text:
    James O. GERST, Savings and Loan Commissioner of Texas et al., Appellants, v. Orren L. NIXON et al., Appellees.
    No. 11389.
    Court of Civil Appeals of Texas. Austin.
    Feb. 2, 1966.
    Rehearing Denied March 9, 1966.

      Waggoner Carr, Atty. Gen., Hawthorne Phillips, First Asst. Atty. Gen., T. B. Wright, Executive Asst. Atty. Gen., Paul W. Phy, John W. Fainter, Jr., Asst. Attys. Gen., Joe R. Long, Austin, for appellants.
    Heath & Davis, Dudley D. McCalla, Alvis & Carssow, Austin, for appellees.
   ARCHER, Chief Justice.

This suit was filed by appellees, seeking to set aside an order issued and promulgated by said appellant on November 19, 1964, which denied a savings and loan charter to said appellees. Appellant’s order complained of herein was issued subsequent to appellees’ filing of an application with said appellant for permission to open a Savings and Loan Association in Livingston, Polk County, Texas. Prior to issuing said order, appellant held a public hearing after giving proper notice to all interested parties of appellees’ application for a savings and loan charter. Appellant, Southeast Texas Savings and Loan Association, appeared at said public hearing for the purpose of protesting the granting of a charter to appellees and also filed its petition in intervention on the side of appellant Gerst and participated in the trial below.

The appeal is from the order of the Commissioner complained of herein and was timely filed in the court below pursuant to the appeal provisions of the Texas Savings and Loan Act, Article 852a, Section 11.12, R.C.S.

Before the Commissioner may grant a savings and loan charter, he is required to make affirmative findings on each of the following standards by the Texas Savings and Loan Act, Article 852a, Section 2.08, R.C.S.

1. The prerequisites, where applicable, set forth in Sections 2.02, 2.03, 2.04, 2.05, and 2.06 have been complied with and that the Articles of Incorporation comply with all other provisions of the Act;

2. The character, responsibility and general fitness of the persons named in the Articles of Incorporation are such as to command confidence and warrant belief that the business of the proposed association will be honestly and efficiently conducted in accordance with the intent and purpose of the Act and that the proposed association will have qualified full-time management;

3. There is a public need for the proposed association, and the volume of business in the community in which the proposed association will conduct its business is such as to indicate profitable operation;

4. The operation of the proposed association will not unduly harm any existing association.

In denying appellees’ application the Commissioner found there was no public need for the proposed association; that there was not a likelihood of profitable operation; that the proposed association would unduly harm an existing association. The Commissioner made affirmative findings on all of the other standards set forth in Section 2.08 of the Savings and Loan Act.

This cause was tried before the court below without a jury on August 10, 1965. The court entered its judgment on August 13, 1965, setting aside the Commissioner’s order and remanding it to the Commissioner for proper action.

Appellees in this case have attacked the validity of the Commissioner’s order. It is well settled that an appeal from an order either granting or denying an application for a savings and loan charter is tried under the substantial evidence rule, and therefore, the burden is on the party attacking the Commissioner’s order to show that such order is not reasonably supported by substantial evidence. The order of the Commissioner is presumed valid until it is shown to be invalid. Such a determination involves a question of law and not of fact. The courts may not substitute their discretion for that of the Commissioner in determining whether the Commissioner’s order is reasonably supported by substantial evidence. It is the position of the Commissioner that the trial court has erred in substituting its discretion for that of the Commissioner in setting aside the order complained of herein which denied appellees’ application for a savings and loan charter. We do not believe that the Commissioner’s order of November 19, 1964, is reasonably supported by substantial evidence and a valid and lawful order.

The appeal is founded on one point of error and reads:

“The trial court erred in not holding the order of November 19, 1964, entered by the Savings and Loan Commissioner of Texas, denying a savings and loan charter to appellees was reasonably supported by substantial evidence, and holding said order null and void and of no force and effect.”

Exclusive authority to charter State Savings and Loan Associations in Texas has been delegated by the Legislature to the Savings and Loan Commissioner in the Savings and Loan Act, Art. 852a, R.C.S. In granting corporate charters in which a determination of “public need” must be made, the Commissioner is performing a quasi-legislative function. Chemical Bank and Trust Co. v. Falkner, 369 S.W.2d 427 (Sup.Ct.1963). Interested parties may appeal orders of the Commissioner which grant or deny savings and loan charters under the Act, Art. 852a, Sec. 11.12, R.C.S. The method of trying such appeals is set forth in Section 11.12(5) (b) which provides :

“The review of any other act, order, ruling or decision of the Commissioner or of any rule or regulation shall be tried by the court without a jury in the same manner as civil actions generally and all fact issues material to the validity of the Act, order, ruling, decision or rule or regulation complained of shall be redetermined in such trial on the preponderance of the competent evidence, but no evidence shall be admissible which was not adduced at the hearing on the matter before the Commissioner or officially noticed in the record.”

Such a statutory provision relating to appeals from administrative orders is unique in Texas law, however appeals from orders of the Commissioner granting or denying savings and loan charters are tried under the substantial evidence rule and not under the preponderance of the evidence rule. As the Court said in Gerst et al. v. Cain et al., 388 S.W.2d 168 (Sup.Ct.1965) at page 170:

“ * * * his findings could not be arbitrary or capricious, but must have had support in substantial evidence. * *

Since the Commissioner was acting in a quasi-legislative capacity in denying a savings and loan charter to appellees, the order denying such charter is presumed valid.

Trapp et al. v. Shell Oil Co., Inc. et al., 145 Tex. 323, 198 S.W.2d 424 (1946).

The presumption in favor of the validity of the Commissioner’s order is a rebuttable presumption; however, the burden is on the party attacking such order, appellees in this case, to show that the administrative order is not reasonably supported by substantial evidence. 1 Tex.Jur. 2d 688, Administrative Law, Sec. 43.

Since the matter of granting or denying savings and loan charters has been delegated by the Legislature to the Commissioner, the courts may not substitute their discretion and judgment for that of the Commissioner in determining whether the Commissioner’s order denying appellees’ application for a savings and loan charter is reasonably supported by substantial evidence. Chemical Bank & Trust Co. v. Falkner, supra.

In determining whether the order of the Commissioner is reasonably supported by substantial evidence, the courts must review the record as a whole as made before the trial court. In this case the only record before the trial court was the record of the hearing before the Commissioner relative to appellees’ application for a savings and loan charter which is the only evidence properly before the courts under the appeal provisions of the Savings and Loan Act, Art. 852a, Sec. 11.12(5) (b), R.C.S., which provides, in part:

“Section 11.12.
(5) Trial.
(b) The review of any other act, order, ruling or decision of the Commissioner or of any rule or regulation shall be tried by the court without a jury in the same manner as civil actions generally and all fact issues material to the validity of the Act, order, ruling, decision or rule or regulation complained of shall be redetermined in such trial on the preponderance of the competent evidence, but no evidence shall be admissible which was not adduced at the hearing on the matter before the Commissioner or officially noticed in the record of such hearing.
(6) Burden of Proof and Judgment. The burden of proof shall be on the plaintiff. The reviewing court may affirm the action complained of or remand the matter to the Commissioner for further proceedings.”

Appellees’ counterpoint No. I is that the findings of the Commissioner adverse to them were not reasonably supported by substantial evidence and that a preponderance of the evidence demands affirmative findings upon those issues decided adversely to appellees.

In his order the Commissioner found favorably for the appellees on Items 1 and 2, supra, but further found there was no public necessity for the proposed Livingston Savings and Loan Association; that the volume of business in the community in which it proposed to conduct its business was not such as to indicate a profitable operation, and that the operation of the proposed Livingston Savings and Loan Association would unduly harm Southeast Texas Savings and Loan Association.

Since there is no question as to the general fitness of the persons named in the Articles of Incorporation it is not necessary to go into the testimony concerning such persons.

At the hearing the proponents offered evidence, the first witness was J. M. Wind-ham of Livingston, one of the Directors of the proposed Association, who testified that the capital stock of $100,000,000 and $50,000.00 paid in surplus, was on deposit with banks; that there were 123 stockholders, and that there were separate pledges of deposits in an amount equal to $290,000.00. Mr. Windham stated that he had lived in Livingston for 37 years and was in the construction business, and one of the Directors of the First State Bank, and listed the other directors of the Association and their businesses and other activities. The witness set out the need for a Savings and Loan Association in Livingston, setting out the towns in the 50 mile radius and the distances to associations in other cities and counties, and that Woodville was 38 miles from Livingston and other associations farther away.

The witness set out anticipated industries including the Lake Livingston project which would increase the business activity and the population in the area.

A summary of new residence construction in Polk County for the years 1961, 1962, 1963 and a part of 1964 was introduced with an aggregate total of $1,152,-960.94, taken from the lien records of the county.

Orren L. Nixon, one of the proposed Directors testified that he was with a grain and grocery company and manager of the Livingston Wholesale Builders Supply, a division and solely owned by Livingston Grain and Grocery Company begun by the father of the witness 50 years prior to the hearing. Mr. Nixon testified that the sale of wholesale building materials in the Livingston area amounted to $750,000.00, and that there were other distributors, and estimated the volume of building materials amounted to approximately two million dollars in the general vicinity, and that there were outside suppliers, particularly from Houston. He identified a number of pictures of new houses, and of downtown Livingston with a picture of the proposed site for the association, which is the old National Bank Building, and other pictures of the City Hall, the Courthouse, the Sam Houston Electric Co-op, schools, church and the Post Office.

The witness recited a number of new residential subdivisions and of homes built therein and of loans to various lending agencies, giving the amounts over a period of four years.

George Webster, owner and operator of Polk County Abstract Company since 1960, who detailed a list of subdivisions and of sales of property and that 218 loans had been made at a total of $1,-867,605.30 in 1962; 238 loans in 1963 for a total of $2,127,408.92 and 199 loans in 1964 through September for a total of $2,094,965.06. Some of the loans were personal. The witness further testified that 64 of the loans were made by Savings and Loan Associations located in Lufkin, Huntsville, Liberty, Orange, Woodville and in Houston aggregating $803,363.54, and that 147 loans were made by Mortgage Companies for a total of $2,081,949.97.

A list of Savings and Loan Associations in Texas counties with populations was exhibited, some with less than Polk County.

An economic index for the 1964-65 school year distributed by Texas Education Agency was offered and showed a decrease of 2.2% for Polk County and other counties over the State showed a greater decrease, all based on county assessed valuation scholastic population and total income.

The difficulties of making loans in the out-county companies and associations was the distance and the time required by both husband and wife to consummate a loan.

The witness went into detail as to loans made and the amounts thereof, and the Associations in Woodville were very few.

There was testimony from many other witnesses for the proponents which was before the Commissioner which we do not refer to herein.

Witnesses were presented in behalf of the opponents by Mr. Wheat of Woodville, a Director and counsel for Southeast Texas Savings and Loan Associations, who testified concerning the organization of his Association and that it was their intention to serve Polk County, and that three of their Directors were from Polk County.

The witness described the area within 50 miles of Woodville and the location of several Associations, and detailed the activity of his Association and introduced a list of Texas cities with one Savings and Loan Association and of the populations.

The witness testified that it was his conclusion or opinion based on the operation of the Woodville Association that the chartering and operation of an Association in Livingston would unduly injure his Association, and that there is no great public necessity for an Association in Livingston, and that he did not believe there was enough loan volume for the Association to make a profit.

On cross-examination Mr. Wheat testified that the Woodville Association was being operated in a profitable manner.

Mr. Bob Belt, Manager and Secretary of the Southeast Texas Savings and Loan Association since August 1, 1964, testified as to the operations of the Association month by month and of earnings; that his .Association had two or three loans in Polk County.

We believe that as a matter of law that the record shows that there was introduced before the Commissioner ample and sufficient evidence to require the granting of the charter and that such showed a public need for the Association and that there would be a volume of business in the county in which the proposed Association will conduct its business as to indicate a profitable operation and will not unduly harm any existing Associations.

The desire on the part of inter-venor Southeast Texas to exclude any other Association from Polk County is no real reason for the Commissioner’s action in finding that the proposed Association would unduly harm appellee, Southeast Texas.

Gerst v. Cain, 388 S.W.2d 168, Sup.Ct.

There was no evidence that there was a possibility that the solvency of Southeast Texas would be endangered by the operation of the Livingston Association, or that less profit might be made than it was making.

The evidence reveals that Southeast Texas is a small well managed Association and is rendering a beneficial service to the residents of Tyler County, and some of the surrounding territory. No such service is being rendered to the people of Livingston and Polk County, and such can be rendered by the establishment and operation of the proposed Association.

The trial court did not err in admitting into evidence the record of the hearing before the Commissioner, the very' record upon which the Commissioner made his determination.

The Commissioner did not object to the introduction of the record before him into evidence before the District Court.

The review provisions of the new Texas Savings and Loan Act provide in Section 11.12(4) that the Commissioner shall certify to the District Court the record of the proceedings, which the Commissioner is required to keep. ■ Section 1.8, Rules and Regulations promulgated by the Building and Loan Section, set out the purpose of the hearing.

The new statute limits the review by the Court to the record upon which the decision was made.

The intervenor, Southeast Texas, made only a very general objection.

“MR. LONG: Your Honor, we have no objection to the introduction of the certificate and the record if it is merely for the purpose of showing compliance with the Statute and that is that the Commissioner shall certify to the District Court in which such petition is filed the record of the proceedings to which the petition refers. If it is introduced for that purpose, we have no objection, and we will stipulate that this is the record that has been certified by the Commissioner. However, if the certificate and the attached record is to be introduced for the truth of the matter stated therein, we will object on the ground that there is nothing in the Statute which makes the record before the Commissioner competent evidence to be received in the trial of this case by this Court; and this Court is well aware from previous experience in this area that records made before the various administrative bodies have never been held to be competent evidence. And in the absence of specific statutory provisions declaring it to be competent evidence to be used in the trial of this case, we will object to the receipt of it.
THE COURT: Well, I thought that a specific Statute was cited.
MR. LONG: Your Honor, the Statute to which counsel referred, the section of the Statute, is Section 11.12(b) at the bottom of page 40 there in which it says, ‘The review of any other Act shall be tried in court without a Jury in the same manner as civil actions generally, and all fact issues material to the validity of the Act, order, ruling or decision shall be determined at such trial on a preponderance of the competent evidence, but no evidence shall be admissible which was not adduced at the hearing on the matter before the Commissioner officially noted in the record of such hearing.’
Now, that speaks of evidence, competent evidence, adduced and not of the record that was made before the Commissioner. It will be our position that the record as such made before the Commissioner is not — and we will say in this case is full of hearsay and everything else and pertains to many matters which would not be competent evidence in the trial of a lawsuit — that it would not be the type of evidence which should be admitted into the record. So we would say that this Statute does not authorize the introduction of the record per se nor the trial of the case strictly upon the record per se as made up there.
When counsel finishes, of course, we will have argument to make about this entire proceeding that he proposes to use.”

The record as introduced might not have been admissible against a specific objection, which would have enabled the judge to understand the precise question and to make an intelligent ruling and would afford the party offering the evidence an opportunity to remedy the defect if possible.

1 McCormick and Ray, Texas Law of Evidence, §§24 and 25.

While we believe that appeals from the act of the Commissioner in granting or denying savings and loan charters are to be tried under the substantial evidence rule, no reversible error was made in considering the case on the basis of the preponderance of evidence rule since the plaintiffs, appellees, herein assumed the burden of proof of showing that the order was not reasonably supported by substantial evidence. The trial court found that the plaintiffs had sustained their burden of proof by a preponderance of the evidence as well as under the substantial evidence rule.

We believe that the evidence before the Commissioner required the granting of a charter for the Association as proposed in Livingston, a town with a population of approximately 4000, and about 6000 persons reside within a five mile radius, and Polk County has a population of approximately 13,500 and surely the city is entitled under the record to a Savings and Loan Association.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: CHAPMAN, Justice.

license: Public Domain

text:
    The URBAN RENEWAL AGENCY OF the CITY OF LUBBOCK, Texas, Appellant, v. D. P. TRAMMEL and wife, and Harold Deering, et al., Appellees.
    No. 7565.
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 31, 1966.
    Rehearing Denied March 7, 1966.

      Brock, Wright, Waters & Galey, Lubbock, for appellant.
    William J. Gillespie, Nelson, McCleskey & Harriger, Lubbock, for appellees.
   CHAPMAN, Justice.

Plaintiff below, The Urban Renewal Agency of the City of Lubbock, appellant here, filed its statement in writing as provided for by Article 3264, Vernon’s Ann. Tex.Civ.St., to condemn under the right of eminent domain, and acquire thereby fee simple title to a tract of land owned by D. P. Trammel and wife, Kathryn Trammel, and leased to various tenants, including ap-pellee, Harold Deering. From the award of Special Commissioners, appeal was perfected to the County Court of Law No. 2 of Lubbock County and tried to a jury. In the answer to special issues inquiring as to the value of the interests involved the jury found the value of the whole of the tract of land, together with its improvements and the leasehold estate, for years. Then in answer to subsequent issues submitted they apportioned out to the owners of the land and improvements, and to the lessee their respective interests. The court rendered judgment accordingly, from which appeal is perfected to our court.

In its first two points appellant urges reversible error because of the failure of the court to strike the testimony of ‘Mr. Trammel because of his failure to testify to the reasonable market value, and for the alleged reason there was no competent evidence to support the jury’s verdict.

Mr. Trammel was never asked the market value of his property but only his opinion * * * as to what this property is worth.” He answered $60,000 and based his reason for that figure on his statement that property had gone up in Lubbock, that it was worth that much to him, and as to “ * * * the rentals I have coming in.” On cross-examination he testified:

“Q. And you haven’t undertaken to really ascertain what the market value is, what it would sell for on the market between two people, one willing to sell, but not compelled to sell, and one willing to buy but not compelled to buy?
A. Nope.”

We hold the testimony was not sufficient to show the proper measure of value and should have been stricken. Tennessee Gas Transmission Company v. Wood, Tex.Civ.App., 331 S.W.2d 808 (N.W.H.); State v. Sides, Tex.Civ.App., 348 S.W.2d 446 (writ ref., N.R.E.); City of Houston v. Fisher, Tex.Civ.App., 322 S.W.2d 297 (writ dismissed)Texas Electric Service Co. v. Linebery, 162 Tex. 570, 349 S.W.2d 105.

However, under our interpretation of the record there is sufficient probative evidence from other sources to sustain the verdict and judgment rendered thereon.

Error of the trial court in permitting the introduction of inadmissible evidence does not require reversal where a study of the entire record reveals admissible testimony of like import sufficient to sustain the verdict. St. Louis Southwestern Ry. Co. of Texas v. Smith, Tex.Civ.App., 153 S.W. 391 (N.W.H.); Perez v. San Antonio Transit Company, Tex.Civ.App., 342 S.W.2d 802 (writ ref.); Slayden v. Palmo, 108 Tex. 413, 194 S.W. 1103, 1104.

The values testified to by appraisers qualified as experts being well within the values assessed, the failure to strike appellant’s testimony was harmless. Rule 434, Vernon’s Ann.Tex.Rules of Civil Procedure.

Counsel for the Trammels questioned the real estate appraisers as to the value of the land and improvements on them, using both the income approach and replacement approach. Then when separate counsel for lessee Deering questioned them he sought their opinions as to the value of the leasehold interest. (This fact was shown at one place in the record even on cross-examination by opposing counsel asking the appraiser Stinson if he valued all ownerships in the property. He said: “Well, I just appraised for the buildings and land.”) This was after he testified to a value of $43.196.30. This same witness later testified under examination of lessee’s counsel to facts from which the jury could have found the value of Mr. Deering’s leasehold interest in excess of $8,000. Two other appraisers testified to facts that would have shown the leasehold interest worth in excess of $11,000. These facts were established by showing he was paying only 850 per square foot while a barber shop on the premises was paying $2.17 per square foot for a lease. Mr. Stinson then testified the grocery store should lease for $1.50 to $1.75 per square foot. Other expert appraisers testified to higher values per square foot. With six years and eleven months left on his option, the testimony thus showed a lease advantageous to the lessee equal to or greater than the amounts above stated.

In its charge the court asked the jury in Special Issue No. 1 to find the cash market value at the date of trial of the land and improvements as a whole, including the interest of the owner D. P. Trammel, together with the lessee’s leasehold interest in said land and improvements, represented by the lease contract upon the agreed rental and other terms and conditions of said lease. They answered $48,000. (Emphasis added).

The cash market value was then defined and in Special Issue No. 2 they were asked to find the cash market value of the landowner’s interest, as apportioned out of the cash market value found in Special Issue No. 1. That answer was $40,000.

Special Issue No. 3 then asked the jury to find the cash market value of the leasehold interest apportioned to Mr. Deering out of the cash market value found in Special Issue No. 1. That answer was $8,000.

With testimony in the record of the landowner’s interest, based on the income approach and cost of replacement approach showing from as high as $41,000 to more than $43,000, and with testimony of the leasehold interest showing from approximately $8,000 to $15,000, we hold appellant’s no-evidence point is without merit.

Appellant contends the method of submission allowed a double recovery, citing in support thereof State v. Lindley, Tex. Civ.App., 133 S.W.2d 802 (writ dismissed, judgment correct); City of Waco v. Mes-ser, Tex.Civ.App., 49 S.W.2d 822; 124 Tex. 417, 78 S.W.2d 169; Aronoff v. City of Dallas, Tex.Civ.App., 316 S.W.2d 302 (writ ref., N.R.E.); and Frankfurt v. Texas Turnpike Authority, Tex.Civ.App., 311 S.W.2d 261 (N.W.H.).

Wherein the cases cited are urged as authority for the contention of double recovery in the manner of submission in the instant case, they are all distinguishable from ours. In the Lindley case recovery was allowed for the whole, which included improvements, and additional recovery for the improvements. The court was clearly correct in holding that the judgment constituted double recovery.

The Aronoff case furnishes at least some authority for the manner of submission in the instant case. In Syl. 5 of that case the court held that where there are several interests or estates in a tract of land taken by eminent domain the proper method is to determine the interests as a whole and then apportion the gross award among the several owners according to their respective interests.

The charge of the court in the Messer case allowed the jury to assess, as an element of damage the value of the use of the property, as applied to the lease to Parker and at the same time to assess, as an element of damage, the value of the stand on the land used by lessee. As regards the landowners, a part of the basis of value respecting the lease was the use of the stand for rental purposes, thus allowing a double recovery for the Messers for the reason that the value of the stand would include the value of its use for any purpose, and therefore would necessarily include the value of its use for rental purposes. For this double recovery the judgments of the lower courts were reversed as between the Messers and the City.

In the instant case the value of the whole, both the landowner’s and tenant’s interests were found by the jury, and their respective interests apportioned from the whole. The charge obviously was patterned after the suggestions of the author of Texas Law of Condemnation, Rayburn, Sec. 191, p. S2S. There the author stated:

“Where the total, or whole of a tract of land, together with its improvements is taken, * * * the entire fee reversion * * * can all be submitted at one time, so as to value as a whole the entire land, leasehold, and all interests as a whole, and then asked the jury to apportion out to each interest its respective share of the whole.”

That is precisely what the court did in the instant case.

We do believe the language of Issue No. 1 would have been improved if the court had used following the name “D. P. Trammel” either the word “encumbered” or the word “burdened” rather than “together” but we still think the issue covered the whole, taking into consideration the value of the lease for the remaining six years and eleven months as above the rentals being paid. Where the lease is favorable to the lessee as the evidence here shows it to be, to the same extent it is a burden to the lessor landowner.

The Frankfurt case is quite different on the facts to the instant case and does not, in our opinion, furnish any authority to justify appellant’s contention that the case at bar was submitted in such form as to allow double recovery.

There are numerous methods of submitting issues in condemnation cases to determine the values of the respective interests. Since we believe the method used here allowed the jury, based on probative evidence, to find the whole interest and then apportion the respective interests in such manner as to make the sum of the two equal to the whole, the refusal to give the issues tendered does not show reversible error.

Appellant’s point of error number four contends the court committed reversible error in admitting testimony of the witness Alderson, Director of Urban Renewal, regarding the issuance of building permits by the City of Lubbock. The point contends his evidence had no bearing on the fair market value of the property being condemned, was inflammatory, highly prejudicial and created the impression before the jury that the Urban Renewal Agency had “frozen” the property but was unwilling to compensate him for it.

Appellees Trammel contend the testimony was invited by the appellant when it questioned Mr. Trammel concerning the need of repairs on the grocery building in an effort by such testimony to reduce the market value, thus giving them the right to show they were precluded from making substantial repairs that required a building permit or to construct any other building on the property.

Appellee Deering asserts it was admissible because appellant contended in the trial court that the lease was made with knowledge that the property was subject to being taken and he was entitled to show the history of the plan, the delays in carrying it out and indecisions as to whether they were going to carry it out as to the subject property.

We find it unnecessary to write on those questions. Even if the evidence was not admissible we believe a study of the record as a whole shows the failure on the part of Urban Renewal to show that but for such evidence the jury would probably have answered the issues of value more favorably to it.

Rules 434 and 503 T.R.C.P. direct appellate courts not to reverse a trial judgment for errors of law committed in the trial unless the errors constitute such a denial of the rights of the complaining party, as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case. In interpreting these rules Justice Calvert writing for the Supreme Court in 1958 in Condra Funeral Home v. Rollin, 158 Tex. 478, 314 S.W.2d 277, said: “ * * * we have held with respect to many and various types of errors that a reversal may be ordered only when a review of ‘the whole record’ convinces the reviewing court that but for the error a different verdict or judgment would probably have been rendered. Texas Power & Light Co. v. Hering, 148 Tex. 350, 224 S.W.2d 191; City of Galveston v. Hill, 151 Tex. 139, 246 S.W.2d 860; Dallas Ry. & Term. Co. v. Bailey, 151 Tex. 359, 250 S.W. 2d 379; Aultman v. Dallas Ry. & Term, Co., 152 Tex. 509, 260 S.W.2d 596; Lumbermen's Lloyds v. Loper, 153 Tex. 404, 269 S.W.2d 367.”

There was evidence in the case from witnesses who were classified as experts on values that would have supported a jury verdict for several thousand dollars more than the verdict rendered. So, even if it could be said that the evidence complained about in the point under discussion was not admissible, there is a complete lack of showing that but for such evidence the jury would probably have answered the issues more favorably to appellant.

In a condemnation case the Houston Court of Civil Appeals held that even where the trial court abused its discretion in permitting cross-examination with respect to land increasing four to five times in value since 1940 and as to the value placed upon the land in the inventory, that it was harmless error in view of its finding of $60 per acre as the land’s value. Halbert v. Upper Neches River Municipal Water Auth., Tex.Civ.App., 367 S.W.2d 879. A study of the entire record fails to convince us that but for such evidence the jury would probably have answered the issues more favorably to appellant.

The last point to be discussed is based on asserted error of the court in refusing to declare a mistrial because of improper argument of counsel for the Trammels.

The first quote from the argument referred to which is urged by appellant as constituting reversible error is counsel’s statement to the effect that this is the only country left where one may have the right to a trial by a jury of his peers, such as the jury in that case, “ * * * and I believe as long as we have jury systems with juries such as you, people have no right of fear from any other person or any other government or governmental agency.”

It was a governmental agency condemning the land, so that statement alone would not in our opinion constitute reversible error.

The attorney then proceeded to argue that his clients had been “tied up” since 1958; that he had been unable to get a building permit for a number of years “ * * * so Mr. Trammel just didn’t reach up and pull that $60,000 out of the air and bring it in here to you.” He then continued to make further argument concerning the effect of the owner’s inability to remodel and that the Trammels could not make the best use of it because of a governmental agency that delays and delays and delays.

No request was made to the court at any time to instruct the jury to disregard the argument above related but counsel waited until the jury had been retired and moved for a mistrial because of such argument. While we believe some of it was improper we do not believe a study of the record as a whole shows such a denial of the rights of appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment.

Each case, where points are based upon improper conduct of counsel, creates a different situation and the problem lies in applying the rules to each case, considering the record as a whole.

In Wade v. Texas Employers' Ins. Ass’n, 150 Tex. 557, 244 S.W.2d 197, the Supreme Court speaking through Justice Garwood said:

“Since the Greenlee case, particular arguments have been held ‘curable’ and others ‘incurable,’ but the distinction has always been one of difficult application, and few general guiding principles therefor have emerged.”

In a suit by a widow and son to recover benefits under the wrongful death statute, Article 4671, V.A.T.S., counsel for the claimants in Howsley & Jacobs v. Kendall, Tex., 376 S.W.2d 562, went completely outside the record to repeatedly argue to the jury that a young 24-year old Negro employee of defendant Howsley was testifying through the lips of the defendant Howsley and his battery of lawyers. Counsel then argued that the jury was going to have to decide between the testimony of that colored boy and the statements made by the deceased, “a man that was about to come face to face with his Master,” in order to determine the truth. The court said:

“An assertion of facts having no evidentiary basis were placed before the jury and these asserted facts were in turn made the basis of an inflammatory appeal. No instruction of the trial judge could have removed the prejudicial effects of the argument and hence no objection was necessary to preserve the error.”

We agree entirely with the court’s reasons and conclusions in the Howsley & Jacobs case. It is difficult to conceive of conduct more inclined to inflame a jury.

The above quote from the Condra Funeral Home case by Justice Calvert discussed in another point is particularly applicable to the point here under discussion.

The Court cited a number of cases for the statement, including one involving argument. That case was Aultman v. Dallas Railway & Terminal Co., supra. In the Aultman case the Court of Civil Appeals had reversed the trial court because of argument of claimant’s counsel. The Supreme Court said:

“ * * * the argument must be improper, and it must be such as to satisfy the reviewing court that it was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case.”

The Court then held it could not say in the light of the whole record “* * * there is more reason than not to believe that the jury’s verdict for the petitioners was caused by the possible inference, to be drawn from the argument, * * * ” and reversed the intermediate appellate court.

Appellant contends that definite rules have been established by our Supreme Court to the effect that where argument is merely inflammatory it is of a curable type but where in argument the attorney brings before the jury what they would not have in admissible evidence it is uncurable whether objected to or not. We do not believe there is any supreme judicial expression in this state which has categorically established the rules above stated to be the only rules to be followed as to whether a case must be reversed or affirmed because of the argument of counsel. To do so would vary, to say the least, the rules stated in the Condra Funeral Home case and the Aultman case and the rules stated in Texas Employers' Ins. Ass’n v. Haywood, 153 Tex. 242, 266 S.W.2d 856 to the effect that reversal is dependent upon “ * * * the degree of prejudice flowing from the argument — ■ whether the argument, considered in its proper setting, was reasonably calculated to cause such prejudice to the opposing litigant that a withdrawal by counsel or an instruction by the court, or both, could not eliminate the probability that it resulted in an improper verdict. Rules 434 and 503, Texas Rules of Civil Procedure.”

In a review of many Texas Supreme Court expressions on this subject, the rules quoted from the Haywood, Aultman and Condra Funeral Home cases appear to be consistent with the reasoning we have found in studying other cases where misconduct of counsel have been the bases of contentions for reversal, and consistent with the result we have reached in this case.

It must be kept in mind that the argument complained about had as its thesis the proposition of $60,000 damages for the whole taking. The jury showed in its verdict it was not influenced by such argument by assessing $12,000 less than that contended for in the improper argument. We think it just as probable that the conduct of Mr. Gillespie in continuing to ask questions contrary to the court’s ruling and in making at least some reference in his argument to evidence the lady judge had held inadmissible would be calculated to prejudice the jury against him and perhaps his client. So, in studying the record as a whole we do not find such a degree of prejudice flowing from the argument, considered in its proper setting, as was reasonably calculated to cause and probably did cause the rendition of an improper judgment.

Accordingly, the judgment of the trial court is affirmed.

      . This was after the witness Stinson had testified to a value of $43,196.30 for the landowners.

      . Gulf, C. & S. F. Ry. Co. v. Greenlee, 70 Tex. 553, 8 S.W. 129.


text:
    Ralph M. ALLRED, Appellant, v. KIMA FERTILIZER, INC., Appellee.
    No. 7576.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 21, 1966.
    Clayton, Kolander, Moser & Templeton, Amarillo, for appellant.
    Culton, Morgan, Britain & White, Amarillo, for appellee.
   CHAPMAN, Justice.

This is an appeal from a judgment against Ralph M. Allred summarily rendered for Kima Fertilizer, Inc., upon its motion, pleadings and an affidavit filed by its 26-year old manager, Tommy Womack.

The parties will be referred to as they were in the court below.

In their pleadings the parties have raised that phase of assumed risk which falls in the category known as the “no duty” cases, applicable to occupier-invitee situations. The other Texas concept of assumed risk, volenti, was not pleaded. The latter concept being an affirmative defense and not raised by the pleadings of defendant below, we believe it is unnecessary for us to discuss it.

This being a summary judgment case, the first rules we must apply are (1) that the court hearing the motion must not weigh the evidence or determine the credibility of affiants and deponents; and (2) he must accept as true all evidence of the party opposing the motion which tends to support such party’s contention, and give him the benefit of every reasonable inference which properly can be drawn in favor of his position. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929. These rules must be kept in mind as we consider the summary judgment evidence upon which the court summarily rendered its judgment.

At about 9:30 a. m., April 4, 1964, the plaintiff drove his station wagon up next to defendant’s white pickup truck parked just south of the door of a small, white building used as an office by defendant in Wildorado, Texas. It was a cold, windy, somewhat dusty spring morning. He was driving west and defendant’s pickup truck was facing the same direction. His deposition testimony shows that he drove up to the south of the truck within about three feet of it with the back end of his station wagon even with the window and cab of defendant’s pickup truck. He got out “in a hurry,” walked around the back of his machine because that was the nearest to the cab of the pickup in which Tommy Womack was sitting. He also stated in the deposition that the back of his station wagon was even with the glass in the cab of the pickup. As he approached the cab Tommy rolled the glass to the door down and told him he was “going right up here and weigh this pickup and will be back in a minute.” (Emphasis ours).

There were two cars parked in the direction the pickup needed to be driven in order to get to the scales, so Tommy asked Mr. Allred if he thought there was sufficient room for him to go through the space between the cars. Mr. Allred told him there was about six inches clearance on that side between the cars ahead of him and then Tommy “ * * * asked me to direct him through this traffic.”

“Well, he went on about this time, of course, the pickup passed and I just still watching him going through here, I just stepped in behind him.”

Appellant continued in his deposition to say that after Tommy had asked his advice as to whether he had room to go between the two parked cars he guided him through, still looking forward in the direction the pickup was moving. Then as the pickup passed he stepped in behind it on the way to the door of the little white office. Just as he stepped in behind the pickup a fertilizer trailer loaded with 7,000 pounds of fertilizer, which he did not know was attached to it, hit him.

“Q. Which way were you looking as you walked toward the building?
A. I was looking, guarding him on through there.
Q. In other words, at the time you started walking towards the building you were still looking towards the west and not towards the building.
A. That’s right. But I had my hand on the back of the pickup when it went by.”

The trailer was right in plaintiff’s face before he saw it. He was knocked down, dragged several feet, his trousers practically stripped off, the ligaments in his right knee were torn and a bone broken in his right ankle.

It is unquestioned in the record that we have an occupier-invitee situation because Mr. Allred was a customer of defendant and was on the way to its office at the time to see about purchasing some fertilizer, the merchandising of which was defendant’s business. Plaintiff pleaded defendant owed him certain duties and failure to fulfill those duties constituted negligence (1) in failing to warn him that a fertilizer tank was hooked to the pickup; (2) in failing to stop the pickup when he started to walk behind it to his right; and (3) in failing to keep a proper lookout for the plaintiff as he started behind the pickup. Defendant pleaded the fact that the fertilizer trailer was hitched or connected to the company pickup or the fact that said trailer was being pulled forward by the pickup were matters which were open and obvious and that defendant or its employee owed plaintiff no duty to do or refrain from doing any of the acts or failure to act alleged against it. The court found in its judgment that the pleadings and other summary judgment components; i. e., affidavit and deposition, show an absence of any genuine issue of any material fact. We do not agree.

Mr. Allred’s deposition was taken by defendant. He stated that at the time he drove up to the grounds of defendant its white pickup was parked right next to the south door of the little white office building; another pickup parked on the grounds nearby was white; and about fifteen fertilizer trailers just like the one he later learned was hitched to the pickup were parked side by side “just as close as you can put them.” When asked if he saw the tank hooked to the trailer, he replied: “No, I didn’t notice it because I was — all of the other tanks was right beside it, and it was right, almost against them.”

We do not propose in this opinion to trace the history of the doctrine of assumed risk or its concept relating to “no duty.” That was done most capably by Justice Greenhill of our Supreme Court who authored the Halepeska opinion. That opinion, and subsequent articles by Justice Greenhill in the Baylor Law Review and the Texas Bar Journal pointed up the several variances that have existed in opinions through the years by their Court in cases involving the doctrine of assumed risk in Texas and some material changes the Court has made from earlier pronouncements.

This case has one facet different to the many cases reviewed in Halepeska and the articles mentioned and that is the fact that defendant’s manager diverted the attention of plaintiff from the very condition that caused his injury. That was the hitch that showed the fertilizer tank to be attached to the trailer.

It must be kept in mind that Mr. Allred said he never saw the tank hitched to the pickup. That is a positive statement sworn to as part of the summary judgment evidence. In the Texas Bar Journal heretofore cited Justice Greenhill said: “What the Supreme Court did in the recent Hale-peska case was to be more certain that the plaintiff did know of the danger and did appreciate the risk.” He also said in the same paragraph that the court narrowed the factual inquiries to knowledge and appreciation of the danger as distinguished from “should have known and appreciated.”

In Halepeska the Court held that the standard to be applied is a subjective one. Then in the Bar Journal article heretofore cited Justice Greenhill stated:

“The question of whether a plaintiff knows of the condition, and knows of and appreciates the danger are subjective ones. Did this particular plaintiff know? Did he appreciate? He may say, and probably will say, that he did not know or appreciate. Dean Page Keeton objects to this subjective test because of the great temptation for the plaintiff to not tell the truth. But it is for the jury to pass on the truth of his statement, just as it is as to the defendant’s testimony in discovered peril cases.”

In the same periodical from which we have just quoted Justice Greenhill also said: “The age, experience, mental capacity of the person warned, and other facts are relevant.” The plaintiff here was 76 years of age. Since he got out of his machine and passed to the back of it on the way to the cab, which he said was even with it, we can see no particular reason, in view of the situation on the grounds heretofore described, as to why his attention would have been called to the trailer hitch. Even if he saw the hitch, which he denied, we do not believe he was required as a matter of law to know it was fastened to the back of the pickup. Anyone who has ever pulled trailers knows that people often unfasten the contraptions that seal the hitch to the pickup without shoving the propelling vehicle and trailer apart. Then when the pickup is driven forward the trailer extension that fastens itself to the pickup falls to the ground. We believe it is important that Tommy Womack told Mr. Allred he was going to weigh the pickup. There was never any suggestion that he was going to weigh the fertilizer tank. In quoting Justice Greenhill again from the Baylor Law Review and Texas Bar Journal supra, he stated: “My understanding of assumed risk is that the plaintiff is to be charged with knowledge only where the danger is patently obvious as a matter of law; i. e., so plain that ‘any fool could plainly see.’ ” This record does not show the danger that plainly.

In Hall v. Medical Bldg. of Houston, 151 Tex. 425, 251 S.W.2d 497 our Supreme Court speaking through Justice Smedley held that the basis for liability in the “no duty” case is the superior knowledge of the danger on the part of the occupier. It certainly cannot be said in this case that as a matter of law Tommy Womack did not have superior knowledge to that of Mr. Allred concerning the dangerous condition that led to plaintiff’s injuries.

One of the latest expressions from our Supreme Court on the question is Hernandez v. Heldenfels, Tex., 374 S.W.2d 196 in which the court “ * * * further limited the ‘no duty’ assumed risk cases by narrowing the activities (as contrasted with static conditions) to those which, generally speaking, are rigidly circumscribed and easily predictable.” Justice Greenhill, Texas Bar Journal, supra. Generally speaking, the cases before Hernandez were predominantly of static conditions.

If the Supreme Court would care to further elaborate on the “no duty” concept of assumed risk this case projects a new facet on which to do so; i. e., the effect of a diversion of an invitee by the occupier from the dangerous instrumentality or activity. Other than what we have already said, this writer is happy to leave that question to those more erudite on the subj ect.

When the rules established by the Court to this date are applied to the facts of this case, we feel compelled to hold that the record does not as a matter of law fail to negative the “no duty” concept of assumed risk.

Accordingly, the judgment of the trial court is reversed and remanded for a trial on the merits.

      . Halepeska v. Callihan Interests, Inc., Tex., 371 S.W.2d 368; “Assumption of Risk,” by Honorable Joe Greenhill, Justice, Supreme Court of Texas, Texas Bar Journal, Vol. 28, No. 1, p. 21, January 22, 1965.

      . Baylor Law Review, Vol. 16, p. 111 through 128.

      . Texas Bar Journal, Vol. 28, No. 1, beginning p. 21, January 22, 1966.
      These two articles are identical but carried on different dates in the named periodicals.

      . An example of such activities; i. e., rigidly circumstanced action, is found in McElhenny v. Thielepape, 155 Tex. 319, 285 S.W.2d 940, wherein plaintiff had watched a fixed rocking chair or glider in a doctor’s office being used by children for an hour and then when she got up, tripped over it. She had observed it moving hack and forth about six inches. The Court held as a matter of law that the activity was open and obvious.