and putting weight on his heel. On January 23 he again called on Dr. Liles to advise him that he was still hurting and couldn’t walk on his foot, and had to walk on his heel. Appellant’s testimony is to the effect that Dr. Liles re-examined him by placing his foot in his hand and asking him to push on it; that no x-rays were taken, no bandages put on the foot, or shots given, and that the doctor told him to take it easy and do as little as possible, which he did.

Appellant also testified that Dr. Liles did not on January 1 or on January 23 tell him that there was any separation of the Achilles’ tendon or that he needed any operation. About the middle of February, 1962, while in the bathroom, appellant noticed an indentation in his leg behind his ankle in the left heel section, but he did not pay much attention to it at first and did not seek medical advice. On or about February 25 or 26 he went to see Dr. Peyton Barnes, who made a slight examination and referred him to Dr. De Young, who also examined him. He was then referred to Dr. Michael Donovan by one Dr. Bauer. Dr. Donovan indicated he needed surgery when he first saw him on March 9, 1962, but appellant asked that the operation be put off a couple of weeks because he had some work to do. He went to the hospital on March 18, 1962, and was operated on on March 19.

It is appellant’s contention that between January 1, 1962 and March 19, 1962, when the operation was performed, his leg hurt continuously, and that during such time he also lost business by reason of having to be off his feet. He asserts that he is entitled to recover at least for the pain and suffering and lost earnings which he suffered by reason of the delay in the operation occasioned by Dr. Liles’ failure to properly examine his leg, advise him that he had a separation of the Achilles’ tendon and needed an operation.

Appellant’s witness, Dr. Donovan, an orthopedic surgeon, testified that the operation would not have been different in any way if the repair to the ruptured tendon had been done sooner; that there was some scar tissue at the end of the tendons, which he excised; that there would not have been any scar tissue if the repair had been made at the time of the injury, but the scar tissue was of little significance; that he couldn’t tell whether appellant had a complete rupture at the time of the injury on January 1, 1962; that a partial rupture could occur with the same symptoms which appellant had; that he could have had one of three things at such time, either a partial rupture of the heel cord, a ruptured heel cord, or a rupture of the Plantaris muscle, which is seen more often than a rupture of the heel cord; and that the delay did not make appellant’s condition any worse. Dr. Donovan further testified that he could not have diagnosed the condition on January 1 or January 23 if the indentation did not show up or was not seen until the middle of February; that the facts as related to him indicated that a complete separation did not occur until the indentation or gap occurred; that the diagnosis in the early stages where there is only a partial separation of the tendon is extremely hard to make; and that 25% of ruptured heel cords are discovered late and repaired later, and they do well. He further testified that the treatment given appellant by appellees was very good treatment.

While there is a conflict in the testimony of the doctors and appellant concerning the thoroughness of the examination of appellant by Dr. Liles on January 1 and also on January 23, the evidence establishes that Dr. Liles’ treatment of appellant was proper. On January 1 appellant was given a prescription for pain and also a prescription “to bring down the infection,” evidently an anti-inflammatory drug. His ankle was immobilized with an elastic bandage and he was given crutches. He was instructed to go home, elevate his leg on a pillow and apply hot compresses and to return in fourteen days. Appellant testified in substance that on January 23, Dr. Liles re-examined his leg in the same manner as on January 1, 1962, and advised him that it might be a matter of months before it would heal and he could walk and have the full use of his foot; that he instructed him to stay off his foot as much as possible, and to do as little work as possible, and take it easy.

Appellees concede that an inference could be drawn that in January there was a partial severance of the Achilles’ tendon, but they contend that there is no evidence that the partial separation, if it existed in January, could have been detected by any known diagnostic techniques. Except for the testimony of'appellant’s wife that on January 1 she felt what she described as “kindly a dent in this place, but I didn’t know what it was for,” and her testimony that she felt it until January 23, there is no evidence that any indentation could be felt or seen in appellant’s leg until sometime in February. Appellant did not see any indentation until the middle of February. It is our view that the testimony of appellant’s wife with regard to “kindly a dent” constituted no more than a scintilla of evidence that there was any indentation such as the doctors said would occur in the event of a severed tendon. Indeed, appellant’s wife did not state where the dent was, how large it was or show that it was at the place where the indentation apparently later occurred, or give any testimony with respect thereto which would indicate that the indentation or gap described by Dr. Donovan as two inches in length occurred before appellant discovered it in the middle of February, 1962.

Dr. Liles testified that at the time of his last examination on January 23 a rupture did not exist, but that if there was any rupture it certainly was not a complete one. Appellant contends that based on such admission the jury could find that there was a partial separation at such time even if all other evidence is discounted. Appellant further asserts that Dr. Liles admitted that if while examining appellant he did no more than appellant testified he did, the examination would have been an incomplete examination. The dispute seems to hinge here upon the conflict in the testimony of appellant who testified that Dr. Liles did not palpate appellant’s leg, and that of the medical expert, Dr. Liles, who testified he did.

The evidence is undisputed that on both January 1 and January 23 appellant’s leg in the vicinity of the calf and ankle was swollen. Appellant did not return for observation by Dr. Liles after January 23, although the evidence is undisputed that he was told to be cautious in his activities and to return for observation as soon as he had finished the anti-inflammatory drug which had been prescribed. Dr. Donovan testified that one who still had inflammation and swelling would not be a candidate for surgery, and that he would not under normal circumstances operate until a definite, reasonably certain diagnosis could be arrived at. There is no evidence in the instant case as to when the swelling in appellant’s left leg was gone. It was still there on January 23, according to the undisputed evidence, including appellant’s testimony. Dr. Donovan testified that until a defect could actually be felt he would take no affirmative action except to observe the patient. He indicated that he would limit his activities by putting him on crutches, which is what Dr. Liles did on January 1. He also testified that he would put the patient on partial weight-bearing. This also was done by appellee, Dr. Liles, who instructed appellant to stay off his foot as much as possible.

Appellant contends that his suffering was prolonged by the fact that his condition was not sooner diagnosed and he was not sooner relieved by operation. If we assume that there was a delay of some kind and that during such delay appellant suffered pain and lost earnings, it is still impossible to determine the period of such delay. It would not have been proper for appellant to have been operated on at any time that he was in attendance upon Dr. Liles, since his calf and leg were still swollen. Whether the operation could have been performed any sooner than it was done is conjectural and speculative since there is no testimony as to when the swelling left the leg. Although appellant contacted Dr. Donovan on March 9 and was then advised that a repair job would have to be done, he requested that the operation be delayed some two weeks so that he could finish some work that he was doing. The operation was not performed until March 19, some 10 days after appellant contacted Dr. Donovan. We do not know whether there was any swelling in appellant’s leg up to the date he saw Dr. Donovan, since we have no testimony from Dr. Peyton Barnes, or Dr. De Young, who saw appellant respectively on February 25 and March 6. In other words, it is entirely speculative as to whether or not the operation would have been performed any sooner than it was performed even though a complete rupture of the Achilles’ tendon had been sooner discovered. Appellant has failed to show any specific period of delay for which appellees can be said to be responsible. There ⅛ nothing to indicate the number of days or weeks of delay. The specific time for scheduling surgery is a matter which lies within the discretion of the medical expert. We find no evidence in the record that it would have been proper to have operated on appellant’s leg prior to the time that he saw Dr. Donovan on March 9; nor do we know whether the operation would have been performed even that early since it was not done until March 19.

In Bowles v. Bourdon, 1949, 148 Tex. 1, 219 S.W.2d 779, it was alleged that there was a delay in treatment occasioned by the doctor’s failure to take proper action on the basis of the information given him by the patient’s mother, and that the minor plaintiff would not have developed Volk-mann’s contracture had it not been for the failure of the defendant to loosen the cast after being informed that the patient’s fingers were blue and cold. The Supreme Court decided the case on the basis that there was no medical evidence to support a conclusion that the failure to loosen the cast was a proximate cause of the minor’s contracture, although two doctors testified that a too-tight cast would cause such condition.

In the instant case, appellant introduced no medical testimony to the effect that it would have been possible to shorten appellant’s period of incapacity by performing additional diagnostic tests. The evidence is undisputed that appellant obtained a good result from surgery, and his only real claim is that his period of incapacity was increased for some unidentified period of time by failure of Dr. Liles to make a more complete diagnostic test.

In Catón v. Richardson, Tex.Civ.App. 1965, 387 S.W.2d 683, the defendant testified that before surgery he gave the plaintiff the Trendelenburg test to determine the adequacy of deep circulation. The plaintiff, on the other hand, denied that she had been given the test. The court, in upholding the summary judgment in favor of the doctor, stated, “If Mrs. Caton’s testimony is true, and he (the doctor) did not do the test there still is no showing of negligence which was a proximate cause ■of the condition she complained about.” In the instant case, it was not shown that if a more adequate examination had been made the swelling would have left appellant’s leg and the operation would have been performed at an earlier date.

In Thomas v. Beckering, Tex.Civ.App., 391 S.W.2d 771, writ ref., n.r.e., the evidence showed that the doctor did not x-ray the patient’s finger after setting it or placing it in traction to hold the bones in place, although the evidence showed it was standard procedure to do so. However, there was no medical testimony that taking such action would have prevented the bad result which the plaintiff suffered. The court affirmed an instructed verdict for the defendant because of the absence of medical testimony that such bad result was due to the failure to x-ray and place the bones in traction. The Court said:

“* * * in the absence of any expert testimony on causation, the jury would be compelled to guess or speculate on the question of whether the malformation of the appellant’s finger was due to the fracture with the attendant complications, or whether it was due to malpractice.”

In the present case in order for plaintiff to recover, a jury would have to speculate that there was a complete separation of appellant’s Achilles’ tendon in January of 1962, and that had a more thorough palpation been done it would have been discovered, and that it would have been possible and desirable to perform surgery at an earlier date, and that surgery would have been performed at an earlier date. See also Henderson v. Mason, Tex.Civ.App.1964, 386 S.W.2d 879. In Christian v. Galutia, Tex.Civ.App., 236 S.W.2d 177, writ ref., n.r.e., plaintiff contended that she had suffered damages by virtue of the fact that the defendant had allowed her to remain in labor for four days without performing a Caesarean section as she requested and which was finally done. The court said:

“ * * * when or under what circumstances, if at all, a reasonably skilful physician and surgeon would or should have resorted to any or all of these various alternatives, involved the practice of a highly specialized art and a learned profession with respect to which no layman could have any personal knowledge or experience upon which the court and jury might rely for guidance. Therefore, proper, expert medical evidence was a necessary element and an essential part of the proof required of appellees in order to show negligence and proximate cause.”

We have examined the Texas cases relied upon by appellant, including several recently decided by this Court. They are all factually distinguishable from the instant case. Several of them involve a situation where the plaintiff got a bad result from negligent treatment by the doctor. In the present case appellant got a good result. His real complaint is that there was delay in the diagnosis of his condition and that he should have been sooner operated on and cured, despite the fact that there is no evidence with respect to when the swelling left his leg and no medical evidence as to when the operation could and would have been performed even if a more complete diagnostic test had been made. Wilson v. Corbin, 1950, 241 Iowa 593, 41 N.W. 2d 702, relied upon by appellant, is also distinguishable. In that case both negligence and proximate cause were infer-able from an unwarranted delay of nearly three months in x-raying a fractured vertebra, whereas in the instant case there is no evidence that an x-ray or other diagnostic test would have disclosed either a complete or incomplete rupture of appellant’s Achilles’ tendon in January when he was examined by Dr. Liles.

In construing the evidence most favorably to appellant, we are of the opinion that the trial court did not err in withdrawing the case from the jury and entering judgment for appellees.

Judgment affirmed.

COLEMAN, J., not sitting.

On Motion for Rehearing

We have carefully considered appellant’s motions for rehearing and for supplemental findings of fact and conclusions of law, and have also carefully reconsidered our opinion of May 26, 1966. We have concluded that the opinion fairly and sufficiently recites the controlling facts and the evidence most favorably to appellant. The additional findings requested by appellant relate to argumentative, conjectural and evidentiary matters immaterial to a correct disposition of this appeal.

Appellant’s motion for rehearing is overruled and his motion for supplemental findings is refused.

COLEMAN, J., not sitting.


text:
    J. P. LITTLE, Appellant, v. CRUM & FORSTER GROUP OF INSURANCE COMPANIES, Appellee.
    No. 4488.
    Court of Civil Appeals of Texas. Waco.
    May 19, 1966.

      Harrison, Curtis & Cooper, Dallas, for appellant.
    Johnson, Guthrie, White & Stanfield, Robert Lee Guthrie, Dallas, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by plaintiff Little from a take-nothing judgment non obstante veredicto. Plaintiff sued defendant “Crum & Forster Group of Insurance Companies,” alleging it issued "its policy numbered IF 453589” insuring plaintiff’s horse against theft; and that such horse was stolen. Defendant answered by general denial, and specially denied under oath that the policy sued on was executed by its authority.

The policy sued on is in evidence. The back of such policy recites:

“CRUM & FORSTER GROUP of Insurance Companies Sound, Dependable Insurance
United States Fire Insurance Company
The North River Insurance Company
Westchester Fire Insurance Company
International Insurance Company 110 William Street, New York 38, N.Y.”

Page 1 of the policy provides: “The Company named on the Declaration Page * * * agrees with the insured as provided in the declarations made a part hereof * * The declaration page (and the Amendatory Endorsement) provides: "The North River Insurance Company, New York, N. Y. * * * does insure the above named Insured * *

There is no evidence that Crum & Forster Group of Insurance Companies ever executed a policy of insurance.

When the variance between pleading and proof became apparent, the trial judge suggested to plaintiff’s counsel that he withdraw his announcement of ready and file a trial amendment. Plaintiff’s counsel declined to do so.

Trial was to a jury which found that plaintiff’s horse was taken from him by theft; and that it had a value of $1750.

Defendant moved for judgment notwithstanding the verdict, asserting the undisputed evidence shows it did not execute the policy of insurance sued on; and that there is a fatal variance between plaintiff’s pleadings and proof.

The trial court sustained such motion and rendered judgment that plaintiff take nothing from defendant.

Plaintiff appeals, contending: “The trial court erred in granting defendant judgment notwithstanding verdict, in that defendant Crum & Forster Group of Insurance Companies comprised of U.S. Fire Insurance Company, The North River Insurance Company, Westchester Insurance Company and the International Insurance Company, was properly served and before the Court.”

It is true that plaintiff sued Crum & Forster Group of Insurance Companies, alleging it to be an association of 4 insurance companies, including The North River Insurance Company. But “Crum & Forster Group of Insurance Companies” did not issue any policy of insurance. The proof and the policy show that The North River Insurance. Company executed and issued the policy.' The North River Insurance Company is not a party to this suit.

Plaintiffs points and contentions are overruled.

Affirmed.