author: BELL, Chief Justice.

text:
    Oscar F. HOLCOMBE, Appellant, v. CITY OF HOUSTON, Appellee.
    No. 13497.
    Court of Civil Appeals of Texas. Houston.
    Nov. 9, 1961.
    Sewall Myer, Houston, for appellant.
    R. H. Burks, City Atty., Hofheinz, Sears, James & Burns, Robert L. Burns, Houston, for appellee.
   BELL, Chief Justice.

This is a condemnation case. The appel-lee condemned 4.002 acres of land belonging to Oscar F. Holcombe and the jury found the value of the land taken to be $95,700 on June 1, 1951. The trial court also awarded interest on this amount from January 1, 1953 to October 15, 1954. This represents an award of $23,913 per acre or 56 cents per square foot. Mr. Holcombe was dissatisfied with the amount awarded by the jury and has appealed.

Appellant has assigned 13 Points of Error. However, they really present these basic questions:

1. Did the court err in allowing Mr. Sturman to testify as to the price at which he sold certain tracts of land? The objections to his testimony in connection with each tract were that the tract" was not suffi- ■ ciently comparable to the tract condemned; that the tract sold was too distant from the tract condemned, and that the sale was too remote in point of time. This testimony was offered as substantive evidence indicative of the value of Mr. Holcombe’s tract. Mr. Sturman himself made such sales. He did not use them, as is usually the case, merely as a basis for his testifying as an expert as to the value of Mr. Holcombe’s tract and he did not express an opinion as to the value of the condemned tract.

2. Did the court err in allowing the expert witness Ringer to testify as to the sales price of various tracts of land? Mr. Ringer testified as to the sales price of numerous tracts of land, including those testified about by Mr. Sturman. However, testimony concerning the sales price of such tracts was not admitted as substantive or original evidence but was admitted only as being one of the factors considered by the expert witness in arriving at his opinion as to the value of the tract condemned. Here too the objections as to each tract were that the tract was not sufficiently comparable to Mr. Holcombe’s tract; that the tract was too distant from the tract condemned, and that the sale was too remote in point of time.

3.Was the verdict of the jury so against the overwhelming weight and preponderance of the evidence as to be clearly wrong?

The property condemned was a strip about 1,500 feet long running in a northwesterly-southeasterly direction on the easterly side of and abutting Winkler Drive. It was about 175 feet wide at its northerly end where it touched Pine Gully and tapered gradually so that it was 50 feet wide near its southerly end. The north 30 feet was encumbered by a drainage easement. Its width at the south line of the easement was 173 feet. From this point to a distance south of 548 feet it tapered from a width of 173 feet to 152 feet. From this point to a point 282 feet south the depth decreased from 152 feet to 103 feet. From this point to a point 210 feet south the depth decreased from 103 feet to 61 feet. For the next 200 feet the depth decreased from 61 feet to 50 feet and in the last 200 feet the depth decreased from 50 feet to a point. The tract fronted on Winkler Drive, which was a well traveled street and was unrestricted. On the east the tract is bounded by the easterly one-half of the abandoned right of way of the Houston-Galveston Interurban. Such, right of way is 1,448.87 feet long by 50 feet wide.

To the north of the subject tract across Pine Gully on either side of Winkler Drive were numerous tracts of vacant, unrestricted acreage. However, to the south, east and west -of the subject tract were developed residential subdivisions. Immediately across Winkler from the tract were eight unrestricted lots. A Serv-All Store was located on some of them. The subdivision to the east and southeast had access to the tract only by going south to Park Place Boulevard and back north on Winkler. The intersection of the last named streets would be about %th of a mile southeast of the tract condemned.

' The above two paragraphs pretty well describe the nature and immediate surroundings of the ' subject tract. There seems to he little, if any, dispute that the tract was suitable as business of commercial property, certainly as to a major portion of it.

Now let us notice the character of the neighborhood which may be considered as being in a like environment as the subject tract, though such neighborhood does not join or is not immediately associated with the subject tract.

The subject tract on Winkler Drive is about 7½ miles southeast of downtown Houston. On June 1, 1951, which was before the completion of the Freeway, probably the most accessible route to southeast Houston and its outskirts was to travel from downtown on Leeland Avenue to Telephone Road, thence on Telephone Road to a point about 2 miles northwest of the subject tract. At such point Telephone Road continued in a southeasterly direction. At the above point Winkler Drive branched off from Telephone Road and continued about 3,600 feet in a direction a little east of south where it gradually curved to a southeasterly direction. It continued past the subject tract until it intersected with Park Place Boulevard, about 2,100 feet southeast of the subject tract. The subject tract would be about a mile and a third from the intersection of Telephone Road and Winkler Drive. About 2,000 feet northwest of this intersection Telephone Road crosses Griggs Road, a street which runs in a northeast-southwest direction. From its intersection with Winkler Drive, Telephone Road continues southeast about 4,000 feet, where it intersects Park Place Boulevard, thence on to the City of Alvin. Park Place Boulevard runs east to Winkler Drive. The distance between Telephone Road and Wink-ler Drive along Park Place Boulevard is approximately 6,000 feet. (We should here explain that our distances are what we consider to be fairly accurate measurements based on calculations made from appellant’s Exhibit 5, which the record shows to be a map with a scale of 400 feet to the inch). Northeast of the intersection of Telephone Road and Griggs Road about 1,200 feet the Houston-Galveston Interurban right of way proceeds in a direction just south of east and north of Winkler Drive. The distance of the right of way north of Winkler is from about 1,200 feet on the west at Telephone Road to where it abuts the subject property. To the north of the right of way from Griggs Road to Woodridge Street, which is a distance of about 4,000 feet, is a large residential area known as Pecan Park. Woodridge is the only access street from Pecan Park to Winkler Drive across the right of way.

Telephone Road and Winkler were both well traveled, though Telephone was more heavily traveled than Winkler, particularly at the location of appellant’s tract.

Within the area we have outlined, that is, Griggs Road on the northwest, the right of way on the north, northeast and southeast, Park Place Boulevard on the south and Telephone Road on the southwest, were several fairly well developed residential subdivisions. They were all in some stage of settlement at all material times though they were more thickly settled in June, 1951 than in 1946 and 1947. Greenway Addition was just across Winkler from the subject tract to the west and southwest. Adjoining Greenway on the southwest was Lum Terrace. South of Lum Terrace and the southwest part of Greenway was Santa Rosa. South of Greenway was Park Place Terrace and part of Park Place. North of Lum Terrace was Sturman Park. Green-way and Park Place southeast of Winkler were the larger of these residential subdivisions. There were connecting streets from these subdivisions to Winkler Drive at points south of Pine Gully. They also had access streets to Telephone Road at points south of the intersection of Telephone and Griggs, the nearest being about a mile and a third south. Plum Lane connected Telephone and Winkler about 1,600 feet southeast of the intersection of Telephone and Winkler.

Just outside of the area outlined were other residential subdivisions. On the west side of Telephone was Golfcrest, a large subdivision. On the west of Telephone between Griggs and the intersection of Telephone and Winkler was Oak Acres. Adjoining Golfcrest on Telephone was Parkview Landelle.

Along Telephone from Winkler to Park ■Place. Boulevard were various businesses, such as a shopping center and a theatre. Along Telephone between Griggs and Winkler and thence along Winkler to Pine Gully there were extensive tracts of unrestricted acreage. We mention this because appellant places emphasis on his tract being adjoined on three sides by residential subdivisions. Plowever, the subdivision on the east is, as we have previously noted, not accessible to appellant’s tract except by way of Park Place Boulevard to the southeast.' Too; immediately north across Pine Gully from appellant’s tract is available unrestricted acreage.

All of the tracts of land that were sold by Mr. Sturman and all of the sales testified to by Mr. Ringer, except two, were located within the area outlined above. They were all within a distance of two miles from appellant’s tracts. They were all sold between November, 1946 and 1951, during which time the evidence shows increasing postTwar activity in the whole area. They were all generally subject to similar environment.

While appellant urges remoteness in time and distance, he stresses a want of comparability based on difference in size, shape and location with respect to restricted residential areas tliat commercial establishments could serve.

We are of the view that appellant would have had the trial court and would have ús be -more restrictive than the settled law requires. As to comparability, appellant in--effect -urges-there must be practical, if n'ot absolute, • identity in shape, area and environment. There is no- such" legal requirement. The law does require comparability but not that the tracts be identical. Comparability is a relative term and is used in cases of this kind more in the sense of similarity to such degree that the sales price of one will be an indication of the value of the other and will thus assist in determinating the value of the tract in question.

All of the sales were within four years of June 1, 1951 except two. These two were within 4½ years. Considering all evidence, we deem them not too remote.

We need not deal with each individual tract in detail. We will notice particularly those which appellant has emphasized in his brief, which are the ones we, after carefully reading the whole record, deem of controlling importance.

Mr. Sturman testified as to the sale by him of Tract 22, which is abutting Winkler Drive on the south' and is about $2,800 feet east of the intersection of Telephone and Winkler. It fronted about 550 feet on Winkler and was about 400 feet deep. It was just opposite the point where Wood-ridge Street comes into Winkler Drive from the north. There was no street other than Winkler touching the tract. It contained 4j4 acres and was sold to á church in August, 1948 for $20,000 or about $4;-444 per acre. Just west of Tract 22 is Tract 23 fronting on Winkler about 540 feet and being 150 feet in depth. It was sold in February, 1949 for $39,000 or 49 cents per square foot. Tract 13 consisted of about 17 acres and was sold in May, 1949 for $35,900. It adjoins Tracts 22 and 23 on the south. Plum Lane adjoins it on the west. Tracts 15 and 16, each, abut on Winkler Drive just to the west of Tract 23. Each fronts 50 feet on Winkler and has a depth of 150 feet. Both tracts were sold in February, 1949, Tract 15 being sold for 73 cents per square foot and Tract 16 for 76 cents per square foot. These tracts were from about 3,600 to 4,600 feet northwest of the north line of appellant’s tract. There was no residential subdivision immediately adjoining them but as above detailed there were such subdivisions within a readily accessible position and within a short and relatively convenient distance. Too, there were some small businesses on Telephone Road both west and south of the tracts sold.

In addition to the tracts sold by Mr. Sturman, Mr. Ringer testified to numerous other sales that he learned about during his investigation and which he considered as an expert in reaching his conclusion as to the value of appellant’s tract. Tract 1 was sold by Mr. Deats to Southern Lumber Company. It was a tract of 18.75 acres sold in May, 1947. It was on the west side of Winkler and just north of and abutting on Pine Gully. It fronted about 400 feet on Winkler and ran hack west a long distance. It later became another addition to Green-way and was a restricted subdivision. Tract 2 adjoined Tract 1 on the north and fronted about 400 feet on Winkler. Sale of Tract 1 was for $32,397.50 or 5½ cents per square foot. We do not find the sales price of Tract 2. Tract 29 fronted 192 feet on the east side of Telephone and had a depth of 400 feet. It was between the intersection of Telephone and Griggs and Telephone and Winkler. It sold in July, 1948 for $11,325 per acre. Its use was commercial. Tract 32 was 50 feet on Telephone and had a depth of 400 feet. It sold in November, 1949 for $16,335 per acre. It adjoined Tract 32. Both of the last numbered tracts were across Telephone from Oak Acres. Tract 5 was about 2½ miles from the subject tract. It contained 4.67 acres and sold in October, 1951 to a church for $3,231 per acre. It fronted 410 feet on Reveille Road, an important and heavily traveled road running north and south through the middle of the area outlined.

These specifically mentioned tracts are illustrative. They all lie, except Tract 5, within the area above outlined. The others which are not specifically mentioned also lie within the area outlined.

On rebuttal the appellant introduced in evidence other sales within the outlined area that had not been mentioned by appellee’s witnesses. Also other tracts were brought out by appellant on cross-examination. They are as follows: Tract 47, a triangular tract, on Telephone and Woodridge, was sold in October, 1950. It was about 180 x 177 feet and sold for $1.39 per square foot. Tract 42 on Telephone and McHenry was sold in March, 1949 for 83 cents per square foot. It fronted 60 feet on Telephone by 120 feet on McHenry. These tracts were about two miles from appellant’s tracts. Tract 55 fronting 165 feet on Telephone and 162 feet on Woodridge sold in April, 1949 for $1.18 per square foot. A tract fronting 110 feet on Winkler and 72 feet on Golfcrest sold in August, 1948 for 98 cents per square foot. Tract 46 fronting 100 feet on Telephone, sold in November, 1951 for $1.10 per square foot. A tract fronting 64 feet on Telephone and 120 feet on McHenry sold in October, 1950 for $.976 per square foot. Another tract near the one just mentioned that was 120 x 120 sold in November, 1951 for 83 cents per square foot. Another fronting 190 feet on Telephone sold in July, 1948 for $1.02 per square foot.

We hold that in the light of the whole record, none of the sales above listed were too remote in time or distance. Both with regard to time, distance and comparability a great deal of discretion is vested in the trial court in determining the admissibility of such testimony and his action will not be overturned unless an abuse of discretion is shown. Coastal Transmission Corp. v. Lennox, Tex.Civ.App., 331 S.W.2d 778, no writ history; City of Houston v. Collins, Tex.Civ.App., 310 S.W.2d 697, no writ history; Joyce v. Dallas County, Tex.Civ.App., 141 S.W.2d 745, no writ history; City of Austin v. Cannizzo, 153 Tex. 324, 267 S.W.2d 808; Reeves v. City of Dallas, Tex.Civ.App., 195 S.W.2d 575, ref., n. r. e.; Thompson v. State, Tex.Civ.App., 319 S.W.2d 368, no writ history.

We are also of the view that the tracts testified about were sufficiently comparable. Certainly they were different in shape. However, this characteristic is of relatively little value. We feel the most important factor is similarity of environment. Here all of the tracts, with the exception of the one on Reveille, were on either Telephone Road or Winkler, or, in the case of Tract 13, just off of Winkler. They were all accessible to and near surrounding residential developments already under way and potential residential areas which were not yet being developed but suitable for such. It is true that appellant’s tract was immediately surrounded by greater development, but not sufficiently so to make the lands not comparable. The extensive travel on Telephone and Winkler was a great factor in- making abutting property preferable for business and not for residences. This was evidenced by business development along such streets, particularly Telephone Road. See the following cases for a discussion of these principles : City of Houston v. Pillot, Tex.Civ.App., 73 S.W.2d 585; Cole v. City of Dallas, Tex.Civ.App., 229 S.W.2d 192, writ ref., n. r. e.; State v. Childress, Tex.Civ.App., 331 S.W.2d 230, ref., n. r. e.

It is also material and interesting to note that appellant’s witness, Mr. Lee, had divided appellant’s property into three parcels feeling it would best sell for small individual businesses. He then valued each parcel and for his total valuation of the tract added the valuation of the parcels. In thus dividing the subject tract, he made the tracts more comparable, shapewise, to the other tracts testified about. The evidence objected to would have been admissible on rer buttal.

Also, appellant waived any objection by introducing in evidence by way of rebuttal and cross-examination similar evidence that had not previously been developed, as we -have specified above. Hughes v. State, Tex.Civ.App., 302 S.W.2d 747, ref., n. r. e.

We have read the entire record. We find the jury did not consider itself bound by the testimony of any one expert or other witness. It found a valuation well within the testimony that was fairly well balanced. We cannot say the verdict was so contrary to the overwhelming weight and preponderance of the evidence as to be 'clearly wrong.

The other points asserted by appellant have all been considered by the Court and are overruled.

Appellee moved that we strike the statement of facts because the motion to extend the time within which to file was allegedly not filed within 75 days after the date of the judgment. An original motion for extension of time was filed within the time prescribed by Rule 386, Texas Rules of Civil Procedure. This gave us jurisdiction over the cause and we had power to grant, and did grant on proper motions, additional extensions of time. Hodges v. Nix, Tex.Civ.App., 225 S.W.2d 576, ref., n. r. e.

Appellee, by its Cross-Point, complains of the action of the trial court in allowing appellant interest on the award from January 1, 1953 to October 15, 1954, the latter date being the date appellee deposited the Commissioners’ award with the Clerk.

Without reciting the testimony, we think it suffices to say that it establishes that appellant was Mayor of the City of Houston when it became necessary for the City to acquire the subject property. Appellant gave permission for occupancy of the property and possession was taken June 1, 1951. We feel it established that this was done with the understanding that the compensation need not be paid or determined until appellant ceased to be Mayor, but that after he ceased to be Mayor the City should proceed to condemnation and to a determination of the value of the property. However, though appellant asked the City to proceed, it did not do so until 1954. The intent evidenced was that the possession would not be unlawful but the determination of compensation and the payment of it would be made -immediately after appellant ceased to be Mayor.

Appellee urges not only consent for possession waived interest, but says appellant had the obligation to sue for the property’s value.

We do not agree. As above stated, the record is susceptible to the construction that there was waiver of compensation only until appellant ceased to be Mayor and the City should have gone forward after such date.

Interest on compensation awarded for property taken is awarded as damages for money wrongfully detained.

We think the principles stated in Texarkana and Ft. S. Ry. Co. v. Brinkman, Tex. Civ.App., 288 S.W. 852, aff’d Tex.Com.App., 292 S.W. 860, are applicable here. Interest is recoverable on the value of the land taken from the time the compensation should have been paid until it is paid where possession of the land is taken. The Texarkana case was one where the Commissioners in condemnation awarded damages of $1,000. The sum of $2,000 was deposited in court by the condemnor and this gave it the right to possession. Both condemnor and condemnee appealed. The award was made in 1917. The case was tried in the County Court in 1925. The award there was $5,520. The trial court allowed interest for the full period between the deposit of the award and judgment.

While the case is not on all fours with this case, by analogy its holdings are applicable. Here the possession was rightful because of consent to possession without payment of compensation first. However, the right to payment of compensation was only postponed until appellant should cease to be Mayor. It then became the duty of appellee to proceed to condemnation. It is true that appellant could have initiated suit for compensation. In case he had done so;:he would have been entitled to interest. We do not view with enthusiasm appellee’s suggestion that since appellant could have sued and did not, he should be allowed -no interest. Appellee had it within its power to stop interest by proceeding. This it chose not to do.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: MURRAY, Chief Justice.

license: Public Domain

text:
    Berl S. WHITE et ux., Appellants, v. SULLY BROS. APPLIANCE, Appellee.
    No. 13822.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 25, 1961.
    Rehearing Denied Nov. 22, 1961.

      Lloyd, Lloyd & Dean, Alice, W. B. Moss, Sinton, for appellants.
    Clark & Bonner, Rockport, for appellee.
   MURRAY, Chief Justice.

This suit was instituted by Berl S. White and wife, Irene White, against Sully Bros. Appliance, a partnership composed of W. J. Sullinger and B. T. Sullinger, seeking to recover actual and exemplary damages for injuries sustained by Irene White, resulting from an explosion and burning of a television set purchased by plaintiffs from defendant. The trial was to a jury and resulted in a verdict and judgment unfavorable to plaintiffs and they have appealed.

Appellants’ first point is that the answer of the jury to Special Issue No. 3 is so contrary to the great weight and preponderance of the evidence as to be manifestly unjust and clearly wrong, because the evidence shows that the failure of appellee to repair the television set sold by appellee to appellants was negligence. We overrule this contention.

On February 16, 1955, appellants purchased from appellee a new Traveler Television set. An employee of appellee, Richard “Dick” West, delivered and installed a television set in appellants’ home late that afternoon. ’ Irene White testified that the set-delivered was not the one she had ordered." She was-told by West that appellee had sent her a better set because the one she ordered was not working properly. West installed the set, put the antenna up, and then turned it on, but it did not work properly, because the picture was “rolling”. West left to make another call, but returned the next morning and worked on the set, but the picture continued to “roll”. West told her the set had a short in it, that he didn’t know what was wrong, and would have to tell appellee about it. After about one week, no one came out to fix the set, so Irene White called appellee, and West came out with a tube, but still the set didn’t work. He said he didn’t know what was wrong, and that the Sullingers themselves were going to have to work on it, but no one ever came but West. She called appel-lee again and she was told that there was nothing wrong with the set, that either the wiring in the house or the station in Corpus Christi was the trouble. Finally, on June 4, 1955, the day before the set burned, ap-pellee told her the set had a short in it.

On June 5, 1955, Irene White was out in the yard and came in the house through the back door and the house was full of smoke. She went to the living room where the television set was, to turn it off, and as she was doing so, “something popped inside the television — and when it did, smoke just started boiling out of the television.” The television was not on fire, but was just smoking. It sounded like a frying sound. She went back in the kitchen, and came back again and it was still smoking. She was afraid the house would catch on fire, so she unplugged the television and tried to pull it out from the wall. The smoke — -“it just smelled awful — I haven’t smelled anything like it in my life, and my eyes were burning.” She tried to get outside but fell unconscious, and her son heard her fall and opened the door and pulled her outside.

There had been no trouble with the wiring in the house. Joe Doyle King, a service man for Central Power & Light Company, said in his opinion the wiring in the house was in good condition. After the television set burned or exploded, West came to appellants’ home and gave Irene White the television parts introduced in evidence, and told her those were the parts that burned.

B. T. Sullinger, one of the partners of Sully Bros. Appliance, testified that he himself worked on the set one time and replaced a part. After the set burned or exploded he inspected it and found that a filter capacitor in the set had burned. The replacement of this part would be a “bottom-side job”, that is a job requiring the work to be performed by an experienced repairman in the television repair shop. He further testified that West was a “topside man”, that is, he did television set installing and minor repair work, and was the person who installed the set in appellants’ house.'

Special Issue No. 3 was as follows:

“Do you find from a preponderance of the evidence that the failure, if any of Defendants, Sully Bros. Appliance, to repair the television set sold by them to Plaintiffs was negligence?” .

We will assume, without deciding, that the evidence was sufficient to raise a fact issue as to whether appellee was negligent in not repairing the television set, but whether it is so against the weight and preponderance of the evidence as to be manifestly unjust and clearly wrong is quite a different question. After the fire, it was not difficult to determine what parts burned and would have to be replaced, but there is nothing to show that West and B. T. Sul-linger should have discovered that these parts were deféctive before they burned. There is no showing that the fact the picture would “roll” was the result of the defects in these parts. As far as this record shows, there may have been no connection between the “rolling” of the picture and the burning of those parts.

It is true that it is the duty of this Court, if we find upon examination of all the evidence and consideration of the entire record, that the jury’s negative answer to Special Issue No. 3 was so against the overwhelming weight and preponderance of all the evidence as to be manifestly unjust and clearly wrong, to set such answer aside and grant a new trial. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660; 30 Tex.Law Rev. 803; Bardwell v. Anderson, Tex.Civ.App., 325 S.W.2d 929. It will be borne in mind that this case was not tried or submitted as a res ipsa loquitur case. 38 Am.Jur. 898, § 295 et seq. It was the duty of the jury to weigh the evidence and pass upon the credibility of the witnesses, and there is nothing in this record to indicate that the jury in any way violated their duties in giving a negative answer to Special Issue No. 3. We cannot say that such answer is so contrary to the great weight and preponderance of the evidence as to be manifestly unjust and clearly wrong.

The disposition we have made of appellants’ first point renders their other points immaterial.

The judgment is affirmed.


author: CHADICK, Chief Justice. DAVIS, Justice

text:
    John Robert FLORENCE, Appellant, v. Noble CRAWFORD, Sheriff of Gregg County, and Eugene Bailey, Administrator of Good Shepherd Hospital, Appellee.
    No. 7396.
    Court of Civil Appeals of Texas. Texarkana.
    Oct. 17, 1961.

      Law Offices of Gordon R. Wellborn, Gordon R. Wellborn and Rex Houston, Henderson, for appellant.
    . Kenneth Dickerson, Asst. Dist. Atty., Longview, for appellee.
   CHADICK, Chief Justice.

This is an appeal in a habeas corpus case that originated in the District Court of Gregg County. John Robert Florence was remanded to custody. The judgment of the trial court is affirmed.

On August 14 Mrs. P. K. McIntosh filed an application in the County Court of Gregg County to have her son, John Robert Florence, temporarily hospitalized as a mentally ill person. Her sworn application contained the allegations required by Art. 5547-31. The same day the County Judge signed a written order reciting that he found the application in proper form, and therein appointed two physicians to examine Florence and file in court a certificate of their examination. The order contained directions that Florence submit to the examination on the 28th day of August at 1:00 o’clock P.M.. in the Probate court room in the court house at Longview. The instrument also, ordered a hearing on Mrs. McIntosh’s application for the same date and place of the examination at 2:00 o’clock in the afternoon. The order included directions for notice of the hearing to Florence, his guardian, or a responsible relative, and appointed an attorney ad litem to represent him.

A capias of the same date, August 14th, was issued by the Court Clerk and placed in the hands of the Sheriff. This instrument commanded the Sheriff to arrest Florence and bring him before the County Court. The Sheriff’s Return on the capias under date of August 14th recites that it was executed by “hospital releasing to Gordon Welborn, his attorney”. Bearing upon this return and in explanation of it, reference to testimony in the habeas corpus hearing is necessary. The evidence shows that following issuance of the capias the Sheriff took Florence into custody and placed him in the Good Shepherd Hospital at Longview. Florence was actually released from that hospital August 22nd.

Reverting to the chronological order of events, the next documents are two Certificates of Medical Examination for Mental Illness. The first is dated August 11 and filed in this case on August 14. The examining physician signing the certificate dated August 11 is not one of those appointed by the' Judge’s order previously mentioned. This certificate does not show the time the physician made the examination. The second certificate was signed by a physician appointed in the Judge’s order, and shows the examination of Florence occurred August IS; it was dated August IS and filed with the case August 18.

August 22nd as a culmination of the intervention of attorneys for Florence, the Gregg County Health Officer telephoned the Administrator of the Good Shepherd Hospital and directed him to release Florence. This same officer as attending physician caused to be made an entry of the same date on Florence’s hospital chart the following: “May be discharged to care of lawyers when they arrive.” The Administrator discharged the patient as ordered.

The same day Florence was released from the hospital an alias capias was issued by the County Clerk commanding the Sheriff to arrest Florence as in the first instance.. The return shows the Sheriff took Florence into custody on September 28. Evidence in the record shows that the city police at Kilgore actually arrested and jailed Florence and transferred him to the Sheriff’s custody, and the Sheriff removed him to the County jail at Longview.

By chronological sequence next in the record is an instrument dated and filed August 25, 1961, labeled “Order Setting Hearing Temporary Hospitalization”. This Order was upon the same printed form that was used by the County Judge in making his order of August 14 heretofore mentioned. The instrument of the 25th recited that the County Judge had considered the application of August 14 requesting temporary hospitalization for Florence and found it sufficient. Paragraph (a) appointed a physician to examine Florence but the blank spaces therein for the insertion of date, time and place of ex-animation were not filled in. The physician appointed was not one of the two previously named in the Order of August IS, nor was he the one who had filed a certificate in the case dated August 11. The blanks in paragraph (b) relating to date, time and place of the hearing were not filled in. However, paragraph (c) and (d) were repetitious of the previous Order and paragraph (e) dealing with the appointment of an attorney ad litem had inserted the name of the same attorney appointed in the original Order of August 14.

At the time this instrument dated August 25 was introduced into evidence the blanks in the paragraph setting a hearing on the application had been filled in under circumstances hereafter related, and on its face a hearing was ordered for the 11th day of October at 10:00 o’clock A.M. in the probate court room at the court house in Longview.

A sharp attack was directed at the portion of this last instrument wherein the time and place of a future hearing is set out. The Deputy County Clerk having charge of the papers testified that on the day before the habeas corpus hearing she filled in the blanks setting the hearing for October 11, etc., at the direction of an Assistant District Attorney. She testified the Order until she made the insertion was in blank as to date of hearing, etc. A copy of this Order obtained by counsel for Florence before the Deputy Clerk made the change was introduced. ' This copy showed the space for insertion of the date of hearing, etc., to be in blank. In addition, one ’ of counsel for Florence testified the County Judge was with him in Houston on the day the Deputy Clerk made the change.

In a typewritten Order signed and filed on September 29 the County Judge ordered the Sheriff to place and safely keep Florence in the Good Shepherd Hospital pending further order.

Application for habeas corpus was made October 2. The writ issued returnable October 3, at which time hearing was held and Florence remanded to the custody of the Sheriff. A transcript and statement of facts was filed in this court on October 4, and because of the nature of the case submission and oral argument were set for October 10.

It is here contended by brief and in oral argument that the trial court erred in remanding Florence to custody because: (1) Florence had been properly discharged from the hospital in which he was committed; (2) the alias capias was not legally sufficient for a detention (3) the Protective Custody Order dated September 29 was void in the absence of an order setting a hearing on the application for hospitalization for mental illness within fourteen days after September 28, and in the absence of a physician’s examination of Florence within five days of that date; and (4) no extreme emergency existed for detaining Florence in jail from September 28 until the habeas corpus hearing on October 3.

There are several presumptions and rules of construction having a bearing on the disposition of this case. The Mental Health Code directs that its provisions, unless specifically supplanted or the context requires, shall be construed in accordance with Articles 10, 11, 12, 14, 22 and 23 of the Revised Statutes of 1925, as amended, Vernon’s Ann.Civ.St. arts. 10-12, 14, 22, 23. Also, the procedure under consideration being wholly statutory, compliance with every form prescribed is prerequisite to its valid exercise. Clark v. Matthews, et al., Tex.Civ.App., 5 S.W.2d 221, n. w. h. Presumptions usually indulged in in favor of the regularity of a judgment are applicable to a Habeas Corpus case. See 39 C.J.S. Habeas Corpus § 120, p. 739.

Art. 5547-4, Subd. (e) defines “head of hospital” to be the individual in charge; Subd. (g) defines a “mental hospital” as a hospital operated for the primary purpose of providing inpatient care, and treatment of the mentally ill. The record in this case contains no proóf that the Good Shepherd Hospital is a mental hospital. The di's-charge of Florence from the Good Shepherd by the Administrator at the order of the County Health Officer was not a discharge from a mental hospital that is contemplated by Art. 5547-81. Of significance in Florence’s discharge from the hospital is Art. 5547-35. By the terms of that article Florence was entitled to remain at liberty as no order placing him in protective custody was made prior to the time of his release. The article expressly permits the subject of an application for temporary hospitalization to remain at liberty in the absence of a Protective Custody Order or the other circumstances set out therein.

The legal sufficiency of the alias capias issued August 22 can not be decisive of any issue herein, as it appears the Protective Custody Order of September 29 is valid and constituted a sufficient warrant for holding Florence in custody. The validity of the Protective Custody Order requires a summing up of the established facts in greater detail.

Earlier in the statement of this case it is noted that there was filed two Certificates of Examination for Mental Illness, but that only one showed on its face that the examination occurred within five days of the time the certificate was filed in the case. Art. 5547-32, Subd. (a) requires examinations of this nature to be made within five days of the filing of the certificate. The certificate dated August 11 does not meet the statutory requirement and is ineffective to support further proceedings if Florence had been in custody at the time of the hearing. See Art. 5547-34.

An unchallenged order setting a hearing on the temporary hospitalization application for August 28 was entered August 14. About one week later, on August 22, Florence was discharged from the hospital and permitted liberty at the intervention of his legal counsel. A week after discharge, on August 28, the time set for hearing arrived but it was not had. Florence did not appear though the requirements of notice, etc., had been fully satisfied. Article 5547-36 authorized a hearing in the absence of the subject of the application, but in this instance the court was not authorized to proceed because of the provisions of Art. 5547-34. This last mentioned article directs that no hearing be had unless there is on file in the case two Certificates of Medical Examination for Mental Illness stating the patient on trial is mentally ill and requires observation and/or treatment in a mental hospital.

The legal issue is this: May a County Judge under these circumstances postpone a hearing on the application ? The answer is in the affirmative. The Legislature has directed that the Mental Health Code be construed in accordance with settled rules of statutory construction, and in such way as to carry out the Legislative intent. The Legislature did not intend that the procedures for implementing the purposes of the Code should work arbitrarily or be paralyzed by an unusual or unreasonable construction. Certainly it could not be the legislative intent that the procedure enacted might be nullified at the whim of either the representatives of the State or the subject of a mental illness hearing. It seems most reasonable that the Legislature must have entertained the view, and so intended, that if for good cause a hearing could not be held as scheduled the Judge might, in the orderly discharge of his duties, postpone it. Such is the general rule in all civil court litigation. That the legislative intent could hardly be otherwise is fully supported by the provision that a mental patient may he permitted to remain at liberty by Art. 5547-35. To ascribe to the Legislature an intent that a mental patient might nullify previous applications and orders by not appearing at the time the hearing is set does not comport with orderly procedure or the purposes of the Act. It must be held that the County Judge was authorized to postpone a hearing. Without going into the sources evidencing it, it may be said that the Legislative intent is that an action of this kind when once set within fourteen days .of the application shall be tried with dispatch at the earliest time the circumstances of the case will allow.

It is also argued that the Protective Custody Order is void because the order, partially in blank, of the County Judge dated August 25 heretofore described did not set a hearing date. The evidence supports a conclusion that no order setting the case was intended to be made when the' instrument was filed. At that time the hearing was set for August 28. Florence was not then in custody, and an alias capias had been issued three days previously for his arrest. Reasonably, the evidence may be understood as an effort by the County Judge to appoint a physician to examine Florence if he was taken in custody prior to the hearing date then set for August 28. The reasonableness of this construction is apparent when it is considered that one of the Certificates of Examination on file at the time this order issued was insufficient on its face. In order for a trial to proceed on August 28 another certificate of examination was necessary. Insertion later of a hearing date is not shown to have been authorized and would be a nullity. The Protective Custody Order was in no wise dependent upon a hearing date or absence thereof in this instrument.

The night of September 28 Florence was transferred to the custody of the Sheriff. The next day, September 29, the County Judge made the Protective Custody Order of that date, commanding the Sheriff to safely keep, etc., Florence at the Good Shepherd Hospital. This he had jurisdiction to do, as at that time there was pending before him an application for Florence’s temporary hospitalization. Art. 5547-66 authorizes protective custody orders under certain conditions. The statute reads:

“If in the county court in which an Application for Temporary Hospitalization or a Petition for Indefinite Commitment is pending, a Certificate of Medical Examination for Mental Illness is filed showing that -the proposed patient has been examined within five (5) days of the filing of the Certificate and stating the opinion of the examining physician that the proposed patient is mentally ill and because of his mental illness is likely to cause injury to himself or others if not immediately restrained, the judge may order any health or peace officer to take the proposed patient into protective custody and immediately transport him to a designated mental hospital or other suitable place and detain him pending order of the court.” (Emphasis added).

It is clear that only one Certificate of Examination for Mental Illness certifying the patient was examined within five days of its filing, etc., is required to be on file in the case as a prerequisite to the issuance of a Protective Custody Order. One such certificate was on file. All other prerequisites to the issuance are shown to have been complied with. The order is valid.

The next challenge to the trial court’s judgment relates also to the validity of the Protective Custody Order; that is, that the record does not show an extreme emergency existed between September 28 and the date of the habeas corpus trial on October 3 requiring Florence to be confined in the county jail. Apropos to this contention is Subsection (b) of Art. 5547-67, to-wit: “No person shall be detained in protective custody in a non-medical facility used for the detention of persons charged with or convicted of a crime except because of and during an extreme emergency and in no case for a period of more than seven (7)days.”

This subdivision must be given a reasonable interpretation in the light of the statute it supplants, the evil the Legislature sought to abolish, and the legislative purpose expressed in the Mental Health Code. Though it is not conclusive, the evidence easily may be understood as showing that Florence had been held in jail by the Sheriff from September 28 until October 3. At least that is the most reasonable conclusion the testimony as a whole supports. The Custody Order itself directs the Sheriff to safely keep Florence in the Good Shepherd Hospital. It does not mention a jail.

The humane care, treatment and rehabilitation of the mentally ill, protection of the community from harm, elimination of the burden and disturbing effect of the mentally ill on the family, and restoring the mentally ill to useful life and place in society are among the stated purposes of the Act. The subdivision of the case quoted next above supplants a somewhat similar provision of repealed Art. 3193-c, V.A.T.S. The evil the Legislature sought to avoid was that of confining the mentally ill in the same facility with persons charged or convicted of violations of the criminal law. The intent of the statute is to afford the mentally ill hospital confinement, and to avoid confining them in the same manner as law violators. This statute affords a mental patient and those interested in his care a right to compel authorities to detain the patient outside of a jail.

It would be utterly repugnant to the expressed purposes of the Mental Health Code to discharge Florence from confinement in the Good Shepherd Hospital as ordered simply because the Sheriff may have found it convenient to confine him in jail. Florence’s remedy under the circumstances of this case lies in compelling the authorities to house him as the law provides, not in discharge from custody. That this is a correct construction of the statute is apparent. Discharge would have the effect of releasing a person upon the community who is probably mentally ill and dangerous to himself and others according to the certificate on file, refuse him the care, treatment and rehabilitation that the State would provide, and would restore the disturbing effect that he as a mentally ill person has upon his family, while denying him a chance for rehabilitation and a useful place in society. This the Legislature never intended.

Counsel for Florence in the best tradition of the legal profession have zealously and intelligently defended every legal right given him under the circumstances of this, proceeding and invoked all the safeguards, to liberty with which the law guards every individual. It appearing, however, that Florence at this stage of the proceeding is-confined in accordance with due legal process, all points of error are overruled and the judgment of the trial court is affirmed.

FANNING, J., concurs.

DAVIS, Justice

(dissenting).

The Mental Health Code is rather strict in its provisions. Art. 5547-2 reads as follows :

“It is the purpose of this Code to provide humane care and treatment for the mentally ill and to facilitate their hospitalization, enabling them to obtain needed care, treatment and rehabilitation with the least possible trouble, expense and embarrassment to themselves and their families and to eliminate so far as possible the traumatic effect on the patient’s mental health of public trial and criminal-like procedures, and at the same time to protect the rights and liberty of everyone. In providing care and treatment for the mentally ill, the State acts to protect the community from harm and to serve the public interest by removing the social and economic burden of the mentally ill * * * person on the family, and by care and treatment in a mental hospital to restore him to a useful life and place in society. It is also the legislative purpose that Texas contribute its share to the nation-wide effort through care, treatment and research to reduce the prevalence of mental illness.” (Emphasis added).

There is a provision of the Code for “Voluntary Hospitalization”. There is also a provision for Involuntary Hospitalization”. John Robert Florence, a licensed attorney, is definitely committed, if he is, under the involuntary provision. He is a resident of Rusk County, Texas. He is incarcerated by Gregg County officers.

On August 14, 1961, his mother, Mrs. P. K. McIntosh, filed an application in the County Court of Gregg County to have her son, John . Robert Florence, temporarily hospitalized as a mentally ill person. A capias was immediately issued by the County Clerk and placed in the hands of the Sheriff. This being an involuntary procedure, the Sheriff made his return on the Capias that the hospital had released John Robert Florence to Gordon Wellborn, his attorney.

There were not two doctor’s certificates filed with the Application for Emergency Treatment, and the two doctors appointed by the County Judge to examine the boy did not make the report as required by law. Without these reports, they had no authority whatever to> hold him more than ninety-six hours, as provided by Art. 5547-28. Art. 5547-30 requires an additional certificate by a doctor within 48 hours after the commitment in a hospital.

John Robert Florence was held in the first instance until August 22, 1961, at which time he was released. So far as the Application by Mrs. McIntosh is concerned, that brought the case to a close. There is no provision in the Mental Health Code for the issuance of an Alias Capias. The Alias Capias issued by the Deputy County Clerk was void. The County Judge signed an Order on August 25, 1961, labeled “Order Setting Hearing for Temporary Hospitalization”. This Order is void because John Robert Florence had already been legally released as a result of the Affidavit and Application filed by Mrs. McIntosh on August 14, 1961.

On September 29 the County Judge entered á Protective Custody Order on John Robert! Florencé. This Order was void because he had already been released on the application that was filed by Mrs. McIntosh.

The Mental Health Code, as I see it, is a provision for the immediate protection of a person who is mentally ill. Mr. Florence was out of jail- from August 22 to September 28 and apparently did not hurt himself, nor anyone else. The officers went into Rusk County with the Alias Capias and took him into custody. I can not see where the provisions for the involuntary hospitalization of him is applicable. At the time the appeal was presented to this court I would have granted John Robert Florence a bond pending the outcome of this appeal. I would still do so. And if the law is as I see it, I would have reversed the judgment of the trial court and ordered his release.

      . All dates herein refer to the year 1961.

      . This and all other written instruments mentioned herein, except the Protective Custody Order of September 29, made use of printed forms designed to permit the insertion of additional matter in blank spaces.

      . Unless otherwise indicated, all articles mentioned refer to the Mental Health Code, Acts 1957, 55 Leg. p. 505, c. 243, as the-same appears in Vernon’s Texas ■ Civil Statutes,- Vol. 16A.


author: WERLEIN, Justice.

text:
    Wayne CROSS, Appellant, v. HOUSTON BELT & TERMINAL RAILWAY COMPANY, Appellee.
    No. 13688.
    Court of Civil Appeals of Texas. Houston.
    Oct. 19, 1961.
    Rehearing Denied Nov. 9, 1961.

      Brown, Bates, Brock & Morgan, Warner F. Brock, Houston, for appellant.
    Fulbright, Crooker, Freeman, Bates & Jaworski, Charles M. Haden, James S. Covington, Jr., Houston, for appellee.
   WERLEIN, Justice.

This suit was brought by appellant, Wayne Cross, to recover for personal injuries allegedly sustained by him while engaged in work for appellee, under the Federal Employers’ Liability Act, 45 U.S. C.A. § 51 et seq., and Safety Appliance Act, 45 U.S.C.A. § 1 et seq. Appellant appeals from a take-nothing judgment based on the jury verdict, and assigns numerous errors occurring during the trial which was unduly lengthened by much unwarranted repetitious examination and testimony of witnesses.

By his first Point appellant complains of the following argument made by counsel for appellee:

“ ‘ * * * that this is a case where a man who had a pre-existing condition, and for whatever reason he laid down or was out in that yard, he was afforded the best medical treatment Harris County could offer, and he refused it, and he placed himself in the hands of these attorneys who had every reason in the world from their financial interest in. this case to do everything that they can to hoodwink this Jury from the time that they went shopping for doctors and they have been trying to put in .twisted evidence they do everything they can to try and — ’
“Whereupon Counsel for Plaintiff said:
“‘Your Honor we- object to that line or argument, we think it is out of order.’
“Whereupon the Court said:
“ ‘Counsel I think you can draw emphasis from the testimony.’
“Whereupon Counsel for Plaintiff said:
“ ‘Your Honor I think it is improper and I object to it.’
“Whereupon Counsel for the Defendant said:
“ Well, I think their conduct describes it better than anything and has shown it, that when this man went to hire them, when he could have gotten the treatment that he needed, and when he hired these attorneys it was just a question of manufacturing testimony, and they went out and hire any witnesses they can get to say things that you have heard from this witness stand here. I don’t know of any other way that we could have met it, because it is not pleasant to stand up here and have to criticize people like this, but when they can sue you for hundreds of thou- >, sands of dollars on manufactured evidence like this, when all they have to do is pay a $25 filing fee to bring a . case like this into Court — ’ ”

We have read the entire statement of facts, consisting of more than 1,200' pages, and find nothing therein to justify the foregoing argument. There is no evidence showing that appellant’s counsel had any financial interest in the suit, or that they went shopping for doctors, or that they were putting in twisted evidence, or that there was any manufacturing of testimony, or that said attorneys went out and hired any witnesses they could get to testify as they did on the. witness stand. The argument was improper, inflammatory and prejudicial in the extreme. It clearly imputed’ perjury to all of appellant’s witnesses, and subrogation of perjury to appellant’s counsel. It was an appeal to prejudice and passion and reasonably calculated to cause the jury to render an improper verdict. It was-not invited by or in response to stateménts or argument of appellant’s counsel.

We think such argument was of the in-, curable type. Possibly the Court might have taken some of the sting out of it by sustaining appellant’s timely objection and instructing the jury not to consider it, but instead, the Court stated: “Counsel, I think you can draw emphasis from the testimony.” Thus did the Court lend its approval to the poignant poison of prejudice injected into the case, and improperly comment upon the evidence and the credibility of appellant’s witnesses and counsel. Such comment was not waived by counsel for appellant as were certain other comments made by the Court prior to argument. Lumbermen’s Lloyds v. Loper, 1954, 153 Tex. 404, 269 S.W.2d 367.

The more serious question confronting’ us is whether such improper and prejudicial argument of counsel, coupled with the Trial Court’s comment, probably caused the rendition of an improper verdict and judgment in the case.

The evidence shows that although appellant had a prior back condition which at times troubled him, he was not incapacitated thereby. He went to work for appel-lee on August 9, 1954 as a switchman after being given a thorough physical examination by appellee’s doctor. He was able to perform his duties satisfactorily although he lost six to eight days from work at one time as the result of his back bothering him. He was not incapacitated by any pri- or sickness or physical condition from performing his work as a switchman, until after the accident of November 22, 1957. We think appellant’s testimony with respect to the accident in question was corroborated by other testimony and we are inclined to the view that the jury’s finding of no injury, which under the definition of the court would include no aggravation of any prior condition, probably resulted from the improper argument of appellee’s counsel and the Court’s comment.

It would unduly lengthen this opinion and serve no useful purpose to summarize the testimony of the twelve doctors and more than a dozen lay witnesses who were called to testify. We have carefully and painstakingly considered all of the testimony and evidence, and have concluded that in the light of the whole record, such argument was not only reasonably calculated to cause but probably did cause the rendition of an improper judgment in the case. Indeed, the charge by appellee’s counsel to the effect that appellant’s entire case was based upon perjury and manufactured testimony, to which his counsel was a party, could scarcely have done other than result in harm as evidenced by the jury finding that appellant sustained no injttry. Southern Pacific Company v. Hubbard, 1956, 156 Tex. 525, 297 S.W.2d 120; Southwestern Greyhound Lines v. Dickson, 1951, 149 Tex. 599, 236 S.W.2d 115; Texas & N. O. R. Co. v. Wilkerson, Tex.Civ.App. 1953, 260 S.W.2d 912; Airline Motor Coaches v. Campbell, Tex.Civ.App., 184 S.W.2d 532, writ ref., w. o. m.; Stephens v. Smith, Tex. Civ¡App., 208 S.W.2d 689; writ ref., n. r. e.; Texas Employers’ Insurance Association v. Butler, Tex.Civ.App., 287 S.W.2d 198, writ ref., n. r. e.; Gulf, Colorado & S. F. Ry. Co. v. Latham, Tex.Civ.App., 288 S. W.2d 289, writ ref., n. r. e.; Rule 434, Texas Rules of Civil Procedure.

We shall briefly discuss assignments of error directed to matters that may arise upon a new trial of this case.

Appellant strenuously contends that the Court erred in permitting Dr. Dickson to read in evidence a medical report from the Houston Speech & Hearing Center on the ground that it was hearsay. Although Dr. Dickson suggested to Dr. Bradford that appellant be referred to said clinic for some tests, he was not present when the tests were made nor did he supervise or conduct the examination. He was not in a position to prove up the report. The report was not proven as a hospital record, under Article 3737e, Vernon’s Ann.Texas St. Had it been, we think it would have been admissible under the holding in Travis Life Insurance Company v. Rodriguez, Tex.Civ.App., 326 S.W.2d 256, writ ref., n. r. e., per curiam, 1959, 160 Tex. 182, 328 S.W.2d 434, in which case the court held admissible hospital records including a diagnosis of leukemia.

While it is true a physician may relate as the basis for his opinion and not as independent evidence to establish the fact, the history given him by the patient, we know of no authority holding it permissible for a doctor to read in evidence another doctor’s unproven diagnosis or report, regardless of whether he has based his opinion in whole or part thereupon. The report in question was not used for the purpose of impeaching Dr. Dickson, but for the purpose of showing the truth of the statements therein contained. It was hearsay and prejudicial to appellant and should not have been admitted in evidence without having been properly proven. Lentz Feed & Seed Company v. Mueller, Tex.Civ.App.1960, 336 S.W.2d 447; Texas Power & Light Company v. Burger, Tex.Civ.App., 166 S.W. 680, writ ref.; Southwestern Greyhound Lines v. Dickson, Tex.Civ.App.1949, 219 S.W.2d 592; McCormick and Ray, Texas Law of Evidence, Secs. 781 and 790.

We think it was also reversible error for the Court to permit counsel for appellee to read from medical textbooks in cross-examining Dr. Brown. Appellee, over several objections, persisted in reading excerpts from texts not recognized by Dr. Brown as authoritative, evidently realizing the importance of getting statements made in such textbooks before the jury in connection with the crucial issue of whether appellant sustained an injury on the occasion in question or was merely suffering from epilepsy or other prior disease or physical condition. At one time appellee’s attorney read from a medical book a long statement, covering more than a page in the statement- of facts, and then over the objection of appellant, proceeded to examine Dr. Brown with respect thereto. The Court erred in permitting such examination. Texas Employers’ Insurance Ass’n v. Nixon, Tex.Civ.App., 328 S.W.2d 809, writ ref., n. r. e., 1959, and authorities cited.

Any error with reference to admitting in evidence appellee’s Exhibit No. 17, consisting of a part of the history given by appellant to Dr. Brown, and permitting ap-pellee to use the same in cross-examining Mrs. Cross and as a basis for hypothetical questions in examining Drs. Skogland and Henry, was rendered harmless by subsequent admissions by appellant while testifying concerning the facts and history contained in such exhibit. Moreover, by not objecting to the use of Exhibit No. 17 as a basis for hypothetical questions addressed to said doctors, appellant waived the alleged error.

We do not think the Court erred in refusing to grant a new trial because of the testimony of appellee’s witness Moody to the effect that in April, 1957, appellant “appeared to be pretty sick, he had some kind of spell like epilepsy of some kind.” The Court promptly sustained appellant’s objection, struck the testimony, and instructed the jury not to consider it for any purpose. The witness was merely giving a shorthand description of what he saw. Subsequently he testified without objection being made, that appellant “had a sick spell of some sort, it was not a violent attack, but he was sick.” He also testified that there was some saliva around appellant’s mouth and his eyes were “starry and very red.” We canriot say that Moody’s testimony probably resulted in harm in view of the Court’s instruction.

Appellee’s cross-examination of witness Bolio and witness Thompson was severe and possibly passed the point of propriety, but we cannot say that harm probably resulted therefrom to appellant. Rule 434, Texas Rules of Civil Procedure.

Appellant asserts it was error for the Court to add the words “if any” after the word “occurrence” each time such word was used in the special issues submitted to the jury, because the repetitious use of such words constituted a comment by the Court on the weight of the evidence and was calculated to confuse and mislead the jury. We do not approve the exact wording of the issues in question since it is undisputed that there was an occurrence of some kind at the time and place in question notwithstanding appellee’s contention that appellant sustained no injury and that there was no accident. If the repeated use of the words “if any” after the word “occurrence” was improper, we cannot say that any harm resulted to appellant since the jury in effect found in answering the special issues that there was an “occurrence.”

Appellant contends that the Court erred in overruling his motion in limine requesting the Court to strike Paragraph 2. of appellee’s first amended original answer and to exclude testimony thereon, and to instruct appellee’s counsel not to read it and to refrain from questioning the jury panel on voir dire concerning such defense. The objectionable paragraph sets out the defense that appellant never became an employee of appellee as a matter of law because of false representations made by appellant in his application for employment to the effect he had had no prior claims, prior injuries or prior service-connected disability. In its trial amendment filed some ten days after the trial commenced, appellee set out more fully said allegations and other similar allegations.

No issues were submitted to the jury in connection with such defense. Appellant contends, however, that he was greatly prejudiced as a result of said pleadings being read and witnesses being interrogated concerning alleged misrepresentations in his application for employment. It is appellant’s contention that this case is distinguishable from the case of Minneapolis, St. Paul & S. S. M. Ry. Co. v. Rock, 279 U.S. 410, 49 S.Ct. 363, 73 L.Ed. 766 (1929), in that appellant was not an impostor and did not fraudulently obtain his employment with appellee.

We expressly refrain from deciding whether the evidence adduced at the trial would warrant a submission of issues under the rule enunciated in the Rock case, sometimes called the “Rock doctrine,” or whether a finding on such issues adverse to appellant would be against the overwhelming weight and preponderance of the evidence. We are called upon merely to decide whether the Court erred in overruling appellant’s said motion in limine. In our opinion, the Court did not err in doing so, since in the absence of special exceptions the pleading was sufficient to raise issues of fraudulent representations on the part of appellant which might have substantially affected his fitness to perform his duties and the examining surgeon’s conclusion that he was in acceptable physical condition. Minneapolis, St. Paul & S. S. M. Ry. Co. v. Borum, 286 U.S. 447, 52 S.Ct. 612, 76 L.Ed. 1218 (1932); Talarowski v. Pennsylvania Railroad Company, 135 F.Supp. 503, (D.C.Del.1955); 3 McDonald, Texas Civil Practice, Sec. 10.14, p. 876; Casso v. Pennsylvania Railroad Company, 219 F.2d 303 (C.C.A.3d 1955).

In view of the possibility that other evidence may be adduced upon another trial and the jury findings may be different, we find it unnecessary to pass upon appellant’s contention that there is no evidence to support the jury’s answers to Special Issues Nos. 1, 36 and 39, or upon appellant’s contention that the answers to such issues are against the great weight and preponderance of the evidence.

Reversed and remanded.


author: RICHARDS, Justice.

text:
    George G. MacDONALD, Appellant, v. Mary S. TRAMMELL, Appellee.
    No. 10889.
    Court of Civil Appeals of Texas. Austin.
    Oct. 25, 1961.
    Rehearing Denied Nov. 15, 1961.

      Small, Small & Craig, Austin, for appellant.
    Carter, Stiernberg, Skaggs & Koppel, Harlingen, L. Hamilton Lowe, Austin, for appellee.
   RICHARDS, Justice.

This is a plea of privilege case. George-G. MacDonald, appellant, filed suit against Mary S. Trammell, appellee, a resident of Cameron County, Texas, and Ras Redwine,. a 'resident of Travis County, Texas, for recovery of damages suffered by appellant which he alleged had resulted from the acts and conduct of the defendants in colluding and conspiring with one another with the intent to induce a breach of appellant’s agreement with appellee’s husband, Wm. L. Trammell (since deceased), for the payment of a commission to appellant for his services in securing defendant Ras-Redwine as a purchaser for certain real' estate jointly owned by Wm. L. Trammell and appellee, situated in Austin, Travis County, Texas.

Appellee Mary S. Trammell filed her plea of privilege in the Trial Court alleging Cameron County, Texas, as her county ■of residence, that no exception to exclusive venue in the county of residence as provided by law existed in said cause and in compliance with Rule 93(h), Texas Rules of Civil Procedure, denied under oath that she had ever signed any promise or agreement in writing or memorandum thereof to pay appellant a commission or other compensation for the sale of the property in question, nor did any other person under lawful authority from her ever sign any promise or agreement in writing or memorandum thereof. She also denied that she or her late husband Wm. L. Tram-mell or anyone lawfully authorized by them ever signed or executed any instrument in writing required by Art. 6573a, Sec. 28, Vernon’s Ann.Civil Statutes, upon which appellant could base his suit for commission. Appellant filed a controverting plea adopting his original petition alleging that the cause of action alleged therein came within the venue sections of subdivisions 4 and 7, Art. 1995, V.A.C.S. Upon a hearing the Trial Court sustained appellee’s plea of privilege, held the cause of action severable as to the parties defendants and transferred the severed cause as to appel-lee to the 103rd Judicial District Court of Cameron County, Texas, from which order this appeal is taken.

It is settled law in Texas that in order to sustain venue under subdivision 4, Art. 1995, the following venue facts must be proved by the plaintiff: (1) that one of the defendants resides in the county where the suit is pending, and (2) where suit is brought against two or more defendants it must be a suit in which the defendants are properly joined. It is therefore necessary that the petition allege a joint cause of action against the resident and nonresident defendant or a cause of action against the resident defendant so intimately connected with the cause of action alleged against the nonresident defendant that the two may be joined together. But it is also essential that the plaintiff must not only plead but prove that he has in fact a cause of action against the resident defendant. Stockyards National Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300, 1302; Atlas Roofing Co. v. Hall, 150 Tex. 611, 245 S.W.2d 477, 479; Chandler v. Myrick, Tex.Civ.App., 275 S. W.2d 564 (no writ history).

In proving the cause of action alleged against the resident defendant the cause of action proven must be the one pleaded by the plaintiff, Stockyards National Bank v. Maples, supra, and the burden being upon the plaintiff to prove the cause of action against the resident defendant, if he fails to prove to meet such burden, the plea of privilege must be sustained. Richardson v. D. S. Cage Co., 113 Tex. 152, 252 S.W. 747, 749. It is well settled that venue as to the nonresident defendant depends not upon the proof but whether the plaintiff’s petition sufficiently alleged a cause of action against the nonresident defendant. Stockyards National Bank v. Maples, supra; Snodgrass v. American Surety Company of New York, Tex.Civ. App., 156 S.W.2d 1004 (no writ history).

Appellant predicates his appeal on three points of error: the first being that the Trial Court erred in sustaining appellee’s plea of privilege because the uncontradicted evidence shows that appellant’s cause of action comes within the venue exception of subd. 4, Art. 1995, V.A.C.S.; second, in sustaining appellee’s plea of privilege the Trial Court held in effect that appellant did not have a bona fide cause of action against the resident defendant Redwine; and third, in sustaining appellee’s plea of privilege the Trial Court held in effect that appellee was not a proper party to the cause of action against the resident defendant Redwine. The first two points of error will be discussed together.

The question to be decided is whether appellant’s petition stated a cause of action against the resident defendant Redwine and if so, whether appellant offered sufficient proof of such allegations at the hearing before the Trial Court. In his original petition appellant alleged tha.t prior to March 25, 1960, Wm. L. Trammell listed certain property in Austin, Texas for sale with appellant whereby Trammell agreed to pay appellant a commission when he had secured a purchaser for the propertj'- for a coni sideration acceptable to Trammell, which commission was to be paid at the time the sale was made. That he thereafter secured a purchaser for the property upon terms contained in a written contract which was submitted to Trammell but Trammell altered some of the terms before executing the contract which was then submitted to the purchaser, who not being willing to the changes made by Trammell, no sale was effected. .

The petition further alleged that he procured the defendant Redwine'as a purchaser for the property who signed an earnest money receipt on May 3, 1960 by the terms of which Redwine agreed to purchase the property. The earnest money receipt was signed by Redwine b.ut not by appellant or the proposed seller. Appellant communicated Rcdwine’s offer to Wm. L. Trammell and appellee on May 6, 1960 and later about May 12, 1960 Wm. L. Trammell entered into a contract for the sale of the property to Redwine which contract was consummated on June 6, 1960 by the execution of a deed by Wm. L. Trammell and appellee to Redwine.

The cause of action asserted in appellant’s petition against Redwine and appel-lee is that the defendants knew that appellant had induced' Redwine to submit an offer for the purchase of the property and knew that the purchase offer submitted to Wm. L. Trammell signed by Thomas C. Green (which was never consummated) contained a provision for the payment of an agent’s commission to appellant and that knowing that Wm. L. Trammell had agreed to pay appellant a commission when he did secure a purchaser for the property that “said defendants colluded and conspired with one another with the design of defrauding plaintiff” so that the property would be sold to Redwine and no commission would be paid to appellant. That in furtherance of the conspiracy Wm. L. Trammell and appellee entered into an agreement with Redwine whereby the Trammells stated that they had .not listed the property for sale with any real estate agency and Redwine agreed to indemnify the Trammells against any loss or expenses on account of any .real estate commission claimed and adjudged to be due by reason of the sale of the property by the Trammells to Redwine.

The petition further alleged that the acts and conduct, of the defendants Redwine and appellee were intended by them to cause a breach of appellant’s agreement with Wm. L. Trammell and were a part of the design entered into by the defendants to defraud appellant by depriving him of his commission on the sale of the property by which acts and conduct appellant has sustained damages in the sum of $3,900, the amount of the commission the appellant was entitled to' receive as agent for Wm. L. Tram-mell.

In order to sustain venue in Travis County under subd. 4, the burden was upon appellant to allege and prove that (1) there was an enforceable agreement or contract by Wm. L. Trammell with appellant to pay appellant a commission for the sale of the property by Wm. L. Trammell to the defendant Redwine, and (2) that Redwine and appellee had conspired and colluded together to induce Wm. L. Trammell to breach such contract. If there was no enforceable contract by Wm. L. Trammell with appellant to pay him a commission for the sale of their property in accordance with the requirements of Sec. 28, Art. 6573a, V.A.C.S., there could be no cause of action against the resident defendant Redwine for causing a breach thereof, and if no cause of action was pleaded or proved against the resident defendant Redwine for a conspiracy to defraud appellant, it follows as a matter of law that no cause of action for conspiracy existed against appellee as nonresident defendant, since in order to effectuate a conspiracy there must be two or more persons acting in collusion to accomplish an unlawful purpose or to accomplish a lawful purpose by unlawful means, 12 Tex.Jur.2d Sec. 14, p. 336. If an act is done by one alone which would not give rise to a cause of action, such act cannot be the basis of an action if done pursuant to an agreement between several persons. 12 Tex.Jur.2d Sec. 16, p. 337.

Although appellant states in his brief that this is not an action for the recovery of a commission for the sale of real estate, but is a suit for damages for conspiracy and collusion by the defendants in inducing the breach of an agreement between the appellant and Wm. L. Trammell, nevertheless the burden was upon appellant to plead and prove that an enforceable contract or agreement existed between Wm. L. Tram-mell and appellant for the payment of a real estate commission in order to allege a cause of action for conspiracy entered into by the defendants to induce Wm. L. Tram-mell to breach such contract. Appellant has failed to sustain this burden.

Accepting the truth of the facts alleged in appellant’s petition, it is clear that appellant has not pleaded an enforceable contract or agreement between Wm. L. Tram-mell and appellant by which Trammell was legally bound to pay appellant a commission for the sale of the property in question in accordance with the requirement of Sec. 28, Art. 6573a, V.A.C.S. Appellant’s own testimony before the Trial Court at the hearing on the plea of privilege does not support his averments that there was any contract between Wm. L. Trammell and appellant to pay appellant a commission which could be enforced by a suit brought by appellant against Trammell for the payment of such commission.

Appellant’s reliance upon the recital in the proposed contract between-Trammell and Green for the payment of a commission to appellant in the event such contract was executed, but which was never consummated by the parties, cannot serve as a memorandum in writing sufficient to support an oral agreement, if such there was, between Trammell and appellant to pay a commission to appellant for the procurement of' a purchaser for said property by appellant at an indefinite time in the future. The cases cited by appellant in his brief in support of this theory do not so hold. Since there was' no agreement between Trammell and appellant whereby Trammell became legally obligated to pay appellant a commission for procuring Red-wine as a proposed purchaser of the property in question, there is’ no liability upon the resident defendant Redwine for procuring the breach of the unenforceable contract even if he was the moving party in procuring a direct sale to him by Wm. L. Trammell and appellee.

The case of Roberts v. Clark, Tex.Civ. App., 103 S.W. 417, 418 (no writ history), is directly in point. Suit was filed by Roberts against Clark and Morrison alleging that Clark was engaged in the real estate business as agent; that one Mc-Gregor employed Roberts to find a purchaser of land owned by him in Waller County, Texas, and agreed to pay him a certain commission. Roberts procured Clark as a purchaser for the land in question and made a written contract whereby Clark deposited $500 earnest money which was to be forfeited if the trade was not carried out. Morrison made a claim to part of the commission to be received by Roberts which Roberts refufeed to pay. Whereupon Morrison and Clark conspired with each other to induce McGregor to break his contract with Roberts and not pay him his commission, for which purpose they waited until the expiration of the contract and then induced McGregor to convey the land to Morrison and the $500 earnest money deposited by Clark was accepted by McGregor as part of the consideration. Morrison then conveyed the land to Clark. Under the agreement Clark had the right to refuse to carry out the contract but would suffer the loss of the, earnest money paid to McGregor as liquidated damages.

The alleged cause of action was grounded upon the fact that Morrison and Clark conspired to induce McGregor to break his contract with Roberts in order to avoid the payment of a commission. After citing Raymond v. Yarrington, 96 Tex. 443, 72 S.W. 580, 73 S.W. 800, 62 L.R.A. 962, which held that a third party is liable in damages for inducing one bound by a contract to violate it, the Court held that in order for this rule to have application, it must have been a contract which the party was obligated to perform and if the contract is one which the party may or may not perform at his option, the rule does not apply. The Court then stated:

“Upon this view plaintiff here has no cause of action against Morrison and Clark, who are the sole defendants in the amended petition which was passed upon. If, as alleged, the sale that was effected after the 30 days to Morrison, and through Morrison to Clark, was in reality the consummation of the sale that had been negotiated by plaintiff, this might have entitled plaintiff to an action against McGregor with reference to his compensation. The fact that the $500 that had been paid as earnest money by Clark was allowed Morrison might be important in determining whether or not it was really the same sale in effect, and it also might be of importance in showing a conspiracy as alleged in plaintiff’s petition; but it seems to us Clark not being bound to perform the contract that plaintiff negotiated, and it being optional with him whether he would or not, it is immaterial what persuaded him to not carry it out. What he did he had a lawful right to do, and these defendants incurred no liability by their alleged conduct.” [103 S.W. 418.]

In Davidson v. Oakes, 60 Tex.Civ.App., 269, 128 S.W. 944 (no writ history), suit was brought by Davidson against Oakes and Eberstadt alleging that Davidson had entered into a verbal contract with Oakes whereby Oakes agreed to sell to Davidson certain lots in Amarillo, but that Eberstadt maliciously induced Oakes to breach said contract and convey the property to Eber-stadt. Davidson took a nonsuit as to Oakes and the Trial Court sustained a general demurrer as to the cause of action pleaded against Eberstadt. The Court after stating the rule announced in Raymond v. Yarrington, supra, held that the doctrine had no application to a breach of a contract which is itself unenforceable at law citing Roberts v. Clark, supra. The Court then stated:

“if it be conceded, as it must, that the defendant Oakes was not bound to carry out his oral agreement to convey the lots to appellant, and that he would, therefore, not be liable for a failure in this respect, it is then legally incomprehensible that appellee Eber-stadt would be liable for procuring him to do this thing. He has not violated any legal right of appellant neither has he procured any one else to do so. A thing lawful within itself does not become actionable merely because it proceeds from a wicked motive.”

The holdings in Roberts v. Clark and Davidson v. Oakes, supra, have been cited and approved by many of the Courts of Civil Appeals of Texas beginning with Payne v. Gebhard, Tex.Civ.App., 136 S.W. 1118 (no writ history), and have never been overruled by the Supreme Court of Texas, although in Sonnenberg v. Hajek, Tex.Civ.App., 233 S.W. 563 (no writ history), these holdings were criticized as stating the rule “most too broadly.”

Appellant cites Yarber v. Iglehart, Tex. Civ.App., 264 S.W.2d 474 (no writ history), in support of his contention that since defendants Redwine and appellee, with knowledge and fraudulent intent, induced Wm. L. Trammell to breach his contract with appellant, they are liable in damages even though the alleged contract between Wm. L. Trammell and appellant to pay commissions was unenforceable because of the Statute of Frauds. This opinion, after citing Davidson v. Oakes, supra, states that a contrary view was expressed in Richardson v. Terry, Tex.Civ.App., 212 S.W. 523, 525 (no writ history), and held that the correct rule is that if a person with knowledge and fraudulent intent induces a party to breach his contract with another, such person is liable in damages although the breached contract may be unenforceable as between the contracting parties because of the Statute of Frauds, citing in support of such holding Richardson v. Terry, supra, and a number of cases by the appellate courts of other states. Evidently the Court of Civil Appeals overlooked the fact that in Richardson v. Terry, the opinion cited Roberts v. Clark, supra, as holding that “if the contract breached be one which the party may or may not perform at his option, the rule does not apply.” But in Rambo v. Federated Department Stores, Inc., Tex.Civ.App., 329 S.W.2d 890 (error ref., N.R.E.), the same Court of Civil Appeals held that Yarber v. Iglehart was not applicable to the facts in that case, which was an action by a broker against the purchaser of real property and alleged wrongful interference with broker’s alleged oral contract for the sale with the vendor for a commission.

Yarber v. Iglehart was cited with approval in Terry v. Zachry, Tex.Civ.App., 272 S.W.2d 157 (error ref., N.R.E.), by the San Antonio Court of Civil Appeals, which decision is cited both in the briefs of appellant and appellee. In Terry v. Zachry, the opinion states that an action will not lie under the rule announced in Raymond v. Yarrington, supra, for every interference, since to assert such a right the thing done must be without .right or justification and that one is privileged to interfere with a contract between other parties where such interference is in the exercise of his own rights.

In the instant case appellant’s testimony concerning the making of the agreement with Wm. L. Trammell and the actions of Wm. L. Trammell and the defendants Redwine and appellee relating to the entire transaction fails to support any cause of action against the resident defendant Red-wine for fraudulent interference. Rambo v. Federated Department Stores, Inc., supra; Terry v. Zachry, supra.

In Bartelt v. Lehmann, Tex.Civ.App., 207 S.W.2d 131 (error ref.), where conspiracy was alleged against certain trustees and subscribers to the trust in that they had conspired to prevent payment or collection of unpaid stock subscriptions, it was held that no liability was asserted in the conspiracy count because it is not an unlawful purpose to resist payment of an obligation .regardless of its legality. A mere refusal to pay and the defense of a suit for enforcement imposed no additional obligations upon the obligor than already existed and where there is a common interest in two or more obligors to defeat interrelated obligations, mere concert of action to resist and defeat enforcement by means not in itself unlawful does not constitute an actionable conspiracy.

Since the resident defendant Redwine could exercise his legal right not to perform the contract which appellant was attempting to negotiate, no cause of action could exist in favor of appellant which would authorize a recovery of damages for lost commissions from Redwine for refusing to comply with the contract. Tinsley v. Dowell, 87 Tex. 23, 26 S.W. 946; Le Master v. Dalhart Real Estate Agency, 56 Tex.Civ.App. 302, 121 S.W. 185 (no writ history) ; Baker v. Greer, Tex.Civ.App., 208 S.W. 755 (no writ history).

Appellant having failed to allege or prove a cause of action against the resident defendant Redwine for conspiracy to fraudulently induce Wm. L. Trammell to breach an unenforceable contract to pay appellant a commission for the sale of the property jointly owned by Wm. L. Trammell and appellee to Redwine, venue of this cause in Travis County, Texas, could not be sustained under subd. 4, Art. 1995, V.A. C.S., as to appellee, the nonresident defendant. Therefore, it is unnecessary to discuss appellant’s third point of error that the Trial Court in sustaining appel-lee’s plea of privilege held in effect that appellant was not a proper party to the cause of action against the resident defendant Redwine.

All of appellant’s points of error are overruled and the judgment of the Trial Court sustaining the plea of privilege of appellee, Mary S. Trammell, severing the cause of action as to the parties defendants and transferring the severed cause as to appellee to the 103rd Judicial District Court of Cameron County, Texas, is in all things affirmed.

Affirmed.