author: DIXON, Chief Justice.

text:
    Harman E. GUISINGER d/b/a Guisinger Realty Company, Appellant, v. Dudley M. HUGHES, Appellee.
    No. 16087.
    Court of Civil Appeals of Texas. Dallas
    Dec. 14, 1962.
    Rehearing Denied Jan. 11, 1963.

      Gragg, Storey & Griffith, Dallas, for appellant.
    Esir Tobolowsky and E. D. Hurt, Dallas, for appellee.
   DIXON, Chief Justice.

Appellant Harman E. Guisinger, d/b/a Guisinger Realty Company, sued appellee Dudley M. Hughes for a real estate commission claimed to be due under the terms of an alleged written contract for the exchange of properties between Hughes and James L. Bryson.

Hughes defended on the grounds that Guisinger was guilty of fraud in inducing him, Hughes, to enter into the agreement, and that the instrument he signed was conditionally delivered to Guisinger prior to the time it was signed by Bryson, and that the condition was never fulfilled, Guisinger also filed motions for summary judgment, instructed verdict and judgment non obstante veredicto, all of which motions were overruled.

A jury returned a verdict finding that (1) Guisinger had represented to Hughes prior to execution of the instrument dated March 9, 1959, that he was obtaining only $450 of the commission due him from Bry-son, and that Hughes would have to pay the $1600 in question only if Bryson did not pay the full commission of $2,050; (2) Hughes relied upon and believed the truth of the representation; and (3) the representation was false.

Based on the jury verdict judgment was rendered in favor of appellee Hughes that appellant Guisinger take nothing.

EVIDENCE

The instrument in question, with blank spaces filled in by typewriter, was prepared on a printed form.

The writing provided that Dudley M. Hughes, First Party, and James L. Bryson, Second Party, would exchange Hughes’ Somervell County property of 419.33 acres for Bryson’s Dallas County property of 33.61 acres. Hughes’ property was valued at $32,000 and Bryson’s property at $41,000. The contract stipulated that Hughes would pay the difference of $9,000 to Bryson in cash.

It was recited that Guisinger Realty Company, as agent, would represent both of the parties. It was also recited that each of the parties had deposited with Guisinger the sum of $1,000, receipt of which was acknowledged.

There were two blank spaces in the instrument, one of them applying to Hughes the other one to Bryson, where the amounts of the commissions to be paid by the parties were to be filled in. In each blank space, that for Hughes as well as that for Bryson, instead of the amount there was the typewritten statement “See letter attached.”

The instrument so drawn was signed by Hughes on March 4, 1959. On the same date Hughes also signed a letter which was attached to the writing. The letter addressed to the Guisinger Realty Company is as follows:

“Re Exchange of property 420 acres located at Route 1, Paluxy, Texas.
“Gentlemen:
“I hereby agree to pay you for services rendered in the exchange of my property at the above location the sum of One Thousand Six Hundred Dollars ($1,600) when the exchange is completed and deeds are passed according to the contract I have signed dated March 4, 1959 for the 33 acres in the A. M. James Survey, Abstract #690, Dallas County, Texas.
“Yours very truly
“/s/ Dudley M. Hughes.”

At the time Hughes signed the written instrument on March 4, 1959 Bryson had not signed. He did sign six days later, on March 10th, 1959. Also on March 10, 1959 Bryson signed a letter agreeing to pay Guisinger $2,050 as a real estate commission. Obviously this letter of Bryson’s could not have been attached to the written agreement when Hughes signed on March 4, 1959. In fact the letter from Bryson was never attached to the agreement signed by Hughes. Furthermore, neither Hughes nor Bryson deposited $1,000 with Guisinger. Hughes testified that he never saw Bryson’s letter until long after their real estate deal had been closed.

Introduced into evidence at the trial was a written listing agreement dated December 30, 1958 providing for Guisinger to act as Bryson’s exclusive agent for a term of 180 days in the sale of Bryson’s land for a sale price of $41,000. The listing agreement provided that Bryson should pay a commission of 5%. This would amount to the sum of $2,050 as Guisinger’s commission for selling Bryson’s property. The Hughes property had not been listed with Guisinger.

In other particulars the evidence is often conflicting and sometimes confusing. Hughes testified that Guisinger’s salesman, Albert D. Lindsey, contacted him in an effort to interest him in purchasing Bryson’s property. Hughes was interested, but informed Lindsey an exchange of properties would be necessary in order for him to acquire the Bryson property.

In due time Hughes met Guisinger at the latter’s office. Bryson was not present. Hughes testified that he at first refused to sign the letter wherein he agreed to pay Guisinger $1600 as a commission. His position was that Bryson had listed his property with Guisinger for sale for $41,000 and that Guisinger had merely located Hughes as a prospective purchaser. In other words, Bryson was the seller and Hughes was the purchaser; therefore Bry-son should pay the whole commission.

According to Hughes it was then represented to him by Guisinger that Bryson had stated that he would pay a 5% commission only on the $9,000 cash which he was to receive in the exchange of the properties. He would not sign the contract unless he had some assurance or guarantee that Hughes would pay the balance of $1600 of Guisinger’s commission. Guisinger further stated, according to Hughes, that if Bryson could be induced to pay more than $450 on Guisinger’s commission, Hughes would be obligated to pay only the difference necessary to enable Guisinger to receive his total commission of $2,050. Hughes testified that it was because of these representations, which he believed to be true, that on March 4, 1959 he signed the printed form of contract and the letter which was to be attached. These documents were then delivered to Guisinger so that he might show them to Bryson and obtain Bryson’s signature and letter.

The undisputed evidence shows that Bry-son was not interested in an exchange of properties. He would not part with his property except for $41,000 in cash. He refused to sign the agreement which Guisin-ger had drawn up unless arrangements were first made to sell the Hughes property and the proceeds used to make out his $41,000 selling price.

Faced with this situation Guisinger contacted a real estate agent in Honey Grove, Texas. This agent almost immediately found a purchaser for the Hughes property. The cash proceeds from this sale made it possible for Bryson to obtain his $41,000 in cash. On March 10, 1959 he signed the contract which Guisinger had prepared for the exchange of the properties between Hughes and Bryson. At the same time he signed the letter agreeing to pay Guisinger $2,050 as his commission for selling the property. However, as we have stated, this letter was never attached to the document which Hughes signed.

Hughes testified that he was unaware of the unwillingness of Bryson to exchange properties and unaware of the quick sale of his own property through the Honey Grove agent. He was unaware also that Bryson had signed the letter agreeing to pay the full commission of $2,050.

In due time the deal for the exchange of the properties between Hughes and Bryson was closed in the office of the Southwest Title Company. Bryson and Hughes did not both appear at the same time for the closing. They appeared separately and at different times. Bryson, in the closing handled by the Title Company, received his cash consideration of $41,000 less the expense of closing, including Guisinger’s commission. Guisinger, through the Title Company, received his full commission of $2,050 from Bryson. The statement prepared by the Title Company so shows.

According to Hughes when he later appeared for his part of the closing he was informed by Guisinger that Bryson had paid only $450 on the total commission of $2,050. Guisinger therefore demanded that Hughes pay the difference of $1600. Hughes made out two checks of $800 each payable to Guisinger and asked Guisinger to hold them until he, Hughes, told him they were good. Hughes says he did not have the money in the bank at the time and so informed Guisinger.

Hughes left the two checks with the Title Company to give to Guisinger. However no mention of them or of any commission due by Hughes was included in the closing statement by the Title Company.

Hughes’ testimony in regard to this phase of the transaction is corroborated in part by Mrs. Emily Butler, who was employed as a secretary by Southwest Title company. Mrs. Butler testified that her desk was situated just outside the room where Guisinger and Hughes were discussing the closing. She heard Guisinger tell Hughes that Bryson had only paid the sum of $450, so Hughes would have to make good on his agreement to pay the difference of $1600.

Thereafter events took a somewhat unusual course. Guisinger deposited the two $800 checks he had received from Hughes. Both checks were refused payment on account of insufficient funds. On May 22, 1959 Guisinger wrote a letter to Hughes demanding that the checks be made good. This letter is especially interesting because in it Guisinger does not claim that the two checks totaling $1600 were in payment of a real estate commission. He refers to the checks as “ * * * representing cash advanced by me on your behalf in connection with the recent sale of your property * * He also says “These checks were cashed in good faith, not intended as a loan.” There is no showing in the record that Guisinger ever advanced any money for Hughes, or that he cashed the two checks.

On June 2, 1959 Guisinger wrote another letter threatening legal action against Hughes. To this letter Hughes replied on June 3, 1959 denying that Guisinger had ever advanced any money to him. He also recounted at some length the circumstances under which he had given Guisinger the two checks. He did not deny that he owed the money.

In his brief appellant calls attention to this statement by Hughes in his letter of June 3, 1959: “ * * * you told me * * * that you would have to charge me the regular 5% commission on my property as well as charge Mr. Bryson for selling his. I thought it strange but as you were going to a lot of trouble to make the deal, securing the loan for me, I agreed.” In explanation of the above statement Hughes testified at the trial that when he wrote the letter he still believed that Bryson had paid 5% on $9,000 which amounted to $450. Therefore he thought he owed the balance of the commission of 5% on $41,000, which balance amounted to $1600. He did not know that Bryson had paid the full commission of $2,050.

Guisinger filed a complaint with the District Attorney because of the unpaid checks. Hughes then started an investigation. He testified that he went to the Southwest Title Company where he learned for the first time that Bryson had paid the full commission of $2,050 to Guisinger, not merely the $450 as Guisinger had represented. He accordingly stopped payment on the checks.

Hughes and Bryson did not know each other. They did not meet each other and were never in each other’s presence until long after their real estate deal had been concluded. When Hughes contacted Bry-son after the complaint was filed with the District Attorney, Bryson confirmed the Title Company’s information that he had paid the full commission to Guisinger.

When Hughes filed his answer to Guis-inger’s .motion for summary judgment he attached an affidavit by Bryson. We quote part of Bryson’s affidavit:

“ * * * I was informed by Guis-inger Realty Company that the entire commission due in the transaction which is represented by the attached contract was to be $2,050. I paid Guis-inger Realty Company a commission of $2,050 in the transaction, and this was supposed to be the entire commission involved, and Dudley M. Hughes was not to pay any commission in this transaction.”

The above affidavit was not introduced in evidence before the jury at the trial on the merits. However one of appellant’s points on appeal asserts error of the court in overruling his motion for summary judgment. So Bryson’s affidavit as part of the record is before us in that connection. Bryson did not appear at the trial.

Guisinger, testifying in his own behalf, denied Hughes’ testimony relating to fraud and conditional delivery of the written contract.

OPINION

Appellant presents three points on appeal. He contends that the trial court erred (1) in overruling his- motions for summary judgment, for instructed verdict and for judgment non obstante veredicto because there were no genuine fact issues to be submitted to the jury; (2) in admitting the testimony of appellee attempting to change the terms of a written contract which was unambiguous and freely entered into by the parties, and (3) in submitting Special Issues Nos. 1, 2 and 3, and in failing to disregard the findings thereon for the rea^ son that there was no evidence of probative, effect to support the submission of the issues or the jury’s findings.

We do not agree with appellant. If the material evidence introduced in behalf of Hughes was admissible, and we hold that it was, fact issues were created in regard to questions of fraud in inducing the execution of the contract and conditional delivery of the instrument signed by Hughes. Consequently it was not error for the court to overrule Guisinger’s motions for summary judgment, directed verdict and judgment non obstante veredicto; and it was not error to submit the three special issues to the jury. Appellant’s first and third points on appeal are overruled.

We see no merit in appellant’s second point. It is of course well settled as a general rule that extrinsic evidence will not be received if its effect is to vary, add to, or contradict the terms of a valid written instrument which is unambiguous and is complete on its face. See 23 Tex.Jur.2d 500 and cases there cited. But it is equally well established that the rule is not applicable when fraud is practiced in inducing a person to enter into the agreement. Then extrinsic evidence is admitted, not to vary the terms of the writing, but to show that the writing itself from its inception never became legally effective. Edward Thompson Co. v. Sawyers, 111 Tex. 374, 234 S.W. 873; Culligan v. Wootton, Tex.Civ.App., 254 S.W.2d 155, 157; Anderson v. Wise, Tex. Civ.App., 345 S.W.2d 803, 805 ; 23 Tex. Jur.2d 538.

In the case now before us the second of the above rules must control our decision. The jury found in effect that Hughes was induced to sign the writings in question because of Guisinger’s representation that Bryson had agreed to pay a five percent commission on only the $9,000 in the cash he was to receive in connection with the exchange of the properties. The jury found this representation was relied on by Hughes and that it was false. The evidence is to the effect that at the time Guisinger made the representation, he had a written listing agreement to act as Bryson’s agent and that Bryson would pay five percent of $41,000 as commission to Guisinger for the sale of Bryson’s property. Moreover Bry-son had refused to enter into the exchange agreement unless he could be assured of receiving the $41,000 in cash. According to Hughes and the witness Emily Butler, Guisinger persisted in his misrepresentation even up to the time of closing the transaction by telling Hughes that Bryson had paid only $450. Under the circumstances the parol evidence is admissible.

We have pointed out that at the time Hughes signed the letter and printed form on March 4, 1959 Bryson had not signed. The writing at that time amounted to no more than an offer to contract. Hughes delivered the instrument to Guisinger conditionally. Hughes had been informed that Bryson would pay only $450 on the full commission of $2,050. He was led to believe that Bryson would not sign unless he could be assured that Hughes would pay the $1600 difference. Bryson would then sign a letter agreeing to pay $450, which letter was supposed to be attached to the contract and become a part of the contract. Hughes had signed and delivered his letter and the printed form to Guisinger on that condition. The condition was not complied with. On March 10, 1959 Bryson actually signed a letter, but in it he agreed to pay $2,050, not merely $450. His letter was never attached to the main contract.

It is generally held that a conditional delivery of a writing may be shown by parol testimony if the conditional delivery establishes a condition precedent rather than a condition subsequent. McCormick & Ray “Texas Law of Evidence” Vol. 2, § 1661. This view is based on the principle that if the effectiveness of an act is dependent upon the happening of some future event, the act is not consummated until the happening of the event. Wigmore on Evidence, Vol. IX, § 2410 and 2435 (Third Edition). Our Supreme Court has held that the conditional delivery rule is applicable in Texas and “[t]he oral agreement is operative if there is nothing in the writing inconsistent therewith.” Denman v. Hall, 144 Tex. 633, 193 S.W.2d 515, 516.

In the case now before us the conditional delivery by Hughes of the writing in question is not inconsistent with terms of the writing itself. For if the condition had been performed by Guisinger, that is, if he had obtained a letter from Bryson agreeing to pay only $450 of the real estate commission and said letter had been attached to the written contract, as Guisinger had represented it would be, Hughes’ conditional delivery would have been complied with and would have been entirely consistent with his agreement to pay $1600 of the total commission.

We call attention also that an agent owes a high degree of loyalty to his principal, including a duty of full disclosure of material facts. This is especially true in a case of dual agency — when an agent with the consent of the parties is representing both of them. We quote from Morgan v. Hardy, 16 Neb. 427, 20 N.W. 337, 342:

“When a professional land agent acts as agent for both the seller and the buyer, and that is known to them, the law exacts the most perfect good faith, honesty, and fairness on his part, and will not adjudge the specific performance of a contract thus made, unless it has been entered into with perfect fairness, and without misapprehension or misrepresentation; * *

See also 3 C.J.S. Agency § 141, p. 17. The rule is applicable in this case.

Appellant’s second point is overruled.

The judgment of the trial court is affirmed.

YOUNG, Associate Justice, not sitting.


source: Caselaw Access Project

author: RENFRO, Justice.

license: Public Domain

text:
    J. R. BARNES, Appellant, v. Jessie Willard BRYAN, Appellee.
    No. 16373.
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 28, 1962.
    Grover Sellers, Sulphur Springs, Turner, Rodgers, Winn, Scurlock & Terry, George S. Terry and Robert W. Calloway, Dallas, for appellant.
    Ramey, Ramey & Neal, J. R. Ramey and Jack G. Neal, Sulphur Springs, for appellee.
   RENFRO, Justice.

Our opinion of November 30, 1962, is hereby withdrawn and the following rendered in lieu thereof:

Plaintiff Bryan, buyer, brought suit against defendant Barnes, seller, for specific performance of a contract of sale of land.

Trial to the court without a jury resulted in a judgment for plaintiff, which decreed specific performance by the defendant.

On appeal the defendant raises the point that a judgment of specific performance was erroneous because the Veterans’ Land Board was not before the court.

Plaintiff and defendant executed a written contract on May 31, 1961, in which plaintiff agreed to buy and defendant agreed to sell two tracts of land therein described by metes and bounds. September 28, 1961, was the last day for performance of the contract. For purpose of contracting, the parties used a form designated “Application and Contract of Sale Texas Veterans’ Land Program”.

Under the terms of the contract the plaintiff assigned to the Veterans’ Land Board, subject to its acceptance, all of his right, title and interest in said contract.

The Land Board accepted the contract. It issued its purchase commitment and issued its warrant in the sum of $7,500 for the purchase of the land.

All parties are necessary to a proceeding in equity that may be directly or indirectly involved in order that full and complete relief may be accorded the plaintiff or to enable the defendant thereto to> present his defense so as to secure the full benefit thereof in resisting the relief sought by the plaintiff. Montgomery v. Owen, Tex.Civ. App., 37 S.W.2d 1107; 32 Tex.Jur., p. 19, § 11-

On the 27th of September the Board’s attorney notified defendant that all was in readiness for closing the transaction the next day. ' Defendant refused to close the transaction.

Upon defendant’s failure to perform, plaintiff brought the instant suit.

’"Since the Veterans’ Land Board, a necessary party, was not made a party to the suit, the cause is reversed and remanded.


author: WALTER, Justice.

text:
    LONE STAR MINING COMPANY, Inc., et al., Appellants, v. TEXERAMICS, INC., Appellee.
    No. 3755.
    Court of Civil Appeals of Texas. Eastland.
    Dec. 14, 1962.
    Rehearing Denied Jan. 25, 1963.

      Simon & Simon, Ft. Worth, Earl Conner, Jr., Eastland, for appellants.
    Senator Thomas Creighton, Mineral Wells, Turner & Seaberry, Eastland, for appellee.
   WALTER, Justice.

Texeramics filed suit against Lone Star Mining Company and Horace H. Porter for conversion of a stockpile of clay and for an injunction. The trial court granted a temporary injunction. Lone Star and Porter filed a supersedeas bond and appealed from such judgment. The judgment was affirmed. See Tex.Civ.App., 340 S.W.2d 871. In its amended petition Texeramics abandoned its suit for an injunction and asked for damages for conversion. Lone Star and Porter moved to abate and dismiss the suit for conversion, contending that Texeramics could not pursue an inconsistent remedy. The court overruled appellants’ plea and, based upon the verdict, rendered judgment for Texeramics against Lone Star and Porter for $6,750.00.

Lone Star and Porter have appealed, contending the court erred in rendering such judgment because (1) there was no evidence that Texeramics had any right, title or interest to the clay (2) Texeramics’ verbal license or option to purchase clay from the Gallaghers was unenforceable under the provisions of Article 3995, Revised Civil Statutes of Texas (3) Texeramics having made an election to recover the clay in kind, it could not thereafter pursue the inconsistent remedy of conversion (4) there was no evidence to support the award of interest from the date of the alleged conversion and (5) there was no evidence that Porter, as an individual, converted the clay because he acted as President of the corporation and not in his individual capacity.

Lone Star and Porter contend that by proceeding to a final judgment on a temporary injunction, Texeramics has made an election. One of the cases they rely on is National Surety Company v. Odie, 40 S.W. 2d 876, by the Waco Court of Civil Appeals (no writ history). In that case the plaintiff had sued in the Justice Court to recover one bale of cotton. Plaintiff recovered judgment for the bale of cotton. In the trial in the County Court on appeal, plaintiff was awarded judgment against the defendant for $101.69 with interest for conversion. The Court of Civil Appeals reformed the judgment by allowing the plaintiff a “recovery of the bale of cotton but held that the plaintiff had two remedies, one for recovery of the cotton and the other for conversion. “Such remedies were inconsistent, and the assertion of one was necessarily a waiver of the other, except in the alternative that the remedy first sought had proved unavailable.” It further held that the plaintiff should not have been permitted to abandon his demand for recovery of the specific property and recover the value thereof in the County Court.

Texeramics contends that in its original petition it properly sought an injunction and, in the alternative, damages for conversion. It further contends that when its temporary injunction was superseded it was deprived of its clay, which was tantamount to no relief.

The evidence discloses that Texeramics entered into an oral agreement with Mrs. Peggy Gallagher to mine and recover clay from her property in 1954; under that agreement Texeramics paid Mrs. Gallagher 200 per cubic yard for the first 100 yards, with a minimum guarantee of 100 cubic yards during any calendar month and 100 per cubic yard for all clay in excess-100 cubic yards; that Texeramics had removed from its original state and stockpiled the clay in controversy on the Gallagher land; that on September 12, 1960, Mrs. Gallagher wrote Texeramics as follows:

“Mr. H. H. Porter of Lone Star Mining Company, P. O. Box 7292, Fort Worth, Texas, has leased from me all rights to mine clay from my land East of Cisco.
“And he has requested that I notify you that you may look to him concerning your further purchases.”

We have concluded that National Surety Company v. Odie, Tex.Civ.App., 40 S.W.2d 876, is not controlling. Rule 48, T.R.C.P., became effective subsequent to the decision in the Odie case. It provides in part “A party may also state as many separate claims or defenses as he has regardless of consistency and whether based upon legal or equitable grounds or both.” Tex-eramics did not receive the benefits it sought because appellants superseded the judgment 'in the temporary injunction case. It received no benefit from the temporary injunction and appellants suffered no loss. Mr. Porter testified that he was not interested in the clay and would not use it in his operations. The jury found that plaintiff could not have economically reproduced or replaced the clay in controversy. Our Supreme Court in Liberty Mutual Insurance Company v. First National Bank in Dallas, 151 Tex. 12, 245 S.W.2d 237, at page 242, said:

“It has been said that the doctrine of election of remedies is not a favorite of equity and that its scope should not be extended. Slay et al. v. Burnett Trust et al., 143 Tex. 621, 187 S.W.2d 377, 393.”

In Commercial Music Company v. Daniel A. Klag, Tex.Civ.App., 288 S.W.2d 168, at page 170, the court said:

“As to just what time the election of remedies would be required was more or less a matter addressed to the discretion of the trial judge and no abuse of that discretion is shown. Appellant has not shown that it was materially injured by the trial court’s requiring the appellee to make an election of remedies after the verdict was in rather than before the cause was submitted to the jury. Wood v. Williams, Tex.Civ. App., 46 S.W.2d 332; Rule 434, Texas Rules of Civil Procedure.”

Appellants’ points concerning inconsistent remedies are overruled.

Texeramics had been mining clay from the Gallagher properties since 1954. The jury found that Texeramics had stockpiled 1,000 cubic yards of blended clay at the time Mrs. Gallagher leased to Lone Star. Lone Star asserts in one of its points that Texeramics did not own this clay and had no right to its possession. At the time Lone Star leased the property it was charged with notice of the rights of those in possession. The clay had been mined and removed from its original place and stockpiled. In such condition it became personal property. Title thereto vested in Texeramics, subject to the payment of royalty. 58 C.J.S. Mines and Minerals § 177, page 379 ; 29 Tex.Jur. 671. Texeramics derived title to the clay under its oral agreement with Mrs. Gallagher. It was not necessary for such agreement to have been in writing. The jury answered “No” to the following issue: “Do you find from a preponderance of the evidence that the Defendant, Lone Star Mining Company, acquired its lease on the Gallagher land on September 12, 1960, in good faith and for a valuable consideration and without notice of any kind of prior rights of the plaintiff to any clay in, on or about such premises ?”

Interests on the value of the clay was recoverable from the date of conversion to the time of the trial, 42 Tex.Jur. 581.

Porter testified that he was president of Lone Star and that he, his former wife, and his attorney were its only stockholders. He testified that the gate, the lock and the “keep out” signs were put up on the property under his instruction. Having participated in the conversion, Porter is individually liable with his corporation. Bower v. Yellow Cab Co., Tex.Civ.App., 13 S.W.2d 708, (Writ Ref.).

We have examined all of appellants’ points and find no merit in them. They are overruled.

The judgment is affirmed.


author: MURRAY, Chief Justice. BARROW, Justice.

text:
    TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellant, v. Petronilo ESPINOSA, Appellee.
    No. 14001.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 7, 1962.
    Rehearing Denied Dec. 12, 1962.
    Second Motion for Rehearing Denied Jan. 9, 1963.
    Groce & Hebdon, Charles L. Smith, San Antonio, for appellant.
    Rudy Rice, Frank R. Southers, San Antonio, for appellee.
   MURRAY, Chief Justice.

This is a workmen's compensation case brought by Petronilo Espinosa against the Texas Employers’ Insurance Association, which arose out of an injury to Espinosa’s left eye on December 28, 1959, while working for Cecil Ruby Construction Company, hereinafter referred to as “Ruby”. The trial was to a jury and resulted in judgment in Espinosa’s favor for total and permanent disability, from which judgment Texas Employers’ Insurance Association has prosecuted this appeal.

It is undisputed that Espinosa on December 28, 1959, while working for Ruby, received an accidental injury to his left eye. The jury found (1) that the injury to plaintiff’s left eye has extended to and affected his body generally, resulting in permanent incapacity; (2) that such incapacity was total, (3) was not caused solely by the incapacity to his left eye, and (4) was not caused solely by the fall he had in his father-in-law’s tavern in the summer of 1960.

Appellant contends that the findings of the jury that Espinosa’s injury to his left eye extended to and affected his head and body, causing total and permanent disability was supported by “no evidence” and in any event was so against the great weight and preponderance of the evidence as to be manifestly unfair and unjust. We overrule this contention.

Dr. Dan A. Russell, Jr., was called as a witness by appellant and testified as to his background as an ophthalmologist, which showed him to be an eye surgeon of great skill and ability. His qualifications were not questioned. He testified that he performed surgery on Espinosa on December 28, 1959, the day he was injured. In describing the location of the cut oh Espinosa’s eye, the doctor said: “The colored part of the eye is cálled the iris. That gives the color to the eye, whether it be blue, brown or such. Over this is a clear part, best described, probably, as a watch crystal over the watch, called a cornea. This is what we see through. There was a cut through this cornea, this clear part, and some of this colored part was hanging through the wound here.” In reply to the question as to what he did when he performed the surgery, the doctor stated: “The first thing We did was to get this colored part out of the wound. We did this by reaching through and grabbing it and cutting off this part of the colored part and then we put three stitches through this wound to make it air tight, and we put air in here to make sure it held.” Dr. Russell continued to see Espinosa until January 5, 1960, when he left the hospital. Thereafter Espinosa was seen by Dr. Reily in his office for some time.

In May, 1961, Dr. Russell again saw Espinosa and made an examination of his left eye. At that time Espinosa was complaining of' headaches and pain when he turned his eye. Dr. Russell gave Espinosa’s left eye a very thorough examination and found only two defects in that eye, the scar on the cornea, “which you can’t do away with,” and “the defect in the iris, which is the colored part of the eye. The p'upil.” The doctor tested the vision in both eyes. He found Espinosa had 20/20, or normal sight, in his right eye, and 20/30 in the left, which is below normal, but with glasses he could see out of his left eye 20/20 minus one, meaning he missed one character out of five in the 20/20 line, which is just slightly below normal. The doctor testified that the scar and the defect in the pupil might cause irritation in the eye; he did not see any redness or other symptoms of irritation at the time he examined Es-pinosa on May 18, 1961. The doctor could find no connection between the injury to the eye and the headaches Espinosa claimed to have. He did not examine the six muscles of the eye which lead from the eye to the brain, as this would' have required surgery, but he did observe the functioning of the muscles and found nothing wrong with their functioning. Dr. Russell further testified that “the purpose of the pupil and the iris is like in a camera, to let in light or cut light out, and this is an imperfect pupil in that it cannot cut down bright sunlight and will cause some dazzling appearance in bright sunlight.” In answer to the question, “Does that dazzling go away after he has been in'bright sunlight or not?” he answered: “I honestly cannot answer that. I don’t know. I mean a lot of people never complain about it. Other people it bothers them some. There is a lot of variation in people.” In reply to whether the eye with the scar would be any more irritable than a normal eye, the doctor answered: “Conceivably it could be. If it is, you will see redness- and pain, particularly redness and irritation of the eye, which he did not have when I saw him-on May 18th. * * * I did not observe any difficulty on movement of the eyes.” When asked, “Could you find anything in connection with his headaches?” the doctor replied, “No, sir, I could not. I looked for a muscle imbalance, which sometimes will cause headaches. I also looked in the back part of the eye, at the optic nerve and so forth, which you can see with this ophthalmoscope * * *. I saw no abnormality.” The doctor further testified that there are two kinds of nerves attached to the eye, motor and sensory, and that Espinosa’s pain could have been caused by sensory nerves.

In answer to the following question : “Now, as to how well he can see and how well he can’t see, of course, there again he' is the man that knows, isn’t he?” the doctor answered, “That is right.” In answer to the question, “What I am saying again is that that man out there on that job and the men out there working with him know more as to what his condition is under those conditions than you do?” the doctor answered: “To a certain extent I think that is true.”

“Q And that person himself, out there working and the men working with him — making the test and all — and seeing him and working with him and in the sunlight and the weather would know more than you would know, wouldn’t they, doctor, as to the effect that the dazzling of the sunlight has on him, and the weather conditions and all on his eye ?
“A They would know more how he reacted to this, that is true.”

Espinosa testified and also called to the witness stand his wife, Aurora Espinosa, Gregorio T. Rodriguez, Douglas Leroy Johnson, Henry Gonzales and Carmen Piñales Espinosa. The plaintiff testified how the injury occurred, the pain he has suffered since, his fear of going upon bridges and other high places to work, the headaches he now has, his inability to stand bright sunlight, the irritation he receives from the wind, the dust and sweat. He admitted working since his injury, but stated he did so from great necessity and did not perform his usual duties. He testified to being dizzy and having constant headaches, that he was given limited work and not required to go up on bridges or to work around dust from the cement, as it irritated his eyes; that his eyesight was blurred by the injury to his left eye and the scar over the pupil. In this he was corroborated by all the men with whom he worked. They told of his inability to do the same work he had done before he received his injury, and of his complaints of dizziness and headaches after, but not before, his eye injury. We have read the testimony of all these witnesses, and if their testimony is to be believed it is sufficient to sustain the findings of the jury, and such findings are not so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. It is true that Espinosa did not offer medical testimony, but the injury and the extent thereof and its effect upon his ability to do his work can be established by lay witnesses, and expert testimony is not necessarily required. Texas Employers’ Ins. Ass’n. v. Fletcher, Tex.Civ. App., 356 S.W.2d 359; Insurance Company of Texas v. Anderson, Tex.Civ.App., 272 S.W.2d 772; Texas Employers’ Ins. Ass’n. v. Scott, Tex.Civ.App., 233 S.W.2d 171; Maryland Casualty Co. v. Hearks, Tex.Civ. App., 188 S.W.2d 262, affirmed, 144 Tex. 317, 190 S.W.2d 62.

There is nothing in the testimony of Dr. Russell which shows that the extent and effect of Espinosa’s injury could not be established by lay witnesses. The fact that Dr. Russell did not find any connection between the injury of Espinosa’s eye and the headaches is not conclusive on the matter, and if the jury believed the testimony of Espinosa and his witnesses, they might well find that the injury to his eye had extended to and affected his head and other parts of his body and totally and permanently injured him, as those terms are used and defined in connection with the Workmen’s Compensation Statutes, Art. 8306 et seq., Vernon’s Tex.Civ.Stats.

We do not find it necessary to pass upon other questions raised by appellant.

The judgment is affirmed.

On Motion for Rehearing.

BARROW, Justice.

I respectfully dissent.

The majority have affirmed the judgment of the trial court solely upon the proposition that the injury to Espinosa’s left eye extended to and affected his body generally, thereby resulting in total and permanent incapacity. It is seen, however, that the evidence of incapacity relates only to the specific injury and the attempted utilization of the eye’s remaining use. Therefore, this case falls squarely within the rule set forth in Coleman v. Hartford Accident & Indemnity Co., Tex.Civ.App., 297 S.W.2d 236, writ refused, which holds that such evidence does not raise an issue of a general disability.

It is undisputed that Espinosa’s only injury was a specific injury. He received a cut in the cornea of his left eye which required three stitches. The majority opinion sets forth- all the complaints of Espinosa. In passing upon the proposition of whether or not there is any evidence that the injury extended to and affected his body generally, we are not concerned with those complaints specifically related to the left eye. Espi-nosa’s fear of going on high places and dizziness was related to his inability to see well out of this eye. There is no contention of a neurosis. The only complaint not directly related to the eye is of headaches when he works in the sunlight. The burden was upon Espinosa to establish that the eye injury extended to and affected his body generally.; Texas Employers’ Ins. Ass’n. v. Brownlee, 152 Tex. 247, 256 S.W.2d. 76.

The Association produced the only medical evidence. -This doctor did not have to b.e believed when he testified unequivocally that he could find no connection between the headaches and the eye injury. The only •defect-fbuhd'--by-Dr. Russell related solely to the eye. - On the other hand, disbelieving this medical witness would not establish the converse. Espinosa did not offer any evidence to show a causal connection, but relies upon his testimony that he had headaches after working.

The cases cited in the-majority opinion hold that the issue as to disability, and the extent thereof, may be established by lay testimony, even though it may be contradicted by medical evidence. They are not controlling here, however, in that our problem is to show a causal connection between the cut on Espinosa’s left eye and the headaches. I have been unable to find a case which permits the jury to establish, without the benefit of evidence, a causal connection between a specific injury and subsequent pain in other parts of the body. It is fundamental that a lay witness may testify as to pain in his body. Casualty Ins. Co. of Cal. v. Salinas, 160 Tex. 445, 333 S.W.2d 109. A lay witness is usually not qualified to testify as to the cause of, or to diagnose, a disease, and the jury should not be permitted to draw its conclusions by speculation or surmise. Scott v. Liberty Mut. Ins. Co., Tex.Civ.App., 204 S.W.2d 16, writ ref., n. r. e.; Lumbermen’s Mut. Ins. Co. v. Vaughn, Tex.Civ.App., 174 S.W.2d 1001, no writ history. A medical witness is qualified to show the connection between an injury to a specific member and pain in other parts of the body. Pennsylvania Threshermen and Farmers Mut. Cas. Ins. Co. v. Tatom, Tex.Civ.App., 342 S.W.2d 25, writ ref., n. r. e.; General Accident Fire and Life Assur. Corp. v. Murphy, Tex.Civ.App., 339 S.W.2d 392, writ ref., n. r. e.; Texas Emp. Ins. Ass’n. v. Polk, Tex.Civ.App., 269 S.W.2d 582, writ ref., n. r. e. These cases are all distinguished from Espinosa’s case by the medical evidence showing a causal connection between the specific member and the other part of the body to which the specific injury extended and affected. - Here Espinosa’s evidence, when viewed most favorably to him, shows- only that he receives headaches upon exposure of his eye. This is evidence in support of the specific injury only and is not evidence that the specific injury extended to and affected his body generally. Texas Employers’ Ins. Ass’n. v. Brownlee, supra; Coleman v. Hartford Accident & Indemnity Co., supra. There is no evidence to support this jury finding.

The jury findings of total loss of sight in Espinosa’s left eye would not support a judgment because of the improper definition contained in the charge. The trial court submitted the following definition over the proper objection of the Association: “By the term ‘total loss of sight,’ as used in this charge, is meant that the vision is so affected as to substantially and materially impair the sight thereof in the practical performance of its functions in the pursuit of a laboring man.” This definition is improper. Angelina Casualty Co. v. Holt, 6 Tex.Supreme Court Journal 65, 362 S.W.2d 99; Travelers Ins. Co. v. Seabolt, Tex., 361 S.W.2d 204.

I would reverse the judgment and remand the case for a new trial.


author: FRASER, Justice.

text:
    David BERCHELMANN et al., Appellants, v. The WESTERN COMPANY et al., Appellees.
    No. 5533.
    Court of Civil Appeals of Texas. El Paso.
    Dec. 12,1962.
    Rehearing Denied Jan. 9,1963.
    Morrison, Dittmar, Dahlgren & Kaine, Michael J. Kaine, San Antonio, for appellants.
    Stubbeman, McRae, Sealy & Laughlin, W. B. Browder, Jr., Milton L. Bankston, Turpin, Kerr, Smith & Dyer, Thornton Hardie, Jr., Midland, L. L. James, Tyler, Bill Snow, Big Lake, John F. Wagenhauser, Dallas, for appellees.
   FRASER, Justice.

This particular case was severed from another cause, the severance being due to pleas of privilege. This is an appeal from a decision of the trial court which withdrew the case from the jury and rendered judgment in favor of the appellees for their respective debts, interest and attorneys’ fees. This judgment was rendered against all of the appellants, jointly and severally, and in addition included an order establishing and foreclosing materialman’s liens in favor of the Youngstown Sheet and Tube Company. The relationship between the parties arose by virtue of an agreement between a partnership known as Texita, comprised of Gordan W. Johnston and I. A. McNabb, and the appellants. This agreement involved the drilling for and production of oil and gas from a certain tract of land known as the Shannon “A” lease, in Crockett County. The operating and drilling was to be done by Texita which, along with the appellants, were holders of frac-, tional parts of all the working interest under an oil and gas lease on the lands described as Shannon “A” in Crockett County, Texas. According to the record before us Texita was to drill and operate, and each of the appellants was to be billed fora proportionate share of the expense, which he was to remit to Texita. Texita was known as-' the “operator” and appellants as “non-operators”. The appellees here were various creditors or assignees of creditors who had supplied material and services for the operations on the property in question at the request of Texita. These appellees sought and obtained a judgment in the lower court holding- appellants liable on the theory that Texita and appellants were jointly and severally liable for these debts because a mining partnership, or partnership agreement of some sort, existed between Texita and appellants, and that Texita had acted as agent and representative of appellants.

The trial court, after withdrawing the matter from the jury, rendered judgment in favor of the appellees for their debts, interest and attorneys’ fees and — as stated above — granted Youngstown a further judgment establishing and foreclosing its alleged materialman’s lien. This judgment also involved some other parties and collateral matters, but we are concerned here with only that part of the judgment rendered against the appellants who have perfected their' appeal to this court.

We believe that appellants’ Points 1, 2, 3, 4, 5, 6, 7 and 9 must be sustained. 'Although there are fourteen points of error in all, we believe the other points of error need not be discussed, as they will be disposed of automatically by this decision.

We will dispose of Point 5 first. This point deals with the matter of a material-man’s lien. It is clear from the record that Youngstown, in whose favor the material-man’s lien was granted, had not taken the necessary steps required by law to establish the lien under the conditions here present.

According to the record the agreement between Texita and appellants provided for drilling and operation on this Shannon “A” tract of land. It is clear, from the evidence — oral and documentary — and from the affidavits and exhibits, that Texita was to be the operator, and the appellants were known, and acted, as “non-operators”, merely paying their proportionate shares of the expenses. -The only other significant provision was that Texita agreed not to obligate itself for more than $2500 for any one item without the written approval of the non-operators. The record reveals that Texita ■regularly billed the appellants, and appellants remitted their allotted shares of the incurred expenses. The appellees, who had supplied various items of material and services, do not seem to have ever held or billed any of the appellants for the credit extended to Texita prior to this lawsuit. It is also clear that Texita was a going concern and had established its credit with many of appellees before the transaction with reference to the Shannon “A” leases materialized. Other than the matter of the $2500 expenditure qualification, the record is clear that Texita was to" be the operator, in sole control of the drilling and production on the land here involved. We do not find any evidence that Texita was the agent or representative of these appellants (holders of fractional parts of the working interests of the oil and gas leases) nor do we find that the creditors themselves (appellees here) extended any credit or depended on payment from the appellants. The two partners of the Texita company themselves stated that they were the operators and in control of this matter, and handled the business transactions, submitting reports, only, to appellants with invoices for the amounts they owed. Appellees successfully urged in the trial court that this relationship constituted a partnership and/or a mining partnership. We do not find that the elements necessary to create this relationship and the resultant liability thereunder are here present. Without going into a long discussion of the requirements necessary to establish a mining partnership relation, we deem it sufficient to say that the very operating agreements themselves, wherein appellants were designated as the “non-operators” and Texita as the “operator” do not contain the basic elements of sharing of liability, control, risk and profits, along with the elements of agency, necessary to constitute a partnership or mining partnership. It is our opinion that the relationship here concerned was, as alleged by appellants, a working agreement between Texita as operator and appellants as non-operators. The latter were to contribute their proportionate shares of the expenses incurred and controlled by Texita which, by definite agreement as represented by the written instruments and other documentary evidence, was in control of both the drilling and production. We see no valid legal reason to hold the appellants liable for debts incurred by the operator. The operator used its own credit, made its own transactions, and finally wound up being adjudicated bankrupt. It is apparent that the negotiations between the parties resulted in agreements whereby Texita was to drill and operate, and appellants were, like a certain type of stockholder, liable only to Texita and entitled to profits only if such could be accomplished by Texita in its drilling and operations. It is our conclusion that Texita, as operator, was given exclusive charge, management and control of all operations of every kind to be conducted on the Shannon “A” lease for the development, production, treating and handling of oil and gas; that Texita was to secure and furnish the necessary material, labor and services and pay for them; that Texita actually did operate the lease pursuant to the operating agreement, procuring labor and materials, and that such were charged to accounts maintained solely in the name of “Texita Oil Company”. There is no evidence that any of appellees ever sent bills, invoices or notices of any sort to the non-operators.

In any event, we believe this case is controlled by the decision of the Supreme Court of Texas, Youngstown Sheet and Tube Company v. Penn et al., 363 S.W.2d 230. That opinion affirms the decision of the trial court and court of civil appeals. The facts in that case were substantially the same as the facts here, and involved a similar relationship between Texita and owners of fractional parts of the working interest of oil and gas leases in Atascosa County. In that case the trial court and the court of civil appeals denied the claims of the creditors against the holders of non-operating interests. The Third Court of Civil Appeals sitting at Austin, in a careful and well-reasoned opinion, set forth a great part of the documentary evidence as well as the affidavits involved in that particular lawsuit, together with much of the testimony. Because the evidence in that case is so similar and so substantially like the evidence here as to be almost identical, we do not reproduce same, but merely refer to the decision of the Court of Civil Appeals, entitled as shown above and cited as Youngstown Sheet and Tube Company v. Penn et al., 355 S.W.2d 239. The court there relied heavily on the case of U. S. Truck Lines v. Texaco, Inc., Tex.Civ.App., 337 S.W.2d 497 (writ refused). We believe that case (and cases cited therein) also is controlling with respect to the matter before us, and the Eastland Court of Civil Appeals (which rendered that decision) was very specific and plain in denying the existence of a partnership between the parties. In the Supreme Court case cited above, there was another and important point — to-wit, the sufficiency of the affidavits' filed along with the motion for a summary judgment. We do not have that problem in the case before us, but the Supreme Court, in disposing of the matter, affirmed the Austin Court of Civil Appeals finding that no partnership or agency of any type existed, and that the interest-holders there were not jointly liable, nor did there exist any mutual agency between them and Texita. The Court of Civil Appeals in its decision (355 S.W.2d 239), after reviewing the evidence, reached the same conclusion that we have reached here — namely, that Texita possessed and exercised exclusive control of the development and operations of the lease, along with the duty to make the necessary purchases and contractual arrangements for service. The court also pointed out that the accounting procedures (which were the same as those in the case before us) were similar to those in the case relied on by that court — to-wit, U. S. Truck Lines v. Texaco, Inc. (supra).

We hold the matter before us to be a question of law, and that the appellees failed to prove the necessary elements of partnership and agency so as to make the appellants jointly and severally liable with Texita for the debts and obligations incurred by Texita. Youngstown Sheet and Tube Co. v. Penn et al., Tex.Civ.App., 355 S.W.2d 239; U. S. Truck Lines v. Texaco, Inc. (and cases cited therein), 337 S.W.2d 497 (Eastland Civ.App., wr. ref.) ; Youngstown Sheet and Tube Co. v. Penn et al., 363 S.W.2d 230, Supreme Court of Texas.

For these reasons appellants’ points as enumerated above are all sustained, and the decision of the trial court is reversed and rendered to the effect that the appellees take nothing from the appellants.


author: PER CURIAM.

text:
    Park P. PLAMBECK, Appellant, v. CISCO INDEPENDENT SCHOOL DISTRICT et al., Appellees.
    No. 3779.
    Court of Civil Appeals of Texas. Eastland.
    Jan. 3, 1963.
    Rehearing Denied Jan. 18,1963.
    Scarborough, Black & Tarpley, Abilene, for appellant.
    W. B. Wright, Cisco, Turner & Sea-berry, Eastland, for appellees.
   PER CURIAM.

This is a contest of an election held in the Cisco Independent School District on September 8, 1962, for the purpose of determining whether certain school bonds would be approved. The board certified that the election resulted in favor of the issuance of the bonds.

The court sustained exceptions to plaintiff’s second amended petition. He refused to amend and the court dismissed his case. The plaintiff has appealed contending the court erred in sustaining such exceptions.

The plaintiff pleaded there was only one polling place in the entire district and that there was no canvass of the votes; that no one was asked to show his poll tax receipt or exemption certificate or required to file an affidavit in lieu thereof; that no list of the qualified voters of the district was furnished the election judges.

The plaintiff pleaded specifically: “It is likewise impossible today to determine by examining the ballots with any degree of certainty the true results of the election or to find out if the will of the people had been followed because of the hereinafter described irregularities.”

“This plaintiff would show that a list of the voters in Precinct #12 Eastland County, Texas, was furnished the election judges of said election. Said list showed the people in Precinct 12 in Eastland County, Texas, who had paid their poll taxes. Attached hereto and made a part hereof and marked Exhibit ‘A’ is a true and correct map of . Eastland County, Texas. Precinct #12 is outlined thereon in red and the Cisco Independent School District is outlined thereon in green. This plaintiff would show that as shown by said Exhibit ‘A’ a portion of the Cisco Independent School District is contained in Precinct # 12, but that there are a number of voters in Precinct # 12, Eastland County, Texas, who do not reside in the Cisco Independent School District. As a matter of fact, there are some 45.350 square miles in Precinct # 12 which is not included in the Cisco Independent School District. Additionally, a portion of the Cisco Independent School District is outside the limits of Precinct # 12. In fact some 17.11125 square miles in Eastland County plus an undetermined amount in Callahan County is included in ■ the school district but not the voting precinct, and said area contains many eligible voters. It was impossible, and it is impossible today, to tell from the records what the true results of the election should be or to tell whether or not all or any part of the votes cast were legally cast. This election should, therefore, be in fact declared void and of no effect.”

“There was no certified list of the qualified property tax paying voters who had duly rendered their property furnished to the election judges. Plaintiff would show to the Court that the voters were not questioned by the election judge or made to sign an affidavit that they had duly rendered their property before said day of August 14, 1962. However, there are no dates on any of the rendition slips and it is impossible to tell at this time or at the time of said election whether or not anybody that voted in said election had duly rendered his property prior to the date the election was called, towit, August 14, 1962. The above irregularities constituted such a course of conduct as to utterly prevent the plaintiff or anyone else from determining the true results from said election or who, if anyone, was a qualified voter in said election, or if his ballot should have been counted. Therefore,- because of the foregoing irregularities, plaintiff requests the Court to declare said election void.”

The defendants allege in their special exceptions that the plaintiff failed to allege in his petition that the results of the election would have been changed had any irregular votes not been counted; that it was impossible to ascertain the true result of the election either from the returns or from any other evidence; the number of people who were prevented from voting or the number of people who were illegally permitted to vote and said petition failed to give their names and the reason they were not permitted to vote or the reason they were illegally permitted to vote. Defendants further pleaded' “Defendant further excepts to the allegations in Paragraph III that it was or is impossible to determine with any degree • of certainty the true result of the election, on the grounds that it is a conclusion of the pleader only, and no facts are pleaded to support such allegation” ; that the results of the election were occasioned by fraud or misconduct, “that it is incumbent upon the plaintiff here to systematically itemize the name and number of voters who were refused access to the polls by reason of this irregularity, or who were erroneously permitted to vote by reason of this irregularity.”

The defendants’ special exceptions raised a question of law as to the sufficiency of the plaintiff’s pleadings. The judgment indicates that all of the exceptions were sustained. The exceptions were directed to plaintiff’s entire petition. We must assume in passing on the sufficiency of the exceptions that the allegations of fact are true, Vol. 8, Ten Yr. Supp.Tex.Jur., page 201 § 140. Rule 45 Texas Rules of Civil Procedure provides: “That an allegation be evidentiary or be of legal conclusion shall not be ground for objection when fair notice to the opponent is given by the allegations as a whole.”

Marks v. Jackson, Tex.Civ.App., 130 S. W.2d 925, involved a contest of an election which was held for the purpose of determining whether or not a school district should be authorized to issue bonds. The election had resulted in favor of the issuance of the bonds. The trial court upheld the validity of the election. In affirming the judgment the Court announced the following rule:

“In an election-contest, the burden is on the contestants to allege and prove either that a different result should have been reached by counting or not counting certain specified votes; or that the irregularities in the conduct of it were such as to render it impossible to determine the true will of the majority of the voters participating in the election; and irregularities in the conduct of the election, which cannot be demonstrated to have materially affected the result, are immaterial.”

Substantially the same rule is announced in 29 C.J.S. Elections § 127, page 193:

“Where illegal votes can be segregated, only those votes should be thrown out, and the entire vote need not be impeached, but where it is impossible to separate improperly marked ballots from the others the votes of a whole district may be excluded.”

The averments of the plaintiff’.s petition were sufficient to inform the defendants of the nature of his cause of action. It was not necessary for him to plead the evidence that he will rely upon to sustain such allegations. After we assume that the allegations of the plaintiff’s petition are true, as we are required to do in passing on the defendants’ special exceptions, and based on the above authorities, we have concluded that the court erred in sustaining such exceptions.

The judgment is reversed and remanded.


author: BARROW, Justice.

text:
    Andy CUNNINGHAM, Appellant, v. TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellee.
    No. 14013.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 7, 1962.
    Rehearing Denied Jan. 9, 1963.

      Rudy Rice, Frank R. Southers, San Antonio, for appellant.
    Groce & Hebdon, Richard Tinsman, San Antonio, for appellee.
   BARROW, Justice.

This is a workmen’s compensation case wherein Andy Cunningham alleged that on or about August 1, 1960, he sustained accidental injuries to his inguinal region and to his lower and middle back areas. The jury returned a verdict which would entitle Cunningham to maximum benefits for total and permanent incapacity to his back, or for total and permanent incapacity resulting from an unsuccessful hernia operation. The trial court granted Association’s motion for judgment non obstante veredicto and entered judgment for Cunningham for twenty-six weeks disability, being the maximum benefits allowed by law for a successful hernia operation. Cunningham duly perfected his appeal from this judgment and contends that the findings of the jury were supported by sufficient evidence to support a judgment in his favor on either count. The Association, by cross-points, contends that in any event the findings of the jury that the injury extended to and affected Cunningham’s back, and that he suffered a total and permanent incapacity were so contrary to the overwhelming preponderance of the evidence as to be manifestly unjust and require a new trial. As an alternative cross-point, the Association reserved the right to file a motion for new trial on the ground of jury misconduct. Rule 324, Texas Rules of Civil Procedure.

In passing upon Cunningham’s points, we are required to examine the evidence in its most favorable light in support of the jury findings, considering only the evidence and inferences which support the findings, and rejecting the evidence and inferences which are contrary to the jury findings. On the other hand, in passing upon the Association’s cross-points of insufficiency of the evidence, we are required to examine all the evidence to determine if the findings are so contrary to the great weight and preponderance of the evidence as to be clearly wrong and. manifestly unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660; “No Evidence” and “Insufficient Evidence” Points of Error, by Chief Justice Robert W. Calvert, 38 Tex. Law Review 361.

The jury found that Cunningham sustained an accidental injury to his back, under the trial court’s definition which included the acceleration or aggravation of any pre-existing disease by reason of damage or harm to the physical structure of the body. They also found that this injury resulted in total and permanent incapacity. In answer to the affirmative defenses of the Association, the jury found that the incapacity was not solely caused by physical conditions existing prior to the injury, and that the incapacity was not solely caused by the hernia.

Cunningham had worked for thirty-five years as a plasterer helper and prior to the injury had performed hard manual labor without complaint or difficulty. His earnings showed a good work record for two years before the accident. He testified that while lifting wet planks which weighed about one hundred pounds, he felt a sharp stinging pain and a knot in his right groin. He performed light work the rest of the day and on the following day he went to see Dr. Dufner, his family doctor since 1946. He continued to perform light work, such as watering forms, until September 26, 1960, when Dr. Dufner surgically repaired the hernia. He testified that he first noticed the pain in his back in the area approximating the right hip pocket, two or three days after the lifting incident and complained of this pain on his second visit to Dr. Dufner. Two fellow employees corroborated Cunningham’s testimony of his back complaints and his performing only light duties after the lifting incident. This testimony was not refuted by Association. In addition, Cunningham’s pastor testified that Cunningham did construction work around his church without complaint prior to the accident and subsequent thereto he made complaints about his back upon any physical activity.

The Association showed that Cunningham did not attach much significance to his back injury at the time of taking his deposition, and in fact did not testify concerning same until interrogated by his own attorney.

Three doctors testified concerning Cunningham’s condition. Dr. Dufner was called by the Association and gave very strong testimony against claimant. He testified that the back difficulty was related to a muscular difficulty which would be worked out with use and without any future disability. He admitted Cunningham’s complaint of back pain, although he thought it had been made prior to the hernia and that Cunningham had changed the location of complaint on his examination just prior to the trial. Cunningham had been treated by two doctors, at his attorney’s request, a few months prior to the trial, and both testified that his back trouble was caused by an aggravation of osteo-arthritis, which in their opinion was the result of the lifting incident.

We have concluded that the jury’s finding of accidental injury to Cunningham’s back is supported by evidence in the record. Moreover, we have carefully examined and considered the entire statement of facts and have reached the conclusion that this finding of the jury is not so against the overwhelming preponderance of the evidence as to be clearly wrong or manifestly unjust.

These same questions present more difficulty in regard to the jury findings that the back injury resulted in total permanent incapacity. The record is undisputed that Cunningham has not been gainfully employed since the operation. Cunningham testified that he is unable to perform any physical activity due to the pain in his right groin and low back which he gets upon standing on his feet even long enough to shave. He testified that on several occasions he tried to do household chores around his home, but it brought on the pain. The Association contends that Cunningham’s lack of activity is due to his retirement on November 1, 1960, on Social Security benefits of $104.00 per month. The jury was permitted to consider this fact, together with the fact that he had been eligible for benefits for some five months, but did not retire until the accident. His earnings were substantially more than the Social Security benefits. The two doctors called by Cunningham testified that he was not totally disabled for all work; for example, one doctor testified that Cunningham could be a nightwatchman or run an elevator. Both testified that he would never be able to perform manual labor, and in view of Cunningham’s long experience in heavy construction work, the jury apparently believed that he could not procure and retain employment. This question has been recently considered by this Court in Muro v. Houston Fire & Casualty Ins. Co., Tex.Civ.App., 329 S.W.2d 326, writ ref., n. r. e., where the authorities were fully discussed and the jury findings of total and permanent incapacity were upheld. The facts in this case are not comparable to Texas Employers’ Ins. Ass’n. v. English, Tex.Civ.App., 278 S.W.2d 460, writ dismissed, where the claimant had continued his regular heavy work without complaint and his medical witness testified that he was disabled only from extremely heavy lifting. Although this fact would not be conclusive, the jury was entitled to give weight to the evidence that Cunningham had not done any work over a period of about sixteen months between the operation and time of trial. The evidence as to why he had not worked was conflicting and the jury resolved this conflict favorably to Cunningham.

We conclude that the findings of the jury that the back injury was the producing cause of Cunningham’s being totally and permanently incapacitated under the Workmen’s Compensation Act, are supported by evidence of probative force. We further conclude from the record as a whole, that these findings are not so against the overwhelming preponderance of the evidence as to be manifestly unjust. We therefore hold that the trial court erred in granting Association’s motion for judgment non obstante veredicto and in not entering judgment for Cunningham for total and permanent incapacity based on the wage rate found by the jury. Texas Employers’ Ins. Ass’n. v. Waters, Tex.Civ.App., 356 S.W.2d 209, writ ref., n. r. e.; Muro v. Houston Fire & Cas. Ins. Co., supra.

The Association by cross-point has properly preserved its right to assert jury misconduct under Rule 327, T.R.C.P., which requires the taking of evidence by the trial court. We, therefore, reverse and remand this cause to the trial court for entry of judgment in accordance with the verdict of the jury, and to permit the Association to file a motion for new trial for the limited purpose of asserting jury misconduct. Rule 324, T.R.C.P.; DeWinne v. Allen, 154 Tex. 316, 277 S.W.2d 95.


text:
    James A. CAMERON, Sr., et ux., Appellants, v. Rolf SAATHOFF, Appellee.
    No. 14039.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 12, 1962.
    Rehearing Denied Jan. 9, 1963.
    Wm. H. Shireman, Corpus Christi, for appellants.
    Frank X. Vance, Hondo, for appellee.
   BARROW, Justice.

This is an appeal by plaintiffs from an adverse judgment of the 38th Judicial District Court of Medina County, Texas, in a trespass to try title suit involving about 528.3 acres of land in Medina County. This is 'the second appeal of this case. On the first appeal this Court affirmed the order of the trial court refusing to issue a temporary injunction to restrain defendant and the county sheriff from dispossessing plaintiffs. See, Cameron v. Saathoff, Tex.Civ.App., 342 S.W.2d 470. The Supreme Court granted writ of error and held that the temporary injunction was moot, and declined to pass upon the. points decided by this Court, Tex., 345 S.W.2d 281.

The plaintiffs then amended their petition to bring a straight trespass to try title suit, with a prayer for damages for the rental value of said premises. Defendant answered with a plea of “Not Guilty”. The case was tried before the court and there were no findings of fact or conclusions of law filed. Plaintiffs make the same contention now as they did in the prior appeal, to-wit, that the purported judicial sale of the land by the sheriff was void for the reason that the defendant did not actually pay his bid until after the order of sale had become functus officio. We are now confronted with an additional proposition in that a straight trespass to try title suit is a collateral attack upon the sheriff’s sale. Graves v. Griffin, Tex.Com.App., 228 S.W. 913.

The parties stipulated that the common source of title was W. H. Paysinger, Ann H. Paysinger, Louise L. Paysinger and C. C. Paysinger. Plaintiffs then introduced the following documents in evidence: (1) Certified copy of deed dated June 23, 1955, from common source to plaintiffs, which deed contained a vendor’s lien in the principal sum of $30,000.00; (2) Certified copy of judgment in Cause No. 5090, styled W. H. Paysinger et al. v. James A. Cameron, Sr., which judgment ordered a foreclosure on the land in question; (3) Certified copy of the order of sale issued by the district clerk on October 28, 1959, by virtue of the judgment in Cause No. 5090, which required a return within ninety days; (4) Certified copy of the sheriff’s deed to defendant as the high bidder in the judicial sale. Evidence was then introduced similar to that set forth in our first opinion, and therefore not fully set forth here. It is sufficient to state that the evidence shows that, following the acceptance of his high bid by the sheriff, Saathoff offered to pay the amount of same. At the request of the sheriff, Saathoff did not make the payment until January 28, 1960, which was the ninety-first day after the issuance of the order of sale.

On the prior appeal, this Court held that Saathoff did not fail to comply with the terms of the sale, and that the sale was not void. We adhere to that opinion. There is an additional reason, however, why the judgment of the trial court should be affirmed. This was a collateral attack upon the sheriff’s sale, and the proceedings are regular upon their face. Therefore, it was not proper to go behind same.

All of the instruments relating to the judgment and sheriff’s sale were introduced in evidence. They show that the court had jurisdiction to order the sale and that the Medina County sheriff had jurisdiction to hold same. The return of the order of sale and the sheriff’s deed recite proper notice and public sale on January 5, 1960, a time when the sheriff had full authority to act. They further show that defendant made the high bid and paid said sum. These proceedings being regular upon their face, they could not be attacked collaterally. Howard v. North, 5 Tex. 290. See also: Kahn v. Marik, Tex.Civ.App., 286 S.W.2d 639, writ ref., n.r.e.; Burnam v. Blocker, Tex.Civ.App., 247 S.W.2d 432, writ refused; Fink v. White, Tex.Civ.App., 133 S.W.2d 137, writ refused. In Carter v. Munzesheimer, Tex.Civ.App., 272 S.W. 277, no writ history, which is cited by plaintiffs, the sheriff’s return recited that the bid had not been paid although the deed recited payment. In view of this conflicting record, the Court of Civil Appeals held that evidence was admissible to explain the conflict. In our case there was no conflict and the proceedings were regular on their face, and could not be attacked collaterally.

The judgment is affirmed.


author: CHAPMAN, Justice.

text:
    Clyde Alfred BURRIS, Appellant, v. A. V. WILSON, Appellee.
    No. 7198.
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 26, 1962.
    Rehearing Denied Jan. 7, 1963.

      Ray & Knudtson, Amarillo, for appellant.
    Underwood, Wilson, Sutton, Heare & Berry, Amarillo, for appellee.
   CHAPMAN, Justice.

This is an exception 9a venue case. The exception provides:

“A suit based upon negligence per se, negligence at common law or any form of negligence, active or passive, may be brought in the county where the act or omission of negligence occurred or in the county where the defendant has his domicile. The venue facts necessary for plaintiff to establish by the preponderance of the evidence to sustain venue in a county other than the county of defendant’s residence are:
“1. That an act or omission of negligence occurred in the county where suit was filed.
“2. That such act or omission was that of the defendant, in person, or that of his servant, agent or representative acting within the scope of his employment.
“3. That such negligence was a proximate cause of plaintiff’s injuries.”

The parties will be referred to as in the court below; viz., as plaintiff and defendant.

Plaintiff, Clyde Alfred Burris, brought suit in Ochiltree County against A. V. Wilson seeking to recover damages allegedly. sustained in an automobile collision on April 13, 1960, in said county between his son, James Clyde Burris, and defendant, A. V. Wilson. The latter filed his plea of privilege to be sued in Hale County, the county of his residence. Plaintiff controverted and invoked the exception to exclusive venue above quoted.

The venue action was tried in the county court without the services of a court reporter and a Statement of Facts was agreed upon by attorneys for the parties. Such Statement of Facts concerning the collision show that 'A. V. Wilson drove his automobile from a private driveway of a farmhouse onto the section line road on which James C. Burris was driving from the south in a northerly direction and “that James Clyde Burris swerved the plaintiff’s car to the left in an attempt to avoid colliding with defendant’s automobile, but that a very slight collision of the two automobiles occurred. Defendanfs automobile received no damages from this collision." All emphases herein are ours.

The Statement of Facts goes on to say that the Burris automobile proceeded on down the harrow ditch for some distance, hit a culvert, then swerved onto and across the roadway and came to a rest upon the roadway.

The trial court in his order sustaining venue recited that the court “ * * * is of the opinion that an act or omission of negligence occurred in the county where suit was filed; that such act or omission was that of the defendant in person; but that there was no evidence of any damage suffered by plaintiff as a proximate cause of the collision in question, * * * ” We have very carefully checked the 254-page Statement of Facts and find not one word of evidence of any damage suffered by plaintiff as a result of the collision in question. No personal injuries were pleaded but only damages to the automobile ware alleged.

Section 9a of Article 1995 Vernon’s Ann.Tex.Civ.St. recites specifically the venue facts necessary for plaintiff to establish in order to sustain venue in a county other than the county of defendant’s residence. It appears axiomatic from a reading of the venue exception above quoted that one seeking to sustain venue under such exception must prove that he sustained some injury or else it would be impossible to sustain the burden of the third requirement of Section 9a to the effect that the defendant’s negligence was a proximate cause of plaintiff’s injuries. Petrey et al. v. Williams et al., Tex.Civ.App., 312 S.W.2d 383.

Additionally, it has been held “ * * * it is necessary, in order to maintain venue under ⅜ * * Sec. 9a of art. 1995 to prove ⅜ * * negligence per se, negligence at common law, or any form of negligence, active or passive, * * * for which a civil action for damages will lie;” in other words, actionable negligence. A civil action for damages will not lie unless some damages are proven. As shown above, the Order Sustaining Defendant’s Plea of Privilege recites the court found against plaintiff on the issue of damages. This finding we are obligated to uphold under the record here if there are any grounds to support it. Banks v. Collins, 152 Tex. 265, 257 S.W.2d 97. Actually, there is not any evidence of damages in the testimony, which shows “a very slight collision of the two automobiles occurred.” Accordingly, plaintiff’s first point is overruled.

In point two' plaintiff asserts error of the trial court in refusing to reopen the venue hearing for the purpose of permitting the plaintiff to prove damages suffered by him as a proximate cause of the collision. The Statement of Facts reflects the following:

“After the Plaintiff had presented his evidence, oral arguments were made by Counsel for the Plaintiff and Defendant, respectively, and Plaintiff made his closing argument. Counsel for Defendant argued that his Plea of Privilege should be sustained for the reason that Plaintiff had failed to prove any damage. Plaintiff, in his closing argument, argued that he had no burden to show any damage but that he felt the evidence had shown damage to Plaintiff. After the Plaintiff’s closing argument, the Court then inquired if Defendant’s Counsel had any authority for the proposition which he urged, and directed said Counsel to present some authority therefor. Court was in recess for a period of approximately one hour while 'Counsel and the Court researched the law on the question involved. Thereafter, the Court was then reconvened and the Court announced that the law was in favor of the Defendant and against the Plaintiff and that Defendant’s Plea of Privilege would be sustained, and requested Counsel to draw an order reflecting his .ruling. Counsel for Plaintiff then requested leave of the Court to reopen the case and to recall James Clyde Burris to the witness stand and to put on additional evidence of the damages sustained by Plaintiff.”

Thus, it appears obvious from the record that it was not until after the arguments were made and the trial court had rendered his judgment that counsel for plaintiff requested leave of the court to reopen the case.

Rule 270 Vernon’s Ann.Tex.Rule, provides in part as follows: “At any time the court may permit additional evidence to be offered where it clearly appears to be necessary to the due administration of justice.”

The word “may” indicates it is discretionary with a trial court as to whether he will reopen a case to admit additional evidence. Our courts have held it to be discretionary. Mosesman et vir. v. Robertson et al., Tex.Civ.App., 301 S.W.2d 279.

Here we have a case where plaintiff had tried his venue question under the theory that he had proved .all that was necessary. In defendant’s argument counsel had suggested to the court that plaintiff had not proved a necessary element under Section 9a in order to retain venue outside the county of his residence; viz. any damage. Counsel for plaintiff argued to the contrary, that he did not have to prove damages but that he had done so. Then after the arguments were concluded, the court asked counsel for plaintiff if he had any authority for his contention. He did not so the court and counsel spent an hour researching the law on the question. After doing so, the court then rendered his judgment for defendant and ordered the case transferred to Hale County, the county of defendant’s residence. It was only then that plaintiff made a request to reopen the case.

From this record we have no abuse of discretion shown. In the first place the proposed evidence would have been at variance with the theory on which plaintiff had', tried his case and it would have been supplied by one interested in the .result, plaintiff’s son who was driving the car at the-time of the collision and who had previously testified at length. Secondly, there is not a Bill of Exception nor any other record before us showing that any witness was present after the judgment was rendered to-testify to damages o.r what he would-have-testified to if present. Under these conditions it has been held that a refusal of a trial court to reopen a case was not an. abuse of discretion. Stroud et vir. v. Jones,. Tex.Civ.App., 295 S.W.2d 491 (NRE).. Accordingly, the judgment of the trial court, is affirmed.

      . Process Engineering Company of Port Worth v. Rosson, Tex.Civ.App., 287 S. W.2d 511.

      . The question of the great weight and preponderance of the evidence is not raised in the case.


author: DENTON, Chief Justice.

text:
    John W. SIMMONS et al., Appellants, v. Coleman D. McSPADDEN, Appellee.
    No. 7209.
    Court of Civil Appeals of Texas.. Amarillo.
    Dec. 17, 1962.

      Gibson, Ochsner, Harlan, Kinney & Morris, Amarillo, for appellants.
    No one appearing for appellee.
   DENTON, Chief Justice.

This is an appeal from an order of the "trial court sustaining defendant’s motion for summary judgment. The suit was instituted 'by John W. Simmons and E. W. Simmons against Coleman D. McSpadden to foreclose a contract and equitable lien upon certain properties conveyed and transferred by John W. Simmons and wife to McSpadden. No brief has been filed by appellee.

On August 30, 1960, John W. Simmons ■•and wife, Sara Ann Simmons, and Mc-Spadden entered into a written contract whereby Mr. and Mrs. Simmons sold and •conveyed certain real and personal property to McSpadden, who took the property subject to all just and legal debts against the property. By the terms of the contract, it was the intention of Simmons to convey to McSpadden all of his property save and except property expressly excluded in the contract. A list of debts owed by Simmons was attached to the instrument but it provided: “It is recognized that said list of creditors and the balances due thereon may be incomplete or contain some variations as to the actual balances due thereon but same is accurate and correct to the best knowledge of First Party.” The contract further provides: “Second Party (meaning Mc-Spadden) in no way assumes or agrees to discharge and pay said indebtedness, but only takes title to said property, subject to said indebtedness. In this connection, Second Party recognizes that he is taking said property subject to the rights of all bona fide creditors whether secured or unsecured to the extent of the reasonable market value of said property.” Upon the execution of the contract, McSpadden took over the properties, proceeded to confirm the accounts receivable and the debts, paid some portion of the indebtedness, and in general assumed control of the property.

Plaintiffs below pleaded the written contract of August 30, 1960; that the reasonable market value of the property turned over to the defendant was $1,129,282.00; that the defendant has disposed of an unknown amount of such property; that plaintiffs had paid the sum of $122,259.32 to various named banks and that $25,318.44 remained due and owing to the Vega State Bank; that the defendant refused to make such payments save and except $1,000.00 which he paid to the Vega bank; and that the property conveyed to the defendant was subject to the indebtedness owed to the banks which was paid by the plaintiffs’. By way of answer, the defendant denied that all property had been turned over to him; pleaded the market value of the property did not exceed $700,000.00; and that the defendant had paid or obligated himself to pay $850,000.00.

Attached to defendant’s motion for summary judgment is the defendant’s affidavit, in which he set out the values of the property received; the amount of indebtedness and the value of the accounts receivable. Although the figures used in the affidavit vary somewhat from those pleaded in the amended answer, they reach the same general conclusion, to-wit, the properties’ market value was less than that represented by the plaintiifs; that the indebtedness was greater than that represented; and that such indebtedness exceeded the market value of the property conveyed. The affidavit of the plaintiff, John W. Simmons, in opposition to the motion for summary judgment, refutes the whole tenor of the defendant’s affidavit. Simmons states that all property listed in his amended petition was delivered to defendant; that the property conveyed, plus the accounts receivable, had a market value of at least $1,073,000.00; denied that the indebtedness assumed by defendant exceeded $930,000.00 and concluded that the total indebtedness was less than the market value of the assets transferred. Simmons further states that since the execution of the written contract, John W. Simmons and E. W. Simmons had been required to pay or had become liable to pay the total sum of $147,577.76 to the various named banks because of the defendant’s failure and refusal to pay such debts.

The sole question before this Court is whether or not the trial court erred in granting the summary judgment. The record contains the oral depositions of John W. Simmons and E. W. Simmons and the defendant McSpadden together with the affidavits above referred to. In deciding a motion for summary judgment, the trial court considers the pleadings, affidavits, admissions and depositions, not for the purpose of weighing the evidence or determining its credibility and thus try the case on its merits, but only for the purpose of determining if there are any material facts to be tried. Gulbenkian v. Penn, 151 Tex. 412, 252 S. W.2d 929. In such cases, the movant has the burden of proof that there is no genuine issue of any material fact, and any doubts as to the evidence of a genuine issue of a material fact must be resolved against the parties moving for a summary judgment. Gulbenkian v. Penn, supra.

Plaintiffs’ cause of action is based on the written contract, and the rights of both parties must be determined by its provisions. Defendant’s motion for summary judgment is based on the premise the defendant has-no personal obligation or liability to the-plaintiffs in that the record fails to show a cause of action either of law or equity against the defendant. As we understand it, plaintiff’s primary cause of action is one-which seeks a foreclosure of their alleged' contract and equitable lien upon the property conveyed. This is based on the fact that certain indebtedness previously owed to the-named banks by the plaintiffs were paid by the plaintiffs, and that as a result of such-payments the property acquired by the defendant was subject to those debts; and that such payments by plaintiffs resulted in> a contractual or equitable lien upon the property involved. The defendant admitted by deposition that he took the property subject to the banks’ indebtednesses. By the express terms of the contract the extent to which the property was subject to these debts and the rights of all bona fide creditors was “to the extent of the reasonable market value of said property”.

After reviewing this record in the light of the well-settled rules of law, we are convinced the affidavits and depositions-do raise material fact issues. The primary fact issue raised seems to be the market value of the property transferred to the defendant. Whether or not a contractual or equitable lien attached to the property depends upon the market value of such property. The affidavits and depositions of the parties give conflicting figures. This issue in turn cannot be answered in the absence of evidence as to what property was transferred to and received by the defendant. The record also reflects a wide discrepancy in this element of the case. The same conclusion can be reached in determining the amount of debts which were owed by Simmons at the time the contract was issued. In applying the well-settled rules of law governing summary judgments, we are of the opinion genuine material issues of fact have been raised and such fact issues must be determined by a tryer of the facts.

The judgment of the trial court is therefore reversed and remanded for a hearing on the merits.


author: MURRAY, Chief Justice.

text:
    COUNTY OF BEXAR, Appellant, v. Mrs. J. G. McALPINE, a Widow, Appellee.
    No. 14037.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 9, 1963.
    Charles J. Lieck, Jr., Dist. Atty., Joe E. Anderson, C. J. Matthews, Asst. Dist. At-tys., San Antonio, for appellant.
    Park Street, James Gardner, San Antonio, for appellee.
   MURRAY, Chief Justice.

This is a condemnation case in which Bexar County, Texas, acquired, for highway purposes, .954 of an acre of land out of a tract containing some 37 acres owned by Mrs. J. G. McAlpine, a widow, fronting 801.7 feet on the western side of Fredericks-burg Road and extending back for some 1900 feet to form almost a perfect rectangle. This property had road frontage on the north its entire length on the Hamilton Wolfe Road. The portion taken was off the southeast part of the tract, cutting off an irregularly shaped piece of land, fronting 170.68 feet on Fredericksburg Road and extending back along the new road, named Wurzbach Road.

The trial was to a jury which made the following findings: (1) Value of part taken, $10,392.50; (2) Value of the remainder before taking, $118,264.00; (3) Value of the remainder after taking, $109,572.00. Judgment was for the sum of $15,084.50, together with interest. The total recovery was for the sum of $19,084.50, less $4,000.00 previously paid by the County. The $19,-084.50 was composed of $10,392.50 for the parcel taken and $8,692.00 for the severance damage to the remainder of the 37-acre tract. From this judgment Bexar County has prosecuted this appeal.

Appellant’s first contention is that the verdict of the jury is excessive. We agree, as there was no evidence to support the jury’s finding, in effect, that the consequential or severance damages were $8,-692.00. This sum was arrived at by the jury’s finding that the remainder of the land before the taking had a fair market value of $118,264.00, and after the taking, a fair market value of $109,572.00, thus making the severance or consequential damages amount to the sum of $8,692.00. To establish consequential damages, appellee relied upon the testimony of two expert real estate witnesses, namely, Bert C. Fry and Roland R. Reinhardt. Neither of these witnesses testified as to how the remainder of the 37-acre tract was damaged by the taking of the parcel of land off the southeast corner of the tract. Fry frankly admitted that his testimony was based upon the fact that Mrs. J. G. McAlpine sold the remainder, some two years and eight months after the date of the taking, for the sum of $109,-572.00. Fry’s testimony was as follows:

“Q Can you give the basis, how you arrived at the figure $109,572?
“A ' That is exactly what property sold for to the San Antonio Medical Society. I could use that figure for a sale that was made. * * *
“Q Let me ask you this, Mr. Fry, that value was taken, that property was sold December 22, 1961 ?
“A Yes.
“Q You say that figure, was that in money, that figure $109,572, or did you use any figures as of April 29, 1959?
“A My figure of $109,572 was taken— I didn’t see how I could have used any other figure as to the value.
“Q That is a matter of record?
“A That is right.”

This testimony makes it quite clear that Fry’s testimony as to the market value of the remainder after the taking, was based exclusively upon the price for which the remainder was sold on December 22, 1961, to the San Antonio Medical Society, and nothing else. He gave no material evidence to show in what way or manner the taking of the parcel injured or reduced the value of the remainder. The testimony of the witness Reinhardt was to the same effect.

It is true that in State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194, it was held that the consequential damages to the remainder of the tract not taken are determined by ascertaining the difference between the market value of the remainder immediately before the taking and immediately thereafter, taking into consideration the nature of the improvements, and use to which the land taken is to be put. This does not mean,, however, that consequential or severance damages can be recovered without any evidence that there actually were some consequential or severance damages.

Appellant contends that evidence that Mrs. McAlpine sold the remainder of her land on December 22, 1961, to the San Antonio Medical Society for the sum of $109,-572.00, was not admissible for any purpose, citing the case of United States v. Certain Parcels of Land in City of Philadelphia, 144 F.2d 626, 155 A.L.R. 253. This case does not support appellant’s contention. The Court states that evidence of a sale made by an owner after he knows his land is to^ be condemned is admissible even though it furnishes an opportunity for a landowner “to enter into a collusive agreement of sale so as to manufacture evidence in support of an exorbitant claim.” We have not found a Texas case on this question, holding either way. We will assume, for the purpose .of this opinion, that the evidence of the sale by Mrs. McAlpine was admissible, but it could not be accepted as evidence of consequential damages, in the absence of some evidence that the remainder of the 37-acre tract was damaged to some extent by the taking.

In Texas Electric Service Company v. Vest, Tex.Civ.App., 310 S.W.2d 733, the Court said:

“Then, too, the witnesses did not sufficiently explain or detail how and why the rest of the ranch would be damaged to this extent. While a witness may testify as to the value of the land by merely stating that he knows the land and its market value, when he testifies as to damage to the land and consequent depreciation in value, such testimony must be based on reasonable information. Hence, there is no explanation, other than the mere statement that the ingress and egress privilege would be a burden. Texas Pipe Line Co. v. Hunt, 149 Tex. 33, 228 S.W.2d 151.”

In Tennessee Gas & Transmission Co. v. Zirjacks, Tex.Civ.App., 244 S.W.2d 837, this Court said:

“One claiming damages to land must show the nature of the damage, the effect upon various portions of the tract and the relationship of the same to market value. A mere conclusion as to market value is insufficient for this purpose.”

See also, City of Cedar, Hill v. Wheeler, Tex.Civ.App., 326 S.W.2d 236, wr. ref., n. r. e.; State v. South Main Baptist Church, Tex.Civ.App., 361 S.W.2d 898.

The two expert real estate men who were called by the County testified, in effect, that there was no damage to the remainder of the property by reason of the taking of approximately one acre for road purposes. The witnesses for appellee did not testify to a single item of damage to the remainder by reason of the taking. They testified, and the jury found, that the value of the remainder just before the taking was $118,-264.00, and that some two years and eight months later appellee sold the remainder for the sum of $109,572.00, but this does not establish that the severance or consequential damages were the sum of $8,692.00.

There was no evidence of any severance or consequential damages, and that part of the judgment awarding the sum of $8,692.00 as consequential or severance damages must be set aside.

The judgment will be reformed so as to eliminate the recovery for severance damages in the sum of $8,692.00, thus reducing the amount of recovery from $15,084.50 to $6,392.50, and as thus reformed the judgment will be affirmed.