author: DAVIS, Commissioner.

text:
    COMMONWEALTH of Kentucky, DEPT. OF HIGHWAYS, Appellant, v. Ted GEARHART et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 6, 1964.

      John B. Breckinridge, Atty. Gen., Wm. A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, 'Walter Mobley, Flemingsburg, J. G. M. Robinson, Caldwell & Robinson, Ashland, for appellant.
    John T. Diederich, H. David Hermans-dorfer, Ashland, J. W. Blackburn, Louisville, for appellees.
   DAVIS, Commissioner.

The appellant Department of.Highways is condemning a portion of appellees’ land for highway right of way incident to construction of non-access Interstate Highway 64. The jury awarded verdict to appellees for $65,000; this was itemized as $50,000 for the land taken, plus $15,000 resultant •damages to the remaining property. (Trial was had before Com., Dept. of Highways v. Sherrod, Ky., 367 S.W.2d 844.)

The appellant presents asserted errors in the admission of evidence and excessiveness ■of the verdict as its bases for this appeal.

Before the taking, the appellees owned a boundary of land containing approximately 154 acres. The property was being (and for many years had been) used for grazing a small amount of livestock. The land lies •about ten miles from Ashland, with about 2300 feet of frontage on Terrapin Road. The frontage along Terrapin Road is not disturbed by the instant taking. The right of way taken embraces about 61 acres; the nature of the taking also effectively severs an additional ten acres, more or less. The parties tried the case on the agreed premise that the severed land is included with the right of way taking, so that for practical purposes the total taking is of 71 acres.

The land taken is a strip running generally east and west along the entire southern portion of the farm. Embraced within the taking were the somewhat meager improvements on the place. (Appellees’ witness Alexander placed an aggregate value of $3,254 on all the improvements.) Numerous photographs depicting the improvements and the condition of growth on the surface confirm the description of the land as steep and hilly, except for a garden plot and about two acres of bottom land. The garden area is taken but the bottom land remains.

Near the southwestern corner of the original tract, at a jutting point, the western side of the. farm abutted Kentucky Highway 180; the latter was “hardtop” road, whereas Terrapin Road is gravel surface. After the taking the remaining land will not abut Highway 180. It appears that the general farm use of the property had been to and from Highway 180.

The Department offered six evaluation witnesses whose respective estimates are thus summarized:

Before Value After Value Difference
$15,000 $11,000 $4,000
14.900 7,715 7,185
11.900 4,800 7,100
14,200 7,900 6,300
14,041 7,951 6,090
31,763 17,267 14,495

It is appropriate to point out that the appellant’s witness who furnished the highest and last listed figure based his evaluations on his estimates of the presence of some recoverable #7 coal.

In sharp contrast, the appellees offered four witnesses who gave evaluation testimony as follows:

Before Value After Value Difference
$129,000 $16,400 $112,600
134,610 26,600 108,010
120,363 26,290 94,073
118,378 20,800 97,578

For the appellant it was shown that the entire property had been reported to the county tax assessor at the value of $2,345 for the two years next before the taking date.

The extremely wide variances in the values stem from the differences as to whether the land is underlain with recoverable coal in economically significant quantity and quality. For the Department there was evidence of three core drills, two of which were within the original boundary, and one just south of the tract. The Department’s witness stated that the #1 core drill reflected a vein of #7 coal, eight inches thick, at a point 139 feet, 3 inches below the surface. The coal experts for each side concede that an 8-inch vein could not be mined economically.

The #2 core drill was on the Brumfield property, just south of the southwestern portion of appellees’ farm. This core drill revealed a vein of #7 coal, 2 feet, 10 inches thick; the bottom of the vein was found 64 feet under the surface. The Department’s witness expressed the view that strip or auger mining could not be feasibly done in areas having overburden in excess of 40 feet on the back side of the stripping pit.

The #3 core drill was within the original farm boundary, at the northeast corner of the right of way strip. This drill disclosed three veins of #7 coal, varying in thickness from three inches to 30i/£ inches; the veins are separated by bone shale, and in the aggregate total 42 inches of workable coal.

The same witness for the Department expressed the view that none of the coal under appellees’ farm could be deep mined within economic limits.

Two of the appraisal witnesses offered for appellees based their evaluations upon the accuracy of a mining engineer’s report as to the quantity and quality of the coal. The mining engineer had prepared a detailed report, but the trial court did not permit the report to be introduced before the jury; the report was made part of the record by avowal. However, the mining engineer testified in person to the essential matters contained in his report. The engineer also had inspected one of three old drift mine openings on the property; he had observed a seam of #7 coal having thickness of 36 inches in that old opening. Additionally, the engineer had examined a fourth core drill, which had been obtained at the instance of appellees. The latter drill, referred to as hole #4, revealed a seam of #7 coal twenty-five inches thick.

The engineer for appellees explained that he had studied the land, its coal outcroppings, and the pertinent history of the area as it pertains to coal productivity. He gave as his estimate that 200,869.24 tons of recoverable coal are under 69.04 acres of the land taken. Of this total, he reckoned that only 7.82 acres could be recovered by strip or auger mining — that 61.22 acres of it would have to be deep mined.

The same engineer said that the coal under the remaining land could be mined, but that it is not as desirable as the coal underlying the taken land. He explained his reasoning as based on the factors that the remaining land would be too small to be attractive to buyers, that the height of the coal in the remaining land is not as adequate, and loss of accessibility to a “much better road.” The engineer admitted that he could not foretell just what areas would be mineable, nor what the exact thickness of the vein would be until the mining process is actually undertaken.

The appellees presented a topographical map upon which are indicated numerous strip and auger mining operations in the general vicinity of the instant land. Some significance may he given to the fact that the map fails to reflect any deep mining operations.

Appellees’ witness Seaton expressed the view that before the taking the coal could have been deep mined. It was the opinion of the witness that by reason’ of the taking the “coal value” to the remaining land was lost. He ascribed much of his reasoning for this to the premise that access to the-“hard road” (Ky. Highway 180) will be lost. This witness gave it as his judgment that the best, and indeed the only, feasible place to make a coal mining opening was in Ford Hollow, near the southwest portion of the farm — a place encompassed within the taken right of way. Significantly, this witness gave no evidence of having considered any of the four core drill holes, nor did he explain just how he was able to estimate what the extent of the underlying coal was. He is in the coal business, and did examine the coal openings. He said that he found the coal to be in workable size and “the conditions looked ideal.” The witness stated that in his estimate the roof material necessary for deep mining appeared “all right to me.” It is noted that the witness did not report any result of coal measurement in specific inches. The witness stated that the value of the land taken is $63,600 and the damage to the remainder is $49,000. Thus, he arrives at an after market value of $16,400 for the surface of the eighty acres left.

Appellees also presented evaluation witness Conley, who had seen the coal in the three old drift mines in 1932 or 1933, when the witness was fifteen years old. He recalled that the coal veins varied in thickness from 36 to 42 inches. This witness put a before value of $134,610 on the property; he said the after value is $26,600 — and this is for the surface only — the underlying coal on the remainder has no value. One prime reason he gave for considering coal under the remainder as valueless is the lack of ingress and egress to it: The witness disclaimed knowledge of the results of any of the four core drills. He said that he based his values on deep mining.

Appellee, Ted Gearhart, did testify but did not undertake to place any evaluation figures as to any facet of the case. He related that the three old drift mines had once been “leased out,” but that he had not done so; he did recall that he let Tom Enyart “go in one time.” Enyart testified and said that he mined 35-40 tons of coal from the premises some eight to ten years ago. Enyart quit the project because he had to walk too far to and from his home.

Other evidence for appellees relates to the land’s potential as a subdivision project. Evidence was presented that potentially valuable building sites near Highway 180 are taken.

Our purpose in relating the evidence for appellees in such detail is to lay foundation for proper examination of the critical question whether the verdict is so palpably excessive as to require reversal.

Patently, the verdict is within the range of the value figures. However, this alone is not sufficient to foreclose inquiry whether the verdict is palpably excessive; neither does it preclude testing whether the verdict is adequately supported by evidence of probative value. We have recognized the rule that a verdict will not be disturbed as excessive, generally, unless it shows bias or prejudice, or is based on estimates unsupported by the facts, or is so extravagant as to create a probability the estimates are incorrect. Salt River Rural Electric Co-op. Corp. v. Thurman, Ky., 275 S.W.2d 780; Com., Dept. of Highways v. Rankin, Ky., 346 S.W.2d 714; Com., Dept. of Highways v. Tyree, Ky., 365 S.W.2d 472, and authorities there cited.

In this case the appellees seek to demonstrate a market value, apart from the usual surface usages, based upon valuable coal deposits. There is no dispute that the matter of undérlying valuable minerals is a proper basis for computing market value ; the question is whether the quantum of proof at bar is of the character to support the instant verdict. In our view, the appel-lees have failed to adduce evidence of sufficient probative value to support the instant verdict.

As noted, one of appellees’ opinion witnesses pointed out that “history” of the area is significant. It is observed that the “history” of the instant land reflects that no commercially feasible coal operation has occurred there. Additionally, the experience records that many years ago there were certain overt activities looking toward exploitation of the coal deposits — but these have long since been abandoned.

The unkept condition of the land — so vividly portrayed by the photographs in the record — materially detracts from the credibility of opinion evidence placing “before” values in excess of $100,000. Coupled with this we have the “history” of the evaluation for tax purposes at less than $2,500. Admitting that this factor is not conclusive, it is, to say the least, shocking that appel-lees have been able to so “low-rate” this veritable diamond in the rough — the tax value is less than 2% of any “before” value fixed by the witnesses for appellees.

We would not be understood as holding that the four core drills present such ineluctable evidence as to admit of no dispute. However, we are not impressed by the probative value of estimates as to underlying coal, when made by witnesses who confessed utter ignorance of and indifference to the results of the core drills. This is the situation with respect to value witnesses Seat on and Conley. The other two value witnesses, without relating whether they had ever been apprised of the specific core drill results, premise their “before” market value estimates on the verity of the engineer’s report. The engineer, on whose report they relied, said that the coal, for the most part, was recoverable by deep mining only. Yet, the “history” of the area indicates that virtually all mining in the adjacent territory has been accomplished by the strip or auger methods.

We have pointed out that the value witnesses for appellees estimated that the loss of access to Highway 180 is a heavy damage factor to potential coal mining. In view of the fact that abundantly reasonable access to the highway system exists by way of Terrapin Road, it is doubted that any com-pensable loss for a projected future coal mining venture has resulted here. Cf. Com., Dept. of Highways v. Carlisle, Ky., 363 S.W.2d 104.

Appellees’ witness Alexander (who had predicated his testimony of value on the coal report of the engineer) gave it as his view that the “before” value of the entire tract was $47,352.00, without reference to any coal. Thus, he placed an average price of slightly more than $300 per acre on the 154.74 acres — purely on the surface value as distinguished from any potential mineral value. In view of the pictures of the farm, the assessed value of it, the general physical descriptions of it — coupled with the undisputed evidence of sale of land just across Terrapin Road from it at $75 per acre, it becomes impossible to give complete credence to the $300 per acre value. We think it is not unreasonable to relate the inflated value which this witness assigned to the land, without minerals, to the high value he mentioned when minerals are considered.

Our cases have consistently observed the rule that it is appropriate to admit testimony of the adaptability of property for particular uses, even though the property is not then being so used. However, the rule is subject to the qualification that if the land is reasonably adaptable to another use, there must be an expectation or probability in the near future that it can or will be so used. See East Ky. Rural Elec. Co-op. Corp. v. Smith, Ky., 310 S.W.2d 535, and Bowling Green-Warren County Airport Bd. v. Long, Ky., 364 S.W.2d 167, and cases discussed therein. The “history” of the instant property, plus the absence of any statement from its owner of an intention or purpose to cause its use for coal mining or town lot subdivision, tend to diminish the probative value of the evidence of its market value based on such uses. Cf. 4 Nichols, Eminent Domain, 3d Ed., Sec. 12.314.

Under all these circumstances, we are persuaded that the rationale of Com., Dept. of Highways v. Tyree, Ky., 365 S.W.2d 472, must rule this case. The high figures testified in behalf of appellees simply are not borne out by the proof from the very witnesses who gave them. We consider that the verdict is palpably excessive. Cf. United Fuel Gas Co. v. Mauk, Ky., 325 S.W.2d 339; United Fuel Gas Co. v. Mauk, Ky., 302 S.W.2d 368; Com., Dept. of Highways v. Lyons, Ky., 364 S.W.2d 336; Com., Dept. of Highways v. Rankin, Ky., 346 S.W.2d 714, and cases therein discussed.

This view makes it unnecessary to consider the questions raised concerning admissibility of evidence. Suffice it to say that upon another trial care will be taken that the separation of values as to timber will not be permitted; neither should sale of property to a corporation possessing power of eminent domain be accepted as a comparable sale.

The judgment is reversed for proceedings consistent with the opinion.


source: Caselaw Access Project

author: BELCHER, Commissioner.

license: Public Domain

text:
    Calvin L. DIXON, Appellant, v. The STATE of Texas, Appellee.
    No. 37099.
    Court of Criminal Appeals of Texas.
    Nov. 18, 1964.
    DeWitt O. Dunaway, Dallas, for appellant.
    Henry Wade, Dist. Atty., Eddie Davis, Steve Guittard, Ross Teeter and C. M. Turlington, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for robbery; the punishment, thirty-five years.

The evidence includes a written statement signed by the appellant, which the state introduced in evidence before the jury. The statement is incriminating and connects the appellant with the commission of the offense of robbery charged against him and for which he was herein convicted.

An issue as to the voluntary nature of the written statement was raised by the evidence. Such issue was submitted by the court in its charge to the jury without the trial court having resolved the issue of whether the written statement was voluntarily made. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, requires that the judgment be reversed and remanded for a trial at which the issue as to the voluntariness of the confession may be resolved. See Lopez v. State, Tex.Cr.App., 384 S.W.2d 345, and Harris v. State, Tex. Cr.App., 384 S.W.2d 349, decided November 11, 1964.

The judgment is reversed and the cause is remanded.

Opinion approved by the Court.


author: MORRISON, Judge.

text:
    Willie MARR, Appellant, v. The STATE of Texas, Appellee.
    No. 37085.
    Court of Criminal Appeals of Texas.
    Oct. 14, 1964.
    Rehearing Denied Dec. 2, 1964.

      Johnny M. Chirafis, Corsicana, for appellant.
    Jimmy Morris, County Atty., Corsicana, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is contributing to the delinquency of a minor; the punishment, six months in jail.

Three fifteen year old Corsicana Junior High School boys, including the boy named in the information, testified that on the night of the Corsicana-Palestine football game in 1963, as they were walking in the vicinity of the high school, they were accosted by appellant, who asked them if they wanted to go for a ride. They accepted and appellant drove out in the country, where he gave each of them some beer, committed an act of oral sodomy upon one of them, and felt of the private parts of the other two, each in turn.

Appellant’s confession recites that on the night of the Corsicana-Palestine football game in 1963, he picked up three boys close to the Corsicana High School, drove them out in the country, and felt of the private parts of two of the boys.

Appellant did not testify in his own behalf, but called witnesses who testified that he was at another and different place on the night in question. The jury resolved this conflict in the evidence against appellant, and we find the evidence sufficient to support the conviction.

Appellant’s contention that the evidence is insufficient to corroborate the testimony of the three accomplice witnesses is overruled under the authority of Scott v. State, 167 Tex.Cr.R. 77, 318 S.W.2d 650, and cases there cited where we have held that the testimony of an accomplice witness together with the confession of the accused is sufficient to establish the corpus delicti of an offense.

Appellant’s objections and exceptions to the Court’s charge present nothing for review because there is no showing that they were ever presented to the trial court or that he ruled thereon. Stone v. State, 171 Tex.Cr.R. 201, 346 S.W.2d 323.

Finding no reversible error, the judgment is affirmed.


text:
    Nathan SMOTHERMON, Appellant, v. The STATE of Texas, Appellee.
    No. 37231.
    Court of Criminal Appeals of Texas.
    Nov. 18, 1964.

      Brown & Shuman, by Dean Shuman, Lubbock, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

This is an appeal from an order revoking probation. Upon a plea of guilty before the Court, appellant was', on September 19, 1962, convicted for a felony in the District Court of Hale County.

Execution of sentence was suspended and appellant was placed on probation upon certain terms and conditions; among which were that he commit no offense against the laws of this State.

Thereafter, on February 13, 1964, the Probation Officer filed a motion seeking to have probation revoked alleging that appellant on January 27, 1964, in Hale County, Texas, was convicted of the offense of obtaining things of value with a worthless check, committed on January 23, 1964, and that such conviction was final.

On the hearing, evidence was introduced which supported the allegations of the motion to revoke probation. At the conclusion of the hearing, on February 18, 1964, the court entered its order revoking probation upon a finding that appellant had been convicted of the offense of defrauding with a worthless check in violation of the terms of his probation.

From such order appellant gave notice of appeal.

Appellant contends that the trial court erred in revoking his probation on the ground that the order granting probation was contained in a sentence based upon a void judgment, that is, that the judgment found him guilty of the offense of “forgery and passing”, and that the sentence was also void as it adjudged him to be guilty of “forgery and passing” which is an offense unknown to the law of this state.

It is noted on the judgment that the appellant was charged with the offense of forgery and passing. These offenses may be charged in separate counts and prosecuted together to final judgment, without election. Art. 1005, Vernon’s Ann. P.C. The judgment and ' sentence both recite that the conviction is for the offense of “forgery and passing.”

In Lovejoy v. State, 40 Tex.Cr.R. 89, 48 S.W. 520, it was held that although forgery and passing a forged instrument are separate offenses, under a general verdict of guilty upon an indictment for the two offenses the court may apply the verdict to the count for forgery, alone.

The judgment introduced shows that the appellant entered a plea of guilty to the charge in the indictment, which was for both making and passing a forged instrument, and his punishment was assessed at four years. The punishment assessed by the jury was a punishment authorized to be applied to either the offense of forgery or passing a forged instrument.

The judgment and sentence, under the decisions of this court, could have been reformed in a proper proceeding so as to adjudge appellant guilty of either offense. Clark v. State, Tex.Cr.App., 289 S.W.2d 248; Reynolds v. State, 163 Tex.Cr.R. 536, 294 S.W.2d 723; Rash v. State, 168 Tex.Cr.R. 33, 323 S.W.2d 53. But, it is essential that the court select a count sustained by the evidence.

Being subject to reformation, the judgment was not void. Ex Parte King, 156 Tex.Cr.R. 231, 240 S.W.2d 777.

It is insisted that the trial court erred in relying on a judgment of conviction for the offense of defrauding with a worthless check as a basis for revoking the probation on the ground that the judgment of conviction was not final.

The judgment of conviction introduced in evidence by the state, appears regular on its face, and shows appellant’s conviction for defrauding with a worthless check in the county court of Hale County, Texas, on January 27, 1964., No notice of appeal is shown to have been given. If said conviction was not final, it became a matter of defense subject to proof. Ellis v. State, 134 Tex.Cr.R. 346, 115 S.W.2d 660; Broghton v. State, 148 Tex.Cr.R. 445, 188 S.W.2d 393; Whiddon v. State, 160 Tex. Cr.R. 23, 266 S.W.2d 167; Woolsey v. State, 166 Tex.Cr.R. 447, 314 S.W.2d 298.

The evidence is sufficient to support the court’s order revoking probation and no abuse of discretion being shown, the judgment is affirmed.

Opinion approved by the Court


author: WOODLEY, Presiding Judge.

text:
    Willie Lee FRANKLIN, Appellant, v. The STATE of Texas, Appellee.
    No. 37180.
    Court of Criminal Appeals of Texas.
    Nov. 18, 1964.
    No attorney of record on appeal for appellant.

      Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The conviction is for negligent homicide in the second degree; the punishment, a fine of $3000.

We have not been favored with a brief in appellant’s behalf.

The unlawful act relied upon by the state was the violation of Art. 6701d, Sec. 52, Vernon’s Ann.Civ.St., which requires motor vehicles to be driven on the right half of the road except under those circumstances enumerated in the statute.

The information appears to comply with this Court’s holding in Martinez v. State, 163 Tex.Cr.R. 8, 288 S.W.2d 787.

The somewhat voluminous record reveals that appellant was driving a tractor truck with a butane trailer on a highway west of Victoria. It had been raining. On a curve the truck sideswiped a pickup truck traveling on its side of the highway in the opposite direction, and thereafter collided head-on with an Oldsmobile auto also traveling in the opposite direction. The Oldsmobile was propelled backwards some 222 feet and its four women passengers died as a result of the collision.

Testimony of state witnesses shows that appellant lost control of his vehicle while traveling approximately 60 miles per hour in a 45 mile zone and that the truck skidded to the left half of the highway, collided momentarily with a Central Power & Light Company service truck, and then met the second automobile head-on.

Appellant, as a witness in his own behalf, testified that he maintained control of his vehicle at all times prior to the collision with the service truck, and that his vehicle then “jackknifed” and collided with the Oldsmobile occupied by the four ladies who were killed. Appellant denied that he was speeding at the time of the collision with the service truck.

The jury chose to believe the state’s witnesses.

That appellant may not have been in control of his vehicle at the time would be no defense to the unlawful act of driving on the left side of the highway. Patterson v. State, 163 Tex.Cr.R. 482, 293 S.W.2d 656; Kirkland v. State, 162 Tex. Cr.R. 424, 285 S.W.2d 743.

The judgment is affirmed.


text:
    Bennett HIXSON, Appellant, v. The STATE of Texas, Appellee.
    No. 37160.
    Court of Criminal Appeals of Texas.
    Nov. 4, 1964.
    Rehearing Denied Dec. 2, 1964.

      W. S. Foster, Waco, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for driving while intoxicated; the punishment ten days in jail and a fine of fifty dollars.

The testimony of the state reveals that while Julio Hurtado was stopped in his automobile facing a red traffic light at a public street intersection, the appellant drove his automobile into the rear of Hurtado’s automobile.

Officer Summers testified that when he arrived at the scene of the collision the appellant was outside his car, and that appellant told him that he was driving the car at the time of the collision. He further testified that appellant had the odor of alcohol on his breath and staggered while walking, and that after appellant gave his written consent a blood specimen was taken from him.

The testimony of a chemist who made an analysis of the blood specimen reveals that the specimen had an alcoholic content of 0.18 per cent, and that such content was indicative of intoxication.

Testifying in his own behalf, the appellant stated that he was not driving the car at the time of the collision but that his wife was, and that they had changed positions so she would not get a ticket for not having a driver’s license; and on cross-examination, he admitted drinking several beers before the collision, all of which testimony was corroborated by his wife.

The statement of facts is in narrative form. There are no formal bills of exception and no obj ections to the court’s charge.

The evidence is sufficient to support the conviction and no error appearing, the judgment is affirmed.

Opinion approved by the Court.


author: DICE, Commissioner.

text:
    Ex parte K. BRADFORD.
    No. 37281.
    Court of Criminal Appeals of Texas.
    Nov. 18, 1964.
    No attorney for relator in this Court.
    J. Albert Pruett, Jr., Asst. Dist. Atty., Angleton, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

This is an application for writ of habeas corpus certified to this court by Honorable T. M. Gupton, Judge of the 23rd District Court of Brazoria County, together with certain facts ascertained at a hearing.

We shall treat the proceedings as an original application to this court, in view of Judge Gupton’s action in refusing to grant the writ of habeas corpus.

It has now been made known to this court that relator is no longer confined, and the question raised by his application has become moot. Ex parte Brown, 374 S.W. 2d 895.

The application for writ of habeas corpus is ordered dismissed.

Opinion approved by the court.


author: WILSON, Justice.

text:
    Thomas O. GOYNE et al., Relators, v. Hon. D. Y. McDANIEL et al., Respondents.
    No. 4304.
    Court of Civil Appeals of Texas. Waco.
    Oct. 29, 1964.
    Rehearing Denied Nov. 19, 1964.
    Jones, Boyd, Westbrook & Lovelace, Waco, L. Wayne Scott, Austin, for rela-tors.
    Haley, Koehne, Fulbright & Winniford, Waco, for respondents.
   WILSON, Justice.

Relators, by motion, seek leave to file petition for mandamus to require the trial judge to render judgment on an incomplete jury verdict. The motion is overruled, and leave is denied.

In a personal injury suit arising out of an automobile collision, 21 special issues were submitted. The jury was able to agree on answers to only eight of these. Those answers which are material found plaintiff was not negligent in any respect submitted; that immediately prior to the collision there was a mechanical failure in plaintiff's automobile; that sudden application of brakes by plaintiff immediately before the collision created an “emergency,” defined as “a condition arising suddenly and unexpectedly and not proximately caused by any negligent act or omission” of defendant driver “and which calls for immediate action on his part without time for deliberation”; that after the emergency arose defendant driver did what an ordinarily prudent person would have done under the same or similar circumstances; and the collision was not the result of an unavoidable accident.

Unanswered issues related to defendants’ negligence in several respects and to whether such negligence was a proximate cause.

The trial court declared a mistrial, reciting in the order' that “the verdict of the jury is wholly incomplete and not legally sufficient to support a judgment.” Defendants say the findings on the issues answered entitle them to judgment, and the unanswered issues should be disregarded.

“[A] finding on some of the submitted issues does not defeat a litigant’s right to have other submitted issues answered, merely because such other answers may be conflicting”. Blanton v. E. & L. Transport, 146 Tex. 377, 207 S.W.2d 368, 369. See Panhandle & S. F. Ry. Co. v. Sutton, 125 Tex. 401, 81 S.W.2d 1005, 1007; Le Beau v. Highway Ins. Underwriters, 143 Tex. 589, 187 S.W.2d 73.

Leave to file the petition is denied.

ON MOTION FOR REHEARING

Relators insist the trial court should be required to enter judgment on the partial verdict because plaintiff, by failing to object to its being received, “waived any right to have unanswered issues answered.” They rely on such decisions as Lewis v. Texas Employers’ Ins. Ass’n., 151 Tex. 95, 246 S.W.2d 599, 600.

The contention overlooks what is held to be waived under the Lewis rule. The court there said, “The question at bar is not whether the court committed error but whether that error must be preserved by timely objection in order to be reviewed on appeal.” There it was the “right to complain of a procedural error” which was waived. The court said refusal to require the unanswered issues to be answered “may have been reversible error”. What was” there waived was the right to attack a judgment for a procedural error by failure to preserve the error.

What relator asks us to hold is that by failing to require unanswered issues to be answered plaintiff waived the right not to have judgment rendered against him; that relators thereby acquired a right to judgment. Waiver does not create a right. Southland Life Ins. Co. v. Vela, 147 Tex. 478, 217 S.W.2d 660, 663; Washington Nat. Ins. Co. v. Craddock, 130 Tex. 251, 109 S. W.2d 165, 167, 113 A.L.R. 854. It is the relinquishment of a right. Robison v. Puckett, 145 Tex. 366, 198 S.W.2d 74, 78.

The rule urged applies to judgments rendered; not to the right to require a judgment to be rendered. Panhandle & S. F. Ry. Co. v. Sutton, 125 Tex. 401, 81 S. W.2d 1005. The motion for rehearing is overruled.


author: McDONALD, Chief Justice.

text:
    Robert Larry DAVIS, Appellant, v. Carl Glenn WILLIAMS, Appellee.
    No. 4278.
    Court of Civil Appeals of Texas. Waco.
    Oct. 15, 1964.

      Painter & Painter, Houston, for appellant.
    Cattanach, Capps, Turner & Coe, Houston, for appellee.
   McDONALD, Chief Justice.

This is a venue case. Plaintiff Williams brought this suit against defendant Davis for damages resulting from defendant’s alleged negligence when defendant ran his automobile into the rear of plaintiff’s automobile on Hempstead Street in Houston, Harris County, Texas. Defendant filed his plea of privilege to be sued in Potter County, the county of his residence. Plaintiff filed controverting plea alleging negligence on the part of defendant in Harris County, Texas within the meaning of Section 9a, Article 1995 Vernon’s Ann.Tex.Civ.St. After hearing without a jury, the Trial Court overruled defendant’s plea of privilege.

Defendant appeals, contending the Trial Court erred in overruling his plea of privilege because 1) plaintiff did not prove by a preponderance of the evidence that the event complained of occurred in Harris County, Texas; 2) plaintiff did not prove by a preponderance of the evidence any act of negligence on the part of defendant.

The defendant Davis testified that the collision made the basis of suit in this case, occurred on the Hempstead Highway where it intersects with Mangum Road; that he thought such location was in the City of Houston and in Harris County. Defendant further testified that he had 4 or 5 drinks prior to the accident; that he ran into the rear of a car when such car was stopped at a signal light; that he saw such car about 125 feet back; hit his own brakes; but still hit the car in the rear; and that he had been told the plaintiff Williams was the driver of the car he hit. The witness Fain testified he was a police officer of the City of Houston and he investigated the accident; that the accident occurred in the 10,300 block of Hempstead; that the 10,300 block of Hempstead is in Harris County and is in the City of Houston; and that defendant Davis was driver of the automobile striking the other automobile from behind, and the plaintiff Williams was driving the automobile struck by defendant Davis.

We think the evidence ample to support the Trial Court’s determination that defendant was guilty of negligence occurring in Harris County, Texas. Defendant’s contentions are overruled and the judgment of the Trial Court is affirmed.


text:
    Frances M. TAMBURELLO et al., Appellants, v. Carl A. WELCH, Appellee.
    No. 4267.
    Court of Civil Appeals of Texas. Waco.
    Oct. 22, 1964.
    Rehearing Denied Nov. 12, 1964.

      Talbert, Giessel, Cutherell, Barnett & Stone, Robert O. Campbell, Houston, for appellant.
    James P. Wallace, Houston, for appellee.
   McDONALD, Chief Justice.

This is an appeal from a judgment for plaintiff for $9,258.25 jointly and severally against two defendants in an automobile collision case.

Plaintiff Welch brought suit against defendants Tamburello and Crutchfield for damages sustained in a 3-car collision. Plaintiff alleged that the collision was the direct and proximate result of negligence of both defendants. Defendant Crutchfield answered, denying the accident was caused by any negligence on his part, and alleged it was caused by plaintiff’s own negligence. Defendant Tamburello answered that the collision was caused by the negligence of defendant Crutchfield, and not by any negligence on her part.

Both defendants requested the Trial Court to allow each defendant six separate peremptory challenges, which request the Trial Court denied.

Trial was to a jury which found both defendants guilty of separate acts of negligence proximately causing plaintiff’s damage. The Trial Court entered judgment for plaintiff against both defendants upon the verdict (after allowing a $241 remittitur filed by plaintiff).

Defendants appeal, contending the Trial Court erred in refusing to give six peremptory jury challenges to each defendant.

Rule 233, Texas Rules of Civil Procedure provides that each party to a civil suit shall be entitled to six peremptory challenges in a case tried in the district court. The word “party” as used in the rule does not mean the same thing as the word “person.” Whether two defendants are parties within the meaning of Rule 233 so as to be entitled to separate peremptory challenges, depends on whether their interests are, at least in part, antagonistic in a matter that the jury is to be concerned with. The question, therefore, is whether there is antagonism on a fact matter upon which the jury may be called to pass. Retail Credit Co. v. Hyman, C.C.A., er. ref., 316 S.W.2d 769.

Error, if present, of denying each defendant six peremptory challenges, is not reversible unless the record reflects that it was an error reasonably calculated to cause, and probably did cause the rendition of an improper judgment. Rule 434, T.R.C.P. To determine whether any error probably caused the rendition of an improper judgment, the reviewing court must look at the whole record of the trial. The burden to show harm is upon the appellants. Their only effort here was to state that if given the three each additional peremptory challenges, they would have struck certain jurors who sat on the case. No reason was given or developed on motion for new trial as to why such jurors would have been struck, or that they were biased, prejudiced, or that they did not render an impartial verdict. Appellants have shown no harm. Retail Credit v. Hyman, C.C.A., ref., 316 S.W.2d 769; Texas Emp. Ins. Ass’n. v. Shropshire, C.C.A. (n. r. e.), 343 S.W.2d 772.

Defendant Crutchfield further contends that the Trial Court erred in awarding plaintiff $1028.25 damages for future pain and suffering in that there was no evidence to sustain such finding. Plaintiff testified he had a constant dull ache in his ankle and recurring pain in his knee as a result of the injuries he received in the accident. He further testified he had only gradual improvement over a year’s period. We think such evidence sufficient to sustain the finding and judgment. The jury is the judge of the facts proved, and also of inferences to be drawn therefrom. McElroy v. Luster, C.C.A., ref., 254 S.W.2d 893; Jacobe v. Goings, C.C.A., er. dis., 3 S.W.2d 535; Lockley v. Page, 142 Tex. 594, 180 S.W.2d 616.

All of defendants’ points and contentions have been considered and are overruled.

The judgment of the Trial Court is affirmed.


author: TIREY, Justice.

text:
    LUMBERMEN’S INVESTMENT CORPORATION, Appellant, v. Willie Fred BROWN et ux., Appellees.
    No. 4285.
    Court of Civil Appeals of Texas. Waco.
    Oct. 29, 1964.

      Richard L. Stone, Jacksonville, for appellant.
    William J. McKie, Corsicana, for appel-lees.
   TIREY, Justice.

This is a venue case. The Lumbermen’s Investment Corporation has perfected its appeal from an order overruling its Plea of Privilege to be sued in Travis County, the County of its residence. As we understand Appellant’s brief it asserts two errors and designates them as follows:

“POINTS OF ERROR:
“The Trial Court erred in overruling the Appellant’s Plea of Privilege to be sued in Travis County, Texas, since the Plaintiffs failed to allege and prove that their action was one to remove an encumbrance upon real estate' within the (a) meaning of Subdivision 14 of Article 1995, Texas Revised Civil Statutes, or (b) came within Subdivisions 23 or 29a.”

Appellees in their brief say:

“Plaintiff is relying only on Subdivision 14 of Article 1995 since'the other Defendant, Raymond Teague, dba Lone Star Builders, has been dismissed from the suit”

Plaintiffs went to trial on their original petition and their controverting affidavit. We quote the pertinent parts of plaintiffs’ petition:

“1. Plaintiffs reside in Navarro County, Texas. Defendant Lumbermen’s Investment Corporation is a corporation with offices at 2501 N. Lamar St, Austin, Texas, and defendant, Lone Star Builders is a company doing business at 219 Jackson Street,^ in Jacksonville, Texas. :
“2. Heretofore, in early June, 1962 Scheumack Brothers Roofing Company, of Austin, Texas, and Lone Star Builders, of Jacksonville, Texas accepted Plaintiffs’ application to make certain improvements on their property located at 1412 East Ninth Avenue, Corsicana, Navarro*County, Texas. At that time the salesman advised plaintiffs that they would have disability insurance which in the event plaintiff, Willie Fred Brown, became disabled that the payments for the improvements would be made by American National Tnsur-anee Company.
“3. Thereafter, the improvements were made and the note was sold by the builders to Defendant, Lumbermen’s Investment Corporation. Thereafter,,, plaintiff Willie Fred Brown was shot and disabled and has-been disabled sinee-January, 1963, but Defendant Lumbermen’s Investment Corporation now says that no disability insurance was provided for by' defendant, Lone .Star Builders as originally agreed between the parties, and since being disabled plaintiffs have not made the payments and Lumbermen’s Investment Corporation is threatening to foreclose.
“4. The work on the improvements was commenced and materials were placed upon the property before these plaintiffs executed a mechanic’s lien, and for that reason they allege that said lien is void.
“5. Plaintiffs also allege that since defendant, Lone Star Builders, were negligent in not provided for said disability insurance that they, Lone Star Builders, should be required to make all payments becoming due while plaintiff, Willie Fred Brown, is disabled.
“6. Plaintiffs say that they are entitled to an injunction against Lumbermen’s Investment Corporation to prevent them from attempting to foreclose upon this void mechanic’s lien; that they have no other remedy at law, and that they will be irreparably damaged unless this relief is granted.”

In their prayer they asked for a temporary injunction and prayed upon final hearing that defendants be enjoined from attempting to foreclose upon said mechanic’s lien, and that the lien he declared void, and asked for other relief, not pertinent here.

Plaintiffs, in their Controverting Plea, incorporated their original petition. On trial they introduced a copy of their original petition and a copy of the Controverting Affidavit. It was stipulated that the allegations contained in the Plea of Privilege of Raymond Teague, doing business as Lone Star Builders, as well as the allegations contained in the Plea of Privilege of Lumbermen’s Investment Corporation, are true and correct, save and except the allegation that there is no exception to the venue statute, and further “that Lumbermen’s Investment Corporation owned the debt and lien created by the mechanic’s lien contract.” In the controverting plea to Lumbermen’s Investment Corporation’s plea of privilege, plaintiffs relied upon Subdivision 14 of Art. 1995, maintaining that the action was one to remove an encumbrance upon land located in Navarro County, Texas, and also relied upon Subdivisions 23 and 29a. However, plaintiffs waived the provisions of Subdivisions 23 and 29a as heretofore stated, and because of the waiver these provisions passed out of the case and need not be considered further.

In its argument appellant says:

“The plaintiffs in their petition failed in three respects to bring this action within Subdivision 14 of Article 1995. First, the plaintiffs failed to allege or prove that the property described in the Mechanic’s Lien Contract was the homestead of the plaintiffs at the times material to the cause of action. Secondly, the plaintiffs failed to (a) set forth in their petition a legal description of the property in controversy, (b) mention the contract by parties, date and recordation, much less incorporate it by reference and make it a part of the petition. Third, the plaintiffs in their suit primarily seek in-junctive relief, and that being the main purpose of the suit, the prayer for a declaration that the lien was void was merely incidental to the injunctive relief being sought.
“The plaintiffs’ petition contained the legal conclusion in the allegation of paragraph 4 thereof in stating that the lien was void since the work commenced before the Mechanic’s Lien Contract was executed.”

We are not in accord with Appellant’s view. Here the plaintiffs’ petition shows that it is a suit to have declared void a mechanic’s lien on certain property located in Navarro County, Texas.

Much has been written by our Appellate Courts on what venue facts are necessary to be proved in order to bring a cause within the provisions of Subdivision 14 of Article 1995, Vernon’s Ann.Tex.St., aforesaid. We think one of the clearest statements to be found is in the opinion of Chief Justice Hickman, a member of the Eastland Court, in Higginbotham-Bailey-Logan Co. v. Hancock, et ux., Tex.Civ.App., 4 S.W.2d 583, n. w. h. There we find the following pronouncement :

“When a controverting plea to a statutory plea of privilege is filed, showing that the plaintiff relies upon a particular exception of article 1995 to sustain venue in the trial court, the merits of the controversy are not thereby put in issue, but only such facts as are necessary to show that plaintiff’s case comes clearly under such exceptional provision. In cases of trespass to try title or suits to remove incumbrance upon the title to land, there can be but two questions put in issue on a plea of privilege; namely, the nature of plaintiff’s cause of action and the location of the land. The best evidence of the nature of the cause of action in a suit of that character is the pleading itself. What more proof should plaintiff be required to make in order to maintain venue than that his action is clearly one of trespass to try title, or to remove an incum-brance, and that the land is situated in the county where suit is filed? Nothing short of proof of these facts would hold the venue, and we can conceive of nothing more as being required.”

The Commission of Appeals, opinion adopted, in Cowden v. Cowden, 143 Tex. 446, 186 S.W.2d 69, gave its approval to the doctrine announced in the aforesaid opinion of Justice Hickman, and the Supreme Court has not seen fit to change or modify it. The opinion of the Supreme Court in Cow-den v. Cowden has been necessarily and consistently followed. See Shepherd’s Citator. In the Cowden case cited, we find:

“Appellant’s pleadings showed that he was suing to recover lands and for damages thereto. The proof showed that a part of the land was situated in Midland county. Therefore, as to the part so situated, he had done all that the law required him to do to defeat the plea of privilege.”

In the case at bar it is without dispute that the plaintiffs’ pleadings show that they are seeking to have declared void a Mechanic’s Lien existing on their land located in Navarro County, Texas, and that they are asking that such lien be declared void, and proof shows without dispute that the land is located in Navarro County, Texas. Under the decisions above cited we think the plaintiffs have carried their burden.

Accordingly, each of Appellant’s Points is overruled and the judgment of the Trial Court overruling its Plea of Privilege is affirmed.


text:
    DANAHO REFINING COMPANY, Appellant, v. PAN AMERICAN PETROLEUM CORPORATION et al., Appellees.
    No. 4275.
    Court of Civil Appeals of Texas. Waco.
    Oct. 22, 1964.
    Rehearing Denied Nov. 12, 1964.

      Kelley, Ryan & Merrill, Houston, for appellant. ■ ■ i
    Vinson, Elkins, Weems & Searls,.Housr ton, William E. North, San Antonio, Baker, Botts, Shepherd & Coates, William R. Choate, J. L. Bianchi, Ernest H. Brown, Dean J. Capp, Houston, Morrison, Dittmar, Dahlgren & Kaine, San Antonio, Maco Stewart, Galveston, and Sidney Farr, Houston, for appellees.
   WILSON, Justice.

Danaho Refining Company appeals from a take-nothing judgment on an instructed verdict in its action against appellees in which Danaho sought $5,000,000 actual and exemplary damages arising out of alleged violations of the Texas anti-trust laws, Arts. 7426-7447, and of Art. 6008b, Vernon’s Ann. Tex. St., and an alleged common law conspiracy. We affirm.

Danaho sued some 20 individual and corporate owners of the Burnell-North Pettus recycling plant and Triangle Refineries, Inc., alleging that these appellees and others, by their method of operating the plant and the marketing of liquid petroleum products therefrom, had unlawfully combined contrary to the Texas anti-trust laws and had entered into an agreement or conspiracy in contravention of the common law for the purpose of injuring or destroying Dan-aho’s business, and that their conduct proximately caused the damages prayed for. An injunction was sought.

The petition alleged that plaintiff Danaho acquired a small refinery in Bee County in 1945 which it improved and developed; that its business was profitable until 1958, when the volume and profit of its business began a gradual decline culminating in the loss of all its business and in insolvency. It was pleaded that in 1947 appellee plant owners'and others had unitized their oil and gas. leases and commenced joint operation thereof in the Burnell and North Pettus Fields in three counties; that in 1949 ap-pellees and others not parties jointly constructed, operated and owned a gas gathering system and gas recycling plant three miles from the Danaho refinery, committing themselves to deliver their gas production to the plant; that the plant made finished motor gasoline and other refined products which were held in and sold from jointly owned and operated common storage tanks. It was averred that the plant-owner appellees entered into identical written contracts with appellee Triangle under which the plant products were sold by Triangle in the same marketing area as Danaho’s; that Triangle collected the proceeds of sales, retaining 4% and remitting 96% for distribution among the appellee plant owners in accordance with their respective ownership interests; that the owner of the largest plant interest, Pan American Petroleum Corporation, was made plant operator, acting for all owners at their joint expense in supervising operations, delivery of products and accounting, under general advice of a plant committee; that appellees also so refined and marketed gasoline from the production of others who owned no interest in the plant.

Danaho pleaded that appellees began about 1958 to “fix prices and to otherwise conspire together in such manner as to drive” it out of business and eliminate it as a competitor; that acting through Triangle they cut their gasoline prices below Danaho’s prices, causing decrease in volume sold by Danaho to its customers, and increase in volume bought from appellees, thereby depressing price levels below those which would have prevailed under fair competition ; that appellees used price discounts for payments made within a specified time and for large volume purchases; that lower prices were charged Danaho’s customers than others; that usurping of 'Danaho’s market reduced its refinery “throughput” thereby increasing its cost, reducing its profit and impairing Danaho’s ability to buy charge stocks (liquid hydrocarbons to be refined) ; that appellant had tried to buy charge stocks produced by appellees but was unable to do so on a reasonable basis, but in 1960 some of appellees sold to it such products at a price 500 above the market price.. It was also alleged that appellees had conspired to destroy Danaho’s credit and business standing by disparaging utterances and wrongful conduct.

It was assorted that appellees’ conduct had decreased Danaho’s gasoline sales 160,-000,000 gallons below what the volume “could reasonably have been expected to be” and that its revenues had been decreased from 10 to 20 per gallon; that the profitability of Danaho’s operations were “proportionate to the volumes of charge stock run through its refinery and that the unlawful conduct of defendants has, since 1957, decreased such throughput by 2,000,000 barrels below what plaintiff could reasonably have expected.” It claimed the value of its refinery had been destroyed except for salvage.

After a two weeks’ trial the court sustained appellees’ motion for instructed verdict which asserted, among other grounds, that there was no evidence tending to show a conspiracy or agreement to cause plaintiff harm, injure its business, impair its credit, control gasoline prices or deprive it of charge stocks; that there was no evidence of a combination for any purpose prohibited by statute; and that there was no evidence of any causal connection between any alleged conduct of appellees and Dana-ho’s claim of loss or injury.

Danaho’s points attacking the instructed verdict are to the effect that the evidence shows appellees’ combined marketing activities and refining operations constituted per se violations of Arts. 7426, 7427 and 6008b, which caused damage to Danaho; and the evidence raised issues as to whether appel-lees combined and conspired to, and did drive appellant out of business.

There is no direct evidence of any agreement, combination or conspiracy by appel-lees to drive Danaho out of business, and it is unnecessary for us to decide whether the circumstances shown would raise such issues, or whether the evidence makes issuable the violation of the enumerated statutes. Much of the eight-volume record, the numerous exhibits and appellant’s briefs are devoted to these matters. We are convinced the action of the trial court was proper because there is no evidence beyond a scintilla that appellees’ conduct caused the injury of which Danaho complains. To demonstrate this conclusion it is necessary to summarize briefly the applicable record, much of which consists of admissions of appellant’s president at the trial.

Although Danaho ascribes the extinction of its business to loss of volume and profits resulting from appellees’ conduct only after 19S7, it is necessary to examine the circumstances from the beginning.

Danaho, a corporation organized by its president, Hovey, bought a small refinery at Pettus in 1945 for $40,000 cash and a note for $100,000. It was “one step above junk”. In 1946 a thermal cracker was added, and in 1955 a platformer was installed. These and other improvements cost over $1,000,000 for which the plant was from time to time mortgaged. It continued to be encumbered until a 1957 mortgage securing a $420,000 indebtedness was released in 1962. In 1945 the refinery had a daily crude oil refining capacity of 1000 barrels “throughput”. The capacity was increased after the first four or five years until in 1954 it reached 5000 barrels per day, but during this period it was not “running to its then capacity from year to year”, except for the earlier years. Never thereafter did the refinery operate at capacity. The maximum throughput “in all those years was between 3500 and 4000 barrels.” In 1951 it operated at 60% capacity. It was “down to about 40% in 1954.” Notwithstanding, the following year Danaho increased the plant capacity to 10,000-12,000 barrels per day based on the expectation of completing a pipeline to San Antonio. The latter project had to be abandoned in 1956 because of Danaho’s inability to market $1,500,000 securities, and there was no need for the expensive capital improvements by which the capacity had been enlarged. The securities marketing expense to Danaho was $300,000, and the preparations for the anticipated improvements cost many thousands more. The entire refinery was shut down for six months. The previous expansion units had been shut down before, after only five years’ operation. The thermal cracking unit, which had cost $250,000, was “shut down between 1954 and 1956 because it was no longer practical to run it.” Danaho was seeking additional capital to replenish that depleted by its difficulties, and was then having difficulty in negotiating essential bank loans. It was required to exhaust operating capital in paying off its mortgage bonds and debentures.

Danaho’s current liabilities exceeded its current assets every year from 1950 to 1963, its president testified. The “working capital was a red figure for each of the years 1950 to 1963 inclusive.” No dividend was ever paid on its common stock. “In 1954 and 1955 Danaho Refining Company was broke” he said.

Danaho had been selling 40% of its output to the United States Air Force as jet fuel. It lost that business in 1954 when its contract was not renewed. Nearly half of its sales total was thereby lost. In 1958, Hovey testified, Danaho reduced its gasoline production in order to increase output of jet fuel, for which it had no market, in an attempt to diversify.

Beginning in 1954 another 20% of Dana-ho’s total production was being sold to Humble Oil & Refining Co. In 1961 or 1962 Humble, which had been “Danaho’s largest purchaser of gasoline”, obtained its own supply source and built a recycling plant in the area, and Danaho consequently lost that business.

Danaho’s next two largest purchasers of gasoline were Sigmor Oil Company and Sunset Service Company in San Antonio. In 1961 or 1962 some of Sunset Service’s retail outlets were bought by Signal Oil & Gas Company, which had its own refinery. In 1962 the Sunset Service was divided so that a third of its stations were acquired by Phillips Petroleum Company, and another third were sold to Hancock Oil Company. Sigmor, the other large account, sold out to • Shamrock Oil & Gas Company about the same time.

Danaho points to records which show a comparison of its gasoline prices with Triangle’s beginning in 1958, and which reflect that during most of the period covered to 1962 Triangle’s prices to Sunset and Sigmor were from to or more lower than Danaho’s. It then urges a correlation between this fact and Danaho’s declining volume of sales during the same period.

Danaho’s peak sales volume was reached in 1957 with 35,232,322 gallons sold. Sales decreased as follows: 1958, 26,613,206; 1959, 22,422,807; 1961, 16,768,879; 1962, 5,034,782. Danaho’s profit per barrel, however, fluctuated as follows: 1957, 7^; 1958, 8‡; 1959, 9(5; 1962, 1(5. Its records show, notwithstanding, that its greatest throughput since beginning operations was in 1960, when it substantially increased the preceding annual sales, but sustained thereby a 4(5 per barrel loss. The record establishes that most of Danaho’s prices were for 90 octane gasoline, while Triangle’s was for 87 octane. During several months of the period where 90 octane sales are compared, Dana-ho’s prices are lower than Triangle’s. The evidence shows that Danaho’s sales of regular gasoline to customers it does not contend Triangle competed for likewise decreased after 1957.

Triangle had other competitors in the market area besides Danaho. Some of these had “taken business away” from Danaho. The price comparison with these competitors is not shown. Danaho’s president testified in response to his counsel’s questions: “Q. Mr. Hovey I will ask you whether or not, in order to hold volume of finished products produced at the Danaho plant, that you have had occasion from time to time to cut prices? A. We have. Q. Is that common or not in a marketing area such as the San Antonio area? A. That is common. Q. How else can you hold volume except on some character of a price basis in selling finished products from any refinery? A. That is the major factor. The quality is the next. Q. Is it true that each time you cut your prices to meet competition that Triangle would in turn cut its price?” (Objection sustained).

Danaho manufactured and sold premium or ethyl gasoline; Triangle did not. Thus, Triangle did not compete with Danaho on sales of this product. Danaho’s 98 octane premium gas was sold to various outlets in its San Antonio and Austin market area other than those to which Triangle sold. After 1957 Danaho’s sales of premium gas declined 50%, just as had its sales of “regular” gasoline, and it (about 1960) shut down its facilities for making this product, and thereafter bought its premium gas supply from Suntide Oil Co. Danaho’s president listed five Danaho area competitors on gasoline sales. His San Antonio refinery competitors had a 76 mile transportation cost advantage on gasoline which amounted to %(£ per gallon. The president testified that two of his competitors, Howell and Monarch had “a competitive advantage over Danaho in the San Antonio area”. This advantage did not exist, he testified, “over gasoline made at the Burnell plant.”

When asked by his counsel why, with such a large volume of throughput in 1960 Dana-ho “showed a red figure”, president Hovey answered that it was because, in 1960 Dana-ho “started buying Magnolia’s recombined stream” of previously extracted petroleum components, or charge stock, for $3.58 per barrel and “the more we ran, the more we lost.” Appellant urges testimony that this price was 50(5 above the posted price as being the cause of its loss.

Danaho bought the entire “recombined stream” of the Pettus-Burnell plant for the last five months in 1960. It bought “with its eyes open.” It bought the following year in order that it could obtain a “chance it could get the rest of the Burnell production.” Appellant solicited this purchase on its own initiative. Notwithstanding it lost money on its refining of this stream, it sought and obtained another such contract for the combined stream for the year 1961. It was permitted to terminate the contract unilaterally by acquiescence of the appellee sellers, who had a contractual right to require Danaho to continue buying. Thereafter Danaho purchased from some of ap-pellees. Before 1960 Magnolia had been using its own portion of the plant product and buying the share of other plant owners. When Danaho solicited the purchase of the combined stream, it did so knowing that Magnolia had an offer from another company, Suntide, to buy at the same $3,585 price which Danaho offered to pay. Suntide is not a party here. The previous sellers to Magnolia were also solicited by Danaho to sell it their portions, and Danaho prepared identical written contracts with each. Although appellant obtained only a part, it ’“tried to buy all of the commingled stream” of the Burnell plant. Later, Danaho sold to Suntide the very combined stream it bought, without processing the stream, and at $3,585 per barrel. These circumstances do not raise an inference that appellant’s financial state was caused by appellees’ conduct.

To shorten the opinion we simply state that in our view the claim that any conduct of appellees impaired Danaho’s credit, caused banks to call its loans, made the obtaining of loans more difficult, or improperly tied up Danaho’s capital funds by unduly harsh requirements as to bank letters of credit or cash payments is not supported by any circumstance which creates as much as a reasonable surmise.

Finally, appellant says the court erred in excluding the opinions of Danaho’s former manager (1) as to “what has been the prime cause of the decline in Danaho’s business” since 1957, (2) as to whether Triangle’s marketing practices “had any effect on the wholesale market price of regular gasoline” since 1957, and (3) whether appellees’ “conduct had any effect on Danaho’s ability to obtain charge stocks for its refining operations.” Although appellant states the excluded evidence “was neither opinion nor did it pertain to the ultimate issues in the case”, we view its argument as expressing contrary notions, else it would be immaterial. The opinion was invoked on the issue of causation, the very ultimate issue now under consideration.

The bills of exception show the excluded answers would have been: (1) “The prime cause I believe is pretty well shown by these records here” (in evidence) “which shows the competition of material from the Burnell plant as the prime cause of that decline”; (2) “Yes” and (3) “I would say it did.”

The first segment, as the witness would have pointed out, involved nebulous “competition of material”. The second and third, referring to “marketing practices” and “conduct” clearly called for conclusions.

The same rules of evidence concerning cause of damage apply in this type of action as are applied generally. 58 C.J.S. Monopolies § 101, p. 1132. The proximate cause of damage is not ordinarily the proper province of opinion evidence in tort cases. The deduction, speculation, inference or surmise of a witness “that a certain consequence is the result of some preceding event” is properly excluded “when the data observed by the witness can be concretely portrayed so that the jury is put in an equal position with the witness to draw inferences.” 2 McCormick & Ray, Texas Law of Evidence, Sec. 1399, 1397 pps. 230, 225, and cases cited. The rule is stated in 15 Am.Jur., Damages, Sec. 352, p. 791: “A witness should not be permitted to give his opinion that plaintiff was injured in his credit or business by the defendant’s acts.” See Norvell, 31 Tex.L.Rev. 731; Galveston Tribune v. Johnson, Tex.Civ.App., 141 S.W. 302, writ ref.; Da Moth & Rose v. Hillsboro Ind. School Dist., Tex.Civ.App., 186 S.W. 437, writ ref.; Carter v. Lindeman, Tex.Civ.App., 111 S.W.2d 318; Wilderspin v. Bewley Mills, Tex.Civ.App., 298 S.W.2d 636, writ ref. n. r. e.; Chuppe v. Gulf Iron Works, Tex.Civ.App., 306 S.W.2d 177, writ ref., n. r. e. Under this record the exclusion was not reversible error and the proffered evidence does not, in our opinion, affect the result. The judgment is affirmed.

McDONALD, C. J., not participating.


author: WALTER, Justice.

text:
    Larry B. SUMMERS et ux., Appellants, v. BRANSFORD-HINDS BUILDING COMPANY, Appellee.
    No. 3935.
    Court of Civil Appeals of Texas. Eastland.
    Oct. 16, 1964.
    Rehearing Denied Nov. 13, 1964.
    David L. Hooper and William S. Perry, Schulz & Hanna, Abilene, for appellants.
    Bradbury, Tippen, Brown & Clement and Bryan Bradbury, Abilene, for appellee.
   WALTER, Justice.

Doctor Larry B. Summers and wife filed suit against Bransford-Hinds Building Company for breach of an implied warranty to construct a house in a good and workmanlike manner. The defendant’s motion for summary judgment was sustained. The judgment recites: “ * * * the Court finds that if the plaintiffs ever had any cause of action that it is barred by the two-year Statute of Limitation * * * The plaintiffs have appealed.

Appellants contend the court erred in granting the motion because there was a genuine issue of fact as to when the statute of limitation commenced to run.

In support of its motion for summary-judgment Bransford relied upon the pleadings, the contract of sale, a letter from appellants to the appellee dated April IS, 1961, and the deposition of the plaintiffs. The appellants filed a verified motion in opposition to appellee’s motion for summary judgment and relied upon the pleadings and the deposition of plaintiffs.

All parties agree that the correct rule for determining when limitation commences to run for a breach of implied warranty is correctly set out in Puretex Lemon Juice, Inc. v. S. Riekes & Sons of Dallas, Inc., 351 S.W.2d 119 (Writ Ref. N.R.E.), wherein the court announced the rule as follows:

“It is our opinion, therefore, that the rule in Texas is that limitation commences on a breach of implied warranty when the buyer discovers or should discover the injury. We are convinced that the rule is followed in analogous situations and is supported by the better reasons.”

The record reveals that the contract of sale was executed on November 3, 1960; that the deed from Bransford to Summers is dated December 27, 1960; that Doctor Summers and his wife moved in the house sometime after Christmas in 1960; that suit was filed on June 12, 1963.

Doctor Summers testified by deposition substantially as follows: I executed a contract with Bransford-Hinds Building Company on November 3, 1960 to purchase a house and premises located at 1614 Minter Lane in Abilene, Texas; the purchase price was $26,500.00. On April 15, 1961, I wrote a letter to Bransford setting out a list of items which we thought he was obligated to furnish under his contract. We set forth the following in the letter: “We like the house, but we do not consider it acceptable or complete until each listed item has been taken care of to our satisfaction.” He was asked:

“Now, did that letter list everything that you considered to be — ” and he answered “ — incomplete at the time?” At the time I entered into the contract to purchase this house it was about two-thirds completed. He was asked:
“All right. Do you recall up until the 15th of April, 1961, when you wrote this letter, was there anything the matter with the house other than what was listed in the letter?” And he answered “Of the things that I knew of, no.” He was asked “What did you discover that didn’t meet your satisfaction pertaining to this house after the 15th of April, 1961, that wasn’t listed in the letter of that date?” And he answered “All of the cracks and so forth in the walls, and sheet rock pulling up, and the moulding pulling up, and things like that, that we became conscious of after we tried to list the place with a real estator.” Speaking about cracks in the building he said: “It just all became apparent just about when the real estator came out there.” I was not aware of the defects in our house until the representative from Perry, Hunter, Hall came out there to inspect the house when we listed it for sale. The real estate men came out in April or May of 1963. The following questions and answers appear in Doctor Summers’ deposition:
“Q. Now, until the representative from Perry, Hunter, Hall came out there, that is when you say you were aware, then, of these situations?
“A. That’s right.
“Q. And, he pointed them out to you?
“A. Yeah.
“Q. And you didn’t know about them until he pointed them out?
“A That’s right.”

When I moved in the house I was going to work at 7:00 o’clock in the morning and did not get home until 8:00 or 9:00 o’clock at night and it never occurred to me that the house was falling down. I didn’t notice anything that was particularly wrong with the house until the real estate men pointed it out to me. In his deposition the following question and answer is given:

“Q. And you didn’t know there was any trouble until the real estate man pointed it out to you?
“A. It was not apparent. I mean, I didn’t realize it was so bad that they couldn’t list it as sellable property, because if the cracks had been there before, they had been so gradual that I didn’t notice them, and as far as I am concerned, they weren’t there.”

Mrs. Summers testified by deposition substantially as follows: I wasn’t in our house much of the time during the first six or eight months that we lived there. I was working some twelve to fourteen hours in the office and we were not inspecting the house. I became aware of a hairline crack across the ceiling of the master bedroom probably in the second year after we moved in. I would say it was after September 1961. Our baby was born on September 29, 1961, and I didn’t stay home until that time. The items set forth in our letter to Mr. Bransford of April 15th were things that he had promised to do that had not been done. Those items were necessary for the completion of the house.

Robert J. Bransford, President of Brans-ford-Hinds Building Company testified that after he received Doctor Summers’ letter of April 15th he called the subcontractor about the items set forth therein. He assumed that such matters were taken care of or Mrs. Summers would have called him.

In Trinity Universal Insurance Company v. Horton, Tex.Civ.App., 363 S.W.2d 376 (No Writ History), the court said:

“On the hearing of a motion for a summary judgment the court must determine whether there is any issue of fact to be tried. The court cannot weigh the evidence, determine the credibility of the witnesses and try the case on affidavits. All doubts as to the existence of a genuine issue as to a material fact must be decided against the party moving for a summary judgment. The court must accept as true all evidence of the party opposing such a motion which tends to support his contention and must give him the benefit of every reasonable inference which may be drawn therefrom. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929; Box v. Bates (Sup.Ct.) [162 Tex. 184], 346 S.W.2d 317.”

Bransford’s position is that the evidence conclusively demonstrates that Doctor Summers’ cause of action, if any he had, commenced to run more than two years before suit was filed. Summers’ position is that the items set forth in the letter of April 15th were items which had not been completed under the contract. The Summers seek to recover for a breach of an implied warranty. Those items upon which they seek a recovery are not listed in the April 15th letter. They allege “ — plaintiffs would show that the concrete slab foundation of such house was so poorly constructed that the walls of said house have cracked and shifted, causing the upstairs floor to pull away from the walls; the partition wall near the stairway has pulled away from the ceiling; the flooring in the main hallway has dropped away from the walls; the oak flooring in the upstairs bedroom is pulling apart and cracks are appearing therein; the other walls in the house, including the garage, have cracked and shifted and moved to the extent that such house is virtually uninhabitable. The foundation is so poorly constructed as herein alleged that the entire house seems to be cracking and falling apart.” The Summers contend that limitation did not commence to run until the real estate men came out and inspected their house which they had listed for sale. They came out in April or May of 1963. If there is any evidence of probative value, with the inferences that may reasonably be drawn therefrom, which will support a finding that limitation did not commence to run until April or May 1963, the appellants’ contentions must be sustained. We must consider only the evidence which, viewed in its most favorable light, tends to support such a finding and we must disregard all evidence to the contrary.

After considering the evidence and the rules which we are required to follow in summary judgment cases, we are compelled to hold that an issue of fact was raised by the evidence.

The judgment is reversed and the cause is remanded.


text:
    G. A. BROWN et al., Appellants, v. A. C. GRAY, Appellee.
    No. 4295.
    Court of Civil Appeals of Texas. Waco.
    Nov. 5, 1964.
    Rehearing Denied Nov. 19, 1964.
    Mays, Jacobs & Pevehouse, Corsicana, for appellants.
    William J. McKie, Corsicana, for appel-lee.
   WILSON, Justice.

Defendant appeals from judgment on a jury verdict. It is not clear whether the case was tried on a breach of contract theory or as a tort action. In our opinion no cause of áction was established against defendant on either basis.

. Appellant Brown owned a 366 acre farm. Appellee Gray was the tenant for the year 1958 of 108 acres under an oral rental agreement. He raised cotton and maize on the tract. For the year 1959 Gray orally rented 103 acres, the cotton allotment, on which he planted cotton. He was not a tenant on any other of Brown’s land. In September, 1958 Gray and Brown as “producers” entered into a written “soil bank conservation reserve” (“A. S. C.”) contract with the U. S. Department of Agriculture for the “contract period” beginning 1959 and ending 1963. Plaintiff Gray was named “operator” in the agreement. By its terms 169.5 acres of a 301-acre “soil bank base” were subjected to conservation reserve, or “placed in the soil bank.”

Section 4(c) of the contract provided that the “annual payment to be paid” under the soil bank program “shall be divided among the producers on the farm.” Section 8(c) recited: “If the county committee” (See 7 U.S.C.A. § 1801 et seq.; 16 U.S.C.A. § 590h) “is notified in writing, prior to making payment under an existing contract to a tenant (including a tenant operator) or to a sharecropper that such tenant or sharecropper is no longer on the farm, the county committee shall determine the division of compensation between the original tenant or sharecropper and the successor tenant or sharecropper, or between the original tenant or sharecropper and the landlord or operator, if the tenant or sharecropper is not replaced, on a basis which it determines to be fair and equitable.” (See 7 U.S.C.A. § 1809. Department Regulations are not in evidence).

Gray’s 1959 cotton crop failed, and his oral agreement with Brown to rent the cotton land was not renewed for the year 1960. Instead, Brown rented the land to another tenant, Gillen. In April, 1960 the county committee wrote Brown that it had information he had “changed the tenant” on his farm, and requesting his written statement as to whether Gray “is, or is not the operator” with “the interest as indicated” in the contract; and if not, the name and address of the party who replaced Gray. Brown promptly replied, “Gray is not the operator” of the farm, and “does not have the interest indicated” by the contract, and “has no interest or any part of my land in any way.” He gave the new tenant’s name, stating Gillen had replaced Gray in 1959. He later signed a statement concerning his reasons for having changed tenants.

Gray invoked action of the county committee in April, 1960. The committee conducted hearings at which Gray and Brown appeared. Gray wrote the committee that “we had an oral understanding” that Gray was to “break, seed and keep the land qualified” for five years. He told the committee he did not know a change in his interest “in the cotton” land would affect “his interest in the soil bank land, or change his interest in the contract.” The committee decided the new tenant, Gillen, was entitled to share in the annual payment “to the same extent Mr. Gray would have shared” because Gray did not rent the cotton land for the year 1960, and the tenant to whom Brown rented was not the committee’s concern. Gray then appealed to the State A. S. C. committee, which decided the successor tenant was entitled to the payments which Gray would have been entitled “had he remained in possession of the farm.” The county committee thereafter approved a 1960 contract executed by Brown in which Gillen was substituted for Gray. Two years later it approved another contract in which the Vest brothers were named operators. Soil bank payments were made to Gillen and the Vests after 1959.

In December, 1960, however, in another state district court suit against Brown and Gillen, Gray obtained a declaratory judgment that he was “entitled to payments under said contract for the full five year period” and that Brown “cannot, at his will, cause the payments under the terms of said contract, to plaintiff, to be terminated.” The judgment also continued in effect a temporary injunction restraining Gillen, the tenant who replaced Gray, from “cashing or otherwise disposing of the payments involved in this case.”

In the face of this injunction, and knowing he risked commitment for contempt, Gillen testified, he cashed the soil bank payment check on advice of the county committee. “They said it was mine, and you all had three days in jail and a hundred dollar fine against it.”

Gray’s petition in the present action against Brown alleged the terms of the above judgment, and that thereunder he was entitled to the soil bank payments. It was alleged Brown caused payments to Gray “to be terminated by executing an A. S. C. contract” with Gillen for the years 1960 and 1961, and with the Vests for 1962 and 1963; and that Brown was “liable to plaintiff for repudiating and breaching said contract” for the amounts paid to Gillen and the Vests.

The jury found in answer to an issue submitted that Brown “without good reason ’ did cause the termination of the soil bank contract in question”, and judgment was rendered for Gray. The form of this issue is not a matter of complaint.

Gray does not seek to recover from his successor tenants, Gillen and the Vest brothers, for the payments the Department of Agriculture made to them. They are not parties (although originally joined, and dropped), and neither are the Secretary, the Department or the committee.

Whether the action be regarded as one for “breach” or repudiation of contract, or as one sounding in tort, the damages alleged by plaintiff did not result from any actionable conduct of Brown. Although the global issue submitted inquired whether Brown “did cause” termination of the soil bank contract, the only pleaded conduct was his “executing an A. S. C. contract” with Gillen and the Vests. In determining causal connection between this and Gray’s alleged damage, we examine the sequence of events.

It is true that Brown did not rent the cotton land to Gray for the year 1960, and that he let it to another tenant. This, Gray concedes, he had full right to do. Gray admits he “did not have his cotton land rented for 1960,” or succeeding years.

The renting of the cultivated portion of the farm is not a basis of complaint. When the county committee learned that Brown had "changed the tenant” on his farm, it asked him for a written report, which Brown made. It is not claimed that this report caused Gray damage. It obviously did not do so, for it evoked Gray’s contention before the committee that he was entitled to the “operator’s” share of soil bank payments for five years, and it resulted in extended hearings and efforts by the committee to resolve the problems created by Gray’s claim. Gray voluntarily invoked the committee’s decision, appeared and participated in its hearings and deliberations which culminated in a decision that it should approve the making of a 1960 contract “to replace” the 19S9 contract naming Gray as operator. A decision on his claim was sought by Gray under the contractual provision concerning division of compensation in such a case as this. Gray appealed to the State A. S. C. committee which determined that his replacement as tenant by Brown “did not constitute a violation” of the 1959 contract, and the new tenant shared in soil bank payment “to the same extent Mr. Gray would have shared had he retained possession of the farm.” The committee decision prompted the making of new contracts.

Brown did not initiate the hearing. He did not, so far as the record reflects, invoke committee action. He met once by invitation with the committee who told him “they would study it out” and let him know. “The next thing I knew,” he testified, “the contract came in for me to sign.” Vest testified that when he sent for his marketing cards “they told me I had to get on the soil bank land or the money would go back to the government,” because the “soil bank land and the cotton land went together.”

In December, 1960 after the committee had made its decision, and after the new contract had been signed, but before the successor tenant, Gillen, cashed any payment check, Gray obtained a judgment against both Brown and Gillen which adjudicated the rights of Gray and Gillen to the tenant’s share of the soil bank payments, protecting Gray by injunction.

Gray seeks to recover from Brown the amount of payments made by the Department of Agriculture to Gillen and the .Vests, asserting that Brown’s execution of new A. S. C. contracts caused him to be deprived of the payments. Under this record that cause is too remote to he a cause in law.

It is not necessary for us to construe the A. S. C. contract, and we do not do so. Ownership of the tenant’s payments is not an issue in this action solely against Brown, who received none of such proceeds. This is not a suit on a judgment. We do not imply opinion as to authority, if any, of the committee to interpret the contract or as to the extent of its authority to determine legal rights of the parties.

The judgment is reversed and judgment here rendered that plaintiff take nothing.


text:
    STATE of Texas and McLennan County, Appellants, v. William P. CLARKE et al., Appellees.
    No. 4251.
    Court of Civil Appeals of Texas. Waco.
    Nov. 5, 1964.
    Haley, Koehne, Fulbright & Winniford, Waco, for appellants.
    Sleeper, Boynton, Burleson, Williams & Johnston, Waco, for appellees.
   McDONALD, Chief Justice.

This is a condemnation case. Plaintiffs State and County condemned defendant’s home, consisting of 3.93 acres (and improvements) for road purposes. Trial was to a jury which found the value of the property taken on April 30, 1963 to be $40,000. The Trial Court entered judgment on the verdict for the defendant landowners for $9,000 (the sum by which $40,000 exceeds $31,000 awarded by the Commission and heretofore deposited in the registry of the court).

Plaintiffs appeal, contending “the Trial Court erred in excluding from evidence, plaintiffs’ Exhibit 6, which was a moving picture of the area of subject property, which action of the Court resulted in an excessive verdict.”

This is a total taking case. Defendant’s home place consisted of 3.93 acres of land; a li^ story Austin Stone home of some 2280 square feet; a garage with a garage apartment above it; a lake; an underground sprinkling system; and considerable trees, shrubbery, and flower beds. Defendant testified his property was worth $47,500; defendant’s 2 expert witnesses testified his property was worth $42,500 and $40,500. Plaintiffs’ 3 expert witnesses testified the property was worth $24,000, $28,000, and $28,750. The award of the Special Commission was $31,000; and as noted the jury case valued the property taken at $40,000. Plaintiff introduced 6 aerial photographs and 9 ground photographs of the property and improvements; defendant introduced 1 aerial photograph and 56 other photographs of the property. All witnesses testified in great detail as to the property, its location, and the improvements.

Plaintiff sought to introduce a motion picture made from an automobile on the last day of the trial in the trial court, and almost a year after the date of the taking. The trial court excluded the tendered evidence. We have viewed the motion picture. It shows many tracts of property up and down the highway for approximately 2 miles on each side of the property taken.

The motion picture was taken some 10 months after the taking of the property, while the improvements were being moved away, and after some changes had taken place in the' area.

The Trial Court is accorded considerable discretion in ruling on the admission or exclusion of photographic evidence. City of Ft. Worth v. Barlow, (n. r. e.) Tex.Civ.App., 313 S.W.2d 906; Texas Emp. Ins. Ass’n v. Agan, Refused, Tex.Civ.App., 252 S.W.2d 743; 62 A.L.R.2d p. 689; Richardson v. Missouri-K-T Ry. Co., Dis. Tex.Civ.App., 205 S.W.2d 819; Consolidated Furniture Co. v. Kelly, Tex.Civ.App., 369 S.W.2d 53.

We cannot say the Trial Court abused his discretion in excluding the motion pictures; and in any event, in view of the other evidence and pictures introduced into evidence and the verdict of the jury, we cannot say that the exclusion of this evidence probably caused the rendition of an improper judgment. Rule 434 Texas Rules of Civil Procedure; Consolidated Furniture Co. v. Kelly, supra.

Plaintiffs’ contention is overruled and the judgment of the Trial Court is affirmed.


text:
    H. E. B. FOOD STORES, Appellant, v. Agnes ATCHISON, Appellee.
    No. 4287.
    Court of Civil Appeals of Texas. Waco.
    Oct. 29, 1964.

      Haley, Koehne, Fulbright & Winniford, Waco, for appellant.
    Ted Fair, Waco, A. L. Moore, Ft. Worth, for appellee.
   McDONALD, Chief Justice.

This is a venue case. Plaintiff Atchison instituted this suit against defendant H. E. B. for damages resulting from defendant’s alleged negligence in failing to keep in proper repair an automatic door at one of its stores in Waco, McLennan County, Texas. Plaintiff alleged that the door would not open as it was supposed to when she stood on the mat in front of it; that she placed her shoulder against the door to thrust it open, and that the door flew open suddenly; causing her to fall to the floor and sidewalk, causing her bodily injury. Defendant filed its plea of privilege to he sued in Nueces County, the County of its residence. Plaintiff filed controverting affidavit alleging the cause of action was based on negligence of defendant committed in McLennan County, Texas and asserting venue in McLennan County under subdivisions 9a and 23 of Article 1995, Vernon’s Ann.Tex.St.

The Trial Court, after hearing without a jury overruled defendant’s plea of privilege.

Defendant appeals, contending the Trial Court erred in overruling the plea of privilege for the reason that plaintiff failed to prove by a preponderance of the evidence that defendant was guilty of negligence proximately causing plaintiff’s injuries.

The record reflects that plaintiff approached the door in defendant’s store, stepped on the mat, and that the door failed to open automatically as it was supposed to; that when she placed her shoulder against the door, it flew open, causing plaintiff to fall to the floor, causing bodily injuries to plaintiff. The record further reflects that Mr. Matus, the local manager of defendant’s store, told plaintiff that he knew the door was broken and not operating properly and had not been for some time; that the door had been out of order a short time before plaintiff fell; and that the door had given trouble.

We think the evidence ample to sustain the Trial Court’s finding that defendant was guilty of negligence proximately causing plaintiff’s injury. See Dunn v. Johnson, Tex.Civ.App. (n.w.h.), 274 S.W.2d 108; Banks v. Collins, 152 Tex. 265, 257 S.W.2d 97.

Defendant’s contention is overruled, and the judgment of the Trial Court is affirmed.


author: FANNING, Justice.

text:
    H. E. LANE, Appellant, v. The TRAVELERS INDEMNITY COMPANY, Appellee.
    No. 7598.
    Court of Civil Appeals of Texas. Texarkana.
    Nov. 3, 1964.
    Rehearing Denied Nov. 24, 1964.

      Sidney Lee, Texarkana, for appellant
    Cahill Hitt, Norman Russell, Atchley, Russell, Hutchinson & Waldrop, Texar-kana, for appellee.
   FANNING, Justice.

H. E. Lane sued The Travelers Indemnity Company to recover for a fire loss, defendant insurance company having previously issued a fire insurance policy to plaintiff Lane. Defendant, among other defenses, alleged that the policy contained a contractual warranty that the premises were to be used as a tenant dwelling, when in fact they were used for other purposes.

A jury answered the special issues submitted to it. The trial court rendered judgment in favor of defendant. Plaintiff has appealed.

The policy in question in the section entitled “Description of Property”, and above the term “occupancy”, listed the insured building as “Dwelling-Tenant.” The policy in question contained, among others, the following basic conditions:

“Unless otherwise provided in writing added hereto, this company shall not be liable for loss occurring * * *
“(e) while any other stipulation or condition of this policy is violated.” (emphasis added)

In Harris v. Allstate Insurance Co., Tex.Civ.App., 249 S.W.2d 669, writ refused (1952), the court defined a warranty in the following language, on p. 673:

“Generally speaking warranties, are statements, stipulations, or conditions which form a part of the contract, whereby the insured contracts as to the existence of certain facts, circumstances, or conditions, the literal truth as to which is essential to the validity of the contract.”

Under the uncontroverted evidence from the date of the purchase of the policy by plaintiff Lane on June 18, 1962, to November 30, 1962, the date of the fire in question, the premises in question were never used as a tenant dwelling since plaintiff Lane during such period of time did not own the premises and during such time such premises were owned by Floyd McGowen and wife, and the McGowens during said period occupied such dwelling and premises, not as tenants but as owners thereof.

We hold that the trial court was correct in rendering judgment for defendant-appellee because the statement in the policy that the occupancy of the premises was for a tenant dwelling was a contractual warranty and the uncontroverted evidence shows that the premises in question were not used as a tenant dwelling. See the following authorities: Freeman v. Commercial Union Assurance Company, Tex.Civ.App., 317 S.W.2d 563, writ ref., n. r. e. (1958); Harris v. Allstate Insurance Company, Tex.Civ.App., 249 S.W.2d 669, writ refused (1952); Trinity Universal Insurance Company v. Winter, Tex.Civ.App., 67 S.W.2d 926, writ dism. (1934).

While we hold that the trial court correctly rendered judgment for defendant-appellee on its defense of contractual warranty, we modify the judgment so as to allow plaintiff-appellant to recover judgment of and from defendant-appellee the sum of $92.00, which was the amount of the premium paid by plaintiff-appellant to defendant-appellee for the policy in question.

The judgment of the trial court is affirmed as modified.