author: HAMILTON, Justice.

text:
    TARRANT SAVINGS ASSOCIATION, a Corporation, Petitioner, v. LUCKY HOMES, INC., et al., Respondents.
    No. A-10262.
    Supreme Court of Texas.
    April 14, 1965.
    Rehearing Denied May 14, 1964.

      Brown, Herman, Scott & Young and A. J. Bryan, Fort Worth, for petitioner.
    McDonald, Sanders, Nichols, Wynn & Ginsburg, Fort Worth, for respondents.
   HAMILTON, Justice.

This is a suit by Tarrant Savings Association, petitioner, plaintiff in the trial court, seeking a deficiency judgment after a foreclosure under a deed of trust previously executed by Lucky Homes, Inc., et al., respondents, in favor of petitioner. Following the conclusion of the evidence the trial court withdrew the case from the jury except as to one issue on the market value of the property foreclosed on at the time of the foreclosure sale. The court entered judgment for petitioner for the deficiency in the sum of $1258.81. The Court of Civil Appeals reversed the judgment of the trial court and remanded the case for a new trial. 379 S.W.2d 386.

In the trial of this cause petitioner maintained its burden to establish its case by introducing its note from respondents in the amount of $2,500. Day v. Cooper, 175 S.W. 485, Tex.Civ.App., no writ hist.; Citizens’ Garage Co. v. Wilson, 252 S.W. 186, Tex.Civ.App., no writ hist. See Lewin v. Houston, 8 Tex. 94, and Page v. Carson, 16 S.W. 1036 (Tex.Comm.App.). A credit of $1,200 was allowed as a result of the sale of certain property which had been mortgaged to secure petitioner in its note. Once petitioner’s case had been made out the burden shifted to the respondents, defendants in the trial court, to show some reason for denying recovery to petitioner. Citizens’ Garage Co. v. Wilson, supra; Brenard Mfg. Co. v. Barnett, 210 S.W. 990, Tex.Civ.App., no writ hist. See Newton v. Newton, 77 Tex. 508, 14 S.W. 157, and Reed v. Buck (Tex.Sup.Ct.), 370 S.W.2d 867. The question to be decided here concerns whether respondents have sustained this burden so as to raise a fact issue relating to some defense to petitioner’s right of recovery on its suit for deficiency. We hold that respondents have failed in this respect.

Respondents attempt to defeat petitioner’s case by showing that an improper credit has been allowed against their note. It is respondents’ theory that the foreclosure sale whereby the mortgaged property was sold for $1,200 was invalid because proper legal notices were not posted as required by statute. The only proof put forward by respondents to maintain their burden on this defensive matter related to the fact that the substitute trustee had not posted the notices himself nor did he know whether in fact they had been posted. Petitioner had introduced in evidence the substitute trustee’s deed of conveyance with its recitations that E. B. Conley, the substitute trustee, had posted proper notices as provided for in the deed of trust. Respondents urge that by proving that this recitation was erroneous the presumption that Conley properly posted the notices had been destroyed. They are correct in this contention, but they have simply not gone far enough. The destruction of the presumption does not raise a fact issue as to whether O. W. White, the original trustee, properly posted the notices. It was their burden to prove that notices were not posted, and all that they have done is prove that the substitute trustee did not post them, not that they were not posted. From the record it is apparent that the substitute trustee could not have posted proper notices since he was appointed only four days prior to the foreclosure sale.

At the time the notices should have been posted White was the only one authorized by the deed of trust to post them. Respondents make no attempt to show that White did not in fact post the notices. When an original trustee properly posts the notices required by law, there would be no necessity for re-posting, and the substitute trustee could have made a valid sale. Gamble v. Martin et al., 60 Tex.Civ.App. 517, 129 S.W. 386, no writ hist.

Under respondents’ theory that a fact issue had been raised with respect to whether or not proper notices had been posted, the only question under this record which could have been submitted to the jury was whether or not White had failed to properly post notices. There is no evidence presented which would support an affirmative finding to such an issue. It is therefore our opinion that respondents have merely shown that the substitute trustee, Conley, has not posted the proper notices, not that said notices were not in fact posted. Respondents have thus failed to maintain their burden of proof in this case.

The basic error committed by the Court of Civil Appeals lies in the premise upon which it constructed its opinion. That court accepted as sound the rule that “[a] prerequisite to the recovery of a deficiency judgment is the establishment of the deficiency by a valid foreclosure sale”, citing Casa Monte Co. v. Ward, Tex.Civ.App., 342 S.W.2d 812, no writ hist., and Sullivan v. Hardin, Tex.Civ.App., 102 S.W.2d 1110, no writ hist. This premise from which the Court of Civil Appeals reasoned is clearly erroneous. Under Maupin v. Cheney, 139 Tex. 426, 163 S.W.2d 380, if the sale is valid the mortgagee is entitled to judgment for the amount of the note, interest and attorney’s fees, less the amount received at the trustee sale and other legitimate credits. If the sale is invalid and title to the property has passed to a third person or the property has been appropriated to the use and benefit of the mortgagee, the mortgagor is entitled to have the reasonable market value of the property credited on the note (of course if, as in Maupin, the mortgaged property had an outstanding prior vendor’s lien or other prior deed of trust held by some third party, then the credit allowed would be the reasonable market value of the mortgagor’s equity in said property). The case of John Hancock Mutual Life Ins. Co. v. Howard, Tex.Civ.App., 85 S.W.2d 986, writ refused, provides the additional rule that if the sale was invalid and the property has not passed into the hands of a third person or been appropriated to the use and benefit of the mortgagee, the mortgagee may by alternative pleading have a judgment of foreclosure of his lien and for any deficiency which crediting of the proceeds of the sale may leave.

Respondents had an additional point before the Court of Civil Appeals by which they urge that this sale should be set aside on proof of inadequacy of price coupled with some wrongdoing, misconduct or unfairness on the part of the person exercising the power of sale under the deed of trust. Respondents contend that there was an inadequate price paid at the foreclosure sale in this case and point to the fact that while the sale was for only $1,200, the jury found the value of the property to be $4,000. Respondents further urge that there is sufficient evidence to go to the jury on the question of unfairness and improper conduct on the part of Conley.

Mere inadequacy of consideration alone does not render a foreclosure sale void if the sale was legally and fairly made. Burnette v. Realty Trust Co., 74 S.W.2d 536, Tex.Civ.App., writ ref. It therefore becomes our responsibility to determine whether from the record a fact issue was raised with respect to the propriety of this sale.

The record shows that Conley recommended to another employee of Tar-rant what said employee should bid for Tar-rant at the foreclosure sale. Respondents contend that such action on the part of Conley constitutes improper conduct. We do not agree. The rule is well settled in this state that a mortgagee with power to sell may purchase at his own sale made at public auction. Southern Trust & Mortgage Co. v. Daniel, 143 Tex. 321, 184 S.W.2d 465; Thornton v. Goodman, 216 S.W. 147 (Tex.Comm.App.). Since this is the law in Texas, it must follow that the mere fact that Conley, an officer of Tarrant, the mortgagee, requested another employee of Tar-rant to come to the sale and to bid $1,200 on Tarrant’s behalf does not constitute an impropriety on Conley’s part. Finding no evidence of unfair or wrongful conduct on Conley’s part that could combine with the alleged inadequate price so as to void the foreclosure sale, we overrule this point.

We reverse the Court of Civil Appeals and affirm the judgment of the trial court.


source: Caselaw Access Project

author: BARROW, Justice.

license: Public Domain

text:
    STALCO, INC., Appellant, v. ZERO REFRIGERATED LINES, INC., Appellee.
    No. 14407.
    Court of Civil Appeals of Texas. San Antonio.
    May 5, 1965.
    Rehearing Denied May 26, 1965.
    Maynard F. Robinson, San Antonio, for appellant.
    Lang, Byrd, Cross, Ladon & Oppenheimer, San Antonio, for appellee.
   BARROW, Justice.

This is an appeal by Stalco, Inc., hereinafter sometimes referred to as plaintiff, from an order sustaining a plea to the jurisdiction filed by defendant, Zero Refrigerated Lines, Inc. Appellee has filed a motion to dismiss this appeal and asserts that the order complained of by Stalco is interlocutory.

It is settled that a judgment which does not dispose of all parties and issues in the pending suit is interlocutory and not appealable unless a severance of that phase of the case is ordered by the trial court. Pan American Petroleum Corp. v. Texas Pac. Coal & Oil Co., 159 Tex. 550, 324 S.W.2d 200 (1959); Wagner v. Warnasch, 156 Tex. 335, 295 S.W.2d 890 (1956). The order complained of contains a recitation that “the Plea to the Jurisdiction as set forth in Defendant’s Original Answer was well taken and should be sustained,” and decrees: “Now, it is therefore ORDERED that the defendant’s Plea to the Jurisdiction be and it is hereby sustained, to which action and Order of the Court the plaintiff then and there in open court duly and timely excepted and gave notice of appeal * *

Plaintiff’s suit sought three types of relief: (1) a mandatory injunction commanding defendant to resume contractual relations as they existed between plaintiff and defendant prior to December 7, 1964; (2) actual and exemplary damages for breach of their contractual relations; and (3) a declaratory judgment declaring plaintiff to be the actual owner of the commodity authority and territorial authority as defined in defendant’s certificate of convenience and necessity issued by the Interstate Commerce Commission. Defendant’s plea to the jurisdiction asserted that the trial court did not have jurisdiction of the subject matter of this suit “insofar as Plaintiff’s prayer for declaratory judgment is concerned in that the practical effect of the declaration sought by Plaintiff would require this Court to usurp the licensing authority of the Interstate Commerce Commission, which federal agency is the sole and exclusive body authorized to license common carriers for hire in interstate commerce, * * Defendant did not question the trial court’s jurisdiction insofar as it was invoked by plaintiff’s claim for injunctive relief and damages. It is seen that the order does not expressly dismiss plaintiff’s suit. Since the court only sustained the plea as asserted by defendant it cannot be said that the entire suit was dismissed by implication.

It is therefore our opinion that the order complained of herein did not dispose of the entire suit and is therefore interlocutory and not appealable. Stalco will have its right of appeal from this interlocutory order when, and not before, the same is merged in a final judgment disposing of the whole case. Pan American Petroleum Corp. v. Texas Pac. Coal & Oil Co., supra.

As there is no final judgment in this cause, appellant’s appeal is dismissed.

CADENA, J., not sitting.


author: HIGHTOWER, Chief Justice.

text:
    Henry F. TAYLOR et ux., (Wayne Wigley, et al.), Petitioners, v. FEDERAL LAND BANK OF HOUSTON et al., Respondents.
    No. 6801.
    Court of Civil Appeals of Texas. Beaumont.
    March 25, 1965.
    Rehearing Denied April 28, 1965.

      Leonard E. Choate, Dallas, for Wigley, and others.
    Floyd Addington, Lewis Lanier, John Seale, Jasper, Ripley E. Woodard, Houston, for Federal Land Bank of Houston and others.
   HIGHTOWER, Chief Justice.

Petitioners filed motion to amend their appeal and supersedeas bonds and for extension of time to file transcript and statement of facts. They submit in their motion, however, that a statement of facts is not necessary, the appeal being from an order of a trial court granting a summary judgment. Respondents all resist said motion on the theory that petitioners have failed to file proper bonds in the manner required by Rules 354, 356 and 364, T.R.C.P., and have failed to show good cause for failure to timely file transcript in accordance with Rule 386, T.R.C.P. For such reasons, they contend this appeal should he dismissed.

The bonds in question were timely filed with the district clerk, signed by petitioners and their sureties. Said bonds were filed in blank, however, no sums of money being set forth therein. We think these bonds were subject to amendment under Rule 430, T.R.C.P., had they been made to appear before us in a timely filed transcript.

However, petitioners in their motion to extend time for filing transcript wholly failed to show good cause therefor under Rule 386, supra, their only cause being the press of business of their attorney of record, and their declaration that the district clerk could not prepare the transcript in time. Said motion was not accompanied by any statement of the district clerk of her inability to timely furnish the transcript. This is not sufficient. For such reason, said motion is denied.

One of the respondents, Federal Land Bank of Houston, has filed motion to affirm on certificate because of failure of petitioners to timely file transcript. The bonds heretofore referred to, or any others, not being in the record, we are precluded from affirming on certificate because of lack of jurisdiction. Lucchese v. Specia, Tex.Civ.App., 281 S.W.2d 725.

The motions of all respondents to dismiss petitioners’ attempted appeal for lack of jurisdiction is granted.

Appeal dismissed.


author: WILSON, Justice.

text:
    SOUTHERN STATES LIFE INSURANCE COMPANY, Appellant, v. Donald D. PAUL, Individually and Doing Business as Spearhead Productions Company, Appellee.
    No. 4339.
    Court of Civil Appeals of Texas. Waco.
    April 15, 1965.
    DeLange, Hudspeth, Pitman & Klatz, Houston, for appellant.
    Bill Hilford, Houston, for appellee.
   WILSON, Justice.

A take-nothing judgment after a non-jury trial was rendered in appellant’s suit for rentals alleged to be past due and unpaid in August, 1963. Defendant’s pleading was a general denial.

The only evidence relating to appellee’s indebtedness was that of the building manager whose employment as such ceased May 31, 1963. He testified appellee was a tenant from whom he collected rentals; that the rental was $400 per month; that he made attempts to collect rent from ap-pellee every month, but was not successful in collecting that for April and May, 1963; that the April and May rent was not collected up to the time his employment terminated. “Subsequent to my tenure as building manager they could have been made, certainly.”

This evidence, obviously, did not make out a case; but appellant argues that appellee “neither pleaded nor proved that he was entitled to any offsets or credits to any rental owed, or that any payment had been made thereon as required by Rules 94 and 95, Texas Rules of Civil Procedure.” This is not a suit on a sworn account. Affirmative defenses in the nature of avoidance do not come into play until a prima facie case is established. The cited Rules do not impose the initial burden of proof as to plaintiff’s case upon defendant.

Complaint is made of exclusion of an exhibit, not in the record, which appellant says is a check for $800 bearing appellee’s signature payable to appellant’s assignor as predecessor in interest, bearing the notation it is for office rent — April— May, 1963, and which has “payment stopped” stamped on its face. The only proof offered concerning the exhibit was that appellee’s signature appeared on it, and that appellant got it from its assignor “to evidence monies due” from appellee. The point does not reflect reversible error.

Affirmed.


author: McDONALD, Chief Justice.

text:
    The TRAVELERS INSURANCE COMPANY, Appellant, v. Willie A. SKERIK, Appellee.
    No. 4317.
    Court of Civil Appeals of Texas. Waco.
    April 29, 1965.
    Rehearing Denied May 27, 1965.
    Ñaman, Howell, Smith & Chase, Louis Muldrow, Waco, for appellant.
    Dunnam & Dunnam, Waco, for appellee.
   McDONALD, Chief Justice.

This is an appeal from a judgment for plaintiff for total and permanent incapacity, in a workmen’s compensation case.

Plaintiff Skerik alleged that he sustained accidental injury to his back on March 23, 1960 while in the course of his employment, which rendered him totally and permanently incapacitated.

Defendant admitted plaintiff’s injury, but denied that plaintiff was totally and permanently disabled. Defendant alleged that it had paid plaintiff compensation for 72 weeks which it claimed credit for, in event of recovery by plaintiff.

Trial was to a jury which answered special issues submitted by the Trial Court, pertinent of which follow:

“1) Do you find from a preponderance of the evidence, if any, that the injury to Willie Skerik’s body on Ma.rch 23, 1960 resulted in any total incapacity to him for any length of time? Answer: Yes.
(If you have answered Issue 1 ‘Yes’, and in that event only, you will answer Issues 2 and 3.)
“2) From a preponderance of the evidence, if any, on what date if any, do you find such total incapacity for work, if any, began? Answer: March 23, 1960.
“3) Do you find from a preponderance of the evidence, if any, that the total incapacity of Willie Skerik, if any, was ‘permanent/ or ‘temporary’? Answer: Permanent.
(‘If you have answered Issue 3 ‘Temporary’ and in that event only, you will answer Issue 4.)
“4) How many weeks, if any, do you find from a preponderance of the evidence, if any, such total incapacity, if any, has continued or will continue? Answer: (unanswered).
“5) Do you find from a preponderance of the evidence, if any, that the injury, if any, to Willie Skerik’s body, resulted in any partial incapacity to Willie Skerik for any length of time? Answer: We do not.
“10) What do you find from a preponderance of the evidence to be the average daily wage earned by Willie Skerik in such employment, if any, during the days he actually worked in the year immediately preceding the injury, if any? Answer: $23.50 per day.

The Trial Court entered judgment for total and permanent disability on the verdict after crediting defendant with the amount of compensation paid plaintiff.

Defendant appeals on 26 points, contending:

1) The Trial Court erred in overruling its objections to Issues 2 and 3.
2) There is no evidence, or insufficient evidence, to support the jury’s answer to Issues 2, 3, S and 10.

We revert to defendant’s 1st contention. The evidence reflected that plaintiff was injured on March 23, 1960; that he was incapacitated ; that he submitted to herniated disc operation on May 10, 1960, and returned to work on October 3, 1960; that thereafter plaintiff had a second operation on his back in September, 1962; that he returned to work after the second operation on July 31, 1963 and worked until March 13, 1964, when he was laid off.

Defendant objected to Issue 2, asserting that under the evidence the jury could believe there were separate and distinct periods of total incapacity, beginning on different dates and interrupted by temporary periods of no incapacity or partial incapacity. Defendant asserted that Issue 2 restricted the jury by not allowing them to find more than one beginning date of total incapacity.

Defendant objected to Issue 3 because it inquired if the total incapacity, if any, was “permanent”, or “temporary”, and defendant asserts that under the facts of this case one or the other does not necessarily exist.

We think the Trial Court properly overruled defendant’s objections to Issue 2. Plaintiff alleged he sustained total incapacity beginning on March 23, 1960, and that same was permanent. Plaintiff’s evience, if believed by the jury, sustained plaintiff’s theory. The Trial Court submitted plaintiff’s case and theory in conventional form. If defendant had a defensive theory that there were several separate periods of total incapacity followed by periods of no incapacity or partial incapacity, and wanted same submitted to the jury, it was incumbent on it to submit and request, in writing, substantially correct issues thereon. Rule 279, Texas Rules of Civil Procedure. This, defendant failed to do. Under the record, objection to the charge is insufficient to raise the question. Texas Employers Ins. Ass’n v. Tanner, CCA (n. r. e.) 218 S.W.2d 277; Williamson v. Texas Indem. Ins. Co., 127 Tex. 71, 90 S.W.2d 1088.

Defendant’s objection to Issue 3 is expressly overruled by virtue of Rule 277 T.R.C.P. Moreover, we think under the record of the instant case plaintiff’s total incapacity was either “temporary” or “permanent”.

Defendant contends there is no evidence, or insufficient evidence, to sustain the finding of the jury to Issues 2, 3, 5 and 10.

The record reflects that plaintiff has worn a steel brace at all times since his injury on March 23, 1960. He had 2 operations on his back, and returned to work following each operation. The work he performed after each operation was less strenuous work than he had previously performed. After the second operation he was finally assigned to operate the elevator. He was in constant pain, and unable to sleep at nights. He had to work to support his family. The defendant’s doctor testified plaintiff was suffering from pain during the period he tried to work and that he prescribed drugs for such pain. After plaintiff returned to work after the second operation, the defendant’s doctor limited and restricted his work activities so that “work activities which involved stooping, bending, twisting or lifting in excess of 25 pounds could not be carried out.”

We think the evidence ample to support the findings. Employers Mut. Liability Ins. Co. v. Gallardo, CCA (n. r. e.), 359 S.W.2d 933; Consolidated Cas. Ins. Co. v. Baker, CCA (n. r. e.), 297 S.W.2d 706. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

All of defendant’s points and contentions are overruled.

Affirmed.


text:
    STATE of Texas, Appellant, v. Alta Knox Brown JACOBS et al., Appellees.
    No. 4362.
    Court of Civil Appeals of Texas. Waco.
    May 6, 1965.
    Rehearing Denied May 27, 1965.

      Waggoner Carr, Atty. Gen., David Cox, Asst. Atty. Gen., Austin, for appellant.
    David G. Copeland, C. S. Farmer, Waco, for appellees.
   McDONALD, Chief Justice.

This is a condemnation case instituted by the State of Texas to condemn for highway purposes, .74 of an acre owned (or leased) by defendants. Trial was to a jury which, in answer to special issues, found: 1)The reasonable cash market value of the land, including improvements condemned by the State on April 3, 1961 was $28,600. 2) The reasonable cash market value of the landlord’s land, subject to the leasehold interest of the tenant was $23,600. 3) The reasonable cash market value of the tenant’s leasehold interest was $5,000. The Trial Court rendered judgment on the verdict for: defendant Jacobs for $4,600, ($23,600 less $19,000 deposited by the State after award of the commissioners); and for defendant Knizan for $1,400, ($5,000 less $3,600 deposited by the State after award of the commissioners).

Plaintiff appeals, contending:

1) There is no evidence to support the jury’s finding of market value in excess of $16,800.

2) There is no evidence, or insufficient evidence, to support the jury’s findings to issues 1, 2 and 3.

3) The verdict and judgment are excessive by $11,800, and a remittitur should be required.

The land taken was .74 of an acre located on the west side of U. S. Highway 81, approximately 1/2 mile south of the “Circle” in Waco, Texas. The tract had 162.3 feet of highway frontage, and extended back for an average depth of 1415 feet. The front 350 feet of thé tract were zoned for light industrial or commercial usage. At the front of the property were located a combination drive-in grocery store and lounge, a 5 room dwelling house, an outhouse, and a storage shed. The property was owned by defendant Jacobs; defendant Krizan had leased the store for 5 years on February 15, 1958 for $75 per month, and was also renting the house for $65 per month.

The State of Texas’ witness Smith, an expert real estate appraiser, after detailing the method of his valuation, testified that in his opinion the land was worth $8,100, and the improvements $8,700 for a total value of $16,800; he further separated his total $16,800 valuation into $1,800 for defendant Knizan’s leasehold interest, and $15,000 for defendant Jacobs’ landlord interest. The State’s witness Wade, also an expert in real estate appraisal and valuation testified in his opinion the land taken was worth $7,650; he did not testify as to the value of the improvements taken.

Defendant Jacobs testified she was owner of the property taken; that she knew the value of same on the date taken; that the land was worth $250 a front foot, and the value of all the property taken was $40,000. Defendant Knizan, the lessee of the property, testified that he knew the value of the: remaining balance of his lease on the property taken, and that it was $10,000.

The State’s witness Smith testified, among other things, that generally the closer property was to town the more it was worth; that property increased in value from 1957 to 1962; and that property one-fourth of a mile farther out than subject property sold for $80 per front foot in 1957.

There are in evidence some 19 photographs of the property taken (including 2 aerial photographs) which show in detail the property, the improvements thereon, the location, and some of the surrounding property.

From the evidence we think the jury authorized to answer the issues submitted as they did, and that such answers are not against the great weight and preponderance of the evidence. See State v. Scarborough, CCA (n. w. h.), 383 S.W.2d 839; State v. Carswell, CCA (n. w. h.), 384 S.W.2d 407.

Plaintiff’s points and contentions are overruled.

Affirmed.


author: COLEMAN, Justice.

text:
    John STRINGER et al., Appellants, v. H. E. MUNNELL et ux., Appellees.
    No. 14572.
    Court of Civil Appeals of Texas. Houston.
    May 6, 1965.
    Rehearing Denied May 27, 1965.
    Dixie & Schulman, Chris Dixie, George C. Dixie, Houston, for appellants.
    Finis E. Cowan, Larry F. York, Houston, Baker, Botts, Shepherd & Coates, Houston, of counsel, for appellees.
   COLEMAN, Justice.

This is an appeal from a summary judgment. The cause of action asserted by appellants, John Stringer and L. A. Stringer, was based on an automobile collision occurring on State Highway 19 in Henderson County, Texas, on December 26, 1962. The occupants of the other automobile involved in the collision, H. E. Munnell and his family, the defendants in the trial court, sued appellants in an earlier law suit, Cause No. 63-11, in the District Court of Henderson County, Texas. An agreed judgment was entered in that case by which the Munnells recovered substantial damages. The Stringers asserted no counter-claim in that action.

The summary judgment in this cause was granted by reason of the provisions of Rule 97(a), Texas Rules of Civil Procedure, reading:

“(a) Compulsory Counterclaims. A pleading shall state as a counterclaim any claim within the jurisdiction of the court, not the subject of a pending action, which at the time of filing the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction.”

When the Munnells filed their suit m Henderson County, citations were issued and properly served on the Stringers, and John Stringer delivered the citation to the Allstate Insurance Company, which had issued a policy of liability insurance on the vehicle owned by L. A. Stringer. He also notified his own insurance carrier, the American General Insurance Company, of the action. In the affidavits in opposition to the motion it is stated that he advised both of the companies that the collision in question was caused solely by the negligence of Mrs. Munnell and that it was the intention of both the Stringers to sue for their personal injuries and property damage. At that time John Stringer did not know whether his injuries would be permanent or serious. Counsel for one of the insurance companies filed an answer in the name of the Stringers as authorized by the terms of the insurance policy. No counter-claim was filed. Subsequently, without notice to the Stringers, a compromise settlement agreement was executed and an agreed judgment entered.

The settlement agreement recited that the defendants [the Stringers] expressly denied all liability in “any sum whatsoever,” and the judgment recited that the compromise settlement agreement “is in settlement of a disputed claim and that the defendants have and do deny liability for any damages to plaintiffs, and that said compromise settlement was entered into to terminate further controversy between the parties.”

The affidavits filed by the plaintiffs in this suit establish for the purposes of this appeal that neither of the plaintiffs participated personally in the defense or settlement of the prior suit, and that they were never consulted about settlement or even informed that settlement negotiations were under way. Except for the provisions of the policies of insurance neither had authorized any insurance carrier to waive their counterclaims. Nor have they ratified or been called upon to ratify the settlement or judgment.

Beach v. Runnels, Tex.Civ.App., 379 S.W.2d 684, writ ref., held that where a prior suit between the parties to an automobile collision is ended by a judgment pursuant to a compromise settlement agreement entered into by one of the parties to the accident and the insurer of the other, although without the knowledge of the insured, pursuant to authority found in the insurance policy, a subsequent suit between the same parties growing out of the same accident is barred by reason of Rule 97(a), T.R.C.P.

We are unable to find such a material difference between the facts of this case and those before the Dallas Court of Civil Appeals in Beach v. Runnels, supra, as to warrant our consideration of authority from other jurisdictions.

The judgment of the trial court is affirmed.


author: BELL, Chief Justice.

text:
    UNITED STATES FIDELITY & GUARANTY CO., Appellant, v. Mrs. Olga VALDEZ et al., Appellees.
    No. 14511.
    Court of Civil Appeals of Texas. Houston.
    April 29, 1965.
    Rehearing Denied May 27, 1965.

      Wiley Thomas and Ballard Bennett, Angleton, for appellant.
    Helm, Jones & Pletcher and George E. Pletcher, Houston, for appellees.
   BELL, Chief Justice.

The appellant, who was defendant and cross-plaintiff in the trial court, claimed it was subrogated to the rights appellees had against M & M Air Service, Inc., which concern through negligence brought about the death of the husband and father of appellees. Appellant, as the insurance carrier for deceased’s employer, had paid ap-pellees compensation under a voluntary workmen’s compensation policy. It claims subrogation to the extent of its payment together with a reasonable attorney’s fee. Judgment was in favor of appellees.

Modesto Valdez, Jr., was the husband of Olga Valdez and the father of the other five appellees, all of whom were minors. He was employed as a farm laborer by Bar X Ranch. On January 4, 1962, he, while acting in the course and scope of his employment, was killed by the propeller of an airplane owned and operated by M & M Air Service, Inc. The plane was spraying crops on the Bar X Ranch for Modesto’s employer. It became stuck in the mud and he was assisting in an effort to get the plane free. There is no suggestion of any negligence of the employer or its representatives.

On April 16, 1962 appellees filed suit against appellant to recover benefits provided by the voluntary compensation policy. On the same day an agreed judgment was rendered in favor of appellees for $11,-030.25 and $500.00 funeral expenses. This is the full amount that would be owing under the policy of insurance for voluntary workmen’s compensation. The attorneys representing appellees in that suit were not the attorneys thereafter representing them in the suit for damages against M & M Air Service, Inc., or in this suit. The compensation suit was found by the trial court to be a “friendly” one. As shown by the court’s findings of fact the term “friendly suit” is used to mean a suit where there was no dispute as to liability or that the full amount of the compensation was owed. The judgment was approved as to form by counsel for appellees, the minors’ attorney ad litem and the attorney for appellant. It contained this provision:

“It is further provided that nothing contained in this Judgment shall release or prejudice any right of Olga Quin-tero Valdez or the minor Plaintiffs in any right that they might have against any third party responsible for the death of Modesto O. Valdez other than United States Fidelity & Guaranty Company, David C. Bintliff or Bar-X Ranch of Brazoria County, Texas.”

By a release dated April 14, 1962, Olga Valdez, acting individually and as next friend of the minor children, released appellant, Bintliff and Bar X Ranch from all liability for the death of the deceased. It recites the payment of voluntary compensation that was being made; that Modesto was in the course and scope of his employment; that, being a farm hand, he was not covered by the Texas Workmen’s Compensation Law; and that the payment is in satisfaction of a disputed claim. There is then this provision:

“It is further provided that nothing contained in this release shall release or prejudice any right of Olga Quintero Valdez or the minor Plaintiffs in any right that they might have against any third party responsible for the death of Modesto O. Valdez other than United States Fidelity & Guaranty Company, David C. Bintliff or Bar X Ranch of Brazoria County, Texas.”

In August, 1962, appellees, through present counsel, filed suit against M & M Air Service, Inc. in the District Court of Brazoria County seeking damages for the death of Modesto, basing the suit on the defendant’s negligence.

On January 4, 1963, appellant filed a petition in intervention in the last case, asserting it was subrogated to appellees’ rights to the extent of its compensation payments and also seeking an attorney’s fee. A copy of the petition was sent to appellees’ counsel and it was received by him shortly after that date. No citation on the petition in intervention was requested or issued. The defendant in the case filed its answer. When the case came on for trial in April, 1963, appellees and the defendant announced to the court they had reached a settlement of the case in the amount of $30,000.00. Appellant’s counsel was present asserting its rights to subrogation. Appel-lees, over appellant’s protest, took a non-suit.

On July 8, 1963, appellees filed a new suit against M & M Air Service, Inc. On the same day an agreed judgment in favor of appellees for $30,000.00 was rendered and entered. Appellant knew nothing of this suit.

On November 22, 1963, appellees filed suit against appellant and Bank of the Southwest National Association for a declaratory judgment concerning appellant’s and appellees’ respective rights. The Bank, who holds the disputed funds in escrow, was later dismissed. Appellees claim appellant is not entitled to subrogation.

Appellant by its cross-action which im-pleads M & M Air Service and its insurer, asserts that it is entitled to subrogation on three grounds:

1.In equity merely by reason of its having paid the compensation.

2. Because of the policy provision giving subrogation.

3. Under the Texas Workmen’s Compensation Law, which is in effect a part of the policy because of the policy provisions.

The policy of insurance issued the Bar X Ranch and David C. Bintliff covers numerous risks in Texas, Louisiana and California. We will not notice each state. It covers employees who come under the Texas Workmen’s Compensation Law. It indemnifies the insured against liability for damages for bodily injury suffered by employees. These two coverages (A and B) are set up in the regularly printed form of the policy plus the material endorsements showing them applicable. The printed form of the policy in paragraph 12 provides as follows:

“In the event of any payment under this policy, the Company shall be sub-rogated to all rights of recovery therefor of the Insured and any person entitled to the benefits of this policy against any person or organization, and the insured shall execute and deliver instruments and papers and do whatever else is necessary to secure such rights. The Insured shall do nothing after loss to prejudice such rights.”

Voluntary compensation is provided for by endorsement Coverage C. It provides for compensation to employees not covered by the workmen’s compensation law if they are injured under such circumstances that they would be entitled to compensation under the law if it were applicable to them. The amount of compensation and benefits are the same as would have been payable under law had it been applicable. Then follows this provision as a part of Coverage C:

“The benefits payable under Coverage C on account of such injury shall be paid to such person or persons as would have been entitled thereto under the designated workmen’s compensation law, provided, however, that as a condition precedent to any such payment the injured employee, or in the event of his incapacity, his legal representative, or, in the event of his death, his legal representative or the person or persons entitled to sue therefor, shall (1) execute such full and binding release of all claims against the Insured and the Company on account of such injury or death as may be required by the Company, and (2) assign to the Company all claims or judgments or the proceeds thereof which he or they may have or recover against any person who or organization which is or may be liable on account of such injury or death and execute such other documents as the Company may require to enable it to enforce such rights or collect such proceeds. The Company shall have full power to enforce such rights under any such assignment in its own name or in the name of the injured employee or to make such negotiations and settlement as may be deemed expedient by the Company, but the Company shall not be obligated to enforce such rights. In the event of any recovery or settlement the Company shall pay the proceeds thereof, less payments hereunder and all expenses incident to such recovery or settlement, to the person or persons entitled thereto.”

Paragraph 5 provides that if a person entitled to compensation under Coverage C refuses to accept such payment and comply “with the terms and conditions set forth above” or commences suit seeking damages, other than under Coverage C, then the insurer’s liability under Coverage C terminates.

Paragraph 6 of Coverage C provides that as respects injuries to employees covered by voluntary compensation but who do not choose to accept it on the terms and conditions provided, then the insurer will indemnify the insured from obligation to pay damages for bodily injury to the extent of $100,000.

The record reflects that no demand was made by the appellant on appellees to assign any claim they might have against M & M Air Service, Inc., until during the trial of this case. None was ever given. The record is silent as to whether appellees were ever notified that if they accepted the voluntary compensation appellant would be subrogated to their rights against M & M to the extent of the compensation payments or that they would have to assign their rights to this extent. Nor does the record reflect that appellees were ever familiar with the policy, except as reflected by their filing the “friendly suit” by which they, under an agreed judgment, were awarded compensation.

Appellant cannot claim subrogation by reason of the Texas Workmen’s Compensation Law because such law has no governing effect as to voluntary compensation. Voluntary workmen’s compensation is purely a matter of contract and the rights and obligations of the parties are measured by the contract. The policy of insurance here involved, so far as it relates to the payment of voluntary compensation, merely makes the workmen’s compensation law applicable to the extent that it measures the amount of compensation and other benefits payable and the employee would be entitled to compensation only if his injuries were such that he would be entitled to compensation under the workmen’s compensation law had he been covered by it. We find nothing anywhere in said policy that makes all provisions of such Law applicable. The subrogation provision of such Law is not, therefore, applicable.

Neither is appellant entitled to subrogation in equity. Here the appellant under its policy assumed the primary obligation to pay the compensation and benefits prescribed by the workmen’s compensation law if the employee was injured while in the course and scope of his employment. It was not discharging another’s obligation.

We think four cases in Texas construing the Workmen’s Compensation Law before it contained a subrogation provision are here applicable.

In the case of Fox v. Dallas Hotel Company, 111 Tex. 461, 240 S.W. 517, the Supreme Court held that the hotel was not discharged from liability for its negligence because the injured employee, who had upon receiving compensation under the Act, released the employer and the compensation carrier from liability. While subrogation was not directly involved, we think the rationale of the decision is that compensation payable by the carrier is a primary contractual obligation assumed by it for the employer and the release of the carrier and the employer is not the release of a joint tort-feasor or an obligation in which the alleged joint tort-feasor had an interest. We say this particularly in the light of this language of the court:

“We think our construction effectuates the principal purpose of the 1913 act, which was to shield the employee, to a restricted extent, from the consequences of injuries received in the course of his employment, by insuring the payment of weekly indemnities for either the period of disability or a very limited time. The protection furnished by the act is closely analogous to that provided by accident insurance, where the insurance company is refused sub-rogation to the claim of the insured against a third person whose negligence occasions the injury for which compensation is collected of the company. Aetna Life Ins. Co. v. [J. B.] Parker & Co., 96 Tex. 287, 72 S.W. 168, 580 [30 Tex.Civ.App. 521], 621.
“A similar question to that under consideration was presented by the contention of a railway company that it could not be held liable for time lost by a passenger from injuries sustained in a wreck occasioned by the company’s negligence, where, under a contract with the passenger’s employer, or by grace of the employer, the passenger’s regular wages were not discontinued. The contention was disposed of by the decision that—
“ ‘If the continuance of his wages was a provision of his contract, or a grace of his employers, the defendant was not entitled to the benefit of either.’ M. P. Ry. Co. v. Jarrard, 65 Tex. 566.”

Then in its opinion the court noted that in the cases of City of Austin v. Johnson, 204 S.W. 1181, Southern Surety Co. v. Houston Lighting & Power Co., 203 S.W. 1115, and T. & P. R. Co. v. Archer, 203 S.W. 796, three Courts of Civil Appeals had held that the receipt of compensation under the Act did not deprive the employee of its rights of action against a third party or subrogate the carrier who had paid the compensation to the employee’s claim against the third person. It also noted it had granted a writ of error in the first two cited cases.

In the week following the above decision the Commission of Appeals handed down decisions in those two cases. The opinion in each case is reported in 240 S.W. 523.

In the Southern Surety Co. v. Houston Lighting & Power Co. case the Commission of Appeals, on the authority of Fox v. Dallas Hotel Company case, held the insurance carrier was not entitled to subrogation. In City of Austin v. Johnson, the same Court, on a basis of the same case, held the injured employee did not give up his action against the third party based on negligence.

We think it of special significance that the Supreme Court in Fox v. Dallas Hotel Company, supra, cited with approval the case of Aetna Life Ins. Co. v. J. B. Parker & Co., 96 Tex. 287, 72 S.W. 168, and held the payment of workmen’s compensation by the carrier under its contract was comparable to the payment of health and accident insurance by an insurer who is held not entitled to subrogation in the absence of a contract. In the Aetna case the insurer had, under its policy with the railroad for the benefit of its employees, paid health and accident benefits to one Shelvy, an employee of the railroad company. Shelvy had been injured working for the railroad and the insurer was obligated to pay him for the time lost. Shelvy had released the railroad from liability upon settling his claim against it. Shelvy then assigned his claim against Aetna as security for a debt to J. B. Parker & Co. Aetna defended because of the release of the railroad on the theory it had thus been deprived of its right of subrogation. The Supreme Court expressly approved the opinion of this Court, which is reported in 72 S.W. 621, and as an additional reason for holding there was no subrogation said:

“* * * so far as the right of sub-rogation is concerned, accident insurance is more analogous to life insurance than it is to either marine or fire insurance, and it has been held that it does not apply in case of life insurance, [citing authorities] We think also that the case of Bradburn v. Railway Company, L.R. 10 Exch. 1, has some bearing upon the question. The point there decided is that 'in an action for injuries caused by defendant’s negligence a sum received by the plaintiff on an accidental insurance policy cannot be taken into account in reduction of damages.’ ”

In the Court of Civil Appeals’ opinion which was approved by the Supreme Court, it is said :

“But where a person has received personal injuries, caused by the negligence of another, several elements enter into the estimate of damages besides the mere stipulated indemnity for loss of time contracted for in the accident policy, and the loss is by no means identical. In the one there may be included full compensation for mental and physical suffering, loss of time, diminished capacity to earn money, etc., and in some instances punitory damages; while the other is a stipulated sum for loss of time only, which may or may not be full indemnity even for that. The accident policy undertakes to indemnify the insured, whether his injuries are the result of negligence or not, while the person or corporation inflicting the injuries can be held liable only for negligence; and, since so many elements enter into the estimate of the loss in the case of one that do not enter into or from any part of the other, there is wanting that identity of damage or loss that would entitle the insurer to subrogation on payment of the claim against him.”

Appellant for a valuable consideration assumed the primary obligation to pay employees of the assured who were injured while working in the course and scope of their employment whether the injury was the result of negligence or not. The amounts it agreed to pay are the same as those fixed by the Compensation Law. The obligation is contractual and is in nowise dependent on tort by the employer. It is a different obligation from that which the appellees have against the third party.

Appellant’s right to subrogation, if any, must, therefore, rest in contract.

Under the terms of paragraph 12 of the printed form the policy seems to give subrogation upon any payment under the policy. However, it is the only provision in the printed form for subrogation and the printed form gives Coverage A (Workmen’s Compensation to Employees Covered by Law) and Coverage B (for bodily injury or death to employees). Coverage B, in our view, when considering the policy as a whole, particularly paragraph 9 and Coverage C, refers to damages the employee suffers that are not satisfied by payment of voluntary compensation and is not applicable to the voluntary compensation payment. Voluntary compensation is provided by an endorsement to the printed form and in it it provides not for automatic subrogation but that the persons receiving payment shall, as one of the conditions precedent to payment, assign such claims as he or she may have against a third person and execute such other documents as insured shall require. Too, it gives the insured the right to enforce its right under any such assignment. This is a special provision for subro-gation. It contemplates that the beneficiary shall execute an assignment. It is true that the provision says one of the conditions precedent to payment shall be the execution of an assignment but this contemplates affirmative action by the beneficiary and not automatic transfer by reason of payment. There is a very good reason for such a provision contemplating the execution of an assignment instead of automatic subrogation. The beneficiary of a deceased employee who was not covered by the compensation law has a cause of action against an employer for negligence or he may receive voluntary compensation payments. He might hesitate to accept the compensation payments in lieu of a possible damage claim against his employer for negligence if he was thereby giving up his full rights against a third party. The provision, therefore, contemplates that the insurer may not want to insist on the assignment.

Appellant here insists that appellees having accepted the benefits of the contract must take the contract as they find it and this includes the conditions under which they were entitled to payment. This correctly states the general rule of law. Were the facts in this case merely that payment was made we would have to presume appellees accepted it under the conditions provided and appellant could require the execution of an assignment. However, in this case when payments were made the judgment of the court in the compensation case provided for one of the conditions of payments, that is, a full release of the carrier and the assureds. It also significantly provides that nothing contained in the judgment shall “release or prejudice any right of Olga Quintero Valdez or the minor Plaintiffs in any right they might have against any third party responsible for the death of Modesto O. Valdez.” The release contains substantially the same language. The trial court in its findings of fact found that no assignment was taken as a condition precedent to the payment of the compensation benefits. There is no finding concerning whether this reflects an intention not to take an assignment. We feel it may be inferred from the facts in the record that by not taking the assignment when the other condition precedent was carefully stated in the judgment and the release that appellant did not intend to rely on this condition precedent. There was no request for additional findings of fact. We will presume in support of the judgment a finding of such intent because it is referable to the finding that no assignment was taken.

We are further of the view that the effect of the trial court’s finding of fact that the judgment and release contained the provision that nothing contained therein should “release or prejudice any right” of appellees in “any right” they might have against a third party together with his conclusion of law that appellant had no subrogation rights is a holding by the trial court that this was an express reservation by appellees of all of their rights against the third party which includes the full amount of damages recoverable. We feel such an interpretation is a permissible one.

It will be noted that in the part of Coverage C dealing with the right of appellant to an assignment it is provided in substance that under such assignment the insured shall have full power to enforce such rights in its name or the name of the beneficiaries and to negotiate such settlement as it deems expedient. Too, it gives the right in the event of recovery by the insurer to collect the proceeds and pay the proceeds to the persons entitled to them less payments under the policy and all expenses. In the absence of such a provision clearly these rights and the right to full payment would be in Mrs. Valdez and the children. Yet the appellant agreed to a judgment and accepted a release that expressly provides that the release of appellant, Bintliff and Bar X shall not release or prejudice any right of Olga Quintero Valdez and the minors in any right they might have against a third party. This to us means the appellant is recognizing that all rights with regard to the beneficiaries’ cause of action remained in them unimpaired by the compensation payments.

Affirmed.


author: FANNING, Justice.

text:
    J. H. REYNOLDS et ux., Appellants, v. The STATE of Texas, Appellee.
    No. 7650.
    Court of Civil Appeals of Texas. Texarkana.
    April 27, 1965.
    Rehearing Denied May 18, 1965.

      Mike McKool, McKool & McKool, Dallas, for appellants.
    Waggoner Carr, Atty. Gen., William Pool, Asst. Atty. Gen., Austin, for appellee.
   FANNING, Justice.

This is a condemnation case brought by the State of Texas against J. H. Reynolds and wife, for the taking for highway purposes of 7500 square feet of commercially zoned property on Harwood Street in the City of Dallas. The property taken was being used by Reynolds and wife as a residence and also for a sign painting business. The State’s authority to condemn was admitted and the only dispute between the parties was the market value of the property taken.

A jury in response to the single special issue submitted found the market value of the land and improvements in question on August 15, 1962 (the date of the taking) to be $12,500.00. Judgment was rendered awarding appellee the condemned land excepting certain mineral rights stated in the judgment, and awarding appellants judgment for $1,000.00, being the difference between the commissioner’s award of $11,-500.00 deposited in the registry of the court and withdrawn by appellants, and the jury verdict of $12,500.00. Appellants Reynolds and wife have appealed.

Appellants by their points 1 to 4, inclusive, contend that the trial court abused its discretion and erred, over the objections of appellants, in not permitting Levy, the real estate appraisal expert of appellants, to introduce in evidence the amounts of four certain sales hereinafter referred to. By their 5th point appellants contend that the trial court abused its discretion and erred, over objections of appellants, in not permitting the said expert witness Levy, to testify that the gross multiple of the sales in points 1 through 4 confirmed and supported his opinion and was the basis of his opinion. By their 8th point appellants contend that the verdict of the jury and judgment of the court is wholly inadequate and insufficient.

Appellants’ value witness, Dan Levy, after duly qualifying as a real estate appraisal expert and after testifying as to his knowledge and familiarity with the subject property and surrounding areas, testified that the subject property was zoned C, commercial, and described the house located on the lot as being a one-story frame house, containing 1170 square feet, about 38 or 40 years old, and as one needing paint and general maintenance. He testified that the property at the time of the taking was being used as a residence and as a place for the sign painting business of Reynolds, and it was his opinion that the property could best be utilized by a sign painting company, an electrical contractor or a plumber. He further stated that in the area of subject property several land users had removed old residences and replaced them with commercial buildings and that the subject building could be replaced by a building which would have more utility, etc.

Levy used the cost approach to value the subject improvements and it was his opinion that the depreciated value of the improvements on Aug. 15, 1962, was $3,500.00.

Levy, in establishing the value of the subject land, used the market approach and in doing so he used sales in the area to determine the per square foot value of the land. He further testified that he used these sales to place a value upon the land only exclusive of the improvements. The value Mr. Levy placed on the subject land only was $18,750.00, or $2.50 per square foot.

To substantiate his land only value of $2.50 per square foot assigned by Levy to subject land, he attempted to testify to nine sales of property in Dallas, Texas, which Levy considered comparable to subject land. Five of these sales were admitted into evidence and four were excluded upon objection by appellee.

Levy was not a party to any of these nine sales and his knowledge of these sales came from hearsay and such nine sales were not introduced in evidence as independent substantive evidence of the value of the properties sought to be compared with the subject property. Appellants sought to introduce evidence on these nine sales, on direct examination of the value witness Levy (by hearsay) to give an account of the factual basis upon which he founded his opinion on the issue of value of the real estate in controversy.

The four sales excluded by the trial court are discussed as follows:

Sale 1. Grandee to Ivy. A house and lot, 4 blocks from subject property, zoned C-2 (a different zoning than subject property). The improvement on said property was a two story rooming house, containing in excess of 2000 square feet, was inhabited, occupied and produced income. The house on the sale property was not comparable and similar to the house on subject property. By bill of exception Levy indicated that he considered that said rooming house had no value and might have been a liability to the land and that he used the entire consideration for the sale, $11,500.00 ($1.90 per square foot) in arriving at his value for subject land only.

Sale 2. Wyche to Croy and Croy. A house and lot 3]/2 blocks from subject property. Levy did not testify that this was a free and voluntary market transaction nor that he considered it as such. The improvement was a two-story house which was still standing at the date of the trial. There was no testimony that this improvement was comparable and similar to subject improvement. By bill of exception the witness Levy indicated that the total consideration for this sale was $13,500.00, that he considered the improvement to be worth $1250.00 which in his opinion would leave $12,250.00 for the land ($2.10 per square foot). This latter amount he then used in placing a value on subject land only.

Sale 3. Manning to Blair. A corner lot with house at Corsicana and Park with same zoning as subject property. The sale took place on March 4, 1957, which is 5j4 years prior to the date of taking in subject cause. The witness Levy did not testify as to any confirmation of the consideration paid nor as to the sale being a voluntary market transaction. The improvement on the property was a two-story, frame house, twice as large as subject house, which improvement remained on the property close to two years after the sale. The house was later removed and the property thereafter was used as a parking lot. By bill of exception Levy testified that the consideration was $20,000.00 and this would be $4.51 per square foot for the land and the improvements. Levy did not attempt to assign separate values to the land or the improvement. Levy used the total consideration in arriving at the value of the subject land only.

Sale 4. City of Dallas to Dallas Scottish Rite Temple Association. An unimproved tract zoned M-l (manufacturing) at the corner of Harwood and Canton which sold on April 16, 1956, which is six years and four months prior to the date of taking in subject cause. There was no testimony that there was any probability that the zoning of subject tract would be changed in the foreseeable future from C-l to M-l. No witness in the cause testified that there had been no change in land values in this area or in Dallas County during the period from April 15, 1956 (the date of this sale) to August 15, 1962, (the date of taking in this cause). By bill of exception the witness Levy gave the consideration for this sale as $35,000.00 or $5.07 per square foot.

The witness Levy in the bill of exceptions also testified to the effect that each of the four excluded sales were part of the basis of the opinion reached by him and confirmed and backed up his valuation of the subject property.

Appellants’ expert value witness Levy testified that in his opinion the value of the subject property at the time of the taking was $22,250.00. Appellee’s expert value witness Weiss testified that in his opinion the value of the subject property at the time of the taking was $11,500.00. The jury in response to the single issue submitted found such value to be $12,500.00. The verdict of the jury was within the range of the values testified to and it is our holding that the evidence was sufficient to sustain such finding. In this connection see the following authorities: Housing Authority of City of Dallas v. Shambry, Tex.Civ.App., 252 S.W.2d 963, wr. ref. n. r. e. (1952); City of Houston v. Charpiot, Tex.Civ.App., 292 S.W.2d 677 (1956). It is our further holding that from an examination of the record as a whole that the verdict and judgment are not inadequate. Appellants’ 8th point is overruled.

We think it is clear that the trial court did not abuse its discretion in not admitting Levy’s testimony with reference to sale No. 4 which was 6 years and 4 months prior to the subject taking and sale No. 3 which was 5j/£ years prior to the subject taking, on the ground of remoteness in point of time, irrespective of any other grounds upon which the action of the trial court might be sustained. In this connection see Rayburn, Texas Law of Condemnation, Sec. 140(1), p. 425, wherein it is stated in part as follows:

“It is settled law, that where testimony is presented showing that closely similar property in the immediate vicinity of the subject land has sold on the general market, that these sales prices are ADMISSABLE, as bearing upon the question of market value, if they are not too remote in point of TIME.
* * * * * *
“It is probable that the five years mentioned in this section, is about the extreme limit of reasonable time that might be thrown on this type of inquiry, as to a bearing on market value. * * * ” (Emphasis added).

Sales 1 and 2 were not too remote in point of time and pose closer questions as to their admissibility. They pose the rather difficult problems which are discussed by Rayburn, Texas Law of Condemnation, Sec. 142 pp. 430-1, which reads in part as follows :

“It is settled law in Texas, that UNIMPROVED LOTS, PARCELS, OR TRACTS of land, cannot be compared with the selling prices of IMPROVED LOTS, PARCELS, OR TRACTS of land, in the trial of a condemnation suit. This question arises most often, when the expert witnesses for either side, are questioned as to sales of properties that they may have studied in preparation of rendering their estimate and opinion of the market value of the subject land. Properties that are improved in some degree, can be compared to others improved in a lesser or greater degree, but cannot be compared with properties that have been sold, but which are not improved, but are raw, in bulk, wholesale acreage, or bodies of land that are held as unimproved en-tireties. This has been the law of Texas, since the decision of Chaney v. Coleman [77 Tex. 100], 13 S.W. 850, by the Texas Supreme Court, and has been re-emphasized by the Supreme Court of Texas in City of Austin v. Cannizzo [153 Tex. 324] 267 S.W.2d 808, where the court said:
“ ‘The property is unimproved. Prices paid for improved lots and the value assigned to improved lots in recent sales IS NOT ADMISSA-BLE BECAUSE NOT MEETING THE TEST OF SIMILARITY. Cheney [Chaney] v. Coleman [77 Tex. 100], 13 S.W. 850, Texas Supreme Court, 118 A.L.R. 869; and 174 A.L.R. 386.’
“It will be noticed, that this does not give any yardstick as to what degree of improvement is necessary, to either make the properties compared either conclusively similar, or dissimilar. There are close questions that can arise as to whether real estate is actually improved or not. This is one of those questions that is no doubt left to the discretion of the trial courts, and this would be particularly apt in the close cases.
“Where the property is clearly unimproved, or clearly improved, no difficulties are encountered. It is where a tract has a ‘shack’ of little, or no value on it, or an otherwise unimproved tract of land, has some improvement, such as a paving, either in its entirety, or street, or alley paving, that might have cost money, and might even have cost more money than a building or other structure, that the close questions arise.
í|í í|C ÍJÍ
“In City of Dallas v. Hubbard, 274 S.W.2d 165 (Civ.App.) (n.w.h.), it was held, that improved property that had houses and structures on it should be compared at least in degree with other properties that had similar improvements on it also.” (Emphasis added).

Assuming without deciding, that Levy’s testimony as to sales 1 and 2, may have been admissible, and further if we should be mistaken in our view that Levy’s testimony as to sales 3 and 4 was properly excluded by the trial court, it is our firm view that the exclusion of Levy’s testimony as to said sales 1, 2, 3 and 4, would not constitute reversible error under the whole record in this cause for the reasons and under the authorities hereinafter referred to.

It must be remembered that five sales testified to by Levy as being comparable were admitted in evidence and Levy was permitted to fully develop the sales price, etc. of these sales. One of these sales (Hanson to Rutchik) was located on the same street as subject property about 2 blocks away, another of the sales related by Levy (Smith to I.B.E.W.) was located on the same street about 100 feet away. The per square foot selling prices of the sales introduced in evidence by hearsay evidence of Levy were $1.20, $1.25, $1.50, $3.70 and $5.75 per square foot. The per square foot value ascribed to the land only in subject tract by witness Levy was $2.50. The per square foot selling prices of appellants’ sales excluded from evidence above referred to were $1.90, $2.10, $4.51 and $5.07.

The qualifications of appellants’ value expert witness Levy were not challenged and Levy was permitted to testify in detail as to the methods he used in appraising subject property and to the fact that he examined and analyzed sales information in reaching his opinions of value of the land only. He testified fully in regard to the five sales above referred to and gave limited information in regard to the other four. He was allowed to testify as to his opinion of the value of the property condemned. The only evidence excluded was hearsay evidence in regard to the four sales in question which only form a part of the substructure supporting Levy’s opinion of value and was not independent evidence of value. State v. Oakley, 163 Tex. 463, 356 S.W.2d 909 (1962). The qualifications of Levy, the appraisal expert, were not challenged and the exclusion of the sales data in question in the four said sales would not cause the rendition of an improper verdict under the record as a whole in this cause. Rule 434, Texas Rules of Civil Procedure. In this connection see State v. Scarborough, Tex.Civ.App., 383 S.W.2d 839, wr. ref., n. r. e. (1964), wherein it was stated in part as follows:

“The appraiser testified that he had examined land values in the vicinity including sales which he took into consideration in forming an opinion. The jury was permitted to hear the appraiser’s opinion of the value of the Scarborough farm residue; excluded only was the appraiser’s hearsay testimony of the three sales transactions. The hearsay nature of the land sales made them admissible only to reveal a part of the substructure supporting the appraiser’s opinion of value. State v. Oakley, 163 Tex. 463, 356 S.W.2d 909. The appraiser was shown to be qualified, skilled and experienced though cross-examination was designed to arouse doubt of the appraiser’s unbiased attitude. The hearsay evidence could not properly be considered by the jury as proof that a sale of the prop-ties had occurred, or the properties had sold for the prices stated, or as evidence of the market value of the Scarborough tract (State v. Oakley). The function of the excluded evidence was to make known to the jury what the appraiser said he used in part as a basis of his opinion of value. The excluded evidence goes to the appraiser’s qualification to express an opinion. And as previously noticed, qualification was not denied or seriously challenged.
“This court is not convinced that the absence of the excluded testimony, it being cumulative of that showing the appraiser’s qualification, secondary in nature and limited in effect, probably caused the rendition of an improper verdict. Rule 434. This case is distinguishable from those such as City of Austin v. Cannizzo, 153 Tex. 324, 267 S.W.2d 808; City of Houston v. Pillot, Tex.Civ.App., 73 S.W.2d 585, reversed on other grounds, (Tex.Comm.App.) 105 S.W.2d 870, etc., where non-hearsay evidence of comparable sales is the subject of discussion. The State correctly points out that the trial judge did not declare the basis of his ruling. However, if he was prompted to rule by misconception, such mistake is unimportant as excluding the sales was not calculated to cause the rendition of an improper verdict.”

The case of Hays v. State, Tex.Civ.App., 342 S.W.2d 167, wr. ref., n. r. e. (1960), relied on by appellants, which held that the exclusion of all of one party’s comparable sales was an abuse of discretion and constituted reversible error, is deemed not to be m point with the facts m the case at bar.

Appellants’ points 1 through 5 are overruled.

Appellants’ remaining points have been considered and are overruled.

Finding no reversible error in the record the judgment of the trial court is affirmed.


author: CLAYTON, Justice.

text:
    Rogelio Rodriguez DELGADO and Francisco M. Correa d/b/a D & C Construction Company, Appellant, v. Mauro HERNANDEZ d/b/a Rainbow Stucco & Building Supply Company, Appellee.
    No. 5711.
    Court of Civil Appeals of Texas. El Paso.
    May 5, 1965.
    Rehearing Denied May 26, 1965.

      Woodard & Christie, El Paso, for appellants.
    John W. Whitaker, El Paso, for appellee.
   CLAYTON, Justice.

This is a suit on verified account in the amount of $784.93 brought by appellee against appellant for construction materials. Appellee testified that he was approached by appellant Correa asking that appellee furnish one J. R. Hernandez, who held a masonry and plastering sub-contract from D & C Construction Company, such materials and supplies as might be needed under this contract. Appellee stated that since he would not give Hernandez credit because of a pending suit by him against Hernandez for supplies previously furnished to the latter, Correa authorized appellee to charge any purchases by Hernandez under his sub-contract to the D & C Construction Company in a separate account. Statements of this account were given to Hernandez in bills prepared separately and apart from the regular D & C account with appellee. Appellee further testified that from time to time payments were made to the separate account or “Hernandez” account, apparently by checks of the D & C Construction Company made out to J. R. Hernandez and Rainbow Stucco and Supply, but no such checks were introduced in evidence. Appellee did introduce in evidence, without objection as to their self-serving character, two ledger sheets which he identified as having been prepared by him as original and regular business recorders, one headed “D & C Construction Co. * * * asked for by F. M. Correa”, and the second headed “D & C Const. Co. Doctor Rogelio Rodriguez Delgado & Francisco M. Correa. * * * This material to be under the name of J. R. Hernandez Requested by F. M. Correa.” On cross examination by appellant’s counsel, appellee testified as follows:

“Q To get back to my original question, was this promise to pay in the event J. R. Hernandez didn’t pay, was that ever put into writing?
“A No, sir.
“Q And_ never signed by anyone?
“A No.
“MR. CHRISTIE: If the court please, I have a motion at this time, if the court would like to hear it out of the presence of the jury.
“THE COURT: Finish with your examination of the witness, consSl.
“MR. CHRISTIE: Pass the witness, with the right to cross examine him at a later time.
“THE COURT: You can cross examine him now. I realize what counsel has in mind, however, I would want the examination of the witness completed.
“MR. CHRISTIE: I don’t want to waive my right.
“THE COURT: You will have the right to make a motion.”

When appellee had rested his case the following transpired:

“Here the jury was excused from the courtroom and the following motion was made, out of the hearing of the jury.
“MR. CHRISTIE: Comes now the defendant Rogelio Rodriguez Delgado and Francisco M. Carrea, doing business as D & C Construction Company, with its motion for instructed verdict on the following specific grounds:
“That the action which is the basis of this law suit is an attempt to charge the defendants upon a promise to answer for the debt, default or miscarriage of another, to-wit, J. R. Hernandez, and is unenforcible by virtue of Article 3995 of the Texas Civil Statutes which states, ‘No action shall be brought in any court in any of the following cases, unless the promise or agreement upon which such action action shall be brought, or some memorandum thereof, shall be in writing and signed by the party to be charged therewith or by some person by him thereunto lawfully authorized.’
“THE COURT: The court will over rule the motion at this time.”

Appellant then put on its testimony. Appellant Correa denied that he had promised appellee to pay for the materials ordered by J. R. Hernandez, but promised that any checks owing to Hernandez would be made out in the joint names of Hernandez and Rainbow Stucco & Building Supply Company, the appellee. He further testified that some of these checks were not endorsed by appellee or his company but were cashed by the bank. When appellant rested, it was stipulated that “the promise (of Correa) if any, was not made in writing.”

In answer to special issues, the jury found that appellant Correa authorized ap-pellee to deliver merchandise to J. R. Hernandez and to charge it to a separate account of the D & C Construction Company, that the market value of the merchandise was $744.77, and that the promise to pay appellee was not conditioned on the appel-lee’s being unable to collect from J. R. Hernandez. Judgment was rendered for appellee on this verdict.

Appellant had requested special issues inquiring whether the promise of Correa to appellee had been in writing, and if so, whether such promise was signed by Cor-rea. The trial court refused such requested special issues. ■

It occurs to us that such refusal was warranted since the record reveals no written promise or agreement, or memorandum thereof, and it was so stipulated; therefore there was nothing to be signed, and no issue arose on these points. By the same token, we believe, there is nothing to show compliance with Article 3995 of the Statute of Frauds, and appellant’s motion for instructed verdict should have been granted, or the case withdrawn from the jury and judgment rendered by the court for the appellant. Jackson v. Marshall, 243 S.W.2d 205, 207 (Tex.Civ.App.1951; n.w.h.); McDonald, Texas Civil Practice, Vol. 3, § 11.25, p. 1025. This point was properly preserved and is presented to this court in appellant’s first point of error, which is sustained. All other points of error are overruled, but the sustaining of the first point of error requires that the judgment be reversed, and since this case seems to have been fully developed, judgment is here rendered for appellant.

Reversed and rendered.


author: COLLINGS, Justice.

text:
    Noble HOLT, Appellant, v. CITY OF LUBBOCK, Appellee.
    No. 3970.
    Court of Civil Appeals of Texas. Eastland.
    April 16, 1965.

      James F. Moore, Lubbock, for appellant.
    Fred O. Senter, Jr., City Atty., Don W. Reed, Asst. City Atty., Lubbock, for ap-pellee.
   COLLINGS, Justice.

Noble Holt brought suit in Bailey County against the City of Lubbock and M. F. Hollis for damages. Plaintiff’s claim was based in part upon a contract and also sought to recover damages from both defendants because of an alleged trespass on land situated in Bailey County. The court sustained the plea of privilege of the City of Lubbock to be sued in Lubbock County and Noble Holt has appealed.

Appellant presents three points contending that the judgment should be reversed because the court (1) erred in holding appellant did not prove that a trespass had been committed by the City of Lubbock in Bailey County, as contemplated by subdivision number 9, of Article 1995, Vernon’s Ann.Tex.Civ.St, (2) erred in holding that the defendant M. F. Hollis, was not a necessary party to the law suit as contemplated by subdivision 29a and (3) erred in holding that the case does not concern damages to land in Bailey County as contemplated by subdivision 14.

The record shows that appellant by warranty deed dated June 20, 1961, acquired the surface and a portion of the oil, gas and minerals under league number 206, Ochiltree County School lands in Bailey and Lamb Counties subject to all water rights thereon except for domestic use which water rights had previously been conveyed to the City of Lubbock. The major portion of such water rights was conveyed to the City by one L. A. Purtell by an instrument dated December 26, 1953, which, among other things, provided:

“ * * * The owner of said water rights, his heirs, successors or assigns shall pay three and no/100 ($3.00) Dollars per acre per year for all ground surface occupied by housing facilities, fenced enclosures and roads constructed and used by such owner, and said owner, his heirs, successors and assigns shall pay for damages to any surface property proximately caused by any operations or activities on said land by the owner of said water rights, his agents or employees, for which no payment otherwise provided herein, and * * *»

The above provision of the contract is asserted by appellant to be the basis of his suit for damages against the city, but appellant’s pleadings joined this contract cause of action and tort trespass cause of action based upon an alleged refusal by an employee of the city to allow appellant and prospective purchasers to enter upon the surface of the land in question so that appellant could show the land for the purpose of sale.

It is undisputed that prior to the purchase of the surface estate of the land by appellant the City of Lubbock had begun development of water rights by constructing roads, drilling wells and placing other appurtenances on the surface of the land; that the city built roads and drilled nine (9) wells in Bailey County while appellant owned said land; that the city tested the wells drilled, and equipment was on and off the roads, and water and sand filled the pits, and followed the natural terrain filling the depressions with sand; that the city-cut into the sand hills in laying the water lines, causing sand to blow on appellant’s land in Bailey County. Appellant contends that each of the facts above set out constitutes a trespass. However, according to the terms of the water right contract ap-pellee’s employees had made calculations to determine the total area occupied by roads, wells and other appurtenances, and the areas damaged by reason of such facts and conditions and because of the sandy character of the land; such calculations were, in compliance with the contract, made on a yearly basis, and at the end of each year the owner of the surface estate was paid according to the contract provisions for both the land occupied and the land which had been damaged by reason of the activities on the surface; that during the period of time appellant owned the surface estate, (he sold his interest in the surface on July 17, 1962), appellee undertook to construct new roads and wells on the land; that calculations were made for the area occupied and damaged during the time appellant owned the land and appellant was tendered a check dated December 14, 1962, in the sum of $658.80 for 11.6 acres occupied and 52.2 acres damaged as contemplated by the contract agreement. Such check had not at the time of the trial been cashed by appellant.

Appellant’s causes of action based on alleged trespass or trespasses were occasioned by the alleged action of M. F. Hollis, an employee of the city, in prohibiting appellant and prospective buyers from going upon the surface of the land in question. Appellant alleged that on or about September 1, 1961, and on or about September 1, 1962, Hollis caused all gates leading into the land to be locked and refused to give the keys to appellant, and thus, denied him ingress and egress to said property.

After hearing, the court sustained the plea of privilege holding that appellant failed to establish a case founded on trespass; that the alleged cause of action for damages to the surface of the land was covered by contract and that the contract alleged and shown does not provide that damages thereunder are to be paid in Bailey County.

Subdivision 14 of Article 1995, V.A.T.C.S. provides that “Suits for the recovery of lands or damages thereto * * must be brought in the county in which the land, or a part thereof, may lie.” To maintain venue in a given county under the provisions of the above exception a plaintiff has the burden of showing (1) that the nature of the suit comes within the terms of the statute and (2) that the land is situated in the county in which venue is claimed. The allegations of the plaintiff’s petition determine the question of whether the nature of the suit complies with the statute. Oakland Motor Car Co. v. Jones, Tex.Civ.App., 29 S.W.2d 861, (Mandamus denied); Tennessee Gas & Transmission Co. v. Heard, Tex.Civ.App., 190 S.W.2d 518, and cases cited therein. As heretofore noted, one of the causes of action asserted by appellant was based upon the provisions of an instrument conveying the water rights on the land in question to the City of Lubbock. The city had the right under the contract to do the things for which appellant seeks to recover damages. However, it was provided in such instrument that the city would pay damages to the owner of the surface for all ground surface occupied, used or damaged by the city in connection with the activities and operations on said land by the owner of said water rights. Appellant asserts not only in his pleadings but on appeal that this provision of the contract constitutes the basis of his suit against the city for such damages. Appellant’s cause of action in this respect is not based upon trespass or negligence by the city, but upon the alleged failure of the city to comply with the contract. In our opinion such cause of action is for a breach of contract and not a tort action for damages to realty contemplated by subdivision 14. Appellant’s contention that the court erred in holding that the case does not concern damages to land in Bailey County is overruled. Houston Lighting & Power Co. v. Jenkins, Tex.Civ.App., 5 S.W.2d 1030; Montgomery Ward & Co. v. Scharrenbeck, 146 Tex. 153, 204 S.W.2d 508; Butler v. Lopez, Tex.Civ.App., 367 S.W.2d 868.

Appellant’s contention that the court erred in holding that appellant did not prove that a trespass had been committed by the City of Lubbock in Bailey County as contemplated by subdivision 9 of the venue statute is also overruled. Under subdivision 9 the burden rested upon appellant as plaintiff not only to allege but also to prove the facts relied upon to bring the case within such exception. Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91. In appellant’s pleadings he alleged that the City of Lubbock was guilty of trespass or trespasses on his land in Bailey County, the first of which occurred on or about September 1st, 1961 and the second on or about September 1st, 1962. The alleged trespasses were stated to have been occasioned by M. F. Hollis, an employee of the city refusing to allow appellant and prospective buyers to enter upon the surface of such land. Appellant alleged that Hollis caused all gates leading into the land to be locked and that he refused to give keys to appellant and thus denied him ingress and egress to said property. In support of the judgment it must be presumed that the court found that appellant failed to establish a case founded on trespass. To disturb the judgment appellant therefore has the burden of showing that such trespass has been conclusively established. In our opinion appellant has failed to meet this burden.

To begin with the evidence relied upon by appellant to show such a trespass is his own testimony, and since he is an interested witness it could not conclusively establish the trespass but could only raise a fact issue. Such issue has been adversely determined by the trial court. We have examined the evidence and also are of the opinion that appellant’s testimony does not raise a fact issue on the question. Appellant testified that he became acquainted with Mr. Hollis and told him that he had traded for the land in question and asked Hollis to let him go upon the property; that Hollis stated he was not supposed to let anybody in, but that when he told Hollis “he had a contract of sale on it” Hollis finally agreed to let him in. At that time Mr. Holt by his own statement did not own the land but merely had a contract to buy. Appellant’s testimony, in effect, was that for a period of 30 days after he obtained the contract to purchase the property he did not have a key but from that time on he had a duplicate key and had several copies of the key made and gave them to various people to go onto the land. At the time of the second alleged trespass on September 1,1962, appellant admitted that he had duplicate keys and that he had signed a contract to sell the property prior to the time his testimony showed that a prospective purchaser was denied entry.

We also overrule appellant’s point urging that the court erred in holding “that the defendant, M. F. Hollis, was not a necessary party to the law suit.” Under this point appellant is apparently attempting to show that the court erred in failing to sustain venue in Bailey County by reason of subdivision 29a of Article 1995, V.A.T.C.S. Subdivision 29a provides that:

“Whenever there are two or more defendants in any suit brought in any county in this State and such suit is lawfully maintainable therein under the provisions of Article 1995 as to any of such defendants, then such suit may be maintained in such county against any and all necessary parties thereto.”

To maintain venue under this subdivision a plaintiff has the burden to prove that venue asserted in a particular county is proper as to one defendant and that the other was joined as a necessary party. A necessary party as used in subdivision 29a is a party whose joinder is necessary to afford a plaintiff the full relief to which he is entitled in the suit which he is entitled to maintain against another defendant in the county where suit is brought. Actually, as indicated in the consideration of appellant’s claim to venue under subdivision 9, appellant has not established his cause of action alleged against Hollis. But, even if it could be held that appellant had established a cause of action against Hollis in Bailey County, still it is not shown that the City of Lubbock was a necessary party to the suit against Hollis. Under appellant’s allegations any liability of the city would he as a joint tort-feasor with Hollis and appellant could be afforded the full relief to which he was entitled in his suit against Hollis even though the City of Lubbock was not a party thereto. Tarrant v. Walker, 140 Tex. 249, 166 S.W.2d 900.

The judgment is affirmed.