text:
    James A. McKINNEY, Appellant, v. FLATO BROTHERS, INC., Appellee.
    No. 175.
    Court of Civil Appeals of Texas. Corpus Christi.
    Dec. 16, 1965.
    John A. Waller, Corpus Christi, for appellant on appeal only.
    Charles A. Bonniwell of Auforth & Bon-niwell, Corpus Christi, for appellee.
   GREEN, Chief Justice.

Appellee Flato Bros., Inc., filed suit against Merle Clapp and appellant James A. McKinney on the balance alleged to be owing on a promissory note executed by them on December 19, 1960. Service of citation was not had on Clapp, who did not appear or file any pleadings, and after a trial before the court without a jury, judgment was rendered for appellee against appellant in the sum of $3,194.30, plus attorney fees of $319.43, or a total of $3,513.73.

There is no order in the record disposing of the defendant Clapp. On the authority of Youngstown Sheet & Tube Co. v. Penn, Tex.Sup.Ct., 363 S.W.2d 230, and Mabry v. Lee, Tex.Civ.App., 319 S.W.2d 125, writ ref., the case stands as if there had been a discontinuance as to Clapp, and the judgment is to be regarded as final for the purposes of appeal.

By written agreement entered into December 19, 1960, Flato Brothers, Inc., sold to Merle L. Clapp and James A. McKinney, as partners, a business theretofore conducted by Flato in Corpus Christi under the name of Central Appliance Service Company for the consideration of $1,680.00 cash, and a promissory note signed by Clapp and McKinney in the sum of $4,820.00, payable, interest included, in 24 monthly installments of $224.93 each. Payment of the note was secured by a chattel mortgage executed by Clapp and McKinney on automotive equipment, office equipment and shop and warehouse equipment set out in detail in the mortgage as Exhibit A.

Appellant’s first three points are all directed at the alleged error of the trial court in failing to give credit on the note of an amount of $1,242.00 admittedly received by appellee as proceeds under a policy insuring the personalty covered by the chattel mortgage against theft; and the further amount of $851.00 admittedly received by appellee from the sale of personalty described in the mortgage as security for the note. It is further appellant’s contention, in its third point, that there is no evidence to sustain a judgment for the amount of $3,513.73, since the evidence of appellee’s witness was inconclusive, obscure and uncertain as to the exact amount of money obtained by appellee from the sale of personalty securing the note which should have been but was not credited on the note indebtedness.

Appellee replies that the $1,242.00 theft insurance proceeds and the sums received for the sales of the mortgaged personalty were properly applied to other indebtedness owing appellee by appellant, or the partnership of appellant and Clapp, also secured by this same mortgaged property, and that the evidence was sufficient to justify the judgment of the court.

Included in the provisions of the mortgage is the following:

“6. This chattel mortgage is to fulfill the conditions and obligations of an agreement entered into on even date hereof with Flato Brothers, Inc., for the purchase of Central Appliance Service Company and attached hereto as Exhibit B, and made a part hereof for all purposes.”

The written sales agreement attached to the mortgage contains among other provisions the following:

“2. Buyers have assumed the payment of and hereby agree to pay all sums due or to become due upon those certain notes, obligations and accounts of Flato Brothers, Inc. heretofore incurred by or in the name of Central Appliance Service Company which are listed and described in Exhibit A attached hereto.
3. Buyers hereby assume all of the obligations and duties of the lessee or tenant and agree to pay all sums due or to become due under that certain lease from Guaranty Title and Trust Company as lessor to Flato Brothers, Inc., as lessee, or tenant, dated 31, July 1959 and covering the premises occupied as the place of business of Central Appliance Service Company at 3919 S. Port, Corpus Christi, Texas.
4. Buyers will hold Seller wholly harmless from any and all liability upon all obligations, liabilities and contracts expressly assumed by Buyers as well as all liabilities hereinafter incurred by Buyers in the operation of Central Appliance Service Company.
5. The obligations of Buyers pursuant to this Agreement are secured by a chattel mortgage in favor of Seller of even date herewith upon the property listed in Exhibit B attached hereto.”

Shortly after the contract of sale, note and mortgage were executed, appellee assigned the note, with recourse, to Mercantile National Bank, receiving $4,820.00 therefor. Payments made to the bank by the makers of the note reduced the amount due thereon, by April, 1962, to $3,194.30, at which time, due to default in payments by Clapp and appellant, the bank called upon appellee to make good on its endorsement. From April 1, 1962, to January, 1964, appel-lee made payments to the bank, paying altogether $3,194.30, in full payment of its obligation to the bank.

In the meantime, Clapp and McKinney had dissolved the partnership, and notified appellee. They stopped making the rent payments, liability for which they assumed as stated in paragraph 3 of the sales contract, quoted above, and beginning with December, 1961, appellee commenced making such payments.

In April, 1962, a theft of a portion of the mortgaged property occurred, for which ap-pellee collected as insurance $1,242.00. Ap-pellee took over the business after it found the building abandoned in April, 1962, and as a result of sales of the mortgaged personalty, received the sums of $851.00, $525.-00, $20.00, and $20.00. These sales, plus the insurance money, totaled $2,658.00 received by appellee from the mortgaged chattels, which appellee was required to apply on the indebtedness of Clapp and McKinney accruing as a result of the note, mortgage and sales contract.

The witness Schmidt, appellees secretary-treasurer, testified that his company had only one account on its books with Central Appliance Service Company. When payments were made by appellee to the bank on the note, or the Guaranty Title and Trust Company on the rent contract, these sums were charged against the appliance company on this account. When credits were received, as the $1,242.00 insurance money, and the amounts received from the sales of the mortgaged property, they were credited to the same account.

In this connection, Schmidt testified on cross-examination as follows:

“Q * * * Besides the $1,242.00 Flato Brothers got out of the theft insurance, how much other money have they received as a result of the sale of the assets of the business ?
A I notice on the ledger account we credited $850.00.
Q You credited the rent account, is that correct?
A No, I credited Central Appliance Service Company account. We had only one account when we were making payments to the bank or Guaranty Title, they were credited all to one account, Central Appliance Service Company. And we received $851.00 one time, $525.00 another time, $20.00 once, $20.00 again.
Q How did you determine what portion of those credits should have been credited to the note, or should have been credited to the open account ?
A I didn’t credit them to anything but their account. When I made a payment to the bank, I charged that to their account, when I made a payment to Guaranty Title I charged their account, and we received credits, I credited their account. It doesn’t really make any difference.
Q You can’t tell from your records what was credited on the note account, and what was credited on the other account.
A That’s true. I can’t see it makes any difference.
Q It is your sworn testimony before the Court you can’t tell.
A No.
Q So your testimony to Mr. Bon-niwell that all credits and offsets due on the note had been credited, that testimony was actually in error, you don’t know whether it was or not.
A To the best of my knowledge, I gave them credit to everything they were entitled to.
Q But not on the note.
A Well okay, you divide it any way you want to.
Q I am asking you, you can’t testify where—
A I don’t know exactly what dollar goes where.
Q You don’t know whether or not all the offsets and credits were given on the note, do you ?
A All right, I don’t know.”

The only items of indebtedness testified to by Schmidt as being included within this account were payments on the note to the hank and of rent to the original lessor. There was no evidence that Clapp or appellant had defaulted in any other requirement of the contract. The rent payments made by appellee after default started in December, 1961, the business was taken over by appellee in April, 1962, and since the lease was not in evidence, and there was no testimony as to its duration, or the amount paid by appellee as rent on appellant’s account, there is an entire absence of evidence that appellee applied the total amount of $2,658.00 on rental.

This was not a suit on the account between appellee and the appliance service company. It was confined by the pleadings to a suit to recover on a promissory note. The witness did not testify that these receipts were credited to the rental. They were credited, so he says, to the one running account which included payments on the note by appellee to the bank, as well as the rental payments by appellee to Guaranty Title. Since appellee received by its own admission the sum of $2,658.00 from the property mortgaged to secure the indebtedness, and since appellant received no credit on the note indebtedness for any of this sum, it was the burden of appellee to prove that this amount had been applied specifically to other items of indebtedness secured by the property, leaving as still owing the amount of the note. Pyle v. Byrne, Tex.Civ.App., 331 S.W.2d 507, writ ref. n. r. e. This appellee failed to establish, and there is no evidence from which we could assume any implied finding to that effect.

Under the facts testified to by Schmidt, we feel that the rule should apply as set forth in Aetna Casualty & Surety Co. v. Hawn Lumber Co., 128 Tex. 296, 97 S.W.2d 460, 465:

“It is evident there was no specific application of payments to any particular part of the account or any particular estimate, but there was a crediting of payments on the account as a whole. Unquestionably, we think the law made the application to the oldest unpaid portion of the account.”

See also, Willis v. McIntyre, 70 Tex. 34, 7 S.W. 594; Jamison v. Alvarado Compress & Warehouse Co., 45 Tex.Civ.App. 263, 99 S.W. 1053; Pyle v. Byrne, Tex.Civ.App., supra.

Except for possibly five monthly payments of $200.00 each for rental from December, 1961, through April, 1962, there is no evidence of any other charge against appellant on the account prior to those for the monthly payments on the note made by appellee to the bank.

We hold that in view of the admitted receipt by appellee of the sums as herein stated from sale and other disposition of the mortgaged chattels, and the failure to allow proper credit as payments on the note of any portion of such sums under the circumstances noted in this opinion, there was no evidence to support the judgment as rendered, and that the trial court erred to appellant’s prejudice in decreeing recovery for the amount of the judgment.

We are unable to determine from the record the amount which could legally be credited by appellee to indebtedness owed by appellant under the sales contract other than the note. In the interest of justice, we feel that the judgment should be reversed and remanded.

By his fourth and fifth points, appellant claims error in the trial court’s sustaining appellee’s special exception pertaining to appellant’s affirmative pleading that the execution of a second note between Clapp and the bank, while the latter was the holder of the original note, was a cancellation and novation releasing appellant from any liability on the note sued on.

Appellant, in his first amended answer, had pleaded among other defenses that the note in litigation was not legally sufficient to form the basis of a suit because it was cancelled, nullified, superseded and held for naught when Clapp, a co-signer, had, with the permission and consent of the Mercantile National Bank executed a new note in lieu thereof, which had been accepted by the bank. Appellee filed a special exception to this pleading, alleging that it failed to allege any consideration; it failed to allege that plaintiff had released McKinney from liability on the note, it failed to allege that the discharge of the note was contemporaneous with the execution of the alleged new note; it failed to allege that it was the intention of all parties to the note in suit that same should be extinguished, and that the allegations were insufficient in law.

At a pre-trial hearing, regularly called by the trial court and of which appellant’s attorney had timely notice, but which was not attended by him, the above special exception was sustained, and the defendant (appellant) was granted leave to amend. A copy of the court’s order was received by said lawyer one full week before the case was called for trial.

A trial court has a large discretion in ruling upon special exceptions, and his ruling will not be disturbed in the absence of a showing of abuse of such discretion or injury. Jones v. Alvin State Bank, Tex.Civ.App., 332 S.W.2d 124; Weiler v. Weiler, Tex.Civ.App., 336 S.W.2d 454; Southern Underwriters v. Hodges, Tex.Civ.App., 141 S.W.2d 707, writ ref.; City of Abilene v. Jones, Tex.Civ.App., 355 S.W.2d 597.

The necessary elements of a sufficient pleading of novation, are (1) a previous valid obligation; (2) the agreement of all the parties to a new contract; (3) the extinguishment of the old contract; and (4) the validity of the new one. Money v. Dameron, Tex.Civ.App., 70 S.W.2d 291, writ ref. The consideration for the new contract must be both alleged and proved. Moffitt v. Hieby, Tex.Civ.App., 225 S.W.2d 441, rev. by Supreme Court on other grounds, but expressly approved on this point, 149 Tex. 161, 229 S.W.2d 1005, syl. (5).

Appellant’s plea fell short on some, if not all of these requirements. The court did not abuse his discretion in sustaining the exception and offering appellant leave to amend. Had appellant desired to plead specifically the defense of cancellation (Art. 5939, Sec. 119, Vernon’s Ann.Tex.Civ.St.) he was given the opportunity of doing so by amendment. Appellant did not amend before trial, nor ask leave to amend during trial. Points 4 and 5 are overruled.

Reversed and remanded.


source: Caselaw Access Project

author: HUGHES, Justice.

license: Public Domain

text:
    J. B. KITTEN et ux., Appellants, v. Clovis L. VAUGHN, Appellee.
    No. 11346.
    Court of Civil Appeals of Texas. Austin.
    Dec. 8, 1965.
    Rehearing Denied Jan. 5, 1966.

      Wallace T. Barber, San Marcos, Waitz, Bretz & Collins, Bruce Waitz, San Antonio, for appellants.
    Cofer, Cofer & Hearne, Douglass D. Hearne, Austin, for appellee.
   HUGHES, Justice.

Clovis L. Vaughn, appellee, sued J. B. Kitten and wife, Helen M. Kitten, appellants, on a promissory note executed by them, dated March 26, 1964, in the principal sum of $25,000.00, bearing interest at the rate of 10% per annum, and containing a 10% attorney’s fee clause. This note was given for $25,000.00 in cash borrowed by appellants from appellee.

Appellant, Mrs. Helen M. Kitten pled her coverture as a defense to recovery on the note.

Both appellants pled an offset of $15,000.00, and prayed for a credit on the note in this sum.

Other defenses were pled by appellants, but since they are not briefed they will not be discussed.

We will first dispose of the contention of Mrs. Kitten that since she was a married woman when she executed the note to ap-pellee that she is not liable thereon in the absence of evidence that the note was executed or its proceeds used for the benefit of her separate estate, or that such note or its proceeds were used for necessaries furnished to her or her children, or that her disabilities of coverture had been removed prior to the execution of the note. None of these circumstances was shown.

Appellants cite many cases to support this contention, all of which were decided before or involved transactions occurring before the amendment by the Legislature in 1963 of Art. 4626, and the repeal in the same year of Art. 4623, Vernon’s Ann.Tex. Civ.St.

With respect to the changes made in the law by these enactments, appellants say: “By amending Art. 4626, V.A.C.S., 58th Legislature, merely the procedural requirements to enable a married woman to act as a sole trader for the benefit of her separate estate, was changed. A careful reading of H.B. 403, indicates no intention on the part of the Legislature to make a community debt binding upon the separate estate of the wife or any intention to subject the wife to personal liability for such community debts.”

With this statement, we are in complete disagreement. If accepted, it would leave, for all practical purposes, the law unchanged by the legislation enacted by the Legislature in 1963. We cannot attribute to the Legislature the intention of doing a useless act, or the intention to appease the militant leaders in an historical effort to obtain greater freedom and more rights for married women by passing a law which in form purported to advance their status towards equality with other persons sui juris but in fact made no change in their status. We are forbidden in this regard by the plain language of amended Art. 4626, which we quote:

“A married woman shall have the same powers and capacity as if she were a feme sole, in her own name, to contract and be contracted with, sue and be sued, and all her separate property, her personal earnings and the revenues from her separate estate which is not exempt from execution under the laws of Texas shall thereafter be subject to her debts and be liable therefor, and her contracts and obligations shall be binding on her.”

Art. 4623, V.T.C.S. which was repealed by H.B. 403, [f. n. 1] read as follows:

“Neither the separate property of the husband nor the community property other than the personal earnings of the wife and the revenues from her separate property shall be subject to the payment of debts contracted by the wife except those contracted for necessaries furnished her or her children.”

These two enactments by the Legislature, one positive and one negative, make it crystal clear that the Legislature has removed all impediments previously existing to the power and authority of a married woman to contract, and to bind her separate estate, and to sue and be sued, by reason of her status as a married woman.

We enforce the legislative will so plainly expressed. We hold that Mrs. Kitten’s plea of coverture is not valid, and that she is liable on the note which she executed.

Appellants’ claim to a $15,000.00 offset arises from a collateral contract between appellee and his son and their respective wives as purchasers and appellants as sellers whereby purchasers agreed to buy from appellants their ranch in Bastrop County for a total consideration of $295,000.00, which contract contained these pertinent provisions:

“It is agreed by the Seller and the Purchaser that the Purchaser must obtain a loan of at least $160,000.00, with the property being conveyed being the only security for said loan. Therefore this contract is conditioned upon the Purchaser obtaining a loan for at least $160,000.00, interest at a rate of not more than ^/¿%, to be repaid over a period of thirty (30) years. If a loan is not obtained by the Purchaser on such terms, then this contract shall not be binding upon the Purchaser, and Purchaser shall have the option to cancel the contract and to have returned to the Purchaser all escrow funds; and neither party shall have any right for damages or specific performance against the other party. * * *
Purchaser is hereby depositing with W. W. Patterson, Trustee, as earnest money, the sum of $15,000.00 which is presently in the form of a check but which shall be deposited in a bank or savings and loan association of the Trustee’s choice in Austin, Texas, in case the Purchaser requests said check to be deposited. Said earnest money, if deposited, shall be applied upon the cash consideration in case this transaction is consummated, but if the transaction is not consummated then said earnest money is to be returned to the Purchaser in case the Seller defaults and the Purchaser is not in default, even though the Purchaser may desire to pursue any remedies for damages or specific performance that the Purchaser may have.
If the Purchaser defaults in carrying out this contract and Seller is not in default, then it is agreed that said $15,000.00 shall be forfeited by the Purchaser to the Seller as full liquidated damages and the sole damages owned by the Purchaser to the Seller for such default, and the Seller shall not have any further remedies in connection with this transaction; or the Seller may, under such circumstances, at the Seller’s option, agree that said earnest money be returned to the Purchaser and the Seller shall then have the right to enforce any remedies for damages or specific performance through proper courts situated in the State of Texas.”

It is undisputed that appellee tried, but failed, to obtain a loan on the property of $160,000.00; however, a life insurance corn-pany offered to make a loan on the property of $100,000.00.

By trial amendment, appellants offered to accept “The proceeds of whatever loan (appellee) might be able to obtain on the Kitten ranch” and to accept “A second vendor’s lien note upon such terms at such rate of interest and for such amount as would be, when coupled with the interest rate, amount and repayment terms of the first lien loan, equal to a total loan of One Hundred Sixty Thousand ($160,000.00) Dollars at five and one-half (5j4'%) percent interest, repayable over a period of (30) years.”

Appellee refused to accept this offer and refused to complete the purchase of the Kitten Ranch. The jury, in response to a special issue, found that appellee’s refusal of this offer was without reasonable cause. The jury also found that appellants offered appellee a loan the equivalent of the $160,000.00 loan described in the contract of sale.

The $15,000.00 check, the proceeds of which were to be placed in escrow, was never cashed, and it is this sum which appellants ask judgment for and seek to establish as an offset to the note in suit.

The trial court denied appellants the relief sought and, in our opinion, did not err in so doing.

Appellants would unilaterally, remake the contract between the parties. This cannot be done. Pena v. Security Title Co,, 267 S.W.2d 847, San Antonio, n. w. h.

The terms of the contract make the procurement of the loan described a condition precedent to the creation of a binding contract between the parties and to liability thereon. Pena v. Security Title Co., supra, Contracts, 13 Tex.Jur.2d, Sec. 151, p. 334.

The jury finding that appellants had offered appellee a loan substantially the equivalent of the one contracted for is neither factually supported or legally significant.

One first lien note and one lender for $160,000.00 is not substantially the equivalent of one first lien note for $100,000.00 payable to A and one second lien note for $60,000.00 payable to B. It is to be noted that appellants did not offer to finance the entire $160,000.00.

The finding of the jury that the two methods of financing are substantially equivalent is not legally significant because parties are entitled, upon timely insistence and equities aside, to an exact performance of their agreement. Contracts, 13 Tex.Jur. 2d, Sec. 299, p. 546.

The finding of the jury that appel-lee refused appellants’ offer to finance the sale on terms differing from those stated in the contract without reasonable cause is wholly immaterial. Juries cannot make contracts for parties.

Our opinion in Flusche v. Uselton, Tex.Civ.App., 201 S.W.2d 58, n. w. h., is cited by appellants to support their contention that substantial compliance with contractual provisions is all that is necessary. In that case the contract gave the purchaser terms for payment of the deferred purchase price identical with the loan which the purchaser alleged that, by oral agreement, it was agreed he was to obtain elsewhere, and that he had failed to obtain such loan. We held that in the absence of a showing of materiality as to where the loan was obtained this oral agreement would not abrogate the contract. Whether that holding was right or wrong, it is not pertinent here because appellee was not offered a loan identical with the loan for which he had contracted.

The judgment of the trial court is affirmed.

Affirmed.

ARCHER, C. J., not participating.

      . H.B. 403, Ch. 472, p. 1188, Acts 58th Leg.Reg. Session.

      . Also to be noted is the amendment of Art. 4624, V.T.C.S. as enacted in H.B. 403 [f.n. 1] -which provides in part, “Upon the trial of any suit based upon a contract of the wife, the court shall decree that judgment may be levied upon her separate property, upon revenues from her separate property, or upon her personal earnings, * *


author: MOORE, Justice.

text:
    DORAN DEVELOPMENT CORPORATION et al., Appellants, v. The STATE of Texas, Appellee.
    No. 180.
    Court of Civil Appeals of Texas. Tyler.
    Dec. 9, 1965.
    Rehearing Denied Jan. 6, 1966.

      Wayne O. Woodruff, Locke, Purnell, Boren, Laney & Neely, Dallas, for appellants.
    Waggoner Carr, Atty. Gen., Robert D. McGee, Asst. Atty. Gen., Austin, for ap-pellee.
   MOORE, Justice.

This is a condemnation suit filed by the State of Texas, plaintiff, against Doran Development Corporation, Central Forwarding, Inc., and Truitt Packing & Export Company, to acquire fee simple title to land owned by defendant, Doran Development Corporation, for highway purposes. Defendant, Central Forwarding, Inc., filed its disclaimer of any interest in the controversy and therefore did not participate in this appeal. Defendant, Truitt Packing & Export Company, similarly had no interest in the controversy and is not a party to this appeal. Prior to trial Doran Development Corporation stipulated that all procedural requirements had been met and that the sole question in controversy was the determination of the amount of damages sustained by the defendant, Doran Development Corporation. Following a jury trial and verdict, the trial court entered judgment granting plaintiff, the State of Texas, fee simple title to the right-of-way and fixed the damages of Doran Development Corporation, from which judgment Doran has perfected this appeal.

The parties will hereinafter be designated as condemnor and condemnee.

The jury found that the market value of the land taken for highway purposes at the time of the taking was $20,488.50, but further found that the remaining land and improvements were not decreased in value by reason of the taking and hence condemnee had suffered no damage to the remaining premises.

Condemnee makes no complaint of the amount of damages awarded on the part taken. The contested issue in the trial court involved the question of whether or not the remaining property and improvements were damaged. It was condemnee’s contention in the court below that the taking of the land on the south end of the building precluded usage of the south side of the property for truck passage, loading and unloading due to the proximity of the fenced right-of-way on the south side of the warehouse, and that by reason thereof the remaining property had been materially damaged.

A brief review of the evidence shows that the property sought to be condemned was a 14,130 square foot triangular piece of land off the south end of a tract containing 104,288 square feet which was located in the central business district of the City of Dallas. There were no improvements on this triangular strip of land. The remainder of the property was improved with a masonry building covering approximately 52,000 square feet and was being used as a warehouse. The building had railroad trackage on the east side where five loading doors were located. Loading docks were situated on the north end of the building where large trucks were loaded with freight. There were two loading doors situated on the south end of the building which was adjacent to the land condemned. The building was constructed in a rectangular shape except the south wall which was constructed at an odd angle. The south wall was so constructed that it was located approximately twelve feet from and exactly parallel with the new highway right-of-way line of the proposed new highway.

The building was constructed in 1953 and was leased to Central Forwarding, Inc. in 1954 for a period of ten years at a rental of $2,600.00 per month. The written lease agreement describes the south line of the property as follows:

“ * * * in a northeasterly direction along the proposed right-of-way line of the east-west expressway, a distance of 218 feet to the right-of-way line of the Southern Pacific Railway track.”

The state took possession of the premises on March 27, 1962. Central Forwarding, Inc. continued to occupy the building until three or four years prior to the expiration of the term of the lease, at which time they built a new building and moved to a new location. Thereafter, the building remained vacant for a period of time; however, Central Forwarding, Inc. continued to pay the rent in accordance with the lease agreement. Upon the expiration of this lease, condemnee, Doran Development Corporation, leased the property to Exchange Warehouses, Inc. for a period of five years at the same monthly rental of $2,-600.00 a month. The description of the leased premises in the two leases was identical.

It is without dispute that after the taking of the triangular strip on the south end of the building, there was insufficient space between the wall of the warehouse and the right-of-way line for any type of vehicular traffic other than a pickup truck or an automobile to pass through in order to get to the south loading doors.

Condemnee, Doran Development Corporation, seeks a reversal of the judgment and has assigned three Points of Error. The first point asserts that the trial court erred in refusing to grant the condemnee a mistrial or to allow it to withdraw its an-noncement of ready after the attorney for the condemnor had asserted in the presence of the jury that the lessee, Central Forwarding, Inc., was not claiming any damages and that the lessee was the party actually damaged, if anybody was, thus implying that the landowner had not been damaged.

The controversy developed in this manner. Condemnee had elicited testimony from one of its witnesses showing that Central Forwarding, Inc. had moved from the property before its lease was up because “they could not live with the setup that was going to be in here.” The witness further stated that the premises remained vacant for quite some time even though Central Forwarding, Inc. had attempted to lease the same. This testimony obviously left the inference with the jury that con-demnee, Doran Development Corporation, was damaged because of the fact that its lessee had vacated the premises as a result of the location of the new highway. On cross examination, however, he admitted that Central Forwarding, Inc. had continued to pay the monthly rental after they had moved to the new location. Thereupon, the attorney for the condemnor in an effort to destroy the inference propounded this question:

“Q Isn’t it, then, if anybody was in regard to this lease was damaged it would be Central Forwarding, wouldn’t it? They got stuck for $2,600.00 a month and they didn’t occupy the building.
“A Maybe they were fortunate in growing to such an extent that the $2,600.00 didn’t mean much.”

Immediately thereafter, the attorney for the condemnor stated to the court that he proposed to introduce the disclaimer of Central Forwarding, Inc. A discussion between the court and the attorneys concerning the introduction of the disclaimer then ensued in the presence of the jury. In this discussion the attorney for the con-demnor stated that if anybody was damaged, it was Central Forwarding, Inc. and that he proposed to introduce a disclaimer to show that Central Forwarding was not claiming any damages.

Counsel for condemnee promptly filed a motion for mistrial contending that the remarks of opposing counsel were so prejudicial that the same could not be cured by an instruction. The trial court overruled the motion and instructed the jury that they could consider only the testimony and the evidence introduced and that they would not consider statements and remarks of the attorneys.

It is conceded by both parties that in condemnation proceedings where there are several interests or estates in a parcel of real estate taken by eminent domain, the proper method of fixing the value of, or damage to, each interest or estate is to first determine the value of, or damage to, the property as a whole, and then to apportion the gross award among the several owners according to their respective interests or estates. It is further conceded that the statutes relating to eminent domain comprehend compensation for damage to property rather than for damage to persons. City of Waco v. Messer (Tex.Civ.App.), 49 S.W.2d 822; Aronoff v. City of Dallas (Tex.Civ.App.), 316 S.W.2d 302.

The contention made is that the above-quoted question propounded by the attorney for the condemnor, together with his remarks in the presence of the jury, were prejudicial in that they amounted to testimony, advising the jury that they could consider damages to the person rather than compensation for damages to property, and that such prejudicial remarks confused or mislead the jury and caused them to return a verdict adverse to condemnee. We do not believe this conduct on the part of counsel can be accorded such weight. This was the only instance throughout the trial of the cause that there was any reference made to any damages which might have been sustained by the lessee, Central Forwarding, Inc. From the beginning of the trial the condemnor had taken the position that the condemnee had not sustained any damages to the remaining property, and thereafter they produced testimony to the effect that the remaining property had not been damaged by reason of the taking. The disclaimer was never introduced in evidence and there was nothing in the court’s charge which would be calculated to indicate to the jury that they were being called upon to determine damages to the person rather than damages to property. Special Issue No. 3 required the jury to determine whether or not the market value of the remaining property was decreased in value as a result of the taking and they answered in the negative. There being evidence to support the jury’s verdict finding no damages to the condemnee, we do not believe it can be said that this incident is such that it would be calculated to cause the jury to arrive at an improper verdict, especially in view of the court’s prompt instructions to the jury that they would not consider the remarks and statements of counsel as any evidence in the case. In any event, we are of the opinion that the circumstances presented here are not such as would he calculated to cause and probably did cause the rendition of an improper judgment. Rule 434, Texas Rules of Civil Procedure.

Nor do we believe that there is any error in the action of the trial court in refusing to permit the condemnee to withdraw its announcement of ready. Under our rules of procedure it is within the sound discretion of the trial court as to whether it will grant or refuse a litigant leave to withdraw his announcement of ready. Block v. Tarrant Wholesale Drug Co. (Tex.Civ.App.), 138 S.W.2d 874; McDonald Texas Civil Practice, Section 11.18, page 1004. In our opinion, no abuse of discretion is shown.

In the second Point of Error, condemnee contends that the trial court committed reversible error in failing to instruct the jury that they would not consider the un-sworn testimony given by the attorney for the condemnor at the time he interrupted the closing argument for counsel for the condemnee.

The record reveals that while counsel for the condemnee was making his closing argument, he alluded to the failure of the condemnor to call an appraiser by the name of Cowley, who he contended was under the control of the condemnor. In response to this argument, Mr. McGee, counsel for condemnor, interrupted and the following exchange ensued:

“Mr. McGee: Your Honor, I have Mr. Cowley’s appraisal here—
“Mr. Woodruff: Why didn’t you offer it, then?
“Mr. McGee: I would be glad to—
“Mr. Woodruff: Why didn’t you offer it in evidence?
“Mr. McGee: —to present it to the jury at this time. I am addressing my remarks to the Court and not to counsel.
“The Court: Ladies and gentlemen of the jury, while deliberating upon your verdict you will not mention or refer to any matter or fact or circumstance other than the evidence that has been produced in the Court.
“Mr. Woodruff: All right.
“Mr. McGee: There it is.
“Mr. Woodruff: The State had hired Mr. Cowley, who was out there with Mr. Addision, but we didn’t see Mr. Cowley * *

Without doubt, an attempt on the part of an attorney to introduce documentary evidence for the first time during jury arguments is improper and will constitute reversible error if the effect flowing therefrom was reasonably calculated to cause such prejudice to the opposing litigant that an instruction by the court could not eliminate the probability that it resulted in an improper verdict. Texas Sand Company v. Shield, (S.Ct.) 381 S.W.2d 48; Levels v. St. Louis & H. Ry. Co., 196 Mo. 606, 94 S.W. 275.

The condemnor insists that since it was not shown that Cowley was employed by the state or that the state had any relationship or control over him, counsel’s argument accusing the state of failure to call him as a witness was improper and therefore the remarks of the state’s counsel were invited. However, we find it unnecessary to decide whether it was invited, since we have concluded that, in any event, the offer of Cowley’s appraisal, although improper, was not such as was reasonably calculated to cause and probably did cause the rendition of an improper judgment.

Before reversing the judgment because of improper conduct on the part of counsel, it must appear not only was the conduct improper, but that it was such as to satisfy an appellate court after a review of all the evidence that it was reasonably calculated to cause and probably did cause the rendition of an improper judgment. Rule 434, T.R.C.P.; Aultman v. Dallas Railway & Terminal Co., 152 Tex. 509, 260 S.W.2d 596.

It will be noted that counsel did not intimate in his statement what the witness Cowley would have testified to, nor did he intimate whether the appraisal report which he offered was favorable or unfavorable to the state. It therefore cannot be said that the jury received any evidence as a result of his remarks. Nor can it be said that the mere offering of the appraisal report had the effect of bolstering the previous testimony of Cowley because there was none. The vice hinges upon whether or not the remarks placed opposing counsel in a bad light before the jury to such an extent that they became prejudiced against his cause and therefore rendered an improper verdict.

In commenting upon the state’s failure to produce the witness Cowley, counsel for condemnee no doubt intended to leave the inference with the jury that his testimony would be unfavorable to the state and would be favorable to the condemnee. The subsequent offer of the appraisal by the state without indicating whether it would be favorable or unfavorable probably did nothing more than arouse curiosity in the minds of the jury. As hereinafter demonstrated, condemnee produced testimony of two expert witnesses who testified that con-demnee had suffered severe damages. In our view no juror of ordinary intelligence could have found any connection between this incident and the question of damages to the property. Moreover, we seriously doubt that the incident was sufficent to place counsel for condemnee in bad light before the jury, or prejudiced the jury to such an extent that we can say as a matter of law that it was calculated to cause and probably did cause the rendition of an improper verdict. Counsel for condemnee was not forced to object to the remarks because of the prompt action of the trial judge in instructing the jury that they would not consider the remarks of counsel.

It must be presumed that a jury obeyed the instruction of a trial judge to disregard a statement of a witness or counsel. Walker v. Texas Employers’ Insurance Association, 155 Tex. 617, 291 S.W.2d 298; Transport Insurance Company v. Burditt (Tex.Civ.App.), 294 S.W.2d 248.

In light of the whole record, it seems more likely that the jury’s findings were based on the evidence rather than on the prejudice, and we have therefore reached the conclusion that the remarks of counsel, although improper, were not such as were reasonably calculated to cause, and probably did cause the rendition of an improper judgment.

Condemnee’s third and final point asserts that the verdict of the jury is contrary to the great weight and preponderance of the evidence.

Three valuation witnesses testified in the trial of this cause. Condemnee’s witnesses Carmichael and Sherman both valued the part taken at $21,195.00. Con-demnor’s witness Addison valued the part taken at $19,138.00. The jury found that the market value of the part taken was $20,488.50. Upon the question of the damages to the remainder, condemnee’s witness Carmichael estimated the damages at $36,-000.00 and the witness Sherman estimated the damages at $42,000.00. Condemnor’s witness Addison testified that he was of the opinion that there would be no damage to the remainder. It is undisputed that the property brought the same rent after taking as before. Although it is admitted that the taking did not damage or destroy any part of the warehouse building as such, condemnee contends that the evidence shows as a matter of law that they sustained damages because of the close proximity of the condemnor’s fence and right-of-way line to the south side of the warehouse preventing ingress and egress resulting in inconvenience and increased labor cost in the use of the warehouse. In this connection we believe the jury could have very well attached some significance to the fact that the condemnee erected the south wall of the building in such a manner as to run parallel with the proposed highway right-of-way leaving a distance of only twelve feet between the two. Suffice it to say, we have reviewed the entire record and have concluded that the verdict of the jury is not so contrary to the great weight and preponderance of the evidence as to be manifestly wrong and unjust.

The judgment of the trial court is affirmed.


author: HUGHES, Justice. HUGHES, Justice.

text:
    TRAVIS COUNTY WATER CONTROL AND IMPROVEMENT DISTRICT NO. 12, Appellant, v. John Lee McMILLEN, Appellee.
    No. 11336.
    Court of Civil Appeals of Texas. Austin.
    Nov. 10, 1965.
    Rehearing Denied Dec. 8, 1965.
    Second Rehearing Denied Jan. 5, 1966.

      John Davenport, Austin, for appellant.
    James R. Sloan, Austin, for appellee.
   HUGHES, Justice.

This appeal is from a summary judgment denying Travis County Water Control and Improvement District No. 12 recovery of ad valorem taxes for the years 1960-63, inclusive, in the principal sum of $2,576.00, allegedly owing it by John Lee McMillen, appellee, by reason of his ownership of 342 acres of land alleged to lie within the District.

In response to appellant’s suit, appellee, in addition to other pleadings, filed special denials in which he denied that the 342 acres described in appellant’s pleading were or ever had been included, incorporated, or legally included or incorporated, within Travis County Water Control and Improvement District No. 12. A motion for summary judgment based on the substance of these special denials were filed by ap-pellee, in support of which he made an affidavit from which we quote:

“My name is John Lee McMillen. I am the Defendant named in the above entitled and numbered cause. I have heretofore had access to and have carefully examined the books and records, including the minutes of the Directors’ meetings of Travis County Water Control and Improvement District No. 12, and have personally examined the books and official records and maps of Travis County Water Control and Improvement District No. 12 and know that the 342 acres of land, more or less, out of the William Lewis Survey, in Travis County, Texas, being the same tract of land conveyed by Otto Olle and Eleanor Ewald Ben-ner, Independent Executors of the Estate of Emma Olle, Deceased, to me by Deed dated May 7, 1959, and recorded in Vol. 2045 at Page 474 of the Deed Records of Travis County, Texas, as alleged in Plaintiff’s Original Petition filed in the above entitled and numbered cause, was not included in or was not encompassed within the land described and made a part of Travis County Water Control and Improvement District No. 12 upon its original organization and establishment. Further, I have carefully examined the books, records and files, and did not find, nor have I been shown, any Petition describing the above mentioned land by metes and bounds signed and executed by any former owners of the said land in the same manner provided by law for the conveyance of real estate, and praying that the said land described be added to or become a part of the established District encompassed within and part of Travis County Water Control and Improvement District No. 12, and of my own knowledge I know that 1 have not myself filed any such Petition praying for inclusion of said land in said Water District nor has anyone else filed such a Petition since I acquired ownership of said land under the above described Deed. Further, I have carefully examined the minutes of the Directors of Travis County Water Control and Improvement District No. 12 and found no minutes reflecting- that such a Petition for inclusion of the land above described and as described in Plaintiff’s Original Petition was ever heard or considered by the Directors, and I found no Order or other action taken by the Board of Directors to add or include said land within the boundaries of the said Travis County Water Control and Improvement District No. 12. Further, I have personally examined and have caused other competent persons to examine for me the records in the Office of the County Clerk of Travis County, Texas, the County in which said land described in Plaintiff’s Petition is located, and such search of the said records do not disclose the filing or recording of any such Petition to add the land above described and as described in Plaintiff’s Petition to the land included within Travis County Water Control and Improvement District No. 12 or any order of the Directors of said Travis County Water Control and Improvement District No. 12 granting any such Petition or including said land within the boundaries of Travis County Water Control and Improvement District No. 12.”

Appellant replied to this motion for summary judgment and filed two controverting affidavits from which we quote:

“My name is Otto Olle. I am familiar with the 342 acres of land more or less out of the William Lewis Survey in Travis County, Texas, described in the Plaintiff’s Original Petition in cause no 140356, Travis County Water Control and Improvement District No. 12 vs. John Lee McMillen. I as independent executor of the estate of Emma Olle, deceased, was one of the grantors of said tract of land to John Lee McMillen, by deed dated May 7, 1959, and recorded in Volume 2045, pg-474 of the Deed Records of Travis County, Texas. Prior to conveying the said tract of land to John Lee Mc-Millen, I filed with the Board of Directors of Travis County Water Control and Improvement District No. 12, a petition for inclusion of said tract of land in such water control and improvement district, said petition describing the tract of land by metes and bounds.”
“My name is Cal Williford. I am familiar with the 342 acres of land more or less out of the William Lewis Survey in Travis County, Texas, described in the Plaintiff’s Original Petition in cause no. 140356, Travis County Water Control and Improvement District No. 12 vs. John Lee McMillen. I served on the board of directors of said water district from its organization in 1957 until January, 1960. Sometime in July or August of 1958 Mr. Otto Olle presented a petition to the board of directors for inclusion of the aforesaid 342 acres within said district. At that time the board of directors found that it would be to the advantage of the district to grant said petition and did in fact grant said petition. The said petition was among minutes of the board of directors in January of 1960 when all of such records were turned over to Mr. John Lee McMillen, the newly elected secretary of said district. While I was on the board of directors, Mr. McMillen requested the installation of twenty water meters on said 342 acre tract and stated that at the time he purchased said tract it had been included within the water district. Members of the board explained that unless he could show a need for each of these meters the board was prohibited from granting such request.
One meter was installed to provide water service to a house located on said tract of land.
I do not know why the petition of inclusion of said tract was never recorded.”

It is not contended that the 342 acre McMillen tract was within the bounds of the District as originally created. Its inclusion therein, to be valid, must have been in compliance with Art. 7880-75, Vernon’s Ann.Tex.Civ.St., which reads:

“Art. 7880-75. Land added to district
Land may be added to a district and become a part thereof upon petition of the owner thereof in the following manner: The owner of the land shall file with the board of directors a petition praying that the lands described be added to and become a part of the established district. Said petition shall describe the land by metes and bounds and be signed and executed in the same manner provided by law for the conveyance of real estate. Such petition shall be heard and considered by the directors and may be granted and said land added to the district if same is considered to be to the advantage of the district and if the water supply, canals, etc. are sufficient to supply the same without injury to the lands of the district. Any such petition which may be granted adding lands to a district' shall be filed for record and be recorded in the office of the county clerk of the county in which such land is situated. Acts 1925, 39th Leg., ch. 25, p. 105, § 75.”

It is our opinion that the affidavits presented by appellant do not show substantial compliance with Art. 7880-75. They fail in these particulars. Neither affidavit states that Mr. Otto Olle, who states that he filed with the Board of Directors for the District a petition for inclusion of the 342 acres in the District, was the owner or the sole owner of the 342 acres; neither affidavit states that such petition was executed in the manner provided by law for the conveyance of real estate; nor do such affidavits show that the Board of Directors of the District found that the water supply, canals, etc. were sufficient to supply the included lands without injury to lands in the District, or that the granted petition was filed and recorded in the office of the County Clerk of Travis County.

It is further our opinion that the affidavits of appellant are insufficient in that since the petition and its approval by the Board as disclosed by its minutes are matters directly in issue, the petition and minutes of the Board are the best evidence of their contents and, no legal excuse being shown for failure to produce them, their contents could not be proved by secondary evidence. Texas Law of Evidence, McCormick and Ray, 2nd Ed., Sec. 1562. Hence, the statements in the affidavits pertaining to the contents of the petition and the orders of the Board are insufficient to make an issue as to such matters under Rule 166-A(e), Texas Rules of Civil Procedure, which requires that supporting affidavits set forth facts which would be admissible in evidence.

Appellant points to the statement made by Mr. Williford in his affidavit that while he, Mr. Williford, was on the District Board, appellee stated the 342 acre tract was in the District when he bought it and requested installation of water meters on the tract and that one meter was installed to provide water service to a house on the tract as facts which would estop appellee from contending the 342 acre tract was not in the District.

We believe the essentials of estoppel are lacking. Certainly appellee could not mislead the Board about what land was in the District. The Board, from its records, knew this better than anyone. It is not shown that the request for meters was made to the Board or that the Board installed the meter. Neither is it shown that appellee was furnished any water.

We are not advised whether it is illegal for the District to furnish water to lands without the District. In any event, we hold that appellant had no right to rely upon the statement by appellee that his land was in the District, and that it was not misled thereby. We also are of the opinion that the mere installation of a water meter, and nothing more, would not constitute such prejudice to appellant that equity would force appellee’s property into the District with an annual District tax burden of $644.00.

The judgment of the trial court is affirmed.

Affirmed.

ARCHER, C. J., not participating.

On Motion for Rehearing

HUGHES, Justice.

Appellant, calling attention to ap-pellee’s affidavit which states that he had examined the files of the District and “did not find, nor have I been shown, any Petition describing the above mentioned land by metes and bounds signed and executed by any former owners of the said land in the same manner provided by law for the conveyance of real estate” etc., contends that since such Petition could not be found and is unavailable, secondary evidence of its contents was admissible. It is our opinion that the above statement is insufficient to establish the loss or unavailability of a proper Petition under Art. 7880-75. Accepting the statement at full value it does not overcome the deficiencies of the Petition mentioned in our original opinion. Furthermore, such affidavit does not reflect the loss of the Board’s minutes. It affirms their existence; hence, parol evidence was inadmissible, to prove their contents.

The motion is overruled.

Motion overruled.

      . Art. 7880-44 V.T.C.S., requires the Board of Directors to keep minutes.


author: RENFRO, Justice.

text:
    FORT WORTH AND DENVER RAILWAY COMPANY, Appellant, v. Harold W. COFFMAN, Appellee.
    No. 16671.
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 3, 1965.
    Rehearing Denied Jan. 7, 1966.

      Tilley, Hyder & Law, Fort Worth, Fri-berg & Parish, Wichita Falls, Touchstone & Sampels and M. D. Sampels, Dallas, for appellant.
    Rumph, Ivy & Karpenko, Fort Worth, Philip S. Kouri, Wichita Falls, Helm, Jones & Pletcher, and George E. Pletcher, Houston, for appellee.
   RENFRO, Justice.

Plaintiff, Harold W. Coffman, in an action arising under the Federal Employers’ Liability Act, recovered a verdict and judgment in the amount of $160,000 from the Fort Worth and Denver Railway Company.

Evidence was introduced by and for plaintiff that he was injured on February 18, 1961, when the caboose in which he was riding derailed. On that date he, a freight conductor, was advised by supervisors that he and his crew were “doubling back” to Wichita Falls from Fort Worth with a train which was already made up. A brakeman noticed a car he considered unsafe for the run. Plaintiff inspected the car, saw that the drawbar had been worked on and was not in a normal position. The draw-bar pointed downward instead of being parallel, its normal position. Four new bolts were in place. Plaintiff reported to the inspector. The car inspector said the car had been “bad-ordered”, placed on the “rip track”, repaired and okayed and was safe to move. Plaintiff then informed the yard master the car was not safe. The yard master told him the car had been repaired and okayed by him and said: “You are taking it — you are moving it.” There were 122 cars in the train. The car in question was placed last except for the caboose. After the train had traveled approximately 49 miles, “all of a sudden the car in question parted from the train and it derailed the front end of the caboose. * * * it was a terrific impact.” Just prior to the derailment there was a thud, or loud noise under the caboose as if something had hit under it. The draw works had fallen off the front end of the defective car. After derailment it was still coupled with the caboose. After the car and the caboose came to a stop the drawbar on the defective car was completely gone; all the draw works were gone, the front end of it was setting up on the drawbar of the car ahead.

The jury found in answer to special issues Nos. 1 and 2 that defendant failed to furnish plaintiff a reasonably safe place to work, and such failure was a proximate cause of the occurrence; and in answer to issues Nos. 3 and 4 defendant failed to furnish plaintiff safe equipment and such failure was a proximate cause. In issues Nos. 7 and 8 the jury found that defendant failed to make such repair on the car as would have been made by a person of ordinary prudence in the exercise of ordinary care under the same or similar circumstances, and such failure was a proximate cause. It was also found that the occurrence was not the result of an unavoidable accident.

Defendant contends the court erred in refusing to instruct a verdict against plaintiff, and in refusing to hold as a matter of law that plaintiff was negligent.

The jury acquitted plaintiff of contributory negligence. It found for plaintiff on issues inquiring as to defendant’s conduct.

The Federal Courts have broadened the jury’s function in F.E.L.A. cases so that very little evidence is required to uphold a jury verdict of negligence. Bailey v. Central Vermont Ry., 319 U.S. 350, 63 S.Ct. 1062, 87 L.Ed. 1444; Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493; Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916; Deen v. Gulf, Colorado & Santa Fe Railway Co., 353 U.S. 925, 77 S.Ct. 715, 1 L.Ed.2d 721.

Under the above authorities we hold the evidence sufficient to support the verdict and judgment.

Defendant urges reversal because the verdict did not contain any findings of negligence in support thereof and was not supported by the pleadings.

The court charged the jury that the term “reasonably safe place to work” is such a place as an ordinarily prudent railroad company would have furnished its employees under the same or similar circumstances.

The jury found that defendant failed to furnish plaintiff a reasonably safe place in which to do his work, and that such failure was a proximate cause of the occurrence made the basis of the lawsuit.

The jury also found that the defendant failed to furnish plaintiff safe equipment with which to do his work, and such failure was a proximate cause of the occurrence.

Similar objections were made to the charge and like points of error were urged in Texas & New Orleans Railroad Company v. Arnold, 381 S.W.2d 388 (Beaumont Civ.App., 1964). In its opinion the court said: “The points are without merit. * * It has been consistently held that the standards or customs of a particular enterprise might themselves be negligent because they did not rise to the standard of the ordinarily prudent person. Ordinary care may be something above and beyond the customs and standards ordinarily incident to the organization or a given business. * * * Since the jury was required to measure the conduct of appellant in respect to the railroad industry, it is in no position to complain. If it exercised less care than was exercised by reasonably prudent railroad companies, it was guilty of negligence. That similar instructions have not been found erroneous see Taylor v. White, 212 S.W. 656 (Com.App. 1919, judg. adopted); Texas Coca-Cola Bottling Co. v. Kubena, 109 S.W.2d 1098 (n.w.h. Civ.App. 1937); Houston & T. C. R. Co. v. Alexander, 103 Tex. 594, 132 S.W. 119 (1910); San Antonio St. Ry. Co. v. Caillonette, 79 Tex. 341, 15 S.W. 390 (1891); Great Atlantic & Pacific Tea Co. v. Evans, 142 Tex. 1, 175 S.W.2d 249 (1943).”

The Supreme Court dismissed the appeal in the above case because the Railroad had not timely perfected its appeal to the Court of Civil Appeals. Texas & New Orleans Railroad Co. v. Arnold, Tex., 388 S.W.2d 181. In the majority opinion, however, it was stated: “Railroad, petitioner here, urges a reversal because the trial court submitted two issues too broadly, improperly defined the term ‘suitable equipment/ * * We are incline(J to the view that these points would not require a reversal, * * In a dissenting opinion (as to timely appeal), Justice Greenhill agreed with the majority on the proper submission of the attacked issues. Said he, “I would affirm the judgments of the courts below. Under the broad holdings of the Supreme Court of the United States in F. E. L. A. cases, the jury issues with regard to the railroad’s failure to furnish suitable equipment to the plaintiff, answered by the jury favorably to the plaintiff, will support the judgment for the plaintiff.”

The points of error are overruled.

Defendant contends the court erred in allowing Dr. King to testify concerning plaintiff’s history.

While testifying Dr. King was asked: “ * * * your testimony here is based on your findings and examination and treatment rather than on the history?” He answered, “That is true.” It was also shown that when plaintiff first went to Dr. King (3-22-61) he was given some treatment. In testifying as to his expenses, charges, etc., for time spent in court, x-rays for plaintiff, office calls and examinations, he was asked, “That, of course, includes all treatment?” The doctor answered, “Oh, yes, that includes the total.”

The evidence is sufficient to show that plaintiff went to Dr. King, not merely for an examination but for the purpose of diagnosis and treatment.

The opinion of a physician or surgeon as to the condition of an injured or deceased person is not rendered incompetent by the fact that it is based upon the history of the case given by the patient to the physician or surgeon on his examination of the patient, when the examination was made for the purpose of the treatment and care of the patient. Federal Underwriters Exchange v. Carroll, 130 S.W.2d 1101 (Beaumont Civ.App., 1939, no writ hist.); Missouri, K. & T. Ry. Co. of Texas v. Rose, 19 Tex.Civ.App. 470, 49 S.W. 133, (1898, ref.); Texas General Indemnity Co. v. McNeill, 261 S.W.2d 378 (Beaumont Civ.App., 1953, no writ hist.); Austin Road Company v. Thompson, 275 S.W.2d 521 (Fort Worth Civ.App., 1955, ref., n. r. e.).

Defendant argues that issue No. 7, as framed, is a comment by the court on the weight of the evidence. In view of the undisputed evidence as to what was seen, said and heard in defendant’s yards at Fort Worth, we think the issue was not a comment on the weight of the evidence.

In any event the judgment is amply supported by other issues which we hold were properly submitted.

In other points the defendant contends the verdict was so excessive the trial court should have granted a new trial or granted a remittitur.

At the time of the accident plaintiff was 49 years of age and was earning about $9,000 per year. The accident occurred on February 18,1961.

Plaintiff started to work for defendant in 1936 cleaning coaches. Since that time he had no other employer. He was promoted to conductor in 1943, and continued as a conductor until December, 1963. During the years preceding the accident in question he lost a total of 14 days because of slight injuries. He had regular physical examinations throughout his period of employment with defendant and was always found fit for duty. Soon after the derailment plaintiff lost consciousness and remained unconscious until sometime the next day. He was in a hospital in Wichita Falls from February 19 until March 1, then sent to a hospital in Fort Worth for 2Y2 days, then returned home. He continued to take treatment but returned to work in April. After resuming work he had headaches, his balance was bad and he suffered from dizziness. He transferred to a job in Fort Worth (same employer) where the hours on duty were longer and the pay better, because there were more frequent rest periods. In December of 1963, because his train had run through and torn up a switch, he was called in for an investigation and told he would not work until he had a medical examination. He reported to the doctors to whom he had been directed. He never returned to work. He was asked why he was unable to work and answered, “Well, as a conductor * * * I am responsible not only for the people I work with but the public as well and in my condition, I just couldn’t return to work knowing what could happen to the people I work with and the public and to myself, if I was to be placed in. responsibility of the train.”

Since the accident he has lost 30 pounds. He cannot keep his balance. He cannot walk normally. After the accident he resigned an office with the Brotherhood Railroad Trainmen because he could not keep up with the work. As of the date of trial he was still taking treatments. He did not think he was getting any better.

Fellow railroad workers testified that before the accident plaintiff was a robust, capable workman, that after the accident his physical actions and general conduct as a conductor deteriorated to the point other crew members had to help him with his duties, and, in December, 1963, one of them felt compelled, for the safety of all concerned, to report him to superiors.

Several witnesses testified plaintiff dragged his right foot, and one saw him “Standing dead still and just fall back just like he had passed out.”

Evidence showed he could not sleep and was quite restless and irritable. He had frequent severe headaches.

Dr. King testified: He first saw plaintiff March 22, 1961. Plaintiff was confused with obvious mental disturbances. Hyper-flexion of the head caused a marked amount of muscle spasm. He saw plaintiff again on April 4, 1961. Plaintiff apparently was in about the same condition. The witness prescribed analgesics for headaches. He next saw plaintiff April 29, 1964. On that occasion plaintiff had mental disturbances and dragged both feet. In his opinion plaintiff suffered a serious brain concussion, and “ * * * it is one that is going to render him permanently disabled in this way, that he will permanently have this loss of coordination and he will have headaches; he will have dizziness and he will not be able to carry on gainful occupation and particularly anything to do with his former occupation.” Plaintiff will have headaches, dizziness, buzzing in his ears the rest of his life. He will continue to have memory disturbances. He will not be able to carry on any remunerative type of work. His condition resulted from the accident. The witness concluded, “My opinion is that he is permanently and totally disabled.”

Dr. Gardiner, medical doctor specializing in psychiatry, by deposition testified: He first saw plaintiff for examination and treatment on January 23, 1963. Plaintiff had a type of tension disturbance which the witness called a depression. Plaintiff returned for treatment at two week intervals for sometime. Plaintiff continued to have headaches. By June, witness was discouraged as to plaintiff’s total response. He continued treatments until December. Plaintiff was somewhat better but did not show a great deal of improvement. Shock treatment was warranted and was administered by the witness until plaintiff had received twelve treatments. The doctor did not see as favorable response as he had hoped for. Plaintiff understates rather than emphasizes his complaints. The witness, noting plaintiff had not shown much improvement, considered that fact to be rather significantly disabling to plaintiff. In his opinion, plaintiff had reached a maximum improvement. He had a guarded opinion as to whether plaintiff’s condition was permanent or temporary, but plaintiff had not shown a favorable response. The plaintiff “is not now able to perform the duties” of switchman, brakeman or conductor. Plaintiff’s condition is due to the injury sustained in the derailment accident.

The issue on damages was accompanied by proper instructions.

Although the verdict is large and the trial court, in the exercise of a sound discretion, might properly have set it aside, the appellate court will not disturb the verdict, although it may seem too large, in the absence of circumstances tending to show that it was the result of passion, prejudice, or other improper motive, or that the amount fixed was not the result of a deliberate and conscientious conviction in the minds of the jury and court, or so excessive as to shock a sense of justice in the minds of the appellate court. 17 Tex.Jur.2d 415, § 341; Fort Worth & Denver City Ry. Co. v. Gifford, 252 S.W.2d 204 (Fort Worth Civ.App., 1952, no writ hist.).

In view of the record we cannot say that the verdict was so excessive as to require a new trial, or a remittitur.

The points are overruled.

Seven points of error are based on alleged improper jury argument.

Referring to defendant’s counsel who made the closing argument for defendant, plaintiff’s counsel said: “His whole argument has been pitched on one thing, an abject appeal to bias and prejudice and an out and out claim to you twelve folks that everybody is out of step in this case except Mr. Parish. Even Mr. Friberg, when he spoke to you, did not in any way, shape or form, attempt to convey the impression to you twelve folks, not just Harold Coffman is a thief, a fraud, a fake; that Dr. King1 is either incompetent or a perjurer; that Dr. * * * psychiatrist is of the same cut — .”

Defendant objected, “I want to object to his saying that I inferred that Dr. King was a perjurer; I did not.”

Plaintiff’s attorney continued: “That Lil-lard Jackson would lie for Harold Coffman; that Mr. Ausland would come up here and take an oath to his God and again assist, aid and abet a fraud on this jury — .”

Defendant objected, remarking that he never mentioned Ausland in his speech.

Counsel continued by stating, in substance, that defendant’s counsel wanted the jury to believe that plaintiff, the doctors, friends and the attorneys had all joined hands to perpetrate a fraud.

Other statements of plaintiff’s counsel are set forth in the brief, but they obviously were not erroneous so will not be repeated.

In the closing argument by defendant’s counsel he had stated: “And then we find him (plaintiff) for some strange reason down in Houston; he is up talking to some lawyers and these lawyers say, you’ve been to six doctors already, let’s try another, and they send to Dr. Keither Bradford. * * * Then we find him coming back up to Fort Worth to another lawyer’s office and this lawyer sends him to Dr. Gardiner. * * * Was it decided before this lawsuit was filed that this man would not work in ’64 and would come in before this jury and say that he would never be able to work again? * * * and Coffman can’t substantiate $227,000 if he goes back to work; so he doesn’t go back to work. * * * (Referring to Dr. King) He wasn’t only a witness, he was an advocate in behalf of the bill of goods he was attempting to sell. * * * (Further, referring to 'they’) are going to sell the jury on a bill of goods that he won’t work any more for the rest of his life. God help our jury system if you let them sell you that bill of goods! * * * But back in February, when he was working fourteen and fifteen hours a day, a bunch of lawyers decided that he would be disabled for the rest of his life.”

It is apparent plaintiff’s argument, of which complaint was made, was in reply to defendant’s argument. He was entitled to make a vigorous reply.

The argument was somewhat intemperate and should not have been made as it was.

The Supreme Court has held, however, that jury argument is to be tested by Rules 434 and 503, Texas Rules of Civil. Procedure. Therefore, before a judgment is reversed because of argument of counsel, two things must appear: the argument must be improper, and it must be such as to satisfy the reviewing court that it was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case. Aultman v. Dallas Railway & Terminal Co., 152 Tex. 509, 260 S.W.2d 596 (1953).

In this case the defendant introduced no witness to testify in rebuttal to plaintiff’s evidence as to the accident and its cause or causes and introduced no doctor or other witness to contradict the evidence as to plaintiff’s physical and mental condition. In fact, defendant introduced no witnesses at the trial.

We have given careful consideration to the whole record. Considering the argument by plaintiff’s attorney of which complaint is made, along with his whole argument and the argument of opposing counsel, and considering the record as a whole, we cannot say the argument was such as was reasonably calculated to cause and did cause the rendition of an improper judgment.

When the argument is considered in continuity, it is obvious plaintiff’s attorney was speaking in reply to opposing counsel’s charges.

In our view, in the light of the record, no juror of ordinary intelligence could have been persuaded by the argument to agree to a verdict contrary to that to which he would have agreed but for such argument. Goforth v. Alvey, 153 Tex. 449, 271 S.W.2d 404 (1954).

Other points are based on the court’s ruling on admission of evidence. We find no reversible error.

All of defendant’s points of error have been carefully considered, and having found no reversible error in any of them, separately or cumulatively, each and all are overruled and the judgment of the trial court is affirmed.

Affirmed.


author: SELLERS, Justice.

text:
    PRODUCTS UNLIMITED, INC., et al., Appellants, v. AMERICAN RADIATOR & STANDARD SANITARY CORP., INDUSTRIAL DIVISION, Appellee.
    No. 188.
    Court of Civil Appeals of Texas. Tyler.
    Dec. 9, 1965.
    Rehearing Denied Jan. 6, 1966.
    Reagan M. Martin, Griffitts & Martin, Dallas, for appellants.
    Bob D. Dyess, Brundidge, Fountain, Elliott & Churchill, Dallas, for appellee.
   SELLERS, Justice.

The appellee, American Radiator & Standard Sanitary Corporation, Industrial Division, brought this suit upon a verified account for merchandise sold to Products Unlimited, Inc., a defendant who did not answer in the suit, and a judgment by default was entered against it by the trial court, from which no appeal has been prosecuted.

The appellee sued appellant, Lewis C. Krodell, Individually and doing business as Vanguard Construction Company, guarantor of the account between appellee and Products Unlimited, Inc., and appellee attaches to its petition four instruments which it alleges were the unconditional guaranty of its account with Products Unlimited. Appellant filed a general denial under oath and alleged certain payments of the account, and attached to its answer certain checks alleged as evidence of such payments.

Appellee filed his motion for summary judgment which was in due form. In answer to the motion of appellee for summary judgment, the appellant, Lewis C. Krodell, filed a response to said motion duly verified, which alleges in part as follows:

THAT The Defendant, Lewis C. Krodell, has filed herein this date a sworn denial in accordance with Rule 185 and Rule 93 of the Texas Rules of Civil Procedure setting out under oath that the claim is not just or true in whole or in part and stateing to his knowledge wherein the particular items, in particular the Plaintiff’s petition, are untrue and, further, in ac-coradance with Rule 93 of the Texas Rules of Civil Procedure.
“THAT The Defendant, Lewis C. Krodell, has a valid defense and that there are issues of fact and law involved.”

It is our opinion that this verified plea in response to the appellee’s motion for summary judgment, together with appellant’s verified amended answer, is sufficient to raise an issue of fact for the trial court to try and that there was error in granting a summary judgment to appellee. Basse Truck Line, Inc. v. Strickland Transp. Co., Tex.Civ.App., 359 S.W.2d 477; Davis Bumper to Bumper, Incorporated v. Roberts, Tex.Civ.App., 331 S.W.2d 762; Burtis v. Butler Bros., Tex.Civ.App., 243 S.W.2d 235.

There is another reason why the trial court could not render a valid summary judgment in this case based upon the verified account where there was a verified denial of the account, and that is the record shows, without dispute, that appellant was not sued as the purchaser of the property from appellee, hut is sued only as a guarantor of the debt. It is our opinion that a verified account is purely hearsay as against a third party, such as the alleged guarantor in this case and cannot be the basis of the summary judgment against appellant. Eng v. Wheeler, Tex.Civ.App., 302 S.W.2d 263, and authorities therein cited.

The summary judgment of the trial court is reversed and the cause remanded for trial on the merits.


author: MASSEY, Chief Justice.

text:
    ASSOCIATES INVESTMENT COMPANY, Appellant, v. MICHIGAN NATIONAL BANK, Appellee.
    No. 16667.
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 3, 1965.
    Rehearing Denied Jan. 7, 1966.

      McGown, Godfrey, Logan & Decker, and John W. McMackin and Henry O. Getchell, Fort Worth, for appellant.
    Garrett & Garrett, and Rufus Garrett, Jr., Fort Worth, for appellee.
   MASSEY, Chief Justice.

The question to be resolved in the instant case is whether, — under Texas’ motor vehicle “Certificate of Title Act”, Vernon’s Ann. Texas Penal Code, Art. 1436-1, — a mortgage lien upon a new vehicle under the “transferee” dealer’s “floor plan” may be either destroyed or made subsidiary to the mortgage lien of a financing agency becoming interested incident to the subsequent “first sale” thereof by the dealer to his customer purchaser merely because the “manufacturer’s certificate” retained in the exclusive possession of the mortgagee under the “floor plan” did not at such time have noted thereon “the date, name, and address of the mortgagees whose rights arise out of or are incident to such first sale by reason of the execution of any written instrument by the transferee.” (Quoted language at end of sentence is an excerpt from § 41 of the Act.)

Our holding is that § 41 of Art. 1436-1, the portion of the Certificate of Title Act which appellant advances in support of its contention upon priority of lien, is without application to a “certificate” which is at that time in the exclusive control of the mortgagee under the “transferee” dealer’s “floor plan”. The “first sale” of a motor vehicle (see § 7 of the Act) involves the licensing, registration, and recording of the same by the prescribed agency of the State of Texas— being the first instance wherein information relating thereto becomes a part of official records. As applied to the question of priority of liens it is as of the time of such a “first sale” that the form and condition of a “manufacturer’s certificate” is material and controlling, — but that is true only as applied to the certificate to be exhibited and presented to the state agency (along with an application for a certificate of title) charged with the execution of those duties of licensing, registration, and recording to be performed in behalf of the State of Texas. Without participation or consent of the original mortgagee its security may not be destroyed or impaired by the unilateral act of another. (We are not here concerned by anyone in the position of an innocent purchaser.) Where a spurious “manufacturer’s certificate” is exhibited and presented no action of the state agency may be given an effect which will destroy or impair the pre-existent lien of the mortgagee under a “transferee” dealer’s “floor plan.”

“Floor planning” of motor vehicles is generally understood by all attorneys to whose attention this opinion might be directed. There is no occasion to explain it. The question of whether the Michigan National Bank, the financing agency on a dealer’s “floor plan”, may have lost its lien on certain house trailers which the dealer had sold arose as the result of the dealer’s forging of “manufacturer’s certificates” and (as a purported accommodation to purchasers) presenting them as a portion of the instruments required under the law to be exhibited to the State’s agency for purposes of licensing and registering such vehicles. The financing of the purchasers of the vehicles had been arranged with Associates Investment Company and this fact was disclosed, hence the purchasers received certificates of title which showed that the holder of the first and only lien as to each vehicle was that company.

The dealer received the price for which each vehicle was sold but failed to deliver to Michigan National Bank the money necessary to extinguish its lien. It was to protect against such a contingency that the bank withheld the “manufacturer’s certificate” as to each vehicle. None of these certificates showed any interest in the vehicle described therein by the bank. Indeed, nothing therein contained gave the name or address of the bank. The forged certificates used in securing Texas certificates of title differed from those in the hands of the bank in only a single material particular, that being the forged signature of the officer of the manufacturer which had delivered the certificates to the Michigan National Bank.

Through agreement the case was reduced to one where resolution of the legal problem of priority of lien will determine whether the Michigan National Bank or the Associates Investment Company is to receive money now on hand.

There seems to have been no prior decision of the exact question decided here. We have decided to refrain from any lengthy discussion and analysis. All points of error are overruled. We have airead • stated that the lien of the Michigan National Bank was and remained first and prior to that of the Associates Investment Company. That was the premise for the judgment of the trial court.

Judgment is affirmed.


text:
    ARLINGTON HOTEL AND MOTEL ASSOCIATION et al., Appellants, v. HOWARD JOHNSON, INC., OF TEXAS et al., Appellees.
    No. 16682.
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 3, 1965.
    Rehearing Denied Jan. 7, 1966.
    Tilley, Hyder & Law, and Robert M. Randolph and Thos. M. Law, Fort Worth, for appellant.
    Brown, Herman, Scott, Young & Dean, and Ardell M. Young, Fort Worth, for Howard Johnson, Inc. of Texas.

      Strasburger, Price, Kelton, Miller & Martin, and Mark Martín and Robert H. Thomas, Dallas, for Irvue Corp.
    Locke, Purnell, Boren, Laney & Neely, and Charles G. Purnell and Joe H. Staley, Jr., Dallas, for Texas Turnpike Authority.
   RENFRO, Justice.

Suit was brought by Arlington Hotel and Motel Association against Texas Turnpike Authority, Howard Johnson, Inc., of Texas, and Irvue Corporation for a declaratory judgment construing Art. 6674v, Vernon’s Ann.Civ.St., and for an injunction to prohibit defendants from operating a motel on the right-of-way of the Dallas-Fort Worth Turnpike.

From the twelve page petition of plaintiffs, we summarize as follows: Pursuant to Art. 6674v, the Texas Turnpike Authority has constructed a turnpike known as the Dallas-Fort Worth Turnpike; on September 8, 1955, the owners of a certain tract of land, under threat or imminence of condemnation, conveyed by warranty deed said land to the Authority, for the purpose of erecting, maintaining, repairing and operating thereon a controlled access toll turnpike as defined in, permitted by, and in accordance with the provisions of Acts of 1953, 53rd Leg., Ch. 410; in August, 1964, the Authority entered into an agreement with Howard Johnson, Inc., whereby Johnson agreed to construct a 100 room Motor Hotel on a part of the land mentioned above; and thereafter Johnson subleased said tract to Irvue Corporation; that each of plaintiffs operates a hotel or motel for accommodation of the public in close proximity to the tract involved; operation of a motel by defendants would, because of easy access, give defendants an unfair advantage for patronage of Turnpike users; such competition would cause plaintiffs severe economic loss in the operation of their hotels and motels and such loss would be peculiar and special to plaintiffs and would not be an economic loss suffered by the general public.

Plaintiffs did not seek damages.

The grantors in the deed to the Authority were not parties to the suit.

The petition does not show that any of plaintiffs ever owned any interest in the land conveyed to the Authority.

All defendants filed motions to dismiss plaintiffs’ suit.

No evidence was introduced.

Based on the pleadings and motions, the court dismissed as to all defendants.

Plaintiffs on appeal contend the test of justiciable interest, or “standing to sue”, is whether plaintiffs have sustained damages special to themselves over and above that suffered by the public generally. They rely mainly upon Williams v. Davidson, 43 Tex. 1, as supporting their position in the instant case.

Plaintiffs contend the Authority-Johnson-Irvue leases invalid because (1) they contemplate use of land taken under imminence of condemnation for purposes other than those permitted by Section 8, Art. 6674v, and (2) contemplate a building which cannot reasonably be deemed necessary to the operation of a turnpike project.

The caption of the Act creating the Turnpike Authority recites the creation of the Authority as a body politic and agency of the state. Section 3 of the Act constitutes the Authority an agency of the State of Texas and provides that the exercise by the Authority of the powers conferred by the Act shall be deemed and held to be an essential governmental function of the state.

Section 1 of the Act authorizes the Authority to issue turnpike bonds, payable solely from the revenues of the project. Section 2 prohibits the Authority from incurring obligations which can not be serviced from tolls or revenues realized from operating its projects.

Section 8 provides that the Authority may not condemn any land except such as necessary for road and right-of-way purposes.

Section 12, however, authorizes the Authority “to contract with any person, partnership, association or corporation desiring the use of any part thereof, including the right-of-way adjoining the paved portion, for placing thereon gas stations, garages, stores, hotels, restaurants, or for any other purpose except (not material here) * * * and to fix the terms, conditions, rents and rates of charges for such use.” (Emphasis added.)

The action of the Authority in leasing land for motor hotel purposes on land acquired by the Authority by purchase was within the rights given the Authority by the statute creating the Turnpike Authority.

The action of the Authority was a governmental function carried out by an administrative agency.

In City of Amarillo v. Hancock, 150 Tex. 231, 239 S.W.2d 788 (1951), the Supreme Court held: “When the legislature creates an administrative agency, the legislature may prescribe rules and regulations governing the administrative body and the method by which the rights determined by such body shall be enforced. Judicial review of administrative action may be specifically provided, Fire Dept. of City of Ft. Worth v. City of Ft. Worth, 147 Tex. 505, 217 S.W.2d 664, or specifically denied by the legislature, but even where judicial review is specifically provided it will be denied if the legislature requires the court to substitute itself for the administrative body and perform purely administrative acts. Board of Equalization of City of Fort Worth v. McDonald, 133 Tex. 521, 129 S.W.2d 1135; Fire Dept. v. City of Ft. Worth, supra. Or the legislature may simply be silent upon the subject. Although the legislature specifically denies judicial review, decisions of an administrative body may be attacked in court if they violate some provision of the State or Federal Constitution. Stockwell v. State, 110 Tex. 550, 221 S.W. 932, 12 A.L.R. 1116; Rowland v. City of Tyler, Tex.Com.App., 5 S.W.2d 756. But all other decisions of such an administrative body which do not affect vested property rights or otherwise violate some constitutional provision are valid, and the mere fact that the legislature has denied judicial review does not invalidate them. Switchmen’s Union of North America v. National Mediation Bd., 320 U.S. 297, 64 S.Ct. 95, 88 L.Ed. 61; Texas Highway Commission v. El Paso Bldg. & Const. Trades Council, 149 Tex. 457, 234 S.W.2d 857. The corollary of this proposition is that the courts should recognize an inherent right of appeal from an administrative body created by an act silent on the question of appeal only' where the administrative action complained of violates a constitutional provision.”

In Texas Turnpike Authority v. Shepperd, 154 Tex. 357, 279 S.W.2d 302 (1955), wherein the Authority sought a writ of mandamus directing the Attorney General to approve Turnpike revenue bonds, the Attorney General challenged he constitutionality of the Act creating the Turnpike Authority. After discussing all points raised by the Attorney General, the court concluded: “We find nothing in our State Constitution that expressly or by necessary implication prohibits the Legislature from enacting the statute here under consideration.”

This leads us to the conclusion that plaintiffs, having no vested rights in the land in question or the use to which it was made available, had no justiciable interest such as would give them a right to a permanent injunction preventing defendants from operating a motor hotel.

All parties have filed able and helpful briefs. We do not undertake to discuss all the arguments made by the various parties. Suffice it to say that since the Turnpike Authority was acting as a governmental agency under statutory authority and not in contravention of the Constitution, its act in leasing the land in question could be attacked by plaintiffs only if they had a vested right to protect. They had no such right and pleaded none.

Under the pleadings and the statute, the holding in Hancock is applicable rather than the holding in the Davidson case.

Affirmed.


text:
    EAST DALLAS CLINIC et al., Appellants, v. Marvin G. STACKS, Appellee.
    No. 172.
    Court of Civil Appeals of Texas. Tyler.
    Dec. 16, 1965.
    Rehearing Denied Jan. 6, 1966.
    Fred S. Abney and Ernest Conner, Ab-ney & Burleson, Dallas, for appellants.
    Edward C. Fritz, Fritz & Vinson, Dallas, for appellee.
   SELLERS, Justice.

This suit was brought by Marvin G. Stacks, appellee, against East Dallas Clinic and East Dallas Hospital, Inc., to recover for alleged usury charges under the provisions of Article 5073, Revised Civil Statutes of Texas.

The facts as developed in the Statement of Facts are substantially as follows:

Appellee’s wife had an operation in the above hospital and her doctor was from the Dallas Clinic. After Mrs. Stacks was able to leave the hospital, she was called in the office of the hospital and told that her account to the hospital was $327.90 and her doctor bill to the Clinic was $325.-90. Appellee and his wife, not being able to meet this obligation, at the suggestion of the hospital and clinic personnel, applied to one Mr. W. H. (Joe) Bailey of the Dallas Retail Credit Managers Association for assistance in making financial arrangements to discharge the accounts.

It appears without dispute in the record that Dallas Retail Credit Managers Association has worked out a method with Republic Bank whereby debtors of different businesses could apply to the Credit Managers Association for a loan to take care of a debt to said businesses for the amount of the debt only, the note to be made to the Republic Bank by the debtors and endorsed by the creditor, with interest from maturity. The application and note duly executed was transferred by the Retail Credit Managers Association to the bank who, in turn, was to pay interest on the note to the bank in the sum of $5.00 per $100.00 for one year. Blanks for carrying out these arrangements were delivered to the different businesses for their use in using this credit system if and when they desired. Appellants kept a number of these blank applications and blank notes of the Republic Bank on hand in order to use this credit system for their clients.

In view of the above, the appellee executed an application to W. H. (Joe) Bailey and also a note to the Republic Bank for the amount of the debt to the Clinic and Hospital. These papers were executed in the office of the Hospital and, in addition, two checks representing 10% of the principal were made to the Hospital and Clinic, which sums were sent along with the application and note to Mr. Bailey. Mr. Bailey sent the note to the Republic Bank and the bank, in turn, sent the Clinic and Hospital a check for the exact amount of the note which represented the amount of the Clinic and Hospital debt. Appel-lee made a payment or two on this note to the bank in the sum of $54.00 per month, and then realized that he could not pay the amount each month and went back to the Hospital to get the monthly payments reduced. The representative of the Hospital, in the presence of appellee, called Mr. Bailey to see if the amount of the payments could be reduced; and Mr. Bailey advised that the note could- be made a 24-month note rather than a 12-month note as it was, and the charge would be $81.61. This arrangement was agreed to by appellee and the Hospital and Clinic took up the note from the bank on which they were endorsers and drew a note to the bank for the remaining balance of the debt in the sum of $544.10, which note was again sent to Mr. Bailey, together with the sum of $81.61 which the Clinic and Hospital had collected from appellee. The new note was to be paid $22.67 per month to the Republic Bank and the bank again remitted to the appellants the principal of the note in the amount of $544.10. Appellee made several payments on this note to the bank and then failed to make payments and the bank called upon appellants to take care of the balance, which the appellants did, and then turned the note over to a Dallas collection agency for collection. The collection agency collected the balance on the note and remitted to the appellants only 50% of the amount collected and the other 50% being retained as their fee.

The trial was to a jury, and at the close of the evidence the trial court instructed a verdict for appellee and entered judgment for appellee against appellants for double the amount of interest paid by ap-pellee to appellants in the sum of $305.10, except $5.65 of the judgment was paid to Republic Bank by appellee because of a late payment.

From the foregoing, it is readily apparent that, although appellants collected the interest, they did not keep any part of the same but sent it on to Mr. Bailey of the Retail Credit Managers Association, who, in turn, paid certain amounts of the money to the bank. Ap-pellee argues that his case was made when he paid the interest to appellants regardless of what they did with the same. We are of the opinion that this contention of appellee must be overruled. We think the question is governed by the case of Deming Investment Co. v. Giddens, Tex.Civ.App., 41 S.W.2d 260, 263, where it was held that Article 5073, Vernon’s Civil Statutes, when construed properly, means not only that appellants received the interest but that they also got the benefit of the same. From the above cited case, we quote the following:

“Under this statute, appellees are. allowed to recover double the amount of the interest from the one receiving the same; that is, the one for whose benefit it was paid. In the instant case, the Deming Investment Company, while it collected the usurious interest, did not receive the same within the meaning of this statute, and hence is not the one against whom the suit to recover such penalty can be maintained.”

This case has been followed by the Supreme Court in the opinion by the Commission of Appeals in the case of Commerce Trust Co. v. Best, 124 Tex. 583, 80 S.W.2d 942.

Surely appellants under this record were not even in the loan business nor did they loan the appellee any money. All they did was to collect their debt, even though they had to endorse the note. It is our opinion that the appellants are not liable to appellee for usury since they received no benefit from the usurious interest paid by appellee.

The judgment of the trial court is reversed and the cause remanded.