author: MASSEY, Chief Justice.

text:
    E. G. GASPERSON et ux., Appellants, v. R. L. MORRIS, Appellee.
    No. 16361.
    Court of Civil Appeals of Texas. Fort Worth.
    Nov. 2, 1962.
    Rehearing Denied Dec. 7, 1962.

      Wade, Davis, Callaway & Marshall, and Clyde M. Marshall, Jr., Fort Worth, for appellants.
    Woodruff, Morgan, Woodruff & Nobles, Decatur, McDonald, Sanders, Nichols, Wynn & Ginsburg and Atwood McDonald, Fort Worth, for appellee.
   MASSEY, Chief Justice.

Parties other than plaintiff R. L. Morris'- and defendant E. G. Gasperson may and! will be disregarded for purposes of resolving our action on appeal.

Plaintiff Morris was at all material times' a banker who operated a private bank in' Wise County, Texas. Defendant Gasperson was an individual whose activities were in whole or in part those of buying, selling' and trading in cattle.

Under plaintiff’s theory of the lawsuit he had loaned money to the defendant which, was used by the latter to finance the purchase of cattle with notes taken in evidence of the indebtedness. He sued for the balance owing under the several notes. Under defendant’s theory the money had not been so loaned but was in reality capital advanced by the plaintiff to a joint enterprise of plaintiff and defendant, to-wit: a cattle trading partnership, under an oral agreement that the amount represented by the last note executed by the defendant to plaintiff was a bookkeeping memorandum stating the parties’ investment in cattle on hand at time of the execution of the note. Further, it was a part of defendant’s theory that at the time each new note was executed it was the intention and agreement of the parties that prior notes were cancelled and the amount shown thereon (to constitute a balance of liability) merged into the new note. Further, that credits thereon were to be shown as cattle were sold and the proceeds from the several sales delivered to the plaintiff, he having agreed to assume the responsibility of keeping account of amounts delivered to him for the purpose, and also the times of receipt. Still further, it was defendant’s contention that plaintiff had been paid a total amount more than sufficient to pay the parties’ investment in cattle, the amount shown as balance owing on the last of the note instruments executed by him, and that a balancing of accounts, which plaintiff refused, would disclose that plaintiff was indebted to him.

Trial was begun before a jury. After a prima facie case of liability was made on the unpaid balances shown on the notes sued upon, under plaintiff’s theory, the defendant attempted to establish defenses asserted under his pleadings.' The trial court was of the opinion that the tendered testimony constituted an improper attempt by defendant to vary the terms of the note instruments in violation of the parol evidence rule. Defendant’s tendered evidence was excluded. The case was withdrawn from the jury and a judgment was rendered in behalf of the plaintiff. The defendant appealed.

Judgment reversed, with cause remanded for another trial.

No contention of impropriety is made to the court’s action in sustaining the defendant’s plea of limitation to a 1952 $30,000.00 note, being the note executed next preceding one for $11,667.91 in 1953, and which was the note most recently executed to the plaintiff. It was shown by the face of the record, before there was any necessity to introduce evidence, that defendant’s plea of limitation interposed against the 1953 note should have been sustained, for suit on this note was filed four years and five days after the date it was made and was a “demand” note. It was for the unpaid balance shown on this and three other demand notes that plaintiff obtained judgment.

Plaintiff argues that there was no sufficient plea of limitation as applied to the 1953 note, but we do not agree. It was one of a group of notes upon which plaintiff’s claim for relief was founded. The extent of defendant’s pleading in response to plaintiff’s preceding pleading upon all of said notes contained defendant’s averment thereupon as follows: “Defendants further allege and say that all of the notes herein sued upon are barred by the statutes of limitations of two and four years.” We hold that said averment effectively and sufficiently sets forth affirmatively the defense of the four-year statute of limitation. Texas Rides of Civil Procedure 94 “Affirmative Defenses”.

In connection with the other three notes upon which judgment for the plaintiff was rendered like defenses under the four-year statute of limitation were set up by the language we have quoted from the defendant’s answer, and by additional language which unquestionably raised that defense and also the affirmative defense of laches. As to each note, fact issues either were raised upon the trial, or might have been but for what we believe was an erroneous exclusion of evidence. These issues related to the matter of the delay and excuse therefor, if any, in the prosecution of plaintiff’s action for recovery on the notes. Citations were timely issued and served in each instance, but a period of years elapsed before there was any further activity pursuant to plaintiff’s prosecution of suit or suits upon the various notes.

Although, as we have stated, the plea of limitation advanced against the 1952 $30,000.00 note was sustained and the plea of limitation asserted against the 1953 $11,-667.91 note should have been sustained, circumstances attendant to the execution of these notes are important. The importance of attendant circumstances bears upon the defendant’s resistance to plaintiff’s action upon notes theretofore executed by him upon which judgment for plaintiff was rendered in the case. Those notes were as follows: (1) an $80,000.00 note dated November 7, 1951, as to which the judgment awarded $21,078.24 as the balance owing on the principal, (2) a $36,000.00 note dated March 13, 1952, as to which the judgment awarded $24,467.34 as the balance owing on the principal, and (3) a $51,000.00 note dated June 7, 1952, as to which the judgment awarded $33,823.15 as the balance owing on the principal. Additionally, in each instance or as to each principal balance, interest and attorney’s fees were awarded.

The defendant desired to produce evidence showing that the plaintiff agreed at the time the 1952 $30,000.00 note was executed all indebtedness theretofore owing by him to the plaintiff was cancelled and/or paid by merger into said $30,000.00. Further, the defendant desired to produce evidence showing that the plaintiff agreed at the time the 1953 $11,667.91 note was executed that all indebtedness theretofore owing by him to plaintiff (on the $30,000.00 note) was cancelled and/or paid by its merger into said $11,667.91. Indeed, it was defendant’s desire to establish by evidence that in every instance of the execution of a note (save and except for certain notes executed by him along with one Hickey, as to which no complicating explanation is necessary to he made) it was agreed that plaintiff’s consideration therefor included his agreement that any prior balance owing to him by defendant, upon existing notes stood settled, paid and fully satisfied by merger into each newly executed note. Obviously a fact issue thereon with a favorable fact finding made would entitle defendant to a judgment denying all of plaintiff’s claims.

Furthermore, it is to be remembered that defendant was asserting an additional defense in that he was contending that as of the time of the execution of each note there existed property in the form of cattle, title to which was jointly in plaintiff and defendant; that the indebtedness balance showing on each currently executed note represented an investment by both plaintiff and defendant in the existing cattle; and that an oral agreement existed, in the nature of a partnership agreement, that upon disposition of all the cattle the proceeds of the sale thereof would be first applied to the bills for care and feeding, etc., then to the parties’ indebtedness (as to a bank) .represented by the note, with the excess evenly divided between the plaintiff and defendant as profit. We do not consider defendant’s contention in this regard to be contradictory of or inconsistent with his defense of novation to the notes he had executed.

We return to the matter of defendant’s desire to show the extinguishment of his prior note indebtedness (assuming, as-ís necessary to be done for the purpose, that indebtedness was its character) as of the time each new note was executed by carrying the prior amount owing forward and merging it into such new note. Proof thereof would have particular application) to the three notes executed in 1951 and! 1952. The plaintiff objected to the testimony and evidence tendered by defendant in proof thereof on the ground that its .reception would violate the parol evidence rule. Plaintiff’s objection was sustained. Defendant perfected his record by bills of exception and thus presents to this court the tendered evidence. We are of the opinion, and so hold, that the trial court erred in excluding defendant’s evidence and that the erroneous exclusion of the evidence constituted reversible error under T.R.C.P. 434, “If Judgment Reversed”.

The parol evidence rule is based on the theory that the reduction of a transaction to a final written form supersedes prior and contemporaneous agreements which are repugnant to the terms of the writing; thus, there is nothing in the rule which forbids parol proof of subsequent verbal agreements. To agree that a new note supersedes a prior note does not violate the rule with respect to such prior note, because it is an agreement made subsequent to the prior writing. It does not violate the rule as to the new note, because it is not repugnant to, but explanatory of, the terms of the new note. The expression “value received” in a note is not contractual in the sense that it is promissory. All of the notes under consideration recite that they were given “for value received (from plaintiff)”, so that the tendered proof would, as to the consideration provided by plaintiff, interpret and inform and explain the term or phrase. , McCormick and Ray, Texas Law of Evidence (2nd Ed.), ch. 30 “The Parol Evidence Rule”, particularly secs. 1613 and 1671 (secs. 729 and 745 in 1st Ed.).

Furthermore it is to be remembered that it is the defendant’s contention, and one of the theories under which he defended plaintiff’s action and prosecuted a cross-action, that as of each date on which a new note was executed that the partnership account (according to plaintiff’s representations to him) was brought current so that the up-to-date partnership agreement, or new partnership agreement as of the time, was that the face amount of the new note correctly represented the investment of plaintiff and defendant in cattle on hand and being held for trading purposes. Obviously two parties may on the same day enter into a note contract and also a contract creating a mercantile partnership. In such event neither contract would supersede the other, as there would be nothing in the parties’ relationship which would indicate that they were not meant to stand together. Each contract would be “collateral” to the other, which is merely to affirm that there is no rule preventing parties from having in effect at the same time as many distinct contracts as they please. McCormick and Ray, Texas Law of Evidence, sec. 1631, “ ‘Collateral’ Agreements not Covered by the Writing — (a) Basis of the ‘Collateral’ Agreement Doctrine”, (sec. 735 in 1st Ed.).

Defendant has advanced additional points of error directed toward the action of the trial court in excluding his evidence under the parol evidence .rule. Since we are satisfied that the evidence was erroneously excluded under our holding and discussion above we see no necessity to further lengthen this opinion in additional discussion of said points.

Defendant has presented numerous other points of error upon which he urges this court to rule and discuss even though we reach the conclusion we have .reached upon the points heretofore discussed, on the theory that the trial court would have need of guidance upon the occasion of another trial. From an examination of defendant’s points we have concluded that the errors complained of primarily resulted by reason of the trial court’s opinion and ruling that the parol evidence rule foreclosed the reception of defendant’s proffered evidence. We do not anticipate that the events giving rise to complaint will necessarily again occur upon another trial. Therefore we deem further discussion unnecessary and forego compliance with the request. We will take occasion to state that we find no error in the action of the trial court in consolidating for a single trial defendant’s cross-action and plaintiff’s several suits against the defendant. Neither do we find error in the court’s denial of the defendant’s motion for a change of venue.

Judgment is reversed and the cause remanded.


source: Caselaw Access Project

author: RICHARDS, Justice.

license: Public Domain

text:
    COLORADO INTERSTATE GAS COMPANY, Appellant, v. H. F. SEARS et al., Appellees.
    No. 11017.
    Court of Civil Appeals of Texas. Austin.
    Nov. 14, 1962.
    Rehearing Denied Nov. 28, 1962.

      Lewis M. Poe, Edwyn R. Sherwood, Colorado Springs, Colo., R. Dean Moorhead, •Austin, for appellant.
    Will Wilson, Atty. Gen., H. Grady Chandler and Linward Shivers, Asst. Attys. Gen., Austin, Culton, Morgan, Britain & White, Ray W. Richards, Amarillo, for appellees.
   RICHARDS, Justice.

Colorado Interstate Gas Company appeals from a judgment of the 53rd District Court of Travis County, Texas, upholding an order of the Railroad Commission of Texas granting H. F. Sears a permit to drill a well on 7.1 acres of land as an exception to Rule .37. The acreage is situated in the John W. Pritchett Survey, in Potter County, Texas, and is located within the West Panhandle Field, which under the present rules of the Railroad Commission permits only one well to each 640 acre tract. For brevity Colorado Interstate Gas Company, appellant, will be referred to as “Colorado”, ap-pellee Railroad Commission of Texas will be referred to as the “Commission” and ap-pellee H. F. Sears will be referred to as “Sears”.

The tract involved is surrounded on three sides by leases held by Colorado and on the fourth side by lease held by Panhandle Eastern Pipeline, each of which leases contains 640 acres on which a producing gas well is located. Sears filed an application with the Commission for an exception to Rule 37 and for a permit to drill a well for the recovery of gas on the 7.1 acre tract, which application was set for hearing. Thereafter, Colorado filed a written protest to the application on the grounds (1) that Sears had no property interest of any value in the gas underlying the tract and a denial of the application would not result in confiscation of any property interest of Sears; (2) that the granting of the permit and the subsequent drilling of the well and production of gas therefrom would result in confiscation of gas reserves underlying Colorado’s leases in the field; (3) that the granting of the permit and the subsequent drilling of a productive well would constitute an unlawful taking of Colorado’s property and Sears’ benefit without compensation, thereby denying Colorado of the equal protection of the law and depriving it of its property without due process of law in violation of the Fourteenth Amendment of the Constitution of the United States and Section 19, Article I of the Constitution of Texas, Vernon’s Ann, St.; (4) that no waste would result from a denial of the application; and (5) in the event a permit should bé issued that it be restricted so that if a well productive of gas be drilled upon the tract, the total allowable to be granted the well would be limited to a total volume of gas from the well which would not exceed the total amount of gas underlying the tract.

After the hearing the Commission issued its order granting Sears the requested permit without restrictions. Motion for rehearing was filed by Colorado to the Commission, which motion was denied and thereafter Colorado appealed from the Commission’s order to the 53rd District Court of Travis County. The Trial Court rendered judgment upholding the validity of the order from which ruling Colorado has perfected this appeal.

For its first and second points of error Colorado asserts that the Trial Court erred (1) in upholding the validity of the Commission’s order granting the unrestricted permit to Sears since it was not supported by substantial evidence and (2) that Sears failed to sustain his burden of establishing that confiscation would result by a denial of the permit.

It is admitted that this case does not present any question of allocation between wells and is not an attack on the allocation formula in the West Panhandle Field. No question of voluntary subdivision is involved. The sole question presented under Colorado’s first two points of error is whether there was substantial evidence adduced before the Trial Court to support the finding of the Commission and the Court that the issuance of the permit was necessary to prevent confiscation.

William H. Price, a witness for the Commission and Sears, testified that if Sears was not permitted to drill a well on the tract in question, there could be no other way he could recover the gas underlying his land and that in such event all of his gas would be confiscated by adjoining producing tracts and that 56% of the gas underlying the tract had already been drained to other adjoining leases. Colorado’s witness, Van Horn, testified that there was no way Sears could recover his gas without drilling a well unless he could share in production on an adjoining tract. On cross-examination he testified that there would be confiscation of Sears’ gas unless he was permitted to drill a well or unless some type of unitization could be obtained. Bernie B. Morgan, Colorado’s vice-president in charge of production, testified that if Sears was not permitted to drill on his tract, there was no other way he could recover his gas unless unitization could be accomplished: On cross-examination he admitted that none of Colorado’s leases contained pooling clauses or unitization authority.

Colorado contends that Sears has no right as a matter of law to the permit upon the 7.1 acre tract and that the burden of proof was upon Sears to establish that if the permit is not granted he will be denied a fair chance to recover the gas in place underlying his property or its equivalent in kind, relying upon Railroad Commission v. Williams, Tex.Civ.App., 356 S.W.2d 131. In that case the Commission denied the permit as an exception to Rule 37 on the ground that the applicant failed to prove confiscation since there was substantial evidence to show that he could have produced his gas from an existing well on an adjoining tract. In the instant case neither Sears, as lessee, nor his lessor own any other land within the drainage area.

In Williams the Court stated the law governing the granting of exceptions under Rule 37 to prevent confiscation of property as follows:

“The basic right of every landowner, including small tract owners, is to a fair chance to recover the oil and gas in and under his land, or their equivalents in kind. Gulf Land Co. v. Atlantic Refining Co., [134 Tex. 59, 131 S.W.2d 73], cited just above. This means that the owners and lessees of some small tracts are entitled to a well on their tracts as a matter of law because there is no other way to give them a fair chance to recover the oil and gas under their land. Stanolind Oil & Gas Co. v. Railroad Commission, [96 S.W.2d 664], cited just above. But they must first prove confiscation or waste.
“The rule of fair chance or fair share is the reason for the ‘confiscation’ exception to Rule 37 whereby an owner or lessee can get a well permit for a small tract. Brown v. Humble Oil & Refining Co., 1935, 126 Tex. 296, 83 S.W.2d 935, 87 S.W.2d 1069, 99 A.L.R. 1107, 101 A.L.R. 1393; Railroad Commission of Texas v. Gulf Production Co., 1939, 134 Tex. 122, 132 S.W.2d 254. In fact, it has been held that the proper test of confiscation under Rule 37 is whether an owner, with the wells which already exist, has been accorded a fair and equal opportunity with other producers of surrounding tracts within the drainage area to recover his fair share of the oil in place beneath his tract. If he has, no confiscation results. Gulf Oil Corporation v. Smith, Tex.Civ.App. 1940, 145 S.W.2d 280 (error refused).” (356 S.W.2d 136)

It is our opinion that Sears has sustained his burden of showing that confiscation of the gas underlying the 7.1 acre tract will result unless he is granted a permit to drill a well thereon to recover his fair share of the gas underlying the tract and that the Commission’s order is reasonably supported by substantial evidence.

Colorado also contends that Sears has no property interest of any value in the gas underlying his tract and therefore a denial of the application would not result in the confiscation of any property interest of Sears. The evidence shows that under present proration rules for the West Panhandle Field the production allowable for each well is based upon a formula allowing ^rds of the allowable on the basis of acreage times rock pressure and yárd on the basis of open flow back pressure. Under such formula a well located on the Sears 7.1 acre tract having similar characteristics as the adjoining wells could produce 1900 MMcf of gas which is 1810 MMcf more than the estimated recoverable reserves underlying the tract amounting to 93.7 MMcf which excess will be drained from the adjoining leases.

Based on the field average price of 12‡ Mcf the value of the gas underlying the Sears tract is $10,800.00 while the average cost of drilling a well in the field is from $35,000.00 to $40,000.00. Under the present allowable formula it is estimated that the well to be drilled on the Sears tract would produce at a rate of 21 times the rate per acre that the wells on the adjoining acreage would be permitted to produce. As a result the value of the flow of the gas produced from the Sears tract under the present allowable would be $228,000.00 compared to the value of $10,800.00 of the gas actually in place under the tract. If the Sears well is permitted to produce under the present allowable, it would produce gas valued at approximately $217,000.00 which would be drained from the adjoining leases.

The argument that, since it would cost Sears more to drill the well on his tract than the value of his fair share of the reserves underlying the tract, he has no property interest of any value in the reserves which could be confiscated, has already been answered. In Halbouty v. Darsey, Tex.Civ.App., 326 S.W.2d 528, error ref., N.R.E., where the Commission granted a permit to drill a well on a small tract, the protestant claimed that completing the well would cost more than the applicant’s interest was worth and its production would confiscate some of the protestant’s gas under its adjoining leases. This Court held that a refusal of the permit would result in denying the applicant’s right to the recovery of the fair share of the gas in place under the tract, which right could not be refused because it was uneconomical to produce it. In accord: Foster v. Railroad Commission, Tex.Civ.App., 326 S.W.2d 533, error ref., N.R.E. and Atlantic Refining Co. v. Railroad Commission, Tex.Civ.App., 330 S.W. 2d 494, error ref., N.R.E.

It should be noted that the Supreme Court of Texas refused the writs in these cases almost contemporaneously with the issuance of its opinion in Halbouty v. Railroad Commission, Tex., 357 S.W.2d 364, 376. In Halbouty the appellants, as did Colorado here, argued before the Commission that the proration formula should limit recovery substantially to the reserves in place beneath each tract. The Court, however, held that their right to complain of the formula which they considered confiscatory of their property was not foreclosed and after citing Brown v. Humble Oil & Refining Co., 126 Tex. 296, 83 S.W.2d 935, 99 A.L.R. 1107, stated:

“It is to be reemphasized that their permits were granted for the purpose of avoiding confiscation of the minerals underlying their properties and not for the purpose of enabling them to drain the minerals underlying adjoining lands to pay the cost of their operations plus profits. This does not mean and we are not to be understood as foreclosing the power of the Commission, by proper order or exception, to allow the holder of a Rule 37 permit to recover a sufficient amount of oil or gas to repay drilling and production costs and provide a reasonable profit when no other means of recovering the minerals which underlie his land are available.”

In the Brown case the Court stated that it was the duty of the Commission to adjust the allowable based upon the potential production so as to give to the owner of the small tract only his just proportion of the oil and gas. But on motion for rehearing (126 Tex. 296, 87 S.W.2d 1069, 1070, 101 A.L.R. 1393) the Court held that while the Railroad Commission was authorized to make rules relating to the production of oil and gas, the Court would not undertake to prescribe the rules or standards to guide the Commission except that its actions must be reasonable, legal and not arbitrary, which doctrine was reaffirmed in Atlantic Refining Co. v. Railroad Commission of Texas, 162 Tex. 274, 346 S.W.2d 801, 812.

If the action of the Commission in granting the permit to Sears without restriction and under the present allowable would result in the probable confiscation of gas belonging to Colorado or other adjoining owners, they are not precluded from obtaining relief by appropriate proceedings.

Colorado’s third point of error is directed to the exclusion of Colorado’s evidence that Sears made no attempt to unitize the 7.1 acre tract with adjoining gas units. During the trial Colorado offered evidence to show that Sears had never attempted to unitize his tract with adjoining gas units and that such unitization was available to him. Upon objection by Sears and the Commission, this evidence was excluded. By bill of exception Colorado sought to show that Sears had never attempted to unitize the tract; that Colorado would have granted such unitization with one of its units if Sears had requested it and that there is sufficient tolerance under the Commission’s rule to permit unitization of the Sears tract with one of Colorado’s adjoining 640 acre tracts.

Colorado contends that it was incumbent upon Sears to prove that he sought and was denied unitization or pooling basing its contention on the theory that where the applicant for a permit has more than one method of recovering the gas or its “equivalent in kind” under his tract, evidence as to whether he has attempted to utilize such methods has a bearing on whether or not he has been afforded a fair chance to recover his share of gas under his land or is facing confiscation if the permit is denied. Colorado’s evidence tendered by bill of exception consists of the testimony of its vice-president, B. M. Morgan, who stated that there had been no request by Sears to Colorado for unitization or pooling of his tract but had such request been made he was sure that Colorado would have agreed since it was more or less a matter of company policy to enter into such agreements. On cross-examination Morgan stated that since Colorado’s leases did not contain unitization clauses, it would be necessary to obtain the consent of the royalty owners in order to effect the unitization of the Sears tract into one of Colorado’s tracts and that he believed that such consent from the royalty owners could have been obtained.

It has been uniformly held by the Supreme Court of Texas that Art. 6008b, V.C.S., merely authorises and does not compel unitization or pooling. Halbouty v. Railroad Commission, 357 S.W.2d 376. Here, the evidence tendered by the bill of exception does not warrant the conclusion that if Sears had offered to unitize or pool his tract with one of Colorado’s tracts, Colorado would have been able to agree to such proposal since none of its leases contained any authorization to unitize or pool and whether the royalty owners under its leases would consent thereto was not definite. Halbouty v. Darsey, supra; Foster v. Railroad Commission, supra; and Atlantic Refining Co. v. Railroad Commission, supra.

For its fourth point of error Colorado asserts that the Trial Court erred in admitting over appellant’s objections evidence concerning the amount of gas originally underlying the 7.1 acre tract, the number of wells drilled on less than 640 acres which are owned either by appellant or its suppliers, and whether or not’ appellant had ever applied for a permit under an exception to Rule 37, which evidence was admitted by the Trial Court both on direct and cross-examination of witnesses and by ap-pellees’ Exhibits 7 and 8.

In its brief Colorado states that none of this evidence had any bearing on the issues before the Court and therefore it was immaterial, incompetent and prejudicial. As to the amount of gas originally underlying his tract since Sears had the burden of proving confiscation, he was properly permitted to show that more than 56% of his gas had been already drained by wells on adjoining leases.

Evidence as to whether Colorado owned and produced gas from other small tracts in the field under permits granted under exceptions to Rule 37 has no bearing on the issue as to whether Sears sustained his burden of proving confiscation as a basis for the action of the Commission in granting him a permit to drill as an exception to Rule 37 and the Trial Court should have sustained the objection. However since such error was harmless, the fourth point of error is overruled.

The judgment of the Trial Court is affirmed.

Affirmed.

      . These grounds of protest were affirmatively pleaded by Colorado in its petition before the Trial Court.


author: BOYD, Justice.

text:
    Josephine Milby HAMMAN, Appellant, v. CITY OF HOUSTON et al., Appellees.
    No. 16384.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 26, 1962.
    Rehearing Denied Nov. 30, 1962.

      Bracewell, Reynolds & Patterson, William H. White and J. S. Bracewell, Houston, for appellant.
    R. H. Burks, City Attorney, and Homer T. Bouldin, Senior Asst. City Attorney, Houston, for appellees.
   BOYD, Justice.

Josephine Milby Hamman filed this suit against the City of Houston, the County of Harris, and the State of Texas, in trespass to try title to a tract of 74.2 acres which had been conveyed to the City by Mrs. Ham-man, joined by her husband, now deceased, for public park purposes, and to a tract of 10.9 acres which had been deeded to the city by the Hammans for street purposes in order to make the park area more readily accessible. In the alternative, Mrs. Ham-man alleged that the construction of a highway by the State across the 74.2 acre tract, taking about 8 acres of land and segregating another 8 acres on the north from the 74.2 acre tract, for which condemnation proceedings have already been instituted by the State and County, will render the area useless as a park, and she sought a declaratory judgment that the City, County, and State are without right and authority to condemn any part of said park area for highway purposes, and determining the party entitled to receive the compensation for damages occasioned by any such taking, and for title to the 8 acres lying north of the right of way of the proposed highway. Mrs. Hamman alleged that the construction of the highway across the park area will render and the construction and maintenance of a sewage disposal plant adjacent to the park had rendered the area useless for public park purposes, and that the land reverted to her under the terms and conditions of the conveyance. The City pleaded not guilty and a general denial.

Upon jury findings that the construction of the highway had rendered the north 8 acres unusable as a park, and that the manner in which the City was operating the sewage disposal plant had rendered the said 8 acres unusable as a park, the court awarded title to the 8 acres to Mrs. Ham-man, denied her prayer for recovery of any other lands, and decreed that the $35,-000.00 which had already been deposited in the County Court at Law in pursuance of findings by Special Commissioners, and all other damages that might be finally awarded in the condemnation case would be left to be apportioned by the County Court at Law, where it is now pending. Mrs. Hamman and the City have appealed.

After the formal parts, the deed to the 74.2 acres reads in part as follows:

“ * * * have bargained, sold, donated and conveyed, and by these presents, do bargain, sell, donate and convey unto the said City of Houston, a municipal corporation of Harris County, Texas, the following described tract of land, to-wit: (Description)
“ * * * And we * * * also hereby give and donate to the City of Houston, the sum of Seven Thousand Five Hundred ($7,500.00) Dollars to be used in improving the property above described, as a park, the same to be expended at the discretion of and under the direction of the Park Board of the City of Houston.
“TO HAVE AND TO HOLD the same unto the City of Houston, a municipal corporation domiciled in Harris County, Texas, and its successors, subject to the express conditions hereinafter stated, forever. The above described property is donated and given to the City of Houston, upon and subject to the following express conditions, to-wit :
“I. The said property shall be used exclusively for park purposes as a public city park and shall be maintained at all times as such.
“II. The said property shall be established as a park and maintained and permanently named Milby Park.
“HI. No improvements of any character whatsoever, except those definitely appropriate to the maintenance of said property as a park, shall ever be erected upon said premises.
“IV. The City of Houston by the acceptance of said property as a park agrees to keep the same at all times in good order and under proper police supervision.
“The gift of said property as above set out is made to the City upon the express conditions hereinabove set forth, and in case of abandonment of said property for such park purposes or in case of non-use thereof, or in case of the failure to properly maintain same as a park, the said premises shall revert to the grantor herein, her heirs or assigns.”

It is the position of Mrs. Hamman that the grant conveyed merely an easement and not a fee title. We are inclined to disagree. In Texas Co. v. Daugherty, 107 Tex. 226, 176 S.W. 717, L.R.A.1917F, 989 it was said: “A fee may pass by deed upon a condition subsequent to the same extent as though the condition did not exist, subject to the contingency of being defeated according to the condition. And here, if any property was conveyed, there was a present grant but liable to be defeated by the grantee’s failure to perform the requirement * * *. The grant amounted to a defeasible title in fee * * See, also, Stanbery v. Wallace, Tex.Com.App., 45 S.W.2d 198, and authorities there cited.

Mrs. Hamman contends that as a matter of law it was error not to hold that the property reverted by reason of a substantial part being condemned for highway purposes; or, that such was a question of fact and it was error to refuse an issue to that effect; and further that it was error not to hold that although the condemnation was by the State, the City consented to it and thereby brought about a reverter.

While the City passed an ordinance generally giving its permission for the State and County to condemn lands within the City for highway purposes, it, by a later ordinance, opposed the taking of any part •of Milby Park.

We are of the opinion that the taking •of the 8 acres by the State did not cause any reverter under the terms of the grant. In Banner Baptist Church v. Watson, 193 Tenn. 290, 246 S.W.2d 17, it was held that the condemnation of property included in a charitable trust did not entitle the heirs of the grantor to recover. In State v. Federal Square Corporation, 89 N.H. 538, 3 A.2d 109, where a tract of land had been •conveyed to a city for a library on condition that if any portion of the property were used for other purposes the land should revert, it was held that no reverter resulted from the city’s loss of the land to the state by condemnation for a state house annex. See, also, First Reformed Dutch Church v. Croswell et al., 210 App.Div. 294, 206 N.Y.S. 132. This rule has been applied to easements when there was no special value attaching to the under surface, such as minerals. People by Department of Public Works v. Schultz Co., 123 Cal.App.2d 925, 268 P.2d 117.

We have seen no Texas authority on the point, but it is held in other jurisdictions that where the grantee does not violate the terms of the trust so as to bring about a re-verter, but the trust property is appropriated for other uses under the power of eminent domain, the award of damages resulting from the condemnation is decreed to the grantee to be used for the purposes of the trust. Such seems to be the holding in the following cases: State by State Highway Commissioner v. Cooper, 24 N.J. 261, 131 A.2d 756; First Reformed Dutch Church v. Croswell et al., 210 App.Div. 294, 206 N.Y.S. 132; United States v. 1119.15 Acres of Land, D.C., 44 F.Supp. 449; and Romero v. Department of Public Works, 17 Cal.2d 189, 109 P.2d 662.

In First Reformed Dutch Church of Gilboa v. Croswell et al., 210 App.Div. 294, 206 N.Y.S. 132, land was granted to the church “so long as” a church or meetinghouse, devoted to the religious purposes of that particular church, should be “kept and used” upon the premises. The land was taken by the city of New York and the property was no longer used for the purposes for which it was granted. Suit was by the Church against the heirs of the grantor for the condemnation award. Said the court: “The premises in question did in fact cease to be used for the maintenance of a church thereupon. The disuser, however, was a consequence, not a cause, of a loss of title by the plaintiff. The city of New York, in condemnation proceedings, seized the estate of the plaintiff. It also seized the rights of reverter belonging to the heirs at law of the grantors. The seizure was of the entire title, wherever resident, by a single act of appropriation. There was, therefore, .no interval of time between the seizure of the plaintiff’s estate and the seizure of the rights of the heirs at law during which there could have been a reverter of title to the heirs because of a church disuser of the premises necessarily consequent upon the seizure. At the moment of appropriation there had been no disuser. At that moment the estate then being enjoyed by the plaintiff might have continued forever. At that moment the rights of the heirs were mere possibilities. These rights possessed no value capable of estimate. All that was valuable was the estate of the plaintiff. Therefore the money paid in by the city of New York should be paid to the plaintiff as for the only thing of value taken.”

We do not believe there is any evidence of probative force to support the finding that the north 8 acre tract has been rendered unusable for public park purposes by reason of the construction of the highway. It is not a controlled access highway. There is evidence that the park area on both sides of the new highway will be more accessible to the public by reason of its construction.

We think it is unnecessary to consider whether the operation of the sewage disposal plant on land adjacent to the park has rendered the north 8 acres unusable. It is being used for park purposes. We think the unsatisfactory operation of a nearby disposal plant is not one of the conditions set out in the grant as would work a reverter.

The park area is being used, and there is no evidence that the City or the public has abandoned Milby Park, or that its use as a public park has ceased. The City has expended approximately $12,000.00 per year for labor in maintaining the park buildings and grounds, and has expended more than $22,000.00 in planting trees, installing playground equipment, and in carrying out other park improvements.

Since the evidence fails to show that the City has abandoned any part of the area as a park, or has violated any of the conditions of the grant, but has only bowed to the intervention of a paramount authority, we do not think the record supports a judgment for Mrs. Hamman. We have carefully considered all of her assignments of error, and all are overruled.

That part of the judgment which awards to Mrs. Hamman the north 8 acres of the park area, and that part which decrees that the award of the Special Commissioners and any other damages recovered in the condemnation case be apportioned by the County Court at Law are reversed, and judgment here rendered that Mrs. Ham-man be denied any recovery, and that the City of Houston is entitled to the award of the Commissioners and all other damages which may be finally recovered in the condemnation case, to be used by the City in the improvement and maintenance of Milby Park in conformity with the provisions of the conveyance. In all other respects the judgment is affirmed. All costs in the trial court and in this court are adjudged against Mrs. Hamman.

Affirmed in part, and in part reversed and rendered.


author: BARROW, Justice.

text:
    Mrs. M. F. HENDERSON et al., Appellants, v. FRIO COUNTY et al., Appellees.
    No. 13999.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 31, 1962.
    Rehearing Denied Nov. 28, 1962.

      House, Mercer, House & Brock, San Antonio, John G. Murray, Pearsall, for appellant.
    J. B. Ator, Pearsall, for appellee.
   BARROW, Justice.

This suit was filed by appellees, Frio County and three residents of that County, to enjoin interference with public right of ingress and egress on an alleged public road known as the Hardy-Brown Road. This roadway is located across a. farm formerly owned by A. C. Hardy, but now owned by appellants, Mrs. M. F. Henderson and two others. Plaintiffs alleged that the road became public by dedication by Hardy in 1924 or 1925, and that since that time the public generally has used the road openly, adversely and continuously, and has thereby acquired prescriptive rights. The jury returned a verdict favorable to plaintiffs on both counts and defendants have duly perfected this appeal from the judgment entered on said verdict.

Appellants assert that appellees failed to make out a case on either count and, further, that the trial court committed errors which would require a new trial. The evidence is undisputed that Hardy grubbed out the roadway in 1925, and since that time it has remained open and been used by the public generally. Appellants assert that this use was merely a permissive use rather than an adverse use.

It is our view that the findings of the jury that A. C. Hardy dedicated the roadway as a public road in 1925, and that this dedication was accepted by the public, are amply supported by the evidence. The Supreme Court in O’Connor v. Gragg, 161 Tex. 273, 339 S.W.2d 878, set forth the requirements of a dedication to the public, in disposing of a similar point. The evidence showed that the roadway had been in existence for over sixty-eight years and that the community, without asking, had used it as a public road. The Court held that this evidence supported a finding of implied dedication as a public road. The Supreme Court again cited with approval the rule that the act of throwing open property to public use, without any other formality, is sufficient to establish the fact of the dedication to the public. Other authorities which support a finding of dedication upon evidence equivalent to that introduced by appellees, are: Owens v. Hockett, 151 Tex. 503, 251 S.W.2d 957; Smith v. Wilson County, Tex.Civ.App., 356 S.W. 2d 221 (dism.); Dunn v. Deussen, Tex.Civ. App., 268 S.W.2d 266 (ref. n. r. e.).

Desmond Rumfield testified that prior to 1925 he ran a general store in this immediate area. It was necessary for Hardy and his neighbor, Brown, to pick up their mail at the store. In order to secure mail delivery to them, they grubbed out and opened the roadway in question. This was confirmed by the rural mail carrier who had used the road for over twenty-five years.’ In response to cross-examination by appellants’ counsel, Rumfield testified that Hardy and Brown said, “If we can make a public road out of it and get the mail to go around there we won’t have to go down to the store after our mail and we can put our boxes all up here.” Rum-field also testified that school busses had used the roadway since 1925, as well as the mail carrier.

Eight other witnesses testified on behalf of appellees that they had been personally acquainted with the roadway since 1925, and that the roadway had been used by the public generally all that time. In addition, three witnesses had used it as a public road for over twenty years. Hardy did not at any time object to this use, and no permission was ever sought by anyone for use of the road. The evidence further established that for many years the county-had done the maintenance work on the road. Hardy died in 1946 and the appellants acquired title in 1950. Appellants introduced no evidence to contradict this general use of the roadway by the public over this long period of time, but assert that it was merely a permissive use rather thani a dedicated or prescriptive right.

Appellants urge error in the charge of the court. Special Issue No. 1 read as follows: “Do you find from a preponderance of the evidence that the road ⅛ question across the Henderson land as described in Plaintiffs’ exhibit No. 1 was dedicated as a public road by A. C. Hardy, the owner, prior to his death? Answer ‘yes’ or ‘no’.” Appellants objected to this form of inquiry in that it limited the jury’s answer to whether or not the roadway was a “public road” and did not permit the jury to answer that same was a “licensed” or “permitted road.” We overrule these points. Appellees plead that the roadway was a “public road” and the burden of proof was upon them to establish this fact. They did not have the burden of proof to show that the road was not something else. McDonald, Texas Civil Practice, § 12.06; Wichita Falls & O. R. Co. v. Pepper, 134 Tex. 360, 135 S.W.2d 79.

Appellants further assert that the definition of the term “dedicated as a public road” did not place proper degree of proof upon appellees. The trial court gave this definition: “ ‘Dedicated as a public road’ as used herein means devoted or appropriated to public use as a public road by the owner, by some unequivocal acts or conduct which manifest an intent to appropriate it to such use.” The definition requested by appellants used the term, “clear and unmistakable manifestation” in lieu of the trial court’s requirement of “unequivocal acts or conduct.” We believe these definitions are substantially the same and placed the proper degree of proof upon the appel-lees to show dedication of the roadway to the public.

A dedication is never presumed, it must be manifest either by unequivocal •acts, or declaration of the landowner, dedicating the land to public use. Common law dedication is subdivided into two classes, express and implied. In both it is necessary that there should be an appropriation of land by the owner to public use. In the one case it is shown by some express manifestation of his purpose to devote the land to public use; in the other, by some act or •course of conduct from which the law will imply such an intent. If the open and known acts are of such a character as to induce the belief that the owner intended to dedicate the way to a public use, then the law will not permit him to assert that there was no intent to dedicate. Owens v. Hockett, supra. The Supreme Court in the case of O’Connor v. Gragg, supra, stated that the land must be appropriated to a public use by unequivocal acts or conduct. The trial court required such an appropriation to public use by Hardy.

Appellants complain of the admission into evidence of the will of A. C. Hardy, together with the order admitting same to probate. Paragraph five of Hardy’s will, in describing a bequest of a five-acre tract of land to a beneficiary under said will, identified the roadway in question as “a county road.” Appellants assert that the will was irrelevant and immaterial; liad no bearing on the intention of Hardy to dedicate the road or to show prescription, or whether it was a public road or private road; that there was no predicate laid to show why the will was being introduced in evidence, because at the time ap-pellees offered the will they did not apprise •appellants of the specific portion thereof upon which they would rely; and that the ruling of the court deprived appellants of the right to make more specific objections to the introduction of paragraph five. No objection was made that the exhibit was not properly authenticated.

The description by Hardy of the roadway in question as “a county road” was admissible against appellants as an admission by a party in privity of title with appellants. McCormick and Ray, Texas Law of Evidence, § 1173. It is true that Hardy did not define what he meant by “a county road”, but this objection went merely to the weight to be given this admission. The trial court could assume that Hardy used the description in its ordinary significance. McCormick and Ray, supra, § 1682. As soon as the document was admitted, appel-lees called as their witness the executor of the will, who was examined concerning paragraph five. At this time appellants knew the specific part of the exhibit to be used by appellees and their purpose. Appellants did not urge any additional objections to those previously made, but re-offered them. Appellants can not now assert that they did not have sufficient opportunity to object to the use made of this exhibit.

Appellants urge that the trial court erred in excluding their proposed Exhibit No. 21. This was an affidavit made in 1950 by two long-time residents of Frio County, which had been recorded in the deed records of Frio County. This affidavit recited substantially that: affiants were familiar with the A. C. Hardy farm over many years, that Albert Sammons never lived on this property and that Hardy’s brother had never claimed any part of the A. C. Hardy farm, but A. C. Hardy had actually resided upon the premises for more than twenty-five years before his death and had claimed said premises openly, notoriously, adversely and peacefully. The affidavit did not mention or refer to the roadway in question and therefore we do not understand its materiality or any harm to appellants by its exclusion. The ownership of the farm was not in question. Appellants did not offer any evidence that A. C. Hardy during his lifetime ever complained of the open use by the public generally of the roadway, and appellants made no complaints after acquiring the land in 1950, until just shortly before this suit was filed.

The affidavit was hearsay and we are cited to no exception to said rule. It is fundamental that if evidence is properly excluded, appellants can not now complain that the proper objection was not made. We have not been cited to any statute which would authorize the use of such an affidavit. Assuming, but expressly without deciding, that the affidavit could have been offered under Art 3726, Vernon’s Tex.Civ. Stats., appellants did not. comply with this statute. The trial court did not err in excluding said exhibit.

The judgment is affirmed.


author: McDONALD, Chief Justice.

text:
    William A. LOTT, by Next Friends, Appellant, v. M. T. LOTT et ux., Appellees.
    No. 4062.
    Court of Civil Appeals of Texas. Waco.
    Nov. 1, 1962.
    Rehearing Denied Nov. 21, 1962.
    Robert I. Wilson, Kerrville, Roscoe Runge, Mason, for appellant.
    Darrell G. Lochte, L. W. Pollard, Robert R. Barton, Kerrville, for appellees.
   McDONALD, Chief Justice.

This is an appeal from a summary judgment, that plaintiff take nothing, in a Trespass to Try Title suit.

Elizabeth Lott Merritt, Oscar Lott and1 John Lott, filed this case, on 12 May 1961, as next friend of William A. Lott, alleging that they were his children, and that he was. “aged and approaching senility,” and “neither physically or mentally competent to look after his business affairs.” Plaintiffs, alleged that William A. Lott was the owner in fee simple of a 479 acre tract of land in Kerr County; that defendant M. T.. Lott (also a son of William A. Lott) holds record title to the property, but holds under “an express and constructive trust for the use and benefit” of William A. Lott; and that defendant is attempting to repudiate-said trust and claim the land as his own. Plaintiff prayed that the title be declared to. be in William A. Lott.

Defendants M. T. Lott and wife answered by plea of not guilty.

Defendants thereafter filed motion for summary judgment, alleging no' genuine issue as to any material fact. Attached (among other things) to such motion was: in instrument described “Tenants’ Disclaimer,” dated 5 January 1937, by which plaintiff William A. Lott, his wife Emma Lott, and G. H. Lott, “disclaimed and released to M. T. Lott, any right, title, interest or right of possession as tenants or otherwise, we have or may have or he entitled to”, in the property in controversy.

2) Contract of Sale, dated 9 May 1936, by which Richard Holdsworth, contracted to sell the property in controversy to M. T. Lott; and general warranty deed, dated 10 August 1936, by which Richard Holdsworth conveyed the property in controversy to M. T. Lott for $8,350. ($4,175. cash, and a vendor’s lien note signed by M. T. Lott for •$4,175.)

3) A letter from plaintiff dated 23 June 1961, which stated: “You and Gilbert used your money to buy the place, and Gilbert has been paid back. Nobody can throw you off the land because it belongs to you

4) Affidavit of Gilbert Lott (son of plaintiff and brother of defendant), that defendant had bought the land, paid for it ½ in •cash, and ½ borrowed from the Federal Land Bank; and that plaintiff (the father) ■“did not let defendant have any money from •any source to buy this property.”

5) Affidavit from a Field Worker of the State Department of Public Welfare, that he was custodian of the Old Age Pension records, and that in 1945, plaintiff applied for an old age pension, and signed a statement (copy of which he attached) that he had no interest in any real or personal property, and only $1.00 in money.

Plaintiffs moved to strike the foregoing .affidavit and attachment on the ground that it was a divulgence in violation of Article '695c, Sec. 33, R.C.S. The Trial Court overruled such motion.

Plaintiffs further moved for a continuance of the hearing of the Motion for Summary Judgment, so that they could get an affidavit from John Lott, one of the plaintiffs, who was a resident of California. The Trial Court overruled this motion.

Plaintiffs filed answer to defendants’ Motion for Summary Judgment, attaching among other things:

1) A letter dated 6 June 1961 from plaintiff to defendant, in part as follows: “This is to advise you that I demand possession of my lands which you now occupy * * *. This is to further advise you that the suit now pending against you will go forward * * * in order that I may get title to my lands.”

2) Affidavit of Robert I. Wilson, one of plaintiff’s attorneys, which stated that he had known plaintiff since 1926, and that he was thoroughly familiar with the purchase of the 479 acres here involved; that he passed on the title to this land for plaintiff; and that it was “purchased solely by William A. Lott’s money; that (Mr. Lott) decided that he would put title of the land in the name of M. T. Lott (defendant) for Mr. Lott’s use and benefit and to be handled under his guidance and direction.”

3) Affidavit of Oscar Lott (one of the plaintiff’s sons and a brother of defendant) that the 479 acres “were paid for out of funds belonging to my father.”

On the foregoing the Trial Court granted defendants’ motion for Summary Judgment that plaintiff take nothing.

Plaintiff appeals, contending:

1) The Trial Court erred in overruling Plaintiff’s Motion for Continuance.

2) The Trial Court erred in permitting defendant to introduce the affidavit of the Department of Public Welfare worker, together with records of such Department, because disclosure of same is violative of Article 695c, Sec. 33, R.C.S.

3) The Trial Court erred in granting defendants’ Motion for Summary Judgment when the record reflects that defendants held the land in trust for plaintiff (or at least there is a conflict as to this question).

We revert to plaintiff’s 3rd contention that the Trial Court erred in granting a summary judgment for defendants. It is undisputed that defendants took by deed absolute, the title to the land in controversy, such deed having been executed on 10 August 1936, duly acknowledged and recorded.

The affidavits and the record do make for a disputed factual issue as to whether all of the consideration for the land was paid for by defendant, or whether plaintiff put money into the purchase. Likewise, the 2 letters written to defendant by plaintiff present a conflict as to whether plaintiff claims the land. The foregoing “disputed fact issues”, are, however, not determinative of this case. Any trust which could have come into being, came into being at the time of the purchase of the property in August of 1936.

The record contains an instrument executed and acknowledged by plaintiff on S January 1937, which for a recited consideration, disclaims and releases to defendant "octy right, tiñe, interest, or right of possession as tenants or otherwise, we may have or be entitled to.”

Such instrument constitutes a quitclaim of any interest plaintiff may have had in the property on 5 January 1937, to defendant; and such instrument resolves the material factual issue in this cause. The legal effect of the foregoing instrument is such, that believing all of plaintiff’s affidavits as to the source of the purchase money the land was bought with, still defendant is entitled to the summary judgment.

The instrument of 5 January 1937 constitutes a binding admission against plaintiff (see Stanolind Oil & Gas Co. v. State, 136 Tex. 5, 14S S.W.2d 569), and is in addition a quitclaim of any interest that plaintiff may have had, to the defendant. Smith v. Cantrel, CCA, Er. Refused, Tex.Civ. App., 50 S.W. 1081; Cox v. Robison, 105 Tex. 426, 150 S.W. 1149.

Summary judgment was properly granted for the defendant. Under our view of the record, plaintiff’s contentions 1 and 2 pass out of the case.

The judgment of the Trial Court is affirmed.


author: MURRAY, Chief Justice.

text:
    Luther E. DUNN, Appellant, v. The TRAVELERS INSURANCE COMPANY et al., Appellees.
    No. 13993.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 24, 1962.
    Rehearing Denied Nov. 21, 1962.

      Putman & Putman, San Antonio, for appellant.
    Matthews, Nowlin, Macfarlane & Barrett, James D. Baskin, San Antonio, William F. Erwin, Jr., Houston, for appellees.
   MURRAY, Chief Justice.

Luther E. Dunn instituted this suit against his former employer, Gulf Oil Corporation, The Travelers Insurance Company, the Workmen’s Compensation insurer of Gulf, Richard Robinett, an employee of the Insurance Company, C. A. Mateei, and E. J. Wisdom, both employees of Gulf, seeking to recover the benefits he would have received under the Workmen’s Compensation Statute, Art. 8306 et seq., Vernon’s Tex.Civ.Stats., if he had timely filed his claim with the State Industrial Accident Board, together with exemplary damages.

Defendants filed a motion for summary judgment which was granted and judgment entered that plaintiff take nothing, from which judgment Luther E. Dunn has prosecuted this appeal, naming all of the defendants as appellees.

Appellant contends that this is a common law suit for damages for the amount of Workmen’s Compensation benefits to which he would have been entitled, but for the fraudulent acts, words and deeds of the appellees acting jointly and in conspiracy with each other, while appellees contend that this is nothing more than a common law action to recover previously denied workmen’s compensation benefits, and that to allow appellant to recover herein would be to permit him to do indirectly what he could not do directly; that is, recover workmen’s compensation in an original action after it had been refused through proper channels.

This presents a very interesting question which we are not called upon to decide, because we have determined that in any event appellant’s cause of action, if any, is barred by the two-year statute of limitation. Art. 5526, Vernon’s Tex.Civ. Stats.

Appellant contends that he was injured on January 26, 1957, while working as an employee of Gulf Oil Corporation; that he remained an employee of Gulf Oil Corporation until March 31, 1958; that on April 12, 1958, he discovered for the first time that appellees had not filed a notice of injury and claim for compensation for him with the Industrial Accident Board, after telling him that such notice and claim had been filed; that on April 24, 1958, he filed his claim for compensation with the Industrial Accident Board, and on May 4, 1959, the Industrial Accident Board rendered its final award denying him any and all claims for Workmen’s Compensation benefits, because his “claim for compensation had not been filed within the statutory period provided by the Workmen’s Compensation Act,” and the evidence submitted to the Board did not establish good cause for delay up to the date of filing.

Appellant did not appeal from the award of the Industrial Accident Board and no petition for a rehearing was filed within twelve months from the date of the final award. Appellant instituted this suit on April 26, 1960, two years and fourteen days after he alleges he first discovered the fraud and conspiracy upon which he bases his cause of action.

The record conclusively shows that appellant received his injury on January 26, 1957, and on April 12, 1958, he discovered that he had been deceived and defrauded by appellees into believing his notice and claim for compensation had been filed with the Industrial Accident Board when in truth and in fact it had not. Thereafter, on April 24, 1958, he filed such notice and claim some fourteen months after his injury. On May 4, 1959, the Industrial Accident Board entered its order dismissing his claim because it had not been filed within six months after his injury occurred and he had failed to show good cause for his delay. He had a right under the provisions of Art. 8307, § 5, Vernon’s Tex.Civ.Stats., to appeal to the courts and have a trial de novo, inter alia, as to whether he had good cause for delaying his claim. He did not take an appeal, but filed this suit on April 26, 1960, more than two years after he discovered the fraud that had been perpetrated upon him.

A cause of action based on fraud or deceit is barred if not filed within two years after the fraud is discovered or should have been discovered by the exercise of due diligence. Art. 5526, § 6, Vernon’s Tex.Civ. Stats.; 26 Tex.Jur.2d p. 84; Quinn v. Press, 135 Tex. 60, 140 S.W.2d 438, 128 A.L.R. 757; Pelton v. Trico Oil Company, Tex.Civ. App., 167 S.W.2d 625; American Indemnity Co. v. Ernst & Ernst, Tex.Civ.App., 106 5.W.2d 763; Steele v. Glenn, Tex.Civ.App., 57 S.W.2d 908, affirmed, 141 Tex. 565, 61 S.W.2d 810.

Appellant contends that he could not file this suit until the Industrial Accident Board had passed upon whether he had good cause for delay in filing his claim. We do not agree. Appellant says that the damages were not known until the Board found against him on his alleged good cause for delay, because if the Board found in his favor he would not have had any damages. It seems to us that if he had appealed to the courts and the courts had found good cause, he would by the same token have had no damages. Likewise, if the Board had found in his favor and the insurance company had appealed and won in the court, his damages would not have been known until the judgment of the district court became final, perhaps after an appeal to the Court of Civil Appeals and the Supreme Court. We cannot agree that he had to file his claim before filing his suit.

Under all of the authorities, appellant’s claim was barred within two years after he discovered the fraud, and the trial court did not err in granting appellees’ motion for summary judgment.

The judgment of the trial court is affirmed.

BARROW, J., not participating.


text:
    Ottis Pearl BETHEA, et vir, et al. Appellants, v. L. C. WALL, Jr., Appellee.
    No. 4074.
    Court of Civil Appeals of Texas. Waco.
    Oct. 18, 1962.

      Joe Schultz, Mexia, for appellants.
    B. R. Reeves, Palestine, for appellee.
   McDONALD, Chief Justice.

This is a suit in Trespass to Try Title filed by appellants Bethea, et al., (heirs of Mrs. Clora Simons), against appellee, L. C. Wall, Jr., for title and possession of 209 acres of land in Leon County. Appel-lee answered by general denial and a plea of not guilty. Trial was to the court, without a jury, which after hearing, entered judgment “denying plaintiffs the relief sought.” The Trial Court determined:

1)That although the suit was cast in trespass to try title, it was in fact a suit to cancel a lease made between Mrs. Clora Simons as lessor, and L. C. Wall, Jr., as lessee.

2) That plaintiffs are all the heirs of Mrs. Clora Simons, deceased, and have title to the property, subject only to the rights of Wall under the lease.

3) The description of the land as set out in the lease, together with the evidence offered, is sufficient, and the lease is not void by reason of the indefiniteness of such description.

4) Plaintiffs having offered such lease in evidence without limitation are bound by the terms thereof.

5) Plaintiffs’ remedy is not for cancellation of the lease, but for the enforcement of the provisions thereof.

6) Defendant paid plaintiffs the first rental payment for 1962 which was retained by plaintiffs. Plaintiffs may not accept the rental payment and seek cancellation.

Plaintiffs appeal, contending:

1) The Trial Court erred in rendering judgment because the lease to Wall violated the Statute of Frauds, and is void.

2) The Trial Court erred in holding that plaintiffs were bound by the lease under which defendant claims, because plaintiffs had to introduce same to show common source of title.

3) The Trial Court erred in holding that this is a, suit for cancellation of a lease, because it was both plead and tried as a trespass to try title suit.

4) The Trial Court erred in holding that the plaintiffs may not accept the rental payment and seek cancellation, because payment by a trespasser would not change the terms or conditions of an instrument which violates the Statute of Frauds.

In this case plaintiffs are the heirs of Mrs. Clora Simons, deceased. On 3 Jan. 1957, and prior to her death, Mrs. Simons executed a “Farming and Grazing Lease” with defendant Wall, leasing to him for farming and grazing purposes:

“All the following described land situated in Leon County, Texas, and being 209 acres of land, a part of the J. A. Mendez Survey in Leon County, Texas.”

The lease was for 5 years, with an option to renew for an additional 5 years. The lease provided for a rental of $200. per year payable $100. prior to January 1st and $100. prior to July 1st, and further provided that lessee Wall was to keep the fences in a good state of repair.

The undisputed evidence reflects that title to the property was in Mrs. Simons •and that this property was the only property she owned in the J. A. Mendez Survey in Leon County; that plaintiffs are all of the heirs of Mrs. Simons; that defendant Wall went into possession of the property under the lease and paid his rental for the first S years; that on 28 December, 1961 he exercised his option to renew the lease, and deposited $100. into the bank account of the Estate of Mrs. Simons as rental for the first 6 months of 1962. Plaintiffs offered the lease from Mrs. Simons to defendant into evidence.

Plaintiffs seek a reversal on the ground that the description of the property in the lease to Wall is not sufficient, and is viola-tive of the Statute of Frauds.

The description in the lease (supra) does not contain within itself sufficient description, and contains no reference to any •other existing writing for a further description. There is no “nucleus” or “key”, (such as “my land”), to which extraneous evidence may be directly tied to determine the interest of the lessor. Plaintiffs’ contention that the description is insufficient is sustained. Skinner v. Noland, 154 Tex. 615, 281 S.W.2d 332; Pickett v. Bishop, 148 Tex. 207, 223 S.W.2d 222; Jones v. Mid-State Homes, Inc., Tex., 356 S.W.2d 923.

Nevertheless, the defendant filed a plea of “Not Guilty” to the plaintiffs’ Trespass to Try Title suit, and it is undisputed that defendant went into possession of the land involved herein; remained in possession and paid the rentals regularly for 5 years; that he exercised his option to renew and paid rental for an additional 6 months into the bank account of the lessor’s estate (Mrs. Simons being deceased); and that one of the plaintiffs withdrew the money.

Under a plea of Not Guilty in a Trespass to Try Title case, the defendant can interpose any legal or equitable defense that tends to defeat the plaintiffs’ right to recover. The undisputed record reflects that defendant is not in default in any particular, and that all elements of an es-toppel in his favor are present, and that such facts constitute an equitable defense directly involved in the title. Under such undisputed facts the plaintiffs are estopped to assert the invalidity of the lease. Guest v. Guest, 74 Tex. 664, 12 S.W. 831,. 832; Kauffman v. Brown, 83 Tex. 41, 18 S.W. 425, 427; Moore v. Snowball, 98 Tex. 16, 81 S.W. 5, 66 L.R.A. 745. See also: 1st Baptist Church of Fort Worth v. Bible Baptist Seminary, Tex., 347 S.W.2d 587, 592; 4 Texas Practice Land Titles, Sec. 335, pp. 26, 27; Pickle v. Whitaker, CCA, Er. Ref., Tex.Civ.App., 224 S.W.2d 741, 745.

Under the foregoing, plaintiffs’ other points pass out of the case. We think the trial court properly denied plaintiffs the relief sought, and properly held title in plaintiffs subject only to the rights of defendant under the lease.

Affirmed.


author: WILSON, Justice.

text:
    HARTFORD ACCIDENT AND INDEMNITY COMPANY, Appellant, v. W. G. FRAZIER, d/b/a Cal-Tex Transportation Company, Appellee.
    No. 4055.
    Court of Civil Appeals of Texas. Waco.
    Nov. 1, 1962.
    Rehearing Denied Nov. 21, 1962.
    House, Mercer, House & Brock, San Antonio, for appellant.
    Petry & Phair, Carrizo Springs, for ap-pellee.
   WILSON, Justice.

Appellee recovered judgment on a jury verdict in his action on appellant’s blanket position bond which indemnified appellee against loss sustained through fraudulent or dishonest acts of the employees in his transportation business.

Appellant complains of admission in evidence of an audit report prepared by a certified public accountant containing an itemized schedule of checks recited to be “unauthorized disbursements” by an employee who was alleged to have fraudulently and dishonestly taken and appropriated the funds represented by the checks. The audit report recited these checks were “not authorized” by appellee “under the terms of employment” of the employee. The substance of appellant’s overruled objections was that these recitals constituted conclusions invading the province of the jury as to what disbursements were authorized; and that since the report was based on examination of checks, vouchers, manifests, invoices and other records, these constituted the best evidence. Appellant’s further contention is that if this evidence be disregarded, the court erred in overruling its motion for instructed verdict, and judgment for appellee was not supported by the evidence.

It is generally held that where, as here, the documents and records examined by a competent accountant are so voluminous and complicated that it is difficult or impracticable to examine and analyze them in court, the accountant’s opinion and report summarizing what facts they show may be admitted. Hartford Accident & Indemnity Co. v. Shaw, Tex.Civ.App., 8 S.W.2d 196, 197, writ dism.; Blair v. Board of Trustees, etc., Tex.Civ.App., 161 S.W.2d 1030, 1035; Ellison v. Ellison, Tex. Civ.App., 164 S.W.2d 775, 782, writ ref. w. m.; Shelby County v. O’Banion, Tex. Civ.App., 188 S.W.2d 195, 197; 66 A.L.R. 1214; 20 Am.Jur. 399; 23 Tex.Jur.2d, Sec. 236, p. 359; IV Wigmore, Evidence (3rd ed.) Sec. 1230 ; 52 A.L.R. 1268. See Uniform Act for Composite Reports, Uniform State Laws, 1936.

This rule, however, did not authorize admission of a conclusion as to the legal effect or consequences of the records; nor here, as to whether disbursements were “unauthorized” under the accountant’s interpretation of a contract, if this be regarded as an ultimate issue for the jury’s determination. Continental Casualty Co. v. First National Bank, 5 Cir. Tex., 116 F.2d 885, 887, 135 A.L.R. 1141, cert. den. 313 U.S. 575, 61 S.Ct. 1087, 85 L.Ed. 1533; Bush v. Davis, Tex.Civ.App., 147 S.W.2d 888, 890, writ dism.; Webb v. Smith, Tex.Civ.App., 288 S.W. 624, 627, writ dism.; 135 A.L.R. 1148; 30 Am.Jur. Sec. 360, p. 1141.

Appellee testified the employee who made the disbursements included in the accountant’s schedule was authorized to pay all office expenses, to “make his car payments”-, pay for telephone and utilitiés, automobile expense and insurance. He was authorized to write checks for freight advances to truck drivers, with manifest to support payment. Both appellee and the accountant testified checks were listed in the report as “unauthorized” based on information furnished by appellee to the accountant as to purposes for which the employee was authorized to issue checks under his employment contract. The accountant examined approximately 1100 checks as to date, signature, payee and endorsement, and compared these with copies of manifests and invoices and bank records furnished to him by ap-pellee. He relied on what appellee “told me of the employment contract,” and a letter from the employee not in evidence. The accountant testified the amount of “unauthorized disbursements” stated in the report, and for which judgment was rendered, was the total of the disbursements “for which there was no accompanying manifest, invoice or voucher.” For his information he “had to depend on their word as the employer.”

There is no evidence as to the purpose for which the checks listed in the report as “unauthorized disbursements” were drawn. They included checks payable to the telephone company, banks, insurance companies, automotive and motor concerns and others, which it is not otherwise shown were beyond the scope of the employee’s specific authorization; the evidence upon which the accountant’s conclusion was based being that there were no supporting documents furnished to him by the employer with which the checks could be reconciled.

We find no circumstance in evidence from which it may reasonably be inferred that appellee sustained “any loss of money or other property,” much less that any loss sustained was “through any fraudulent or dishonest act” of the employee. This was what the bond insured against. The aggregate of the evidence, including the report, is simply that the accountant did not find supporting documents for the “unauthorized disbursements” listed in the report in an amount for which judgment was rendered.

It is unnecessary to decide the other points presented. Reversed and remanded.


author: HUGHES, Justice.

text:
    STATE of Texas et al., Appellants, v. Irma Sue MASON, Appellee.
    No. 11032.
    Court of Civil Appeals of Texas. Austin.
    Nov. 14, 1962.
    Rehearing Denied Dee. 5, 1962.
    Henry Wade, Criminal Dist. Atty., A. D. (Jim) Bowie, Don T. Cates, Emmett Colvin, Jr., Asst. Dist. Attys., Dallas, for appellants.
    McKool & McKool, Dallas, for appellee.
   HUGHES, Justice.

The State of Texas and Dallas County sued Irma Sue Mason, a feme sole, Clyde Combs, Elvis Clark and the Grove State Bank to condemn a tract of land in Dallas County for public highway purposes. Judgment of condemnation was rendered in favor of the State and Dallas County against all defendants. Judgment in favor of Irma Sue Mason in the sum of $8,800.00 was rendered against the State and Dallas County. As to the Grove State Bank, Elvis Clark and Clyde Combs, judgment was rendered that they take nothing against the State and Dallas County. Judgment was rendered for the State and Dallas County against Clyde Combs for the sum of $1100.00 previously withdrawn by him from a deposit made by the State and Dallas County with the Clerk of the County Court of Dallas County.

The only questions on this appeal by the State and Dallas County relate to the propriety of the court’s action in refusing to deduct from the $8,800.00 damages awarded Irma Sue Mason the sum of $1100.00 previously withdrawn by Clyde Combs. The facts follow:

On June 26, 1959, the commissioners appointed to assess the damages due the owners of the property sought to be condemned made their award by which $1,100.00 was awarded “to Lessee, Clyde Combs” and $4,300.00 was awarded jointly to Irma Sue Mason, Grove State Bank and Elvis Clark.

On July 9, 1959, the State and Dallas County and Irma Sue Mason filed objections to this award, thus effecting an appeal to the County Court.

On August 20, 1959, the court below entered the following order:

“On this the 20th day of Aug., A.D. 1959 the court having been advised by the defendant that they desire to withdraw the sum of $1,100.00 which has been placed in the possfow and custody of Ed H. Steger, County Clerk of Dallas County, Texas, subject to the order of the defendant in this cause, and it further appearing to the court that on the 29th day of June, A.D. 1959, the special commissioners appointed by this court assessed damages and awarded to the defendant in this cause the sum of $1,100.00 as damages for the taking of the property in question, and it further appearing to the court that the plaintiff has deposited with the Clerk of this court the said sum of $1,100.00, which said sum is due and belongs to the defendant in this cause, and that the defendant are entitled to withdraw said sum from the registry of the court according to law, and the court further finds that by withdrawing said sum, defendant will not in any way prejudice their rights;
“IT IS THEREFORE ORDERED, ADJUDGED AND DECREED by this court that Ed H. Steger, County Clerk of Dallas County, Texas, be, and he is hereby, ordered and required to distribute the sum of $1,100.00 to Lesse — , Clyde Combs."

Acting pursuant to this order, Clyde Combs withdrew $1100.00 from the deposit made by the State and Dallas County in the registry of the court. As above indicated, the Trial Court found that the leasehold rights of Mr. Combs were valueless.

The record does not disclose by what authority the State and Dallas County made the deposit with the Clerk of the County Court from which Mr. Combs withdrew the $1100.00 awarded him by the Commissioners. We assume, however, that it was made under the provisions of Art. 3268, Vernon’s Ann.Civ.St., which provides in part, that if the plaintiff in condemnation desires to take possession of the property sought to be condemned pending litigation it may do so by paying the defendant the amount of damages awarded or adjudged against it by the Commissioners or deposit the same in money in court, subject to the order of the defendant.

Appellants and appellee agree that Mr. Combs owes $1100.00, but neither is anxious to be his creditor.

Appellants point to authorities which hold that distribution of money representing the full value of condemned property which has been paid to the owners or deposited in court for them is of no concern to the condemnor and conclude that the $1100.00 erroneously received by Mr. Combs is not their concern but only a matter for Irma Sue Mason to resolve.

It is our opinion that this controversy should be determined by application of the equitable rule “ * * * that as between innocent parties he who has trusted most must lose must. * * * ” 22 Tex.Jur.2d, Equity Sec. 50, p. 599. In Jarbe Oil Company v. Birdwell and Son Drilling Company, Tex.Civ.App., 335 S.W.2d 394, writ ref. N.R.E., the Eastland Court of Civil Appeals approvingly quoted this statement of the same equitable maxim “Where one of two innocent persons must suffer for the wrongful act of a third, he who gave the power to do the wrong must bear the burden of the consequences.” T. G. Bush Company v. Conley, 61 Fla. 131, 55 So. 867, 869.

Appellants and appellee are innocent of any wrongdoing. Their rights and obligations are fixed. Appellants should be required to pay the full value of the condemned property, and no more. Appellee should be paid the full value of her property which was condemned, and no less.

Assuming that Mr. Combs does not repay the $1100.00 which he does not deserve, then, some of the parties here will suffer this loss.

What did appellee do to bring this loss about or make it possible? Nothing.

What did appellants do in this respect? They voluntarily paid the $1100.00, which Mr. Combs withdrew, into the registry of the court with full knowledge that such deposit was “subject to the order” of Mr. Combs. In short, appellants made this loss, if loss there be, possible, and as between them and appellee, the responsibility is theirs.

The judgment of the Trial Court is affirmed.

Affirmed.

      . Authorities cited by appellants are: State of Tennessee v. Texaco, Inc., Tenn. App., 354 S.W.2d 792; 09 A.L.R. 1203, 166 A.L.R. 1211; 29 C.J.S. Eminent Domain § 197, pp. 1102-1103.


text:
    Eliezar GUERRA, Appellant, v. Candelaria A. GUERRA, Appellee.
    No. 11002.
    Court of Civil Appeals of Texas. Austin.
    Nov. 14, 1962.
    David Longoria, Austin, for appellant.
    Polk Shelton, Austin, for appellee.
   RICHARDS, Justice.

This is an appeal from the judgment of the 126th District Court of Travis County granting a divorce on the grounds of cruel treatment to Candelaria A. Guerra, appel-lee, from Eliezar Guerra, appellant, and partitioning the community personal property by awarding the household furniture and effects and one 1955 Chevrolet automobile to appellee as her separate property and one 1952 Chevrolet automobile to appellant as his separate property, from which judgment this appeal has been perfected.

Appellant’s sole point of error is that the Trial Court committed error in dividing the community property unevenly when in the judgment of the Court it did not mention any facts or evidence on which such findings were predicated. No findings of fact were requested by appellant.

In divorce actions the Trial Court is vested with wide discretion in the disposition of the community property and its judgment may be corrected on appeal only where an abuse of discretion appears from a manifestly unjust or unfair disposition of the property. Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21, 23. No statement of facts accompanies the record before this Court and without a statement of facts we cannot determiné questions based upon the sufficiency of the evidence. Barreda v. Barreda, Tex.Civ.App., 216 S.W.2d 1009; Power v. Power, Tex.Civ.App., 35 S.W.2d 448; 3 Tex.Jr.2d “Appeal and Error, Civil” Sec. 452.

Appellant’s point of error is overruled and the judgment of the Trial Court is affirmed.


text:
    Charles H. TIPS, Appellant, v. Daisy GONZALEZ, Appellee.
    No. 14006.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 21, 1962.
    Charles H. Tips, San Antonio, for appellant.
    Clemens, Knight, Weiss & Spencer, San Antonio, for appellee.
   MURRAY, Chief Justice.

This is a damage suit growing out of an intersectional collision between two automobiles, one driven by the plaintiff, Charles H. Tips, hereinafter referred to as “Tips”, and the other by defendant, Miss Daisy Gonzalez, hereinafter referred to as “Daisy”.

The jury found Daisy negligent, and that such negligence was a proximate cause of the collision; it also found Tips negligent, and that his negligence was a proximate of the collision. The trial court rendered judgment based upon the verdict, to the effect that Tips take nothing, and he has prosecuted this appeal.

The evidence shows that Daisy had just graduated from Incarnate Word College in San Antonio, and was on her way home, which was located in Del Rio, Texas. She had driven on Broadway many times, but on this occasion was thinking about school being out and that she was on her way home and simply did not notice the traffic light at the intersection of Broadway and Josephine Street; she thoughtlessly drove into the intersection and struck the car being driven by Tips, which was crossing on Josephine Street. The green light favored Tips, and the red light was against Daisy. The evidence amply supported the jury finding that Daisy was guilty of negligence proximately causing the collision.

The only question here raised is the sufficiency of the evidence to support the finding of the jury that Tips was guilty of negligence which was also a proximate cause of the collision. The jury found that Tips did not keep a proper lookout, and that he did not have his automobile under proper control. We shall now discuss the finding on lookout.

The evidence shows that Daisy was driving south on Broadway, and Tips was driving east on Josephine Street. These are two well known streets in San Antonio, Texas. When Tips arrived at the intersection the light was against him so he stopped. A car which was preceding Daisy passed in front of him. After that car passed and after the light changed in his favor he proceeded into the intersection. According to his own testimony, he looked both ways before entering the intersection. He saw the car driven by Daisy approaching the intersection from the north about SO yards away. He also saw another car approaching from the south. As Tips entered the intersection he saw this car from the south stop at the intersection, and he was looking at this stopped car until Daisy’s car was right on top of him and it was too late for him to do anything to avoid the collision.

In viewing the evidence we must consider the testimony in a light most favorable to the finding of the jury. Powell v. Sanders, Tex.Civ.App., 324 S.W.2d 587, no writ history. When the evidence is viewed in this light the jury might well have concluded that Tips was not keeping a proper lookout, by keeping his eyes upon the car that had come to a stop rather than watching the car that was approaching him from the north, which was traveling between twenty and twenty-five miles per hour at the time he saw it some fifty yards away.

It is not only required that the driver of a car must look both ways before entering an intersection, even on a green light, but after entering the intersection he must keep up such a lookout for his own safety as a reasonably prudent man would do under the same or similar circumstances. Henderson v. Smith, Tex.Civ.App., 354 S.W.2d 429, no writ history; Joe D. Hughes, Inc. v. Moran, Tex.Civ.App., 325 S.W.2d 829, ref. n. r. e.; Powell v. Sanders, Tex. Civ.App., 324 S.W.2d 587, no writ history; Intges v. Dunn, Tex.Civ.App., 311 S.W.2d 877, ref. n. r. e.; Watts v. Dallas Ry. & Terminal Co., Tex.Civ.App., 279 S.W.2d 400, ref. n. r. e.; Cannady v. Dallas Ry. & Terminal Co., Tex.Civ.App., 219 S.W.2d 816, no writ history; Lewis v. Martin, Tex.Civ.App., 120 S.W.2d 910, ref.; Allen v. De Winne, Tex.Civ.App., 268 S.W.2d 677, modified by Sup.Ct., remanded on other ■grounds, De Winne v. Allen, 154 Tex. 316, 277 S.W.2d 95, finding of jury held not to be against great weight and preponderance of the evidence by Court of Civil Appeals, 285 S.W.2d 895.

The finding of proximate cause is supported by the evidence because if Tips had kept a proper lookout he might have stopped, turned, sounded his horn, or speed-ed up to avoid the collision.

The judgment is affirmed.


author: MILLIKEN, Judge.

text:
    Ezza R. FISHBACK et al., Appellants, v. H. L. DOZIER et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 30, 1962.
    Gess, Mattingly, Saunier & Atchison, Lexington, for appellants.
    Marshall A. Dawson, Leonard K. Nave, Versailles, for appellees.
   MILLIKEN, Judge.

On the pleadings and exhibits presented and without the taking of proof, the trial court adjudged a restrictive covenant in a deed prohibiting the erection of a gasoline filling station, grocery, garage, etc., on the land conveyed was for the personal benefit of the grantor and did not run with the land. The appellees, plaintiffs below, sought to be relieved of the restriction so that they might convey title in fee simple to the two one-acre lots involved.

The restricted land is west of Versailles (toward Frankfort) on U. S. 60 directly opposite the junction of U. S. 62 which enters U. S. 60 from the north; it is bordered on all other sides by the Platt farm and at no point touches the Fishback home tract for whose benefit the restrictions assertedly were imposed. The Fishback home tract also is located on the south side of U. S. 60, to the west (toward Frankfort) of the restricted land and is separated therefrom by approximately 200 feet of the Platt farm. To the east of the restricted tract (toward Versailles) there are sundry small businesses.

The original conveyance from Miss Ezza Fishback and others to the McNamaras on May 3, 1946, first imposed the restriction on the use of the land. When the McNamaras conveyed the tract to the appellees, the Doziers, in July, 1947, the restriction was included in the deed; and when the Doziers conveyed part of the tract to the appellee Etherington in July, 1947, the restrictive covenant was included in the deed. The Fishback land retained, or home tract, was conveyed to the appellants Boston in 1948 without restriction, and no mention whatever was made of the restriction Miss Fishback had previously placed in the deed to the McNamaras in 1946; the benefit of the restriction thus was not in the chain of title to the land retained.

The restriction involved is specifically:

“ * * * It is further stipulated and agreed that second parties, their heirs and assigns will not erect, build or permit to be erected or built on the above described real estate a gasoline filling station, or public automobile garage, road house, restaurant, grocery or place of entertainment or tourist camps.”

The 1946 restriction itself thus does not specifically state whether it was intended to benefit the retained land of the grantor, Miss Fishback. It seems to us reasonable to assume that Miss Fishback imposed the restriction in 1946 with either or both of two purposes in mind, namely, to prevent the spread of commercial development of the frontage along the highway as it approached her home and/or she contemplated development of the land she retained for residential purposes.

Although the restricted land is separated along the highway from the Fishback home tract by approximately 200 yards of the Platt farm, the phrasing of the restriction indicates that the burden of the restriction was intended to run with the land. The use of the words of succession binding the “heirs and assigns” of the restricted land would not in themselves cause the burden to run if the nature of the restriction were not one which could run with the land. But here the nature of the restriction “touches and concerns” the land by limiting its use and affecting its market value, and the requisite of privity of estate is met by the grantor-grantee relationship existing at the time of the creation of the restriction. 14 Am.Jur., Covenants, Etc., Sections 19 through 28. See Clark, 2nd Ed. (1948), Covenants And Interests Running With Land at page 94. In other words, the covenant here is one which meets the requirements of a covenant running with the land and there is no apparent intention that it not run with the land. In fact, the use of the words of succession evidence the opposite intention, i. e., that the covenant or restriction run with the land. See Tiffany, Law of Real Property, Section 854 at page 461.

While there may be evidence available which would support removal of the restriction, Duncan v. Central Passenger R. Co. (1887), 85 Ky. 525, 4 S.W. 228, the present judgment was granted on the pleadings and exhibits alone with the allegations of abandonment and change of condition of the neighborhood sharply at issue on the pleadings. In such circumstances we are forced to the conclusion that the judgment was improperly granted.

The judgment is reversed.


author: BIRD, Judge.

text:
    HARDAWAY CONTRACTING COMPANY, Appellant, v. Edward MERSHALL et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 23, 1962.

      S. J. Stallings, Louisville, for appellant.
    Hanish & Hanish, James Levin, Louisville, for appellees.
   BIRD, Judge.

Edward Mershall, while employed by Hardaway Contracting Company, received an injury compensable under the Workmen’s Compensation Act. Being covered by the Act he filed his claim for compensation against the company.

The case was heard by a referee who awarded compensation for a partial permanent disability and 'certain medical expenditures. The employee, Mershall, being dissatisfied with his recovery applied for a review by the full Board.

Upon sustaining the motion for review, the Board upon its own motion designated a physician to examine the claimant, Mer-shall, for the purpose of determining the extent and probable duration of the injury. The physician was especially directed to determine what portion, if any, of Mer-shall’s disability resulted from congenital or preexisting causes and what portion, if any, was due directly to the injury. The examination was made. The physician gave his deposition. The case was submitted and the Board awarded the employee more than had been originally awarded by the referee.

The employer petitioned for review in the Jefferson Circuit Court. The Jefferson Circuit Court affirmed the award of the Board. Consequently the employer has appealed to this Court.

There is conflict of the medical testimony in this case. After careful scrutiny we have concluded that the medical testimony tog-ether with the employee’s testimony provides sufficient evidence of probative value to warrant the Board’s findings of fact and this Court will not disturb such findings on appeal. Knott Coal Corporation v. Smith, Ky., 354 S.W.2d 513. It is the further conclusion of this Court that the findings of fact support the award.

It is insisted however that the Board erred by invoking KRS 342.315 and designating a physician to examine Mer-shall. We find no limitation on the Board’s authority to designate physicians under KR S 342.315. If we could read some limitation into the wording of the statute, the ■conflict of medical testimony would of itself be sufficient to justify the appointment.

The employer further contends that the Board abused its discretion in not naming three physicians as authorized by the Act rather than one. The Act says the Board may appoint “not more than three.” The Act further provides that the appointment may be made on motion of either party. So far as the record discloses the employer made no motion for other physicians and made no complaint of the Board’s appointment of a single physician.

If there was ever any legal right to object to the Board’s selection of a single physician, the employer waived that right by not moving for the appointment of other physicians before the Board made its final determination.

The employer further complains that the Board erred in not directing the appointed physician to consider the employee’s dental condition and the effect, if any, that it might have on the employee’s disability to the body as a whole.

There was testimony in the record concerning the condition of the employee’s teeth, a condition which had no connection with the injury upon which his claim for compensation is based. The employer insists that this testimony required the Board, in its directive to the physician, to point out the employee’s dental condition and direct the physician to determine what portion of the employee’s disability is attributable to his teeth. No law is cited by the employer to support this position and indeed we have found no law requiring the Board to specifically direct the appointed physician to make a finding on any particular condition of the body. If, however, there are specific questions that the Board wants answered, the Board may in its discretion make those questions known to the physician and not be in error for failing to set forth other questions that the parties may want answered. The Board, upon a motion by either party, would most likely ask the appointed physician to so examine the patient in order that he will be prepared to answer, if possible, a question suggested by a party, but then it would be within the discretion of the Board. There is nothing in the record to show that such a motion was made and we see no error in the Board’s failure to so direct the physician.

The record discloses that the appointed physician, during the course of his examination, had in his possession a copy of the referee’s “opinion and award” in which previous medical testimony was discussed. The employer contends that it was error for the appointed physician to have this document before him. In support of this position the employer cites the Minnesota case of Swider v. Pillsbury Mills, 231 Minn. 210, 42 N.W.2d 560. While we agree with the holding in that case we cannot apply it here. In that case a timely motion was made to strike the physician’s testimony from the record during the hearing before the Industrial Commission. Such motion or other objection to the physician’s testimony is not disclosed by the record before us. If there was error it was waived in failing to make a timely objection.

The record discloses no reversible error. The judgment is therefore affirmed.