author: HAMILTON, Justice. GRIFFIN, Justice SMITH, Justice

text:
    HARTFORD ACCIDENT AND INDEMNITY COMPANY, Petitioner, v. George McCARDELL, Respondent.
    No. A-9094.
    Supreme Court of Texas.
    June 26, 1963.
    Rehearing Denied July 31, 1963.

      Thomas A. Wheat, Liberty, Fulbright, Crooker, Freeman, Bates & Jaworski, Charles M. Haden and Walter W. Williams, Houston, for petitioner.
    J. Robert Liles, of Davis, Phelps, Liles, Norton & Gray, Houston, for respondent.
   HAMILTON, Justice.

This is a workmen’s compensation case in which the respondent sued for total and permanent incapacity resulting from an injury to his left hip and back caused by being kicked by a mule. The jury found respondent totally incapacitated for a period of five weeks, and inasmuch as petitioner had already paid that amount, judgment was entered that respondent take nothing. The Court of Civil Appeals has reversed and remanded. 360 S.W.2d 831. Hartford is petitioner here.

Petitioner contends that the Court of Civil Appeals was in error in holding, first, that the trial court was in error in overruling respondent’s special exception to the pleading; second, that the trial court erred in overruling respondent’s motion in limine; and third, that the trial court erred in admitting into evidence certain petitions, affidavits, notices of injury and claims for compensation arising out of five other accidents. We sustain petitioner on its first two points. We overrule petitioner on the third point and affirm the judgment of the Court of Civil Appeals.

I. Special Exception to the Pleadings.

The pleading in question reads as follows :

“Answering further, if necessary, Defendant says that Plaintiff’s disability or incapacity, if any, was caused by some disease,, condition of health, some physical defect and/or some injury other than that made the basis of this suit, or some other cause or combination of causes unrelated in whole or in part to the alleged injury or disease alleged herein and made the basis of this suit.”

Respondent specially excepted to this pleading on the ground that it was too general, and he requested that petitioner be required to plead specifically which injury or disease or physical defect petitioner relied on. The trial court overruled respondent’s exception; the Court of Civil Appeals held this to be error. We sustain petitioner’s point of error complaining of this holding.

The Court of Civil Appeals assumed that this pleading was intended as an allegation of facts raising an affirmative defense under Article 8306, § 12c, Vernon’s Ann.Tex.St. It is difficult to tell from the pleading itself whether it was designed as a pleading of 12c defense or as a pleading of the inferential rebuttal defense actually submitted to the jury in Special Issue Number 11.

The two defensive issues submitted to the jury read as follows:

“SPECIAL ISSUE NO. 11
“Do you find from a preponderance of the evidence, that the incapacity, if any, which the Plaintiff, George Mc-Cardell, has had or will have, has not been or will not be due solely to some other injury or disease or condition of his body, or a combination thereof, if any, unconnected with the injuries sustained, if any, on July 18,1957?
“To which the Jury answered ‘It is due solely’.
“If you have answered the preceding Special Issue No. 11, ‘It is not due solely’, and only in that event, then answer the following:
“SPECIAL ISSUE NO. 12
“What percentage,, if any, do you find from a preponderance of the evidence, that the incapacity, if any, which Plaintiff, George McCardell, has had or will have, has not been or will not be due solely to some other injury or disease or condition of his body, if any, unconnected with the injuries he sustained, if any, on July 18,, 1957?
“To which the Jury gave no answer.”

Despite petitioner’s consistent argument that it was relying on Section 12c, Special Issue No. 11 is a submission of an inferential rebuttal theory and cannot be considered a proper submission of Section 12c. On the other hand, Special Issue No. 12 appears to inquire of facts which would establish Section 12c rights. We are at a loss to know whether petitioner proceeded under one or both theories. Clearly the pleading does not inform us, and it is insufficient for that reason. Rule 45; Pabst v. Roxana Petroleum Corp., 125 Tex. 52, 80 S.W.2d 956. But respondent’s special exception did not raise that question and it is not now before the court. Rule 90.

Regardless of which theory this pleading was meant to state, it was insufficient for want of specific allegations as to which of the other injuries caused the present incapacity. The sufficiency of the pleadings in this case is governed by the principles applied by this court in Agnew v. Coleman County Electric Cooperative, 153 Tex. 587, 272 S.W.2d 877 (1954), where it was held that a general pleading of contributory negligence would entitle the defendant to submission of special issues inquiring of specific acts of negligence, unless attacked by special exception demanding allegations of the specific acts relied on.

The pleading was insufficient and the trial court was in error in not sustaining respondent’s special exception. However, we think the error was harmless for the reason that the trial court in entering judgment specifically disregarded the answer of the jury to Special Issue No. 11 and entered judgment on respondent’s issues. The Court of Civil Appeals has reversed the trial court and remanded for a new trial on account of the error of the trial court in overruling the special exception. Rule 503 of the Texas Rules of Civil Procedure provides:

“ * * * that no judgment shall be reversed on appeal and a new trial ordered in any cause on the ground that an error of law has been committed by the trial court in the course of the trial, unless the appellate court shall be of the opinion that the error complained of amounted to such a denial of the rights of the petitioner as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case * *

Since the jury answered only one issue submitted under the defective pleadings, and the answer to that issue was disregarded by the trial court, we see no possible way in which the pleadings could have caused the rendition of an improper judgment. There was no complaint that the reading of the defective pleading to the jury was harmful.

We are cognizant of the apparent conflict of the answer to Issue No. 11 and the jury’s verdict that the respondent was totally incapacitated for a period of five weeks as a result of the injury sued on. But that question is not before us and we are not passing on the propriety of the trial court’s disregarding the answer of the jury to Issue No. 11 and entering judgment on the issues of respondent, the plaintiff below.

II. Motion in limine.

The Court of Civil Appeals held that the trial court erred in not sustaining a portion of respondent’s motion in limine which sought to suppress evidence of claims, settlements or payments arising out of three other injuries. We sustain petitioner’s point of error complaining of this holding.

We held in Bridges v. City of Richardson, Tex., 354 S.W.2d 366 (1962), that a party need not file a motion in limine in order to preserve the right to appellate complaint about erroneous admission of evidence. Proper objection made at the time of the offer of the evidence is sufficient. We stated that the purpose of a motion in limine is to prevent the asking of prejudicial questions and the making of prejudicial statements in the presence of the jury. It seems that the converse of our holding in the Bridges case is that although the overruling of a motion in limine may be error, it is never reversible error.

If a motion in limine is overruled, a judgment will not be reversed unless the questions or evidence were in fact asked or offered. If they Were in fact asked or offered, an objection made at that time is necessary to preserve the right to complain on appeal that such questions asked or such evidence tendered were so prejudicial that the mere asking or tendering should require a reversal. In neither case — (1) questions not asked or evidence not offered, or (2) questions asked or evidence offered — should the error of the trial court in overruling the motion in limine be regarded as harmful or reversible error.

III. Objections to Evidence.

Over respondent’s objections the trial court admitted into evidence petitions, notices of injury and claims for compensation ■and affidavits filed in courts and with the Industrial Accident Board in connection with five other injuries respondent had received. The Court of Civil Appeals held that the trial court erred in admitting these instruments because they were not admissions, they were offered merely to show that respondent had filed prior claims and suits and not for the purpose of proving a defense under Article 8306, § 12c.

Petitioner argues that the documents were properly let in as admissions for the purpose of impeaching respondent’s testimony and to prove the Article 8306, § 12c defense.

As proof of the rebuttal theory, the ultimate issue of fact to which these documents are said to be relevant is respondent’s issue on “producing cause”. Petitioner’s theory is that the mule kick injury was not the producing cause of the incapacity; it seeks to prove this affirmatively by showing that some other injury, or injuries, was the sole producing cause. As evidence of § 12c rights the ultimate issue is whether or not the other injuries contributed to the present incapacity.

Before discussing the law we wish to describe in some, detail the contents of the documents themselves and the circumstances surrounding their introduction into evidence.

1951 injury. First, a petition and affidavit filed in a district court in 1951 were offered early in the trial. Respondent admitted on direct examination that he had received a back injury in 1951 while lifting a log, but, he testified, the resulting incapacity kept him from work only one month. Respondent also testified that this was the only other back injury he had received. On cross-examination respondent reaffirmed his testimony, and at that point petitioner offered the petition and affidavit. The petition — filed three months after the injury— alleged the accident, a back injury, and total, permanent incapacity. The affidavit contained essentially the same statements. Respondent’s attorney objected on the ground that these were hearsay and not an admission of any material fact. After the petition and affidavit were let in, petitioner offered five other instruments — notices of injury and claims for compensation filed with the Industrial Accident Board in connection with this injury. These also contained descriptions of the accident, injury, and claims of total, permanent incapacity. Curiously, when these notices were offered respondent’s attorney said, “We have no objection.”

1955injury. As the trial progressed petitioner’s attorney asked respondent if he had not suffered another back injury in 1955 while working for a lumber company. Respondent testified that only his shoulder and neck were injured in that accident. Petitioner then introduced a notice of injury and claim for compensation filed with the Industrial Accident Board in which respondent claimed total, permanent incapacity from injuries to his left shoulder, arm, chest, thumbs and the upper cervical region of his back.

1956 injury. Petitioner’s attorney asked respondent if he had ever had any other injuries to his left hip, and respondent answered that he had not. Petitioner was then permitted, over objection, to introduce a report by a Dr. Markewich which had been filed with the Industrial Accident Board. This report tends to show that respondent had received an injury to his right hip in a 1956 accident.

1957 injury. Petitioner introduced a notice of injury and claim for compensation-filed with the Industrial Accident Board in which respondent alleged an injury to his left arm and shoulder caused by an accident which occurred subsequent to the mule kick.

1945 injury. Toward the end of the trial petitioner’s attorney again asked respondent if he still insisted that the 1951 injury was. the only other back injury he had received; whereupon, respondent admitted that he remembered that he had suffered another injury in 1945 when he was hit on the back by a barrel. Respondent testified that this injury “did not amount to much” and that he had gone back to work within one week.

Over respondent’s objection petitioner was allowed to introduce an affidavit signed by respondent in which he stated that he had received a back injury, and that at the time of the affidavit — over two months later —he was still incapacitated and could not work.

After further questioning, respondent testified that he had gone to see a lawyer about filing a claim but that he did not go-back to the lawyer after that first visit. Petitioner’s attorney then was allowed to-introduce a petition filed in a district court eight months later by that same lawyer. This petition contains allegations of various injuries, including a back injury, and allegations of total permanent incapacity.

The question of the admissibility of petitions, notices of injuries, claims for compensation and affidavits filed in courts or with the Industrial Accident Board in connection with other injuries than the one sued on in a compensation case has been quite a problem to the courts. We see no reason why the well-settled rules of evidence should not govern in these cases. The objection made to this type of evidence was that it was hearsay and prejudicial. The obj ection is good unless it comes under some exception to the hearsay rule. The well-accepted rule is “evidence of a statement made out of court when such evidence is offered for the purpose of proving the truth of such previous statement is inadmissible as hearsay.” McCormick and Ray, Texas Law of Evidence, Vol. 1, § 781, and cases there cited.

One of the exceptions to this rule is an admission of a party against his interest in reference to a material matter. An admission used in this sense “may be defined as any statement made or act done by one of the parties to any action or on his behalf which amounts to a prior acknowledgment by such party that one of the facts relevant to the issues is not as he now claims.” McCormick and Ray, Vol. 2, § 1121.

As evidence, admissions by a party are a two-pronged assault on the admitter’s case. As a true exception to the hearsay rule they prove the truth of the facts admitted. Cook v. Hamer, 158 Tex. 164, 309 S.W.2d 54 (1958); McCormick and Ray, Texas Law of Evidence, Vol. 2, § 1121. And since by definition they are inconsistent with the admitter’s testimony at trial, they tend to impeach his credibility. (For the distinction between impeachment and admissions of a party, see Edwards v. Osman, 84 Tex. 656, 19 S.W. 868 (1892), and McCormick and Ray, Vol. 2, § 1124.) While petitioner’s application states the argument in terms of impeachment, we have interpreted it to be an argument based on the principle that an admission of a party is an exception to the hearsay rule, and will so treat it.

In order for a document otherwise condemned by hearsay to qualify as an admission it must contain some statement relevant to a material issue in the case and inconsistent with the position taken by the party against whom it is introduced. In discussing the admissibility of these documents containing statements of the respondent we must keep in mind the issues to be determined.

The issues in this case are clearly drawn. Respondent maintains that the injuries he received from a mule kick are the producing cause of his incapacity to labor. Petitioner contends that respondent is suffering from no disability, but if he is, his incapacity to labor is the result of other injuries. The only reason evidence of other injuries is admissible at all in a compensation case is that it might have some bearing on the question of whether the injury sued on is the producing cause of any incapacity claimed.

With reference to the 1945 injury described above, there is no question but that there is an inconsistency in the respondent’s testimony at the trial and the statement contained in his petition filed in court eight months after the 1945 injury, in which he states that he is totally incapacitated to labor and has been continuously since his injury, his testimony on the trial being that he was incapacitated for a period of a week and the injury did not bother him thereafter. Respondent contends that even though the injury was a back injury similar to the one sued on in the instant case, and that the testimony is inconsistent with the statement in the petition with reference to the extent of the injury, that the inconsistency is not relevant to any issue in the case because there is no showing that the effects of the 1945 injury have persisted and now are affecting the incapacity claimed by the respondent. Respondent in this case contends that he is suffering from a herniated disc. There was testimony in the case that the effects from this sort of an injury sometimes disappear for a time and then reoccur. We think the Court of Civil Appeals was in error in holding that the petition filed in connection with the 1945 injury was not admissible.

Likewise, we hold that the Court of Civil Appeals was in error in holding that the documents introduced in connection with the 1951 injury were not admissible. The inconsistency there was that plaintiff claimed he was incapacitated for only one month, whereas the documents introduced in connection with that injury showed that he was totally incapacitated for at least three months. This was also a back injury and much closer to the time of the injury here sued on than the 1945 injury. Consequently, we think the trial court did not abuse its discretion in allowing such documents to be introduced in evidence as being relevant to the principal issue in the case.

As to the 1955 injury, respondent testified that only his shoulder and neck were injured in that accident. Petitioner then introduced a notice of injury and claim for compensation filed with the Industrial Accident Board which showed an injury to the upper cervical region of respondent’s back. Petitioner contends that this was inconsistent with plaintiff’s testimony that his back was not injured in that accident and for that reason was admissible. One of the doctors testified that “upper cervical region of the back” meant the “neck”. We think this is not such an inconsistency as would come under the exception to the hearsay rule to allow the introduction of the documents as an admission against interest.

With reference to the 1956 injury, respondent testified to having had an injury to his right leg. Petitioner introduced over objection a report of history and physical examination on respondent by a Dr. J. Mar-kewich which had been filed with the Industrial Accident Board. We are at a loss to understand why this instrument was allowed to be introduced. There is no claimed inconsistency between the report and the respondent’s testimony. It is not even a statement of the respondent, therefore cannot be an admission. It is pure hearsay and it was error for the trial court to admit it. ■

Petitioner contends that there is an inconsistency on another ground, that is, as to the claimed permanency of the 1956 injury. We reject that argument; the statement of claimed permanency is not susceptible of inconsistency with a statement of fact at the trial that the 1955 injury is not then affecting the incapacity sued on. The statement in 1955 that the incapacity would be permanent was nothing more than a prediction; it was not a statement of a fact. If on Monday a man says, “On Tuesday it will rain”, and on Wednesday he says, “It did not rain on Tuesday”, we could not logically say that the former statement was inconsistent with the latter or that he admitted that it did not rain on Tuesday. The most we could say is that he had acknowledged that he had been in error. In other words, one cannot be said to have admitted the truth of a predicted fact; a prediction is not an assertion of the truth of the fact predicted.

Concerning the 1957 injury, plaintiff testified that he hurt his left arm and left shoulder while lifting a plate of sheet iron with three other men. Petitioner introduced notice of injury and claim for compensation filed with the Industrial Accident Board describing the injury almost exactly as the respondent had testified. There is no inconsistency in the testimony and the statement made in the notice of injury. Therefore it was not admissible as an exception to the hearsay rule, and it was error for the trial court to admit it. We think the only purpose which could be served by introducing the documents concerning the 1955, 1956 and October, 1957 injuries was to show that plaintiff had filed the suit and filed claims before the Industrial Accident Board for other injuries. Viewing the record as a whole, it is clear that petitioner takes the position that the respondent is a malingerer in respect to the injury sued on, and furthermore that he is an habitual and chronic claimant.

While the introduction of such documents does tend to uphold petitioner’s position, they are not admissible for that purpose under any rule of evidence. It is evident that their introduction is harmful and prejudicial to respondent’s case. For that reason we overrule petitioner’s point complaining of the action of the Court of Civil Appeals in reversing and remanding the case for a new trial on account of the introduction of the documents in connection with the 1955, 1956 and October, 1957 injuries.

Our affirmance of the Court of Civil Appeals’ holding is not, as respondent contends, inconsistent with the holding in St. Paul Fire & Marine Insurance Co. v.. Murphree, Tex., 357 S.W.2d 744 (1962). In that case we held that it was not reversible error to exclude a petition filed in connection with an injury subsequent to the injury in question when the facts alleged (nature and extent of injury) in that petition had been admitted by the plaintiff in his testimony at trial. The court there chose to hold that the testimonial admission of the facts stated in the petition rendered harmless any error in excluding it. The court might just as well have held, as we do here as to the documents relating to the 195S, 1956 and October, 1957 injuries, that because of the testimonial admission of the facts stated in the petition, there was no inconsistency, thus no ground for its being received as an admission.

We affirm the judgment of the Court of Civil Appeals reversing and remanding the case.

GRIFFIN, Justice

(concurring in part and dissenting in part).

I agree with the holding that the trial court should have sustained plaintiff’s special exception, but that it was harmless error under the facts of this record.

I disagree with Judge HAMILTON’S holding that certain documentary evidence was inadmissible.

SMITH, Justice

(concurring).

This is a workmen’s compensation case. The plaintiff, George McCardell, sued the defendant, Hartford Accident and Indemnity Company to recover compensation for total and permanent incapacity resulting from an injury alleged to have been sustained on July 18, 1957. Plaintiff recovered a judgment for total incapacity for the limited period of five weeks. The trial was to the Court with the intervention of a jury. Plaintiff appealed to the Court of Civil Appeals and that Court reversed the judgment and remanded the cause to the trial court for a new trial. 360 S.W.2d 831.

The parties will hereinafter be designated as in the trial court. When the defendant’s petition for writ of error was granted, this court was of the tentative view that the trial court correctly overruled plaintiff’s special exceptions to paragraph IV of the defendant’s second amended original answer, and that the Court of Civil Appeals erred in holding to the contrary. Upon further consideration and after hearing oral argument, I have concluded that the action of the trial court in overruling plaintiff’s special exception and motion to strike paragraph IV of defendant’s answer was prejudicial error. In my opinion the judgment of the Court of Civil Appeals reversing that of the trial court should be affirmed.

In this opinion I will not only state my reasons for holding that the defendant’s general defensive pleadings were prejudicial to the rights of the plaintiff, but will announce rules to he followed in the event of a retrial of this case. I deem this to be necessary since the procedural aspects of the case are made difficult because the defensive pleadings and the evidence introduced in the trial indicate that the plaintiff has sustained several injuries in the course of his career which the defendant claims contributed to plaintiff’s alleged incapacity.

Special Exceptions There are some basic rules which come into play in determining whether or not the trial court has committed error in ruling upon special exceptions to pleadings. Some of these rules are found in the Texas Rules of Civil Procedure, and some have developed through the decided cases in this jurisdiction. The nature of plaintiff’s cause of action, as reflected by the pleadings, determines the ultimate plaintiff’s issues to be submitted to the trier of the facts. It is equally true that the rules require that in certain cases the defendant must affirmatively plead the defenses upon which he relies in order to be entitled to an affirmative submission of such issues in his behalf. “ * * [Ejxcept in trespass to try title, statutory partition proceedings and other special proceedings in which the pleadings are specially defined by statutes or procedural rules, a party shall not'be entitled to an affirmative submission of any issue in his behalf where such issue is raised only by a general denial and not by an affirmative written pleading on his part. * * * ” Rule 279, Texas Rules of Civil Procedure.

Rule 91 provides that a special exception shall not only point out the particular pleading excepted to, but it shall also point out intelligibly and with particularity the defect, omission, obscurity, duplicity, generality, or other insufficiency in the allegations in the pleading excepted to. See also Rule 94.

Unless there is a strict compliance with the provisions of Rule 91, a pleading, wholly too general, may authorize the introduction of testimony to establish the generally alleged facts. The pleadings furnish the standard by which the Court determines the admissibility of evidence, but it is the duty of the Court to instruct the jury as to the law arising on the facts. Agnew v. Coleman County Electric Cooperative, 153 Tex. 587, 272 S.W.2d 877, 879 (1954). In the case of Western Union Telegraph Co. v. Jeanes, 88 Tex. 230, 31 S.W. 186, 187, it was held that the defendant’s pleadings were too general and that “[i]f specially excepted to for generality, the averment should have been held bad.” See also, May v. Taylor, 22 Tex. 348.

The plaintiff in the present case has complied with Rule 91 in regard to the form of special exceptions necessary to point out the claimed defect of the defendant’s pleadings. Plaintiff’s special exceptions pointed out to the Court that he was entitled to have the defendant plead specifically the disease, condition of health, physical defect, or injury, or combination of such causes which the defendant was relying upon to ■diminish or defeat his cause of action for a recovery for total and permanent incapacity as the result of the July 18, 1957, injury'; that without being so apprised through written pleadings, he would not be •able to investigate and prepare his defense against such claims.

I agree with the plaintiff that the trial court’s action in failing to respond favorably to the special exceptions resulted in material harm to the plaintiff. Any pleading, such as the one here under attack, which fails to give fair notice to the opposite party of the matters expected to be established is harmful. See Rust v. Rust, 131 Tex. 532, 117 S.W.2d 59 (1938); See International & G. N. R. Co. v. Pape, 73 Tex. 501, 11 S.W. 526 (1889); Traders & General Ins. Co. v. Hicks, Tex.Civ.App., 94 S.W.2d 824 (1936); Garrett v. City of Wichita Falls, Tex.Civ. App., 329 S.W.2d 491 (1959), no.wr.hist. To hold otherwise in this case would render useless special exceptions, the chief method provided in the Texas Practice for the protection of litigants against unfair pleadings. The special exception provides a single, intelligible, straight-forward method of indicating those parts of the opponent’s pleading which should be reframed before trial. See McDonald, Texas Civil Practice, Vol. 2, Sec. 7.21, pp. 643, 644.

The harmful effect of the general pleadings is best illustrated by considering the nature of plaintiff’s cause of action and the defendant’s defense thereto. Plaintiff alleged in this case that he had sustained an accidental injury in the course of his employment and that as a result of such injury he had sustained total and permanent incapacity. It is sufficient to say that if a jury had found upon sufficient evidence that some total incapacity existed as a result of the injury alleged to have been sustained on July 18, 1957, plaintiff would have been entitled to judgment. For the plaintiff to recover for total and permanent incapacity, it was not necessary for him to plead and secure a jury finding that the July 18, 1957, injury was the sole cause of his incapacity. See St. Paul Fire & Marine Insurance Co. v. Murphree, Tex., 357 S.W.2d 744, and cases cited therein at page 749.

The defendant not only contends that its pleadings were not subject to the special exceptions urged by the plaintiff, but argues that in the event it should be held that the trial court erred in overruling the exceptions, it should be further held that such error was rendered harmless because the plaintiff demonstrated by his allegations in a motion in limine that he had knowledge of all the defenses the defendant expected to prove under the allegations' contained in paragraph IV, supra. I cannot agree. The fact that plaintiff knew that he had sustained the injuries enumerated in the motion in limine did not relieve the defendant of the duty of pleading its defense in such a manner as to enable the plaintiff to adequately prepare his case before the date of trial. Whatever “disease, condition of health, physical defect, or injury, or combination of causes” the defendant had in mind to establish to defeat plaintiff’s cause of action was certainly buried in obscurity. Under the Rules of Practice in Texas, obscure pleadings are no longer permitted where proper objection is made thereto. These rules apply equally to both plaintiff and defendant alike. The plaintiff in this case, in view of his special exceptions, was entitled to know before being required to announce ready for trial, what disease, what injuries or combination of injuries were to become issues in the case. The motion in limine requested the trial court to instruct the counsel for the defendant to make no reference to injuries he had sustained on three separate occasions, to-wit: On November 29, 1955; on September 12, 1956; and on October 31, 1957. The motion makes no reference to any disease, condition of health or some physical defect. Neither does the enumeration of three injuries other than the one in suit necessarily include all the injuries or combination of causes unrelated to the injury of July 18, 1957, which the defendant might have attempted to prove under its general allegations. Under the circumstances, I am of the opinion that it should be held that the error of the trial court in overruling the plaintiff’s special exceptions amounted to such a denial of the rights of the plaintiff as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in this case. See Rule 503. Clearly, the erroneous ruling was such as probably prevented the plaintiff from properly preparing for trial and properly presenting his case in the trial court.

Upon a retrial of this case, I would respectfully direct the trial court’s attention to the case of St. Paul Fire & Marine Insurance Co. v. Murphree, supra. That case was decided in May, 1962, after the judgment in the present case was entered. The Court there was confronted with some of the problems involved here. In that case, we were not concerned with special exceptions, but were called upon to pass upon the action of the trial court in sustaining Murphree’s motion in limine, and the action of the trial court in excluding evidence bearing upon injuries sustained by Murphree both before and after the injury directly involved in the suit. One phase of the Murphree case, and our holding thereon, does point up the correctness of our holding in the present case. In that case, the defendant pleaded as a defense that an injury sustained by Murphree on June 28, 1957, contributed 25% to the incapacity alleged by Murphree. The jury so found, but the trial court sustained Mur-phree’s motion to disregard the jury finding on the ground that the injury was general and noncompensable. We held that a general, noncompensable injury could not be used to reduce the liability of the insurer as a result of the injury made the basis of the suit. Had the defendant in the present case pleaded with particularity the specific injuries relied upon to reduce plaintiff’s recovery, the' plaintiff would have been in a position to move to strike any pleading reflecting a general but non-compensable injury. In such event, if the hearing on the motion revealed that the alleged contributing injury was, without dispute, general and noncompensable, the motion to strike should be granted. The time of the Court and the parties should not be consumed with immaterial matters. Furthermore, the trier of the facts should not be called upon to consider such immaterial' matters in determining the controlling issues in the case.

Motion in Limine and Objections to Evidence

On another trial if a motion in limine-is filed, the trial court will necessarily be required to pass upon the motion. Since, in my opinion, the judgment of the Court of Civil Appeals should be affirmed on-another ground, I need not express my views as to the defendant’s point complaining of the action of the Court of Civil.' Appeals in holding that the trial court erred in not sustaining plaintiff’s motion in> limine. However, I would point out that in the case of Bridges v. City of Richardson, Tex. 354 S.W.2d 366, we held that the purpose in filing a motion in limine was to-suppress evidence or to instruct opposing counsel not to offer it so as to prevent the asking of prejudicial questions and the making of prejudicial statements in the-presence of the jury with respect to matters which have no proper bearing on the-issues in the case or on the rights of the parties to the suit. The holding in the Bridges case points out the procedure to-be followed in the event the motion in lim-ine is overruled. In regard to the admission of evidence, a proper objection made-at the time evidence is offered is sufficient to preserve the right of review of’ error committed in admitting it, and a motion in limine is not a necessary predicate-for complaint on appeal that the admission-of the evidence was error and that the-error was prejudicial. Bridges v. Richardson, supra.

In the Murphree case, the trial court sustained plaintiff’s motion in limine. However, for reasons stated in the opinion, we held that such action was not reversible error. Regardless of whether a motion in limine is filed or not filed, it is made clear in the Murphree opinion that evidence showing the nature and extent of the prior and subsequent injuries there involved was admissible. The evidence of such injuries was held to be admissible on the theory that it is the extent of the prior and subsequent injuries that reduces the insurer’s liability. The Murphree case also stands for the proposition that pleadings in other actions which contain statements inconsistent with the party’s present position with reference to such other actions are receivable as admissions. See McCormick and Ray, Texas Law of Evidence, 2d Ed. 1956, Vol. 2, § 1145, p. 34. We held in the Murphree case that the action of the court in excluding evidence of the sums of money obtained in settlement of other claims was proper, citing authorities. We also held that what an employee is paid in settlement of his claim growing out of an injury does not determine the extent of the prior and subsequent injuries. Settlement agreements and the sums paid in settlement of other suits or claims cannot serve the jury or the trier of the facts materially in determining the extent of the injuries contributing to McCardell’s disability. See Myers v. Thomas, 143 Tex. 502, 186 S.W.2d 811 (1945), and other cases cited in the Murphree case.

The defendant admits in its briefs that proof of prior claims merely for the sake of proving prior claims, by means of prior pleadings, notice of injury, and similar papers is a “vice” that under proper circumstances is to be condemned. However, it is argued that as a matter of practical economics, pleadings, affidavits and related papers in cases involving other claims are admissible, and if not admitted, “ * * * it will be literally impossible for the members of the Bar to obtain and have ready for trial, expert and lay witnesses and other evidence of prior injuries * * * ” I do not share the view thus expressed. On the other hand, I see no reason why the well-settled rules of evidence should not govern in compensation cases where multiple injuries are involved. To avoid complications in the future, so far as this case is concerned, I have herein announced some of these rules, which could be applicable on a retrial.

For the reasons stated, I would affirm the judgment of the Court of Civil Appeals.

GREENHILL, STEAKLEY and WALKER, JJ., join in this opinion.

      . “See. 12c. If an employee who has suffered a previous injury shall suffer a subsequent injury which results in a condition of incapacity to which both injuries or their effects have contributed, the association (Texas Employers’ Insurance Association) shall be liable because of such injury only for the compensation to which the subsequent injury would have entitled the injured employee had there been no previous injury; provided that there shall be created a fund known as the ‘Second-Injury Fund’ hereinafter described, from which an employee who has suffered a subsequent injury shall be compensated for the combined incapacities resulting from both injuries. Acts 1917, p. 269; Acts 1947, 50th Leg., p. 690, ch. 349, § 1.”

      . “Answering further, if necessary, Defendant says that Plaintiff’s disability or incapacity, if any, was caused by some disease, condition of health, some physical defect and/or some injury other than that made the basis of this suit, or some other cause or combination of' causes unrelated in whole or in part to the alleged injury or disease alleged herein and made the basis of this suit.”

      . “Plaintiff specially excepts and takes exception to Paragraph IV. of the Defendant’s Second Amended Original Answer wherein the Defendant only generally sets out that the Plaintiff’s disability or incapacity was caused by some disease, condition of health, some physical defect, or some injury other than that made the basis of this suit, or some other cause or combination of causes unrelated in whole or in part to the alleged injury or disease alleged to be made the basis of this suit since such pleading does not sufficiently inform the Plaintiff of what disease or general condition or physical defect or injury or combination of such causes, which the Defendant is relying upon, and, therefore, the Plaintiff cannot properly prepare a defense to such pleading. * * * ”

      . All reference to rules herein has reference to Texas Rules of Oivil Procedure.


source: Caselaw Access Project

author: GRIFFIN, Justice.

license: Public Domain

text:
    H. A. MADDOX et al., Trustees of the Church of Christ of Richardson, Texas, Petitioners, v. Carroll H. MAXWELL, Respondent.
    No. A-9373.
    Supreme Court of Texas.
    June 26, 1963.
    Rehearing Denied July 31, 1963.

      Wynne, McKenzie, Jaffe & Tinsley, Henry Baer, Dallas, for petitioners.
    Spafford, Ledbetter, Freedman, Hamilin & Gay, Warren Whitham Dallas, for respondent.
   GRIFFIN, Justice.

This is a suit in trespass to try title brought by H. A. Maddox, C. L. Green, Frank C. Morris, V. L. Paul, W. C. Wallis, Sr., and W. E. Williams, Trustees of the Church of Christ of Richardson, Texas,, hereinafter called plaintiffs, against Carroll H. Maxwell, hereinafter called defendant. Title to a strip of land approximately twenty feet wide along the west side of the church property is in controversy. The trial court, without a jury, found against the contention of Maxwell that the land was a public street by implied common-law dedication and rendered judgment for Maddox et al. One of the findings of fact of the trial court was that at no time did any member or trustee of the church intend to dedicate the property in controversy.

The Court of Civil Appeals, relying on: Owens v. Hockett (1952), 151 Tex. 503,. 251 S.W.2d 957, and City of Houston v. Hughes (1955, Tex.Civ.App.), 284 S.W.2d 249, error refused, n. r. e., has reversed and rendered judgment for respondent, holding that the strip of land in controversy was a public road or street by virtue of an implied common-law dedication and that the trial' court erred in not so holding. 362 S.W.2d 147.

For the respondent to prevail in' this Court, he must show dedication as a matter of law. Greenway Parks Home Owners Ass’n v. City of Dallas, 159 Tex. 46,. 312 S.W.2d 235, rehearing denied, 159 Tex. 46, 316 S.W.2d 74. We cannot find support for such a holding in the facts of this case. We hold that the facts of this case show, as: a matter of law, that the strip of land in question was never dedicated, expressly or impliedly, as a road or street.

At the start of the trial, the parties, stipulated under Rule 266 “that plaintiffs hold the record title to the land described in their pleadings and are to recover the title and possession of said land, except to. the extent that the defendant is able to prove that a part of said land is a public road or thoroiare * *

The Church of Christ of Richardson, Texas, of which the plaintiffs herein are the trustees, owned a tract of land, of approximately two acres, which was approximately the east part of a larger tract north •of Phillips Street in the town of Richardson. Adjoining the church property on the west and also adjoining Phillips Street on the north was a tract of land owned by a Mr. and Mrs. James. The Jameses’ home was on the south part of their tract along Phillips Street and was known as 329 Phillips Street. Prior to 1950, the Jameses sold the north part of their land to their son-in-law, Fred Holley, who built his home thereon. This house faced east, which was toward the adjoining church property. North of the James and Holley land was a tract of land owned by a Mr. and Mrs. Cassidy and which adjoined the north part ■of the church land on the west. There is a plat of this property set out in the Court of ■Civil Appeals’ opinion and we will not reproduce it here.

Prior to 1950, the evidence is undisputed that those people who came to visit or transact business with either the Jameses, Hol-leys or Cassidys would drive across the •church tract not occupied by the church building in varying directions so as to make tracks and trails indiscriminately across the church tract.

To remedy this condition and to protect their property, the church in 1950 decided to, and did, erect a chain link fence twenty feet east of their west line across their property. This left a twenty foot strip separated by this fence from the balance of the church property. The church at the same time erected a similar fence across the whole length of their north property line which separated the twenty foot strip from the lands lying immediately along the north end of the strip. This fence prevented any traffic north to the next street.

The Jameses entered their property from Phillips Street by first driving on the church property but near the west line thereof. The Holleys entered the Jameses’ property at the same entrance, and if going to Phillips Street or coming therefrom, continued to drive on the church property and near the west line thereof until they reached their ■own driveway to their improvements. The Cassidys had one or more rent houses and a residence on their tracts, and in going to or from Phillips Street, drove along near the west line of the church property. The west side of the church property was covered with grass and weeds, except some authority — the record is not clear if it were the city or county- — had graveled a narrow driveway leading from Phillips Street north to the Cassidy rent houses.

After the church had decided to erect its fences, and under specific directions from the church congregation, a committee of three or more of the trustees called on Mr. Holley and Mr. Cassidy to inform them of such decision. Mr. C. L. Green, one of the church trustees and one of the committee to notify the Jameses, Holleys and Cas-sidys, testified as follows:

“Well, people were using the property and going in various directions and damaging the property and driving trucks and cars and what have you, when it was raining and cutting ruts all over the property, and we contacted the parties who owned the property and told them that we were going to build a fence to protect our property, but we wanted to be neighbors and that we would allow them temporarily an outlet until such time as the church needed the property for their use, but we were going to build our fence on the north and tie onto our corner.”

Specifically testifying as to what the committee told Mr. Cassidy, Mr. Green testified :

“We told him we were going to build a fence to protect our property, but at the same time, to be neighborly, and to get along, we felt the Christian thing to do would be to allow him permission to use it on a temporary basis and the fence was to be a temporary thing and if ever the church should grow to the point that we needed the property that it was understood that we weren’t releasing any rights whatsoever in regard to our property.”

The other committee members gave testimony of a similar nature.

The record shows that Mr. and Mrs. James were elderly and that their son-in-law attended to their business. Mrs. James testified herein by deposition and confirmed that Mr. Holley attended to their business and that she and Mr. James recognized that they were using the strip of land by and with the permission of the church; that they made no claim to use the strip adverse to the church, and that they recognized at all times that the church owned the strip and could deny them the use of the strip at any time the church so desired. Mr. Holley gave similar testimony as to his understanding as to his right to use the strip and of the church trustees visiting him and outlining his rights to use the strip.

Mrs. Cassidy testified that the church committee came to talk with Mr. Cassidy about the use of the strip — sometimes referred to in this record as Cliff Street. She said she was in the house at the time the committee talked with Mr. Cassidy, but did not hear the conversation. Mr. Cassidy had died in 1957, and was not available as a witness.

Mrs. Cassidy further testified that she remembered that the church gave Mr. Cas-sidy permission to use the lane just prior to its erecting its fences, and that Mr. Cassidy made a donation to the church shortly thereafter, and he was not a member of that church.

The church erected its fence in 1950, and they removed the west fence in the summer of 1960.

A driveway on this strip was covered with asphalt some few years after the church built its fence. Mrs. Cassidy testified that this asphalt covering was put in by Dallas County as a result of a request made by her husband. This is about as definite date as the record shows when the asphalt was put down — sometime between the erection of the fence in 1950 and Mr. Cassidy’s death in 1957.

The church was not consulted about the installation of the asphalt, gave no permission to anyone to install it, did not know who installed it, but made no objection to the asphalt being put down.

In 1952, Lone Star Gas Company installed a gas line from Phillips Street north in the twenty foot strip, running about 210-220 feet north about six feet from the west line of the church property. This line was to serve the three houses on the Cassidy property. The gas company neither asked nor received any permission from the church to install this line, but relied on a copy of an order and resolution of the Board of Commissioners of the City of Richardson, Texas, January 30, 1952, which purported to make the twenty foot' strip a public street of Richardson, and authorize the gas company to lay its feeder line. The church had no notice of this ordinance and order prior to the filing of this suit, did not consent to the passage of such ordinance, nor the laying of the gas line, but did not object to the gas company laying the line on the strip. The foreman of the crew laying this line testified he did not believe there was any asphalt on the strip when the line was laid. The line was buried beneath the surface of the strip.

It was stipulated by all parties that this purported ordinance making the strip a public street was not in the Minutes of the City Council of Richardson at the time of the trial of this cause.

This strip is used by the postman, the dairy deliveryman, and others having business with, or visiting with the occupants of the houses fronting thereon.

Sometime between the death of Mr. Cas-sidy and 1960, Mrs. Cassidy purchased the property adjoining and to the west of the James and Holley tracts of land. This purchase adjoins a part of the original Cassidy property on the south and runs through to Phillips Street.

In early 1960, Mrs. Cassidy sold her holdings in this vicinity to defendant, Max* well, and he erected an apartment house on the north part of the Cassidy land. He sold and had removed the Cassidy improvements •on this land, prior to the erection of this •apartment house. In order to secure a building permit from the City of Richardson for the erection of this apartment house, it •was necessary that the defendant file plans with the city’s building inspector. The first •set of plans filed, and the ones on which preliminary approval was given, showed that defendant was entering his apartment parking lot from Phillips Street, on the south, across his property in the rear of and to the west of the James and Holley property. Later, defendant filed an amended plan, showing entrance to the parking lot by using the strip in question.

This case is controlled by our case of Greenway Parks Home Owners Association v. City of Dallas (1958) 159 Tex. 46, 312 S.W.2d 235.

In that case the City of Dallas was contending that a certain area known as “A Park” had been dedicated by the original developer to the use of the public. At the time of the subdivision, this development was outside the City of Dallas, but was later annexed to Dallas. The City had listed this tract as a public park and had at various times mowed the grass and weeds as a health and fire protection measure, trimmed some of the trees and shrubbery that interfered with street traffic, drained stagnant waters that had collected and at one time erected a barricade. Dallas had also made a written agreement with Park Cities’ Y.M.C.A., authorizing the use of the tract for athletic and playground activities under the condition that the Y.M.C.A. would be responsible for the upkeep of the park area. No one had rendered the property for taxation, nor had any governmental body placed the property on the tax rolls. The area was first subdivided in 1928, and was annexed to the city in 1942, and suit was filed in July, 1955. The trial court rendered judgment against the city and for the Association, and that judgment had been reversed and rendered by the Court of Civil Appeals, awarding title and possession of A Park to the City of Dallas.

The Supreme Court reversed the Court of Civil Appeals, 306 S.W.2d 742 and affirmed the trial court’s judgment. In our opinion, we said:

“In order to constitute dedication by estoppel or implication there must exist a clear and unequivocal intention on the part of the landowner to dedicate the same to public use and an acceptance thereby by the public. City of Tyler v. Smith County, 151 Tex. 80, 246 S.W.2d 601; International & G. N. R. Co. v. Cuneo, 47 Tex.Civ.App. 622, 108 S.W. 714, er. ref.
“This Court said in City of Houston v. Scanlan, 120 Tex. 264, 37 S.W.2d 718, 720, that:
“ ‘The vital principle, as seen from the authorities, upon which the doctrine of dedication rests, is the intention of the owner to dedicate. This intention may be implied from the owner’s acts, coupled with the intention with which he did the acts. * *
“ ‘But the intention to dedicate must be shown or be inferable, by sufficient evidence, from the owner’s acts.’
“In that case the Court held that the mere use of the concrete walkway by pedestrians was not sufficient to raise a fact question as to the intention to dedicate, the use not being general or customary.
“The intention to dedicate must be shown by something more than an omission or failure to act or acquiesce on the part of the owner. Worthington v. Wade, 82 Tex. 26, 17 S.W. 520; Gulf, C. & S. F. Ry. Co. v. Montgomery, 85 Tex. 64, 67, 19 S.W. 1015; International & G. N. R. Co. v. Cuneo, supra. The use by the public of an unenclosed lot in a city without objection by the owner is not in itself sufficient evidence of an intention to donate.”

It is true that in the Greenway Park Home Owners Association case, the sub-dividers of the tract did so by written instruments which recited no dedication was made, nor intended to be made, as to the property shown on the dedication plat; while in the case at bar there was no written instrument executed by the church trustees.

In our case the undisputed testimony of the trustees, Mr. Holley and Mr. James, as well as Mrs. Cassidy, is that the church gave permission to these landowners to use the strip as a means of ingress and egress. All but Mrs. Cassidy testified that the trustees told them that the church was giving permission to use the strip only until it was needed by the church and that they recognized at all times they were using this strip subject to the church’s pleasure. Mrs. Cassidy did not hear the conservation with her husband.

From the undisputed evidence, we hold there is not shown the church had any intention to dedicate this strip, at the time it erected its fence. On the contrary, the undisputed evidence shows there was no such intention on the part of the church, and use only by permission of the church was granted. Without an intention to dedicate, there could be no dedication in this cause,

We have examined the assignments of error filed by defendant in the Court of Civil Appeals in order to determine if any of them could lead to an affirmance of the Court of Civil Appeals judgment. We find no such assignments. All assignments in the Court of Civil Appeals, except those sustained by that Court, if sustained would lead only to a reversal and remand, and we have no jurisdiction to review them, since they are not brought here by cross points of error.

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


author: WALKER, Justice.

text:
    SABINE RIVER AUTHORITY OF TEXAS et al., Petitioners, v. Ben D. WILLIS et al., Respondents.
    No. A-9439.
    Supreme Court of Texas.
    June 12, 1963.
    Rebearing Denied July 24, 1903.

      Allen Clark, Greenville, H. P. Kucera, City Atty., Dallas, for Sabine River Authority.
    Fred V. Meridith, Terrell, for Boles Home, Inc.
    Waggoner Carr, Atty. Gen., Austin, J. Milton Richardson, Ben M. Harrison, Asst. Attys. Gen., for Waggoner Carr, Atty. Gen.
    Olin P. McWhirter, Greenville, Hollie G. McClain, Gilmer, for Ben D. Willis and others.
   WALKER, Justice.

Boles Home, a corporation, holds certain real estate in Hunt County under a contract and deed executed by W. F. Boles and Mary Barnhart Boles in 1923. These instruments recite that the land was conveyed for the purpose of establishing and maintaining a home for orphans, and provide that the title thereto shall revert to the grantors, their heirs or legal representatives, if the property is ever diverted to other uses.

Sabine River Authority of Texas, an agency of the State with the power of eminent domain, decided to condemn part of the land. It instituted the present suit in the District Court of Hunt County against the Home and the heirs of W. F. Boles and Mary Barnhart Boles, and by its amended petition sought a declaratory judgment determining whether the Home or the heirs will be entitled to the money awarded for the land. Prior to the trial of the case, a condemnation petition was filed with the County Judge of Hunt County. Boles Home and the Attorney General of Texas are named as defendants therein, but the heirs were not made parties to that proceeding.

The trial court concluded that a taking of the land under the power of eminent domain does not constitute such diversion of use as would give rise to a right of reentry or reverter. It entered judgment stating the question presented for decision and declaring that the heirs are not entitled to any part of the condemnation award. The heirs went to the Court of Civil Appeals with one point of error. No attack was made on the conclusion of the trial court mentioned above, but a reversal was sought on the ground that the question cannot properly be decided in this proceeding. It was argued: (1 ) that Sabine has no jus-ticiable interest in the controversy, and (2) that the rights of the parties in the condemnation award cannot be determined until the land is taken. The Court of Civil Appeals sustained the first of these contentions, reversed the judgment of the trial court and dismissed the cause. 363 S.W.2d 172.

We assume without deciding that Sabine has no justiciable interest in the controversy and would not be entitled to maintain this suit against proper objection. The question was not, however, raised in the trial court. Sabine set out at first to condemn the land in the present action and have the district court apportion the money between the Home and the heirs. The heirs excepted to the original petition on the ground that no cause of action was stated against them upon which relief might be granted, but it does not appear that this exception was ever called to the attention of or ruled upon by the trial court.

The question which the heirs intended to raise by the exception may well have become moot when Sabine abandoned its efforts to condemn in the district court. In the first amended original petition Sabine alleged that it was necessary to institute condemnation proceedings in the County Court of Hunt County and prayed for a declaratory judgment determining whether the heirs have any interest in the land which would entitle them to part of the award. About two weeks later the Home filed its first amended original answer, alleging a right to receive and retain all compensation paid by the condemning authority for the land and praying, among other things, that the court construe the contract and deed and enter judgment to that effect. The latter pleading was answered by the heirs with a general denial, an allegation that under the terms of the contract and deed they are entitled to the proceeds of the land, and a prayer that the Home take nothing. The Attorney General intervened and adopted the pleadings of the Home. Neither the Home nor the heirs questioned Sabine’s right to maintain the suit in the trial court. There was no plea to the jurisdiction, no plea of misjoinder of parties, and no plea in abatement of any kind.

From the foregoing summary of the pleadings on which the parties went to trial, it is evident that there is a dispute between the Home and the heirs as to the effect a taking of the land for public use will have on the title. They joined issue thereon without making any objection to being brought into court by one who had no right to do so. After thus obtaining an adjudication of their controversy, they will not be heard to say on appeal that the cause should be dismissed because Sabine has no justiciable interest therein.

There is no merit in the other arguments advanced by the heirs in support of their contention that the controversy cannot be resolved in this proceeding. The amount of money to be awarded for the land is not material to a determination of the question presented to the trial court for decision. At one place the judgment states that the heirs have no compensable interest in any amount of money awarded the Home in any condemnation proceeding instituted by Sabine, and the trial court found that the use of the land by the Home has been in full compliance with the terms of the deed. As we construe the judgment, however, the court has merely declared that a taking of the land by Sabine under its power of eminent domain does not constitute such diversion of use as would entitle the heirs to an interest in the property or the money awarded therefor. Since condemnation appears to be imminent, the district court had jurisdiction to decide that question in this declaratory judgment action. It is not necessary to wait until the land is taken so the court may determine at that time whether there has been any violation of the deed provisions. The judgment in the present case will not be res judicata of a claim based on an alleged unauthorized use occurring after the entry of such judgment and prior to the taking of the land by Sabine. In the circumstances disclosed by the present record, the district court did not err in hearing the case and proceeding to judgment, but we do not reach the merits of the basic question considered and decided there.

The judgment of the Court of Civil Appeals is reversed and that of the trial court is affirmed.

ON MOTION FOR REHEARING

Respondents’ motion for rehearing indicates that the penultimate paragraph of our original opinion may not be entirely clear.

The condemnation petition was filed with the County Judge prior to the trial of this case, but it does not appear that any further action had been taken in that proceeding. In their brief in the Court of Civil Appeals, 363 S.W.2d 172, respondents insisted that it was impossible under these circumstances for the trial court to say that the land will still be used for the care and maintenance of orphan children on the date of condemnation. As we interpreted their argument, they were saying that the court should not have made an unqualified declaration that respondents are entitled to no part of the condemnation award, because the land might be sold by the Home to someone not a party to the suit and diverted by the latter to an unauthorized use before the property is taken by Sabine. Having concluded that respondents were placing an unwarranted construction on the judgment of the trial court, we pointed out in our original opinion that the judgment in this case will not be res adjudicata of a claim based on an alleged unauthorized use occurring after the entry of such judgment and prior to the taking of the land by Sabine. This statement refers to any claimed diversion of the property other than its being taken by Sabine through an exercise of the power of eminent domain. The judgment of the trial court adjudicates and finally determines that the condemnation and taking of the land by Sabine, and the subsequent use of the same for any purpose the condemning authority considers proper, do not constitute such diversion of use as would entitle the heirs to an interest in the property or the money awarded therefor in the condemnation proceedings.

The motion for rehearing is overruled.


author: PER CURIAM. McDonald, judge.

text:
    Charles GENTRY, Appellant, v. The STATE of Texas, Appellee.
    No. 35839.
    Court of Criminal Appeals of Texas.
    May 22, 1963.
    Rebearing Denied June 26, 1963.
    No Attorney on Appeal.
    John H. Flinn, Dist. Atty., Sinton, and Leon B. Douglas, State’s Atty., of Austin, for the State.
   PER CURIAM.

The offense is rape; the punishment, 5 years.

The record on appeal contains no statement of facts or bills of exception. All proceedings appear to be regular and nothing is presented for review. The judgment is affirmed.

McDonald, judge.

On Appellant’s Motion for Rehearing

In a per curiam opinion dated May 22, 1963, this court affirmed the judgment of the trial court for the reason that the record on appeal contained no statement of facts or bills of exception. The proceedings appearing to be regular, nothing was presented for review.

A letter from the appellant has been filed herein with the record, and said letter is considered as appellant’s motion for rehearing. Appellant was represented by counsel at his trial. He now contends that he told the trial judge that he was without funds to pay for the record and to employ an attorney upon appeal.

There is no showing in the record that the appellant is destitute or that the attorneys who represented him at the trial were court-appointed, nor does the record reflect that he was unable to employ counsel or pay for a statement of facts upon appeal.

Appellant’s motion for rehearing is overruled.


author: McDonald, judge.

text:
    Jerry Dean MAYES, Appellant, v. The STATE of Texas, Appellee.
    No. 35807.
    Court of Criminal Appeals of Texas.
    June 29, 1963.
    No attorney on appeal for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is that of operating a motor vehicle on a public road while intoxicated; the punishment, confinement in jail for thirty days and a fine of $50.00.

Appellant gave notice of appeal and filed an appeal bond during the same term of court at which he was convicted. This does not satisfy the statute, and this Court is without jurisdiction to enter any order other than to dismiss the appeal. Article 830, Vernon’s Ann.C.C.P.; Griffin v. State, Tex. Cr.App., 272 S.W.2d 523; Deming v. State, 167 Tex.Cr.R. 592, 322 S.W.2d 543.

The appeal is dismissed.


author: WOODLEY, Presiding Judge.

text:
    Ex parte C. A. DROBY. Ex parte Jim MARTIN.
    Nos. 35952 and 35953.
    Court of Criminal Appeals of Texas.
    June 26,1963.

      Robert H. Stinson,' Jr., Dallas, for petitioners.
    Duncan Gault, Mineral Wells, Sam Cleveland, Dist. Atty., Stephenville, for respondent.
   WOODLEY, Presiding Judge.

The above causes, both being petitions for writs of habeas corpus filed originally in this Court, present the same questions and will be disposed of in one opinion.

The petitioners are members of the State Bar of Texas who reside in Dallas County, the Petitioner Droby being President of the Dallas County Criminal Bar Association.

They seek relief from confinement under order of Hon. W. J. Oxford, Judge of the 29th Judicial District, entered in Cause No. 6011 in the District Court of Palo Pinto County in which Virgil Nelson Halford was charged with rape, and a prior conviction for a like offense was alleged.

Halford was in the Palo Pinto County Jail when the petitioners informed Judge Oxford that they represented him, and filed application for habeas corpus under Art. 137 C.C.P. seeking to have him removed from said j ail.

The petitioners, according to their testimony, had been informed that Halford had lost his reason, would not speak to anyone, would not eat, and was in need of relief. They visited Halford in jail and he refused to talk to them, hid himself under the bunk and generally conducted himself as an insane person.

At the habeas corpus hearing they offered evidence to that effect and called as a witness one Wilson, a fellow prisoner, who testified that Halford freely conversed with him and was not in need of medical attention; was faking and had said: “If I can fool those bastards past this writ hearing, I’ll have it made.”

The petitioners found, after the hearing, that Wilson’s testimony could be corroborated. Thereupon they returned the unused expense money furnished them by Halford’s sister and, on April 10, 1963, advised the court that they were withdrawing as attorneys for Halford.

All of this occurred before an indictment was returned against Halford.

On April 18, 1963, the grand jury returned an indictment against Halford for rape, which was filed as Cause No. 6001. If the certified copy of this indictment which appears in the transcript before us is correct, this indictment contained no allegation of a prior conviction and alleged the rape to have been committed “on or about the 18th day of March A.D. 1962.”

On April 19, 1963, Judge Oxford held a conference with the petitioners and advised them that he would expect them to represent Halford or that he would appoint them to represent Halford.

On April 22,1963, the petitioners made an affidavit before a Notary Public in Dallas County setting out their prejudice against Halford and other reasons why they could not in good conscience represent his interests and should be relieved “of this impossible burden.” A copy of the affidavit was mailed to the judge and the original was filed in Cause No. 6001 on April 23, 1963.

On April 24, 1963, a second indictment was returned against Halford charging rape, which was filed as Cause No. 6011. This indictment alleged rape of the same named female on or about the 18th day of March A.D. 1963, and alleged a prior conviction for a like offense.

On April 26, 1963, Judge Oxford wrote to the petitioner Droby: “I have received and studied the affidavit which you and Mr. Martin have filed in the Halford case and do hereby request that you and Mr. Martin continue as counsel for him. I recognize that you want a bill of exceptions on being directed to continue as counsel and that you desire to make some proof on the bill. This will be granted and I suggest that it be done immediately after the jury is chosen, and the balance of the jurors on the panel are excused, and such time as is necessary will be taken for this purpose. The State demands a special venire in the case and it will be drawn in Palo Pinto Friday, May 10, at 10:00 A.M.

“With kindest regards to you and Mr. Martin, I am Very truly yours, W. J. Oxford.”

Cause No. 6011 was set for trial for May 20, 1963, and on said date the petitioners appeared and filed in said cause a motion asking to be relieved as counsel for Halford because of their prejudice against him, which they alleged would make it impossible for them to represent his interests. A copy of the affidavit filed in Cause No. 6001 on April 23 was attached to this motion.

Without any affidavit or petition having been filed charging the petitioners with being in contempt of court, or a show cause order, and without notice, the court retired the venire and proceeded to conduct “ * * a hearing to examine the contents of an affidavit filed by affiants, C. A. Droby and Jim Martin, attorneys for the defendant Virgil Nelson Halford.”

At the conclusion of the hearing the court pronounced judgment against the petitioners “ * * * based upon the record made in this case on this date * *” Judgment was entered finding that the allegations of the affidavit of the petitioners “ * * * filed in this Cause on April 23, 1963, * * * ” were frivolously made and that the affidavit was filed for the purpose of forcing the court to “ * * * release them from said cause.” Other averments in the affidavit were found to be false. Finding that the conduct of the petitioners constituted contempt, the petitioners were adjudged in contempt and the punishment of each was assessed at 72 hours in jail and a fine of $100.

Having pronounced the judgment finding the petitioners in contempt, the court then granted their motion to be released as counsel for Halford.

We sustain the contention that if the conduct of the petitioners may be construed as contemptuous, it was not direct contempt in the presence of the court for which they could be summarily punished, and the judgment finding them in contempt without affidavit, show cause order or petition charging the petitioners with contempt, and without notice of a hearing thereon, is void.

The filing of a paper in a court proceeding, if contempt, is constructive contempt. In such cases due process of law demands that the accused should be given notice of the charges directed against him. Ex parte Landry, 65 Tex.Cr.R. 440, 144 S.W. 962; Ex parte O’Fiel, 93 Tex.Cr.R. 214, 246 S.W. 664; Ex parte Ratliff, 117 Tex. 325, 3 S.W.2d 406, 57 A.L.R. 541; 12 Tex.Jur.2d 524.

We are not to be understood as holding that the conduct of the petitioners constituted contempt or that Judge Oxford had authority to appoint counsel for Halford prior to his indictment, or that a court may require an attorney to defend an accused in a capital case who under oath represents to the court his prejudice against the defendant and his belief that he could not possibly represent the interests of the defendant because of such prejudice.

We do not reach these questions and the granting of the petitioners’ motion which released them as Halford’s counsel renders the latter question moot.

The petitions for habeas corpus are granted and the petitioners are ordered discharged.


text:
    James Carl WEBSTER, Appellant, v. The STATE of Texas, Appellee.
    No. 35911.
    Court of Criminal Appeals of Texas.
    June 26, 1963.
    H. A. C. Brummett, Dickens, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is burglary with intent to commit theft; the punishment, ten years.

The appellant was charged with having, by force, threats and fraud, broken and entered a house occupied and controlled by S.C. Reynolds, with the intent then and there fraudulently to take from the said house corporeal personal property therein belonging to the said S. C. Reynolds.

The appellant, along with his brother, George Wayne Webster, waived a trial by jury and plead guilty to the charge contained in the indictment. Their confessions were introduced into evidence establishing that they had entered the O. K. Rubber Welders Store in Spur, Texas, by a window, and had removed "a bunch of merchandise * * * including some automobile tires, shot gun shells, tools and many other items.” The appellant in his confession admitted that “We did not have permission to break in the building and did not have permission to take the tires and other items.”

The City Officer of Spur, Bill Stone, testified that he had observed a car, on the night in question, traveling without lights, and had attempted to stop it. During the chase which ensued, the car turned over, and he discovered that the occupants were the appellant and his brother. He also found in the car the merchandise which the parties, by their confessions, admitted taking.

Sheriff Bridge testified that he had gone to the O. K. Rubber Welders Store, which was owned by S. C. Reynolds, and had observed the window through which the brothers had entered, and the door through which they had carried the merchandise.

The appellant, through letters to the court, has attempted to raise certain questions concerning his health at the time of trial. We are unable to consider the letters which he attaches as “proof,” but observe that the question was not raised at the trial and that there was proof that he was sane.

Appellant also questions the State’s failure to produce a “complaining witness” at the trial or to introduce any of the stolen items. While the better practice would have been to have placed the owner on the stand, we find that the sheriff established without objection the ownership of the building, and the commission of a burglary. This establishes the corpus delicti and, along with the appellant’s confession, is sufficient to sustain a conviction. Nixon v. State, 159 Tex.Cr.R. 548, 266 S.W.2d 150; Estes v. State, 160 Tex.Cr.R. 632, 274 S.W.2d 411; Earl v. State, Tex.Cr.App., 342 S.W.2d 328; Lyles v. State, Tex.Cr.App., 351 S.W.2d 886; Davis v. State, Tex.Cr.App., 362 S.W.2d 330; Bridges v. State, Tex.Cr.App., 362 S.W.2d 336.

The appellant also questions the sufficiency of the evidence to show that the O. K. Rubber Welders Store was a “house” as alleged in the indictment. We find, however, that the appellant refers, in his confession, to the “building.” This taken with the evidence of entry through a window and exit through a door is sufficient. Article 1395, V.A.P.C.; 4 Branch’s 2d, Sec. 2533.

The want of consent for the entry and the fraudulent taking was established in the appellant’s cdnfession. McCain v. State, 139 Tex.Cr.R. 539, 141 S.W.2d 613.

The evidence is sufficient, and, no reversible error appearing, the judgment is affirmed.


author: BELCHER, Commissioner.

text:
    Ex parte John L. GILLMORE.
    No. 35950.
    Court of Criminal Appeals of Texas.
    June 26, 1963.

      Russell F. Wolters, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Houston, Carl E. F. Dally and Lee P. Ward, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., of Austin, for the State.
   BELCHER, Commissioner.

The appellant stands charged by indictment with the offense of rape. In his application for the issuance of a writ of habeas corpus, he prays that upon a hearing he be granted bail in order that he may be released pending the disposition of his case.

On the hearing, proof was offered that the thirty-one year old appellant had forced the twelve year old prosecutrix, at knife point, to go with him to his house, where he had an act of sexual intercourse with her. When he went to the bathroom, she escaped and reported the occurrence.

A relative of appellant testified that, though she owned some property and could make a $2,500 bond, she was not going to try to do so herself but planned to get other bondsmen.

At the conclusion of the hearing, the court fixed the bail at $12,500. From this order, notice of appeal was given to this court. In his brief, the appellant insists that the bail so fixed is excessive.

There is no showing that appellant could not have made the bond so fixed or that a reasonable effort was made to do so. Therefore the complaint of excessive bail is not presented. Ex parte Marks, 142 Tex.Cr.R. 489, 154 S.W.2d 851; Ex parte Crenshaw, 150 Tex.Cr.R. 302, 200 S.W.2d 826.

The judgment is affirmed.

Opinion approved by the Court


text:
    Fessor Sonie FROST, Appellant, v. The STATE of Texas, Appellee.
    No. 35777.
    Court of Criminal Appeals of Texas.
    June 26, 1963.

      Howard B. Law, James Keith Marks, Dallas, for appellant.
    Henry Wade, Dist. Atty., Emmett Col-vin, Jr., Asst. Dist. Atty., Dallas, Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

On Appellant’s Motion for Rehearing.

Our prior opinion is withdrawn, and the following substituted.

The offense is the unlawful possession of beer for the purpose of sale in a dry area; the punishment, sixty days in jail.

The appellant attacks, for the first time, the sufficiency of the complaint and information.

The information charged that the beer was possessed by appellant at 3414 Navarro Street in the city of Dallas, a dry area, and that an election had been held in precinct 7, resulting in favor of prohibiting the sale of malt liquor in said precinct; that the commissioners court had canvassed the election returns, had entered its order declaring the results, and had posted notice of the election, as required, for publication. It fails, however, to allege that 3414 Navarro Street was within precinct 7. See Earl v. State, 136 Tex.Cr.R. 490, 126 S.W.2d 664. It seems clearly established that the mere allegation that the offense occurred in a “dry area” is not sufficient averment to support a conviction. Hall v. State, 37 Tex.Cr.R. 219, 39 S.W. 117; Whitmire v. State, 130 Tex.Cr.R. 372, 94 S.W.2d 742; Schmidt v. State, 130 Tex.Cr.R. 369, 94 S.W.2d 743; Johnson v. State, 130 Tex.Cr. R. 523, 95 S.W.2d 419; Grady v. State, 131 Tex.Cr.R. 156, 97 S.W.2d 472; Coleman v. State, 131 Tex.Cr.R. 213, 97 S.W.2d 701; Kelly v. State, 131 Tex.Cr.R. 318, 98 S.W. 2d 998; Brooks v. State, 131 Tex.Cr.R. 329, 98 S.W.2d 999; Greenway v. State, 131 Tex.Cr.R. 313, 98 S.W.2d 1000; Terrell v. State, 131 Tex.Cr.R. 366, 99 S.W .2d 304; Malchoff v. State, 131 Tex.Cr.R. 415, 99 S.W.2d 917; Scott v. State, 131 Tex.Cr. R. 426, 99 S.W.2d 920; Fox v. State, 131 Tex.Cr.R. 410, 99 S.W.2d 925; Shaffer v. State, 131 Tex.Cr.R. 427, 99 S.W.2d 929; Cutler v. State, 131 Tex.Cr.R. 405, 99 S.W. 2d 930; McKinney v. State, 131 Tex.Cr.R. 508, 100 S.W.2d 358; Hood v. State, 131 Tex.Cr.R. 500, 100 S.W.2d 1014; Magee v. State, Tex.Cr.App., 101 S.W.2d 235 (two cases); Pond v. State, 131 Tex.Cr.R. 559, 101 S.W.2d 247; Kight v. State, 131 Tex. Cr.R. 590, 101 S.W.2d 258; Hardin v. State, 131 Tex.Cr.R. 588, 101 S.W.2d 265; Bell v. State, 131 Tex.Cr.R. 571, 101 S.W.2d 558; Wilkinson v. State, 131 Tex.Cr.R. 624, 101 S.W.2d 569; Bearden v. State, 132 Tex.Cr.R. 39, 102 S.W.2d 204; Alexander v. State, 132 Tex.Cr.R. 1, 102 S.W.2d 209; Campbell v. State, 132 Tex.Cr.R. 40, 102 S.W.2d 215 (two cases); McCuistian v. State, 132 Tex.Cr.R. 47, 102 S.W.2d 415; Barker v. State, 132 Tex.Cr.R. 80, 103 S.W. 2d 155; Jackson v. State, 132 Tex.Cr.R. 167, 103 S.W.2d 742; Bairrington v. State, 132 Tex.Cr.R. 325, 104 S.W.2d 861; Blank v. State, 132 Tex.Cr.R. 535, 106 S.W.2d 277; Monzingo v. State, 132 Tex.Cr.R. 545, 106 S.W.2d 282; Ballew v. State, 132 Tex.Cr.R. 534, 106 S.W.2d 284; Jackson v. State, 133 Tex.Cr.R. 360, 111 S.W.2d 256; Gallagher v. State, 142 Tex.Cr.R. 133, 151 S.W.2d 819; Morgan v. State, 151 Tex.Cr. R. 322, 207 S.W.2d 412; Hilliard v. State, 151 Tex.Cr.R. 398, 208 S.W.2d 378; Simmons v. State, 158 Tex.Cr.R. 14, 252 S.W.2d 711, and, see: Privitt v. State, 131 Tex. Cr.R. 342, 98 S.W.2d 204, and Brown v. State, 135 Tex.Cr.R. 3, 117 S.W.2d 107.

The appellant’s plea of guilty did not cure this defect. As stated in Hill v. State, Tex.Cr.App., 332 S.W.2d 579:

“If * * * the State’s pleading is in such form that a legal judgment of conviction could not be based on it, the defect is one of substance and the error is fundamental and may be raised for the first time on appeal. 5 Tex.Jur. 2d, Appeal and Error, Criminal Cases, Sec. 32.”

We further observe that the information did not allege whether the precinct in question was a justice precinct or a commissioners precinct. This was a necessary description of the area involved. Patton v. State, 166 Tex.Cr.R. 205, 312 S.W.2d 678.

For the errors pointed out, the judgment is reversed and the cause remanded.


author: COLEMAN, Justice.

text:
    CONTINENTAL RADIO COMPANY, Inc., Appellant, v. CONTINENTAL BANK & TRUST COMPANY et al., Appellees.
    No. 14095.
    Court of Civil Appeals of Texas. Houston.
    May 30, 1963
    Rehearing Denied June 20, 1983.

      Carey Williams, Houston, for appellant.
    Anderson & Frank, Houston, Simon M. Frank, Houston, for appellee Continental Bank & Trust Co.
   COLEMAN, Justice.

This is a lien priority case. Appellant contends that it acquired a constitutional lien on an airplane under the provisions of Art. XVI, Sec. 37, of the Constitution of Texas, Vernon’s Ann.St., by virtue of labor performed and materials furnished in the installation of an auto-pilot and related instruments in the plane. It is contended that the lien so acquired is prior in' right to the subsequently acquired chattel mortgage lien held by the bank. The trial court found that the bank acquired its lien without knowledge, either actual or constructive, of the constitutional lien and rendered judgment in favor of the bank.

The constitutional provision referred to grants to mechanics, artisans and materialmen a lien upon the “buildings and articles made or repaired by them for the value of their labor done thereon, or material furnished therefor.” The lien granted is not created by, and does not exist by virtue of, any instrument in writing or legislation since the constitutional provision is self-executing. Warner Elevator Mfg. Company v. Maverick, 88 Tex. 489, 30 S.W. 437, 31 S.W. 353; Strang v. Pray, 89 Tex. 525, 35 S.W. 1054.

No laws have been enacted providing for the filing or recording of affidavits or in any other way giving statutory constructive notice of the constitutional artisan’s lien on chattels. Appellant contends that different liens on the same property have priority according to the time of their creation, recognizing, however, that equity will postpone him who is prior in time to him who has been induced to purchase through want of knowledge of the prior lien, where it is the duty of the prior lien-holder to communicate. 36 Tex.Jur.2d 687 et seq., Liens, Sec. 12. Appellant says that he had no duty to inform the bank of its lien since it had no notice that the bank intended to loan money on the security of the plane and since there was no means by which it could give constructive notice.

In Farmers’ & Mechanics’ Nat. Bank of Ft. Worth v. Taylor, 91 Tex. 78, 40 S.W. 876, aff’d 91 Tex. 78, 40 S.W. 966, the Court of Civil Appeals, in discussing Art. 3295, Rev.Statutes 1895, enacted by the legislature pursuant to Art. XVI, Sec. 37, of the Constitution of Texas, said:

“The legislature is commanded simply to provide by statute for the ‘speedy and efficient enforcement’ of such lien. The provisions of the statute requiring the claim to be recorded were intended to protect mechanics, artisans, and material men as against subsequent purchasers, mortgagees, and lien holders in good faith without notice, by furnishing constructive notice to the world of the existence of the lien, in designating where such matters can be found recorded, and thus making it the duty of persons dealing with the property to examine such records before advancing money on the property. Our statutes provide for the registration of deeds, and when a purchaser of lands complies therewith, his title is ‘fixed and secured’ against the world. Yet he may refuse or fail to record his deed, and be just as secure in his title as against all persons who have notice of his title or claim. A vendor of land who conveys the same by a deed which expresses in its face the amount of purchase price remaining unpaid, ‘fixes and secures’ his lien on the land conveyed by reason of such recital; but he may fail to insert such a recital, and yet his lien will exist in full force against all who deal with the property having notice that the purchase money is in fact unpaid.”

The Supreme Court, in its opinion affirming the case said: “We deem it unnecessary to attempt to add anything to the clear and satisfactory statement made by said court of the legal principles governing the case.”

The Commission of Appeals of Texas, in Moore v. Carey Bros. Oil Co., Tex.Com. App., 269 S.W. 75, 39 A.L.R. 1247, said:

“An oil well casing coming within the class of ‘buildings and articles made,’ for which the Constitution gives to him who furnishes material therefor a lien, the lien in this case is a constitutional lien.
“The lien does not depend upon the statute. The Legislature has no power to affix to that lien conditions of forfeiture. The Legislature is commanded by the Constitution simply to provide for the ‘speedy and efficient enforcement’ of the lien. No record at any time is necessary to give the lien. The filing and recording of the contract or account, as provided by the statute, is not necessary in any case arising between the original contractor and the original owner. The provisions of the statute requiring the claim to be recorded were intended to protect the persons having the liens against subsequent purchasers, mortgagees, and lienholders in good faith without notice, by furnishing constructive notice of the existence of the lien. Farmers’ & Mechanics’ National Bank v. Taylor, 91 Tex. 78, 40 S.W. 876, 966; Strang v. Pray, 89 Tex. 525, 35 S.W. 1054; Keating Implement & Machine Co. v. Marshall Electric Light & Power Co., 74 Tex. 605, 12 S.W. 489.”

Thus it appears that recordation statutes have been enacted to give holders of liens a means of preventing the failure of enforcement which would follo.w the acquisition of the property by a bona fide purchaser, which would be unnecessary were there no duty to communicate, or, if notice is given by the constitutional provision as has been held in the case of certain statutory liens. Frith v. Wright, Tex.Civ.App., 173 S.W. 453.

The lien granted to mechanics, artisans and materialmen by Sec. 37 of Art. XVI of the Constitution can only be enforced in equity and no enforcement will lie as against an innocent purchaser. J. R. Dunaway Rig & Lumber Company v. Blessing, Tex.Civ.App., 274 S.W.2d 90, writ ref.; Wichita Falls Sash & Door Co. v. Jackson, Tex.Civ.App., 203 S.W. 100. We see no reason why the same protection should not be accorded a bona fide mortgagee. See "The Constitutional Lien on Chattels in Texas,” 28 Tex.Law Review 305.

The trial court has found that ap-pellee was a bona fide mortgagee. It is not contended that the bank had actual knowledge of appellant’s lien. The evidence fails to show that the bank had knowledge of such facts as would cause a fair and prudent man of ordinary caution to make further inquiry. The facts do not show as a matter of law that the bank had constructive notice of appellee’s lien. In the absence of actual or constructive notice of appellant’s lien on the plane, appellee’s mortgage was properly held by the trial court to constitute a prior lien on the plane.

Appellant has also urged that the trial court erred in holding that the Federal Aviation Act of 1958 supersedes the Texas Constitution and renders invalid or inferior the artisan’s lien provided by Sec. 37 of Art. XVI thereof.

It is our opinion that Congress clearly undertook to pre-empt the field of conveyancing of interests in aircraft and portions thereof to facilitate the control and promotion of air commerce. The recordation provisions of the Federal Aviation Act are within the scope of proper application of Federal law in a field of Federal competence. Congress has prescribed the only way in which aircraft may be transferred and in which liens upon aircraft may be duly recorded. The statute voids as to third parties without actual notice conveyances and liens which are not duly recorded. Civil Aeronautics Act (Act of June 23, 1938, Ch. 601, Vol. 52 Stat. 977), 49 U.S.C. § 401 et seq., as amended; Blalock v. Brown, 78 Ga.App. 537, 51 S.E.2d 610, 9 A.L.R.2d 476; In re Veterans’ Air Express Co., 76 F.Supp. 684 (U.S.D.C., N.J.1948); United States v. United Aircraft Corporation, 80 F.Supp. 52 (D.C.D., Conn.1948).

It is settled that the Constitution and statutes of the State of Texas must yield to conflicting provisions of Congressional Acts and Federal regulations pursuant thereto pertaining to subjects which are within the scope of Federal power. Free v. Bland, 369 U.S. 663, 82 S.Ct. 1089, 8 L. Ed.2d 180; Shaddock v. Grapette Co., Tex.Civ.App., 259 S.W.2d 231; Mulcahy v. Pasadena State Bank, Tex.Civ.App., 335 S.W.2d 258.

Appellant sent to the Federal Aviation Agency a letter claiming its constitutional lien on the plane and certain documents evidencing it. None of these instruments complied with the statutory requirements for filing. While appellee did not examine the instruments recorded as required by the Federal Aviation Act, constructive notice of the Constitutional lien claimed by appellants was not visited on it because the lien would not have been disclosed by an examination of the instruments properly filed with the Agency. Miles v. Martin, 159 Tex. 336, 321 S.W.2d 62; Strong v. Strong, 128 Tex. 470, 98 S.W.2d 346, 109 A.L.R. 739.

The judgment of the trial.court is af' firmed.