author: MOORE, Justice.

text:
    TARRANT COUNTY WATER CONTROL & IMPROVEMENT DISTRICT NO. 1, Appellant, v. Charlie HUBBARD et ux., et al., Appellees.
    No. 320.
    Court of Civil Appeals of Texas. Tyler.
    March 14, 1968.
    Rehearing Denied: April 11, 1968.

      Life & Bolding, Jack T. Life, Athens, Brown, Herman, Scott, Young & Dean, Ardell M. Young, Fort Worth, for appellant.
    Fields, Fields & Hardee, Robert H. Fields, Athens, for appellees.
   MOORE, Justice.

Appellant, Tarrant County Water Control & Improvement District No. 1, a governmental agency and body politic, brought suit against appellees, Charlie Hubbard and wife, to condemn 53.46 acres of appellees’ land for lake purposes. In the statement in condemnation filed with the County Judge of Henderson County, appellant alleged that it proposed to construct a lake in Henderson and Kaufman Counties, known as the Cedar Creek Reservoir, covering approximately 37,000 surface acres; that the lake was being constructed for the purpose of supplying water to the City of Fort Worth and other surrounding communities ; and that in constructing the lake, it was necessary for appellant to acquire all land lying within the reservoir basin up to the elevation of 325 feet above sea level, with the exception, however, that the landowner was to have the right of joint use with appellant of all lands situated between 322 feet and 325 feet above sea level. The oil, gas and other minerals were also excepted from condemnation.

Appellant’s statement in condemnation further alleged that the district had not been able to agree with appellees on the amount of damages and requested that special commissioners be appointed for the purpose of assessing appellees’ damages.

Special commissioners were appointed by the County Judge and after notice to appel-lees, a hearing was held. On May 11, 1965, the special commissioners made their award in the amount of $8,019.00. Appellees, not being satisfied with the amount of damages awarded by the special commissioners, timely filed their objections to the award in the County Court of Henderson County, alleging that the damages, assessed by the special commissioners did not represent the fair reasonable value of the land taken, nor adequately compensate appellees for the damages caused to the remainder of their land. The pleading concluded with a prayer for trial de novo and for a determination of the damages. Appellant filed no pleading in response to appellees’ objections to the award.

The cause proceeded to trial upon appellant’s original statement in condemnation and upon appellees’ objections to the award. Trial commenced on the 23rd day of January, 1967. The parties stipulated that all preliminary steps had been taken by the condemnor and condemnees and that the only issue before the court was the question of just compensation to the appellees. Based on such stipulation, appellees were permitted to open and close. On the second day of the trial, while appellees’ first witness, Charlie Hubbard, was on the stand, counsel for appellant, during cross-examination, propounded certain questions to him by which appellant sought to have him admit that his property had not been damaged but had, in fact, been enhanced in value by reason of the construction of the lake. Counsel for appellees objected to any evidence of enhanced value or special benefits to appellees’ remaining lands and filed the following motion in limine, alleging :

“That the plaintiff, the condemnor, should not be permitted to elicit or adduce testimony from any witnesses concerning any enhancement in value of defendants’ remaining property involved in this suit, for the reason that if the construction of plaintiff’s Cedar Creek Lake enhances any of defendants’ land, such benefit is not special or peculiar to defendants’ land, but to the public in general and to each of defendants’ neighbors surrounding said Lake or near thereto, and, therefore, plaintiff is not entitled to show as set-off against defendants’ damages to the remainder of defendants’ land any such special benefits that might occur from said construction, and for the further reason that there is no pleadings of any special benefits or enhancement in value of defendants’ remaining land involved in this suit.”

Prior to a ruling on the foregoing motion, counsel for appellant made it known to the court that appellant was seeking to prove that appellees’ remaining land had received a special benefit as a result of the construction of the lake in that there were several thousand feet of property bordering on the shoreline of the lake above the 325 foot contour line, which made it suitable for residential and suburban development and as a result, appellees’ remaining land had been benefited and had been substantially enhanced in value by reason of the taking.

The trial court sustained the appellees’ motion in limine and instructed the appellant’s counsel “not to elicit or adduce any testimony or evidence from any witness concerning said enhancement in value of defendants’ remaining lands.” Appellant then offered the following trial amendment :

“Plaintiff specifically denies that the Defendants have sustained any damage to their remaining lands by reason of the taking of the 53.46 acres for Cedar Creek Reservoir. In this connection Plaintiff would show that after the taking of said lands by the Plaintiff, Defendants’ remaining lands, or, at least, a substantial portion thereof, will have many hundred feet of lakeshore property. That said remaining lands will be suitable for residential and suburban development purposes. By reason of the erection and completion of said Cedar Creek Reservoir Defendants’ remaining lands will not be damaged, but on the contrary, will be substantially enhanced in value, and Defendants will not, in fact, suffer any damages to their remaining lands by reason of said taking, but will, in fact, be particularly and specially benefitted.
“WHEREFORE, Plaintiff TAR-RANT COUNTY WATER CONTROL & IMPROVEMENT DISTRICT NO. 1 respectfully requests leave of the Court to file the above and foregoing trial amendment.”

Appellees objected to the filing of the trial amendment on the ground that it came as a surprise and also on the ground that appellant had waived its right to amend their pleadings by failing to amend its pleadings seven days prior to trial as provided by Rule 63, Texas Rules of Civil Procedure.

The trial court refused to allow appellant to file the proffered trial amendment and throughout the remainder of the trial, the court adhered to its ruling and refused to allow the appellant to elicit or adduce any testimony or evidence from any witness concerning the enhancement in value of the defendants’ remaining land. Appellant excepted to the ruling of the court and preserved the point by numerous hills of exception, showing that if permitted to testify, the witnesses offered by appellant would have testified that after the construction of the lake, appellees’ remaining land would have several thousand feet of shoreline property which was above the elevation of 325 feet above sea level; that the highest and best use of such lands was for residential and suburban development purposes and as a result, appellees’ remaining land received special benefits and was enhanced in value. While the trial court excluded evidence of special benefits, the court did permit appellant’s witnesses to testify that appellees’ remaining lands had not been damaged as a result of the construction of the lake.

At the conclusion of the evidence, the cause was submitted to the jury upon three special issues. In response to the first issue, the jury found that the reasonable cash market value of the land taken was $10,692.00, and in response to the second and third issues, the jury found that the value of the appellees’ remaining land, exclusive of the tract condemned, immediately before the taking was $29,542.90 and that the market value of the remainder after the taking was $25,014.40.

Based upon the verdict, the trial court rendered judgment for appellees in the total sum and amount of $15,220.50. After its amended motion for new trial was overruled, appellant duly perfected this appeal.

Appellant’s points 1 through 9 pertain to related matters, asserting first that the trial court erred in excluding the testimony of six witnesses offered by appellant for the purpose of showing appellees’ remaining land had received special benefits, and second that the trial court erred in refusing to allow appellant to cross-examine appel-lees’ witnesses with reference to such special benefits. Appellant maintains that evidence offered showing special benefits was admissible upon the general issue and therefore no pleading of special benefits or enhancement was required.

It is now well settled that where only a part of the landowner’s land is taken and the residue of the land has received some special benefit resulting in some enhancement in the market value thereof, such enhancement in value is a legitimate offset to any damages thereto, but not to the value of the part actually taken. State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194, 979; Steele v. City of Anson (Tex.Civ.App.) 229 S.W.2d 948.

But, in order for the condemnor to claim recoupment of the damages by way of an offset, it has been consistently held that the condemnor must plead facts showing special benefits and enhancement in value to the remaining land, and in the absence of such pleading, evidence of special benefits is not admissible. Rule 94, Texas Rules of Civil Procedure; 22 Tex. Jur.2d, Sec. 188, page 296; Sec. 190, page 296, 297; Rayburn, Texas Law of Condemnation, Sec. 74(1), page 272; City of Dallas v. Cooper (Tex.Civ.App.), 34 S.W. 321; Haley v. State (Tex.Civ.App.), 406 S.W.2d 477, writ ref., n. r. e. Since the pleading failed to raise any issue of special benefits or enhancement, any evidence offered upon such issue would be immaterial and consequently inadmissible. It therefore follows that the action of the trial court in refusing to allow appellant to offer such proof fails to reflect error. Appellant’s points 1 through 9 are overruled.

By point 10, appellant says that even though such pleadings are required, the trial court erred in refusing to allow appellant to file a trial amendment alleging special benefits.

Under the circumstances presented here, we have concluded that the trial court did not abuse its discretion in refusing to allow appellant to file the trial amendment.

Rule 66, Texas Rules of Civil Procedure, provides in part, as follows:

“If evidence is objected to at the trial on the ground that it is not within the issues made by the pleading, * * * the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the allowance of such amendment would prejudice him in maintaining his action or defense upon the merits. * * * ”

In construing the foregoing provisions of the Rule, the Supreme Court of this state in the case of Westinghouse Electric Corp. v. Pierce, 153 Tex. 527, 271 S.W. 2d 422, said: “ * * * The provision is a salutary one, directed at arriving at the true legal rights of the parties under the true facts, but we cannot hold that the trial court abuses its discretion in denying the right to file a trial amendment when the record discloses a probable resulting prejudice to the opposite party ‘in maintaining his action or defense.’ ”

As we view the record, the trial court was justified in concluding that the proffered amendment and the testimony supporting it would have resulted in prejudice to appellees.

The right of the condemnor to plead and prove condemnee’s remaining land was benefited and enhanced in value by reason of the taking is, with certain exceptions, authorized by our statutes. Article 3265, Vernon’s Ann.Tex.Civ. Statutes. The question of whether or not the condemnation resulted in some enhancement of the value of the remaining lands is a question of fact. Upon a finding of enhancement, the con-demnor is permitted to offset or recoup such enhanced value against any damage which may have resulted to such remaining lands by reason of the condemnation. Haley v. State, supra. Thus, the effect of the proffered trial amendment was to set up an affirmative defense by which appellant sought to prove special benefits and to recoup damages to the extent of the enhancement. Rule 94, Texas Rules of Civil Procedure; Alley v. Bessemer Gas Engine Co. (Tex.Civ.App.), 228 S.W. 963; Vol. 36A, Words and Phrases, Recoupment p. 88, 101.

Had the trial court permitted the trial amendment, the appellees would have been placed in a position similar to that of a cross-defendant. There is nothing in the record indicating that appellees had any advance notice that appellant was claiming special benefits or enhancement in value. Although the cause had been pending for approximately two years, it appears that the first notice of such claim was given on the second day of the trial when appellant attempted to set up such affirmative defense by way of a trial amendment. As we see it, the proffered trial amendment had the effect of changing the entire factual basis of the lawsuit and suddenly placed the appellees in the position of having to rebut an entirely new affirmative defense without adequate time to prepare for the same. Since the new matter sought to be injected by appellant was entirely factual, it occurs to us that in fairness, the appellees were entitled to a reasonable notice in order to afford them an opportunity to prepare for trial upon such new facts.

Had the trial court permitted the filing of the proffered amendment, the appellees would have been required to have launched a completely new investigation. It would have been necessary for appellees to retain appraisers for the purpose of appraising the land for residential and suburban use and would have required appel-lees to have re-appraised their suit in the light of new facts. To have required ap-pellees to re-shape their entire suit during trial would have imposed an undue burden and would have resulted in prejudice to the appellees. Moreover, it would have required a lengthy postponement resulting in an undue imposition upon the court and the jury. To require the trial court to permit amendments such as the one filed in this case would disrupt orderly procedure and lead to frequent interruptions and interminable delay in concluding expensive jury trials. Westinghouse Electric Corp. v. Pierce, supra.

By points 18 through 20, appellant asserts that it was error to permit appellees’ witnesses, Charlie Hubbard, I. W. Brown and Robert C. Sullivan, to give their opinion of the market value of the subject property over appellant’s objection that the witnesses were not shown to be competent to testify and in overruling its motion to strike said testimony.

The general rule is that a witness need not be an expert in a technical sense in order for his opinion as to values to be received. However, he must possess (1) knowledge of the value standards of the class of property to which the subject property belongs. In this connection (a) he must have a knowledge of market value (b) in the vicinity of the subject property (c) based in part at least on personal observation and not solely on hearsay. And (2) the witness must have a knowledge of the particular property that is to be valued though in some instances it is not necessary that the witness have seen the property, as the factual information may in some instances be supplied by a hypothetical question. McCormick & Ray, Texas Law of Evidence, Volume 2, page 257-261, 2d Ed.; State v. Sides (Tex.Civ.App.), 348 S.W.2d 446.

The witness’s own statement that he knows the land in question and is acquainted with the market value is usually held sufficient to authorize the reception of his testimony as to value. The fact that the witness is not a real estate broker or does not consider himself an expert goes only to the weight to be given his testimony and not to the admissibility. State v. Newton (Tex.Civ.App.), 391 S.W. 2d 758; State v. Sides, supra.

It is well settled in this state that the question of whether or not a witness is qualified to testify as to market value is largely discretionary with the trial judge and that an appellate court should not disturb the action of the trial court in admitting such testimony in the absence of a clear abuse of discretion. Breithaupt v. State (Tex.Civ.App.), 321 S.W.2d 361; State v. Evans (Tex.Civ.App.), 340 S.W.2d 99.

Applying the above principles to the facts of this case, it is our opinion that each of the witnesses was qualified to testify as to the market value of the land taken and the land remaining, and that the trial court did not abuse his discretion in admitting their testimony. Points 18 through 20 are overruled.

In points 11 through 16, appellant takes the position that there is no evidence, or insufficient evidence, to sustain the jury’s finding to special issues Nos. 1 and 3, and alternatively, that the judgment is against the overwhelming weight and preponderance of the evidence.

The evidence shows that prior to the condemnation, appellees owned 191 acres of land which were in three tracts. The south tract was the largest of the three and was bounded on the south by Caney Creek. Said tract had a common corner with the middle tract. The middle tract was separated from the northernmost tract by State Highway No. 1214. The land taken in the condemnation amounted to 53.46 acres of land, leaving appellees with 137.54 acres. Appellee Hubbard testified that he had previously used the property in question to raise corn, peas, cotton, watermelons and cattle, and that the land had been most recently used to grow feed crops and to pasture cattle. He testified that he had always operated the land as one unit. The improvements on the land consisted of a house, barn, chicken house and a deep well. The 53.46 acre tract which was taken in condemnation did not include the improvements, but the tract taken did include a clay pit from which Hubbard testified that he sold clay for commercial uses. He also testified that the land taken was bottom land and was most valuable land for farming purposes. The evidence shows that as a result of the condemnation, the lake separated the lower tract from the upper two tracts. Hubbard testified that the property taken was worth $16,038.00; Brown testified that the market value of the property was $13,375.00; and Sullivan testified that it had a market value of $13,365.-00. Appellant’s witnesses, Manning, Kina-brew, Craig and Paschall, each stated that the value of the property taken was around $8,000.00.

With respect to the market value of the remaining land, appellant does not challenge the jury’s finding on Special Issue No. 2 finding that the market value of the remaining land, exclusive of the tract condemned, immediately before the taking was $29,542.90. The attack is upon Special Issue No. 3 finding that the market value of the land immediately after the condemnation was $25,014.40.

With regard to the value of the remaining land immediately after the taking, appellee testified that as a result of the condemnation, his remaining lands had decreased in value by 50% and therefore had a value of approximately $15,000.00. Brown testified that the market value of the 137.54 acres immediately after the condemnation was $14,865.50 and Sullivan testified that in his opinion the remaining lands had a market value of approximately $15,065.00. The witnesses produced by appellant testified that in their opinion the market value immediately after the condemnation was the same as the value immediately before condemnation. In other words, they took the position that appel-lees’ remaining lands had not been damaged by reason of the condemnation.

The jury saw and heard each of them as they testified, and were in the best position to appraise their credibility and weigh their testimony. Russell Coleman Oil Mill v. San Antonio, U. & G. R. Co. (Tex.Civ.App.), 37 S.W.2d 165; City of Fort Worth v. Estes (Tex.Civ.App.), 279 S.W.2d 687.

After a review of the entire record, we are convinced there is ample evidence of probative force to support the jury’s findings upon both Special Issues Nos. 1 and 3 and that the verdict and the judgment based thereon are not against the overwhelming weight and preponderance of the evidence. Points 11 through 16 are overruled.

Nor do we believe the damages assessed by the jury to be excessive. Neither the trial court nor the reviewing court can substitute its judgment of values for that of the jury, which has before it competent evidence as to damage. Tennessee Gas Transmission Company v. Dishman (Tex.Civ.App.), 303 S.W.2d 471, citing Mitchell v. Texas Electric Service Co. (Tex.Civ.App.), 299 S.W.2d 183. Appellant’s 17th point is overruled.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: BARRON, Justice.

license: Public Domain

text:
    SAN JACINTO SAND COMPANY, Inc., Appellant, v. SOUTHWESTERN BELL TELEPHONE COMPANY, Appellee.
    No. 81.
    Court of Civil Appeals of Texas. Houston (14th Dist.).
    March 6, 1968.
    Rehearing Denied April 3, 1968.

      Charles J. Sullivan, Houston, for appellant.
    John L. Murchison, Jr., Donald L. Howell, Vinson, Elkins, Weems & Searls, James M. Shatto, James E. Barden, Houston, for appellee.
   BARRON, Justice.

Appellee, Southwestern Bell Telephone Company (Southwestern Bell), as plaintiff, brought suit against defendant, San Jacinto Sand Company, Inc. (Sand Company) and others as defendants, seeking a temporary injunction to prohibit defendants from making excavations which allegedly would result in the destruction of the cables, conduits, and equipment of Southwestern Bell, and further seeking a declaration of its rights as an alleged easement owner to lateral and/or subjacent support. During the hearing on appellee’s application for temporary injunction, on November 29, 1966, all parties jointly moved to consolidate for all purposes the hearing on application for temporary injunction and the hearing of the cause on the merits.

The hearing on the application for temporary injunction and on the declaratory judgment was tried without a jury, and at the conclusion of the testimony after some delay, on May 22, 1967, the trial court granted appellee’s application for temporary injunction and held that Southwestern Bell, as owner of two easements burdening a tract of land owned by Sand Company, was entitled to the reasonable enjoyment and use of its easements, and was entitled to exercise the rights, privileges and authorities granted thereby without interference, damage or destruction by removal of the lateral and subjacent support of the easements through excavation of the sand, gravel and soil on the servient tract owned by the Sand Company.

This appeal has been perfected from the trial court’s final judgment by San Jacinto Sand Company, Inc., as appellant. Southwestern Bell Telephone Company is appel-lee.

Appellant, Sand Company, is a Texas corporation doing business in Harris County and is engaged in the excavation and sale of sand and gravel. Appellee, Southwestern Bell, is a telephone company and public utility serving telephone customers in the Beaumont-Houston area and areas throughout and beyond the State of Texas. Appellant owns a certain 17.584 acre tract of land in Harris County, Texas, adjoining and east of the San Jacinto River, said property having been conveyed to appellant by deed from Sherwood E. Beverly, dated January 20, 1966, and duly recorded in the deed records of Harris County. In 1945 and 1954, two easements were executed by the then owners of the land to Southwestern Bell. Each easement specifically located the telephone lines across the property, the 1954 easement providing that the lines should extend approximately 10 feet north of and parallel with the 1945 easement lines. The easements provided that Southwestern Bell was granted the “right, privilege and authority to construct, reconstruct, operate, maintain, or remove lines of telephone and telegraph, or other signal or communication circuits, consisting of underground conduits, cables, manholes, markers and fixtures as the grantee may from time to time require, (with the right to cut down and keep cut down trees, brush, and stumps within ten feet of each side of said lines), on and under the property * * and that the conduits and cables were required to be buried to such depth as not to interfere with the ordinary cultivation of the land. Pursuant to the easement granted in 1945, Southwestern Bell installed in 1945 and 1946, certain equipment including underground intercity toll cables referred to as the Houston-Beaumont A and B cables. Pursuant to the 1954 easement, appellee installed in 1954, underground inter-city toll cables, referred to as the Crosby-Houston cables. The lines extend from the east bank of the San Jacinto River in an easterly direction and then generally in a north-northeasterly direction to the north property line of the 17.584 acre tract. The easements were referred to during trial as a 30-foot easement or easements to describe the 30-foot wide area used by appellee in the repair, operation, maintenance, etc., of its equipment, though by stipulation, reference to the 30-foot area was used by the parties as an identification device. The cables have not been replaced since they were originally installed except at the river crossing. Appellant, Sand Company, also owns a tract of land of about 20.099 acres located immediately adjacent to and south of the 17.-584 tract and has extensively excavated sand and gravel from the surface of the 20.099 acre tract. Waters of the San Ja-cinto River have filled the excavations on that tract. Appellant and others were excavating and removing sand and gravel from the 20.099 acre tract for some time prior to the filing of this action.

The title of Sand Company to the 17.584 acre tract and the title to the two easements of Southwestern Bell derive from a common grantor, and appellant’s chain of title clearly reflects the existence of ap-pellee’s easements, which were duly recorded. Sand Company acquired title to the 17.584 acre tract with actual knowledge that the tract was burdened with the two easements, and with actual knowledge that appellee had installed its cables and conduits pursuant to such easements.

The trial court found that the operation and maintenance of the conduits, cables, etc., have reasonably required the use of a ten-foot area on each side of each of the cables. Since the second easement is located ten feet north of the first easement, there is an overlap in the area used, and Southwestern Bell has utilized a strip approximately thirty feet in width for the entire length of the easements. In 1966, appellee began construction of a new river crossing under the San Jacinto River. The Houston-Beaumont A and B cables and the Crosby-Houston cable were connected to the new river crossing at a distance of approximately 192-197 feet east of the east bank of the San Jacinto River on the 17.584 acre tract. The new crossing consists of a 12-inch concrete coated pipe, which enters the east bank of the San Jacinto River at a point located between the two 8-inch steel pipes in which the Houston-Beaumont A and B cables and the Crosby-Houston cable had been installed. The 12-inch pipe terminates at a manhole at the 192-197 foot point on appellant’s land, where the existing 27 quad, 19 gauge Houston-Beaumont A and B cables and the Crosby-Houston 51 pair, 19 gauge cable were brought into the manhole on the 17.584 acre tract and spliced into the three 37 quad, 19 gauge cables. The two 8-inch pipes from that point westward to the river were thereby rendered useless. The cables constitute an integral part of the communication system between Houston and the area of Beaumont, Port Arthur and Orange. In addition, the cables involve high priority government circuits, press circuits, radio broadcast circuits, high-flying dispatch circuits, aviation control circuits and foreign exchange circuits.

The composition of the surface of the 17.584 acre tract is largely common sand and gravel. Certain areas of the tract contain deposits of sand and gravel at least to the extent of 15 to 30 feet below the surface, and appellant claims that there are deposits of sand in commercially marketable quantities extending to a depth of about 60 feet. Beginning about November, 1966, appellant prepared the surface of the 17.584 acre tract for excavation. Soon thereafter, the Sand Company began drag-line excavations to the north and to the south of appellee’s easements and the cables and conduits placed pursuant to the easements. Excavation of the 17.584 acre tract was discontinued as the result of a temporary restraining order obtained by appellee. Appellant stipulated that it did not intend directly to extract any sand from beneath the easements of appellee, and accordingly it stated that excavation operations would not be conducted within the 30-foot strip extending from the east bank of the San Jacinto River in a generally eastern direction for approximately 1,747 feet and then in a generally northeastern direction to the northern boundary of the tract.

In the course of the trial, hydraulic, soil and structural engineers testified, and the trial court found, that prosecution of appellant’s plan of development would destroy the lateral and subjacent support of ap-pellee’s easements and the destruction of the cables, conduits, manholes, etc., placed pursuant thereto. The natural ground surface of the 17.584 acre tract is about 15 to 18 feet above the surface level of the water flowing in the San Jacinto River. The trial court further found that if excavations proceeded on either side of the 30-foot easement strip, the strip would deteriorate, and that if there were dredging operations to a depth of 60 feet on either side of the easement, the surface land would disappear, and deterioration would begin long before a 60-foot depth is reached. The trial court found from the evidence that alternatives would be impracticable, such as rerouting of appellee’s lines, installation of aerial crossings, use of steel sheet piling bulkheads on either side of the easements, etc., and though technologically possible, such alternatives would be prohibitive and not feasible because of cost, maintenance, and loss of time.

In order to provide lateral and subjacent support for Southwestern Bell’s easements, the trial court decreed that the entire natural east bank of the San Jacinto River, along the west boundary of the 17.584 acre may not be further disturbed, and that no excavation may be made east of the east bank of the river for a distance of 200 feet; that no excavation may be made on land which forms the easements, the 30-foot strip. South of the easements at a point 200 feet east of the river and extending east 500 feet from that point, a stable residual slope of 3 horizontal to 1 vertical measured from natural ground level at the south easement line to mean sea level (river surface) and a residual slope of 10 horizontal to 1 vertical from mean sea level to the depth of the excavation below mean sea level was allowed. Parallel to the east river bank 200 feet back, 3 to 1 slope to mean sea level and a slope of 5 to 1 from mean sea level to depth of the excavation below mean sea level was ordered. For the remainder of the tract a 3 to 1 slope was permitted. North of the easement line a 3 to 1 slope was ordered 200 feet east of the river extending easterly throughout the tract and 200 feet from the river. The trial court further ordered that supplemental equitable relief may be provided by the court from time to time on application of any party.

Appellant attacks the judgment of the trial court by twenty-one points of error. By points five, six and seven, appellant contends that appellee is trespassing upon the 17.584 acre tract from a point approximately 197 feet back westerly to the San Jacinto River, and that appellee has abandoned the two 8-inch lines for that distance and has replaced the old lines with the new 12-inch pipe up to the manhole constructed in 1966, which lies between the two 8-inch pipes above referred to. While appellee, Southwestern Bell, did relocate and remove its line by placing a 12-inch pipe between the two 8-inch pipes for a distance of 197 feet, no greater burden on the servient estate was imposed by such change. Cantu v. Central Power & Light Co., 38 S.W.2d 876 (Tex.Civ.App.), writ ref. The original 8-inch lines were parallel lines approximately eight to ten feet apart, and the discontinuance of use of the old lines by replacement with the 12-inch line lessened the burden upon the servient estate owned by appellant. Fort Quitman Land Co. v. Mier, 211 S.W.2d 340, 343 (Tex.Civ.App.), writ ref., n. r. e.; 2 Thompson on Real Property (Replacement Ed., 1961), Sec. 426, p. 694; 21 Tex.Jur.2d 175; 28 C.J.S. Easements § 95, p. 777; Shammel v. Vogl, 144 Mont. 354, 396 P.2d 103; Burris v. Peoples Ditch Co., 104 Cal. 248, 37 P. 922.

Appellant claims that the 1966 installation amounted to an expansion of Southwestern Bell’s easement rights. The existence of an unauthorized expansion of easements turns on a proper construction of the written agreement of the parties. See Houston Pipe Line Co. v. Dwyer, 374 S.W.2d 662, 664 (Tex.Sup.). As stated above, each of appellee’s easements provides, in part, that the easement carries with it the, •

“right, privilege and authority to construct, reconstruct, operate, maintain, repair, or remove * * * conduits, cables, manholes, markers and fixtures as the grantee may from time to time require." (Emphasis added.)

The principal decisions relied upon by appellant are the Dwyer case, supra, and Winslow v. City of Vallejo, 148 Cal. 723, 84 P. 191, 5 L.R.A.,N.S., 851 (1906), the latter case being cited as authority in the Dwyer opinion. In Dwyer, plaintiff sought a judgment declaring that a pipeline easement terminated as a result of defendant having removed an 18-inch low pressure pipeline and replacing it with a 30-inch high pressure pipeline. Defendant answered that its easement right had not terminated and in the alternative, sought to condemn a right-of-way and easement. The agreement creating the easement contained no specification as to the size of the pipeline. It provided that the pipeline company had “A right of way to lay, maintain, operate, repair, and remove a Pipe Line for transportation of gas.” The parties struck out the word “remove” and also deleted a paragraph that gave the pipeline company the right to construct additional pipelines. Additionally, they provided that the pipeline company would have the authority to remove the pipeline on termination of the easement. Stating that a proper determination of the case turns on a construction of the agreement between the parties, the Texas Supreme Court held:

(1) “(T)hat the terms ‘operate’ and ‘maintain’ in the granting clause are at least broad enough to include the right to remove and replace the original pipe with pipe of the same size when necessary.”
(2) That unlike the situation that existed in Knox v. Pioneer Nat’l Gas Co., 321 S.W.2d 596 (Tex.Civ.App.1959, writ ref., n. r. e.), there was no language in the agreement between the parties which could be construed to permit a grantee a right under the agreement in excess of the right actually used, i. e., a right to increase the size of the pipe in excess of 18 inches in diameter.
(3) Emphasizing the fact that the parties had deleted the word “remove”, the Court held that in installing the 18-inch pipe with the consent and acquiescence of the plaintiff, the extent of defendant’s easement rights under their agreement became fixed and certain “Defendant was not authorized to remove this 18-inch line initially constructed and replace it with a line of substantially greater size.”

In Winslow v. City of Vallejo, supra, an easement granting the City of Vallejo a right of way for “any water pipes or mains which may be laid by the city.”, such pipes to be covered by not less than 1½ feet of ground, and to be “laid and maintained on present surveyed line as near as may be.” was involved. The Supreme Court of California held in favor of the grantor-landowner and said that where a grant of an easement is general as to the extent of the burden to be imposed on the servient tenement, an exercise of the right with the acquiescence and consent of both parties in a particular course or manner, fixes the right and limits it to the particular course or manner in which it has been enjoyed. The City of Vallejo had sought to lay an additional 14-inch pipe about three feet from the 10-inch pipe originally installed. The court held that the most that could be said regarding the language of the easement was that the grant was indefinite as to the number of pipes, and that the city, having originally elected to lay one pipe, was bound by such election.

The language of the present agreement between the parties clearly demonstrates the propriety of appellee’s action in substituting the single 12-inch pipe for the two 8-inch pipes. Particular attention is directed to the fact that the easements expressly provide appellee with the right to reconstruct or remove conduits, cables and fixtures as the grantee may from time to time require. The plural is used throughout. We believe a proper construction of the easements involved in this case warrants the placement of the 12-inch pipe between the two 8-inch pipes with a resultant replacement and non-use of the two 8-inch pipes. The inclusion of the above language demonstrates that the parties intended that Southwestern Bell be permitted to remove or expand its use of the easements as appellee might from time to time require, at least to place the 12-inch pipe between and in lieu of the old pipes within the 30-foot area. Knox v. Pioneer Natural Gas Co., 321 S.W.2d 596 (Tex.Civ.App.), writ ref., n. r. e.; Cantu v. Central Power & Light Co., supra.

Moreover, appellant’s above claims do not affect appellee’s alleged right of lateral support of its easements. Until appellant advanced its abandonment theory, over five months after the trial of the case, it argued that appellee had valid prescriptive easements. Even if it be held that appellee trespassed to some extent or had improperly expanded its easements, its right to lateral and sub-jacent support would not be affected. Such alleged enlargement and trespass could not affect the quantity of sand and gravel that the Sand Company could excavate from the property. It is important to note that in the Dwyer case, while the Supreme Court held that the easement owner had expanded its easement rights and that the landowner would thus have condemnation rights, the Supreme Court expressly held that the easement owner’s expansion did not constitute a termination of its easement rights.

Appellant contends that appellee abandoned the easements from the river to a point 197 feet into the 17.584 acre tract where the new manhole was placed in 1966, and cites the testimony of Mr. Jaenacke, appellee’s Toll Engineer, to the effect that when the new line was placed, the old pipe was abandoned in place in support of its contention. The Toll Engineer obviously meant only that the old pipes, which had been laid pursuant to the easements and which were replaced by a new pipe, were left in the ground because there was no point in taking them out. This does not mean that the easements were abandoned, especially when a new line had been laid between the old pipes at the same time. It is necessary to prove an intent to abandon in order for there to he an abandonment of an easement, and the intention must be satisfied by clear and satisfactory evidence. Dallas County v. Miller, 140 Tex. 242, 166 S.W.2d 922 (Tex.Com.App.), opinion adopted; 1 Tex.Jur.2d, Sec. 10, p. 8. Although in the present case there was clearly not a non-use of the easement, the decisions uniformly hold that mere nonuser does not in itself constitute abandonment. Dallas County v. Miller, supra. The use for which appellee acquired its easements has not failed. See Griffith v. Allison, 128 Tex. 86, 96 S.W.2d 74, 77 (Tex.Com.App.), opinion adopted. There was no pleading of abandonment, which is an affirmative defense, and failure to plead it results in its waiver. Rule 94, Texas Rules of Civil Procedure; See Chapman v. Tyler Bank & Trust Co., 396 S.W.2d 143 (Tex.Civ.App.), writ ref., n. r. e. We hold that the issue of abandonment was not tried by express or implied consent, and that the findings and implied findings of the trial court that there was no abandonment are supported by the evidence.

By various points of error, appellant contends that appellee, while it is entitled to such rights as may be necessary and essential to reasonable enjoyment of the easements, is nevertheless not entitled to lateral and subjacent support for the easements in question, and that appellant may with impunity excavate sand and gravel from its 17.584 tract as it sees fit. Appellant stipulated that it would not, however, extract sand from beneath the easements or within the 30-foot area where the lines are located. But the evidence clearly shows that such restriction agreed to will not solve the problem, and that within a short time, if appellant pursues its plan of excavations, all lateral and sub-jacent support of the lines, manhole and other equipment will be lost.

The grantee of an easement is entitled to such rights as are incident, essential or necessary to the enjoyment of such easement. Williams v. Thompson, 152 Tex. 270, 256 S.W.2d 399. An easement, however, gives no exclusive dominant right over the servient land unnecessary to the enjoyment of such easement, and the dominant owner (easement owner) must make a reasonable use of the right so as not unreasonably to interfere with the property rights of the owner of the servient estate. Magnolia Pipeline Co. v. McCarter, 52 S.W.2d 663 (Tex.Civ.App.), no writ hist.; Texas-Louisiana Power Co. v. Webster, 59 S.W.2d 902, 905 (Tex.Civ.App.), affirmed, 127 Tex. 126, 91 S.W.2d 302. As was held in Simon v. Nance, 45 Tex.Civ.App. 480, 100 S.W. 1038, no writ, the existence of the right to lateral support is an absolute right and is not subordinate to any right of the adjoining proprietor. Appellant, however, contends that rights of an adjoining proprietor differ from the rights of an easement owner as against the landowner, or the rights of the owner of the dominant estate as against those of the owner of the servient estate. We hold that the duties and obligations as between the owners of the dominant estate and the ser-vient estate, if different, are greater and more clearly defined than the rights as between adjoining landowners, by reason of the contractual relationship of the parties under the authority and the rules of law cited above. In contrast, in the present case, there is a special relationship between appellant and appellee and the interests of land involved. The prior owners of the 17.584 acre tract encumbered, for valuable consideration, the tract of land for the benefit of appellee. The owners of the servient estate sold and guaranteed the right to use the easement for the purposes stated. Appellant is in privity with its predecessors in title, and took with actual and constructive notice of Southwestern Bell’s easements. Accordingly, there is even more reason to conclude that an easement is entitled to lateral support.

Whether we say that necessary lateral and subjacent support of the easements here involved is an incident of appellee’s right to the complete enjoyment of the easements, or whether lateral and sub-jacent support is a separate right of property makes little practical difference. All of the testimony in this case points clearly to the fact that some formula or some means was necessary to regulate the excavations and removal of sand and gravel, or appellee’s telephone lines and equipment would have no support. They would, in fact, have been left suspended in the air. The State of Texas is blanketed with many thousands of easements. Although most of these are privately owned, practically all serve public purposes. The tremendous transportation and communication systems servicing the state are dependent upon the integrity of these easements. Many of the streets, roads, and highways of the state are built on easements. The distribution of electric power is dependent upon easements as is practically all telephone service. Pipelines and railroads generally rely entirely on easements. Under the view taken by appellant, these interests in land would be potentially reduced to mere licenses at will.

The problems in this case are difficult, for to grant adequate relief to appellee the appellant must suffer loss and damage, and its right to excavate valuable sand and gravel from its land must be reduced. But to our minds the equities and legal rights of the parties are clear. We hold that the owner of the dominant estate, the easement owner, is entitled to lateral and subjacent support for its easements, its lines and its property lawfully thereon, and that the trial court correctly applied the doctrine of lateral and sub-jacent support. Salt Lake City v. J. B. & R. E. Walker, Inc., 123 Utah 1, 253 P.2d 365; Village of Haverstraw v. Eckerson, 106 N.Y.S. 506, aff’d, 84 N.E. 578, 20 L.R. A.,N.S., 287; City of Troy v. Murray, 128 Mise. 419, 219 N.Y.S. 681; Cincinnati & Suburban Bell Telephone Co. v. Eadler, 75 Ohio App. 258, 61 N.E.2d 795; City of Scranton v. Peoples Coal Co., 256 Pa. 332, 100 A. 818; East Ohio Gas Co. v. James Bros. Coal Co., Ohio Com.Pl., 85 N.E.2d 816; Sumrall v. United Gas Pipe Line Co., 232 Miss. 141, 97 So.2d 914. The Texas courts have impliedly recognized that easements are entitled to lateral support. In Calvert v. Harris County, 46 S.W.2d 375 (Tex.Civ.App.), writ ref., a condemnation suit, the condemnees attempted to recover as a part of their damages the loss of mineral rights relating to the minerals underlying the surface of the land taken for road purposes. The court rejected condemnee’s contention. In the first place, the condemnor did not acquire the minerals. “The settled rule is that in condemnation proceedings only an easement is acquired.” Secondly, the oil and gas in question could be extracted by drilling upon the condemnees’ land lying adjacent to the easement which was taken. The court said:

“In Lewis, Eminent Domain, Vol. 2 (3rd Ed.) page 1268, we find this statement: ‘When an easement is taken for a Railroad or other public use, the owner of the fee retains title to the minerals with the right to remove them, subject to the right of support for the railroad or whatever may be put upon the land, and to the right of exclusive use of the surface.’ See Southern Pac. R. Co. v. San Francisco Savings Union, 146 Cal. 290, 79 P. 961, 964, 70 L.R.A. 221 * * *.” (Emphasis added)

Appellant, in an attempt to equate its rights with the rights of a mineral or oil and gas lessee, contends that its excavations and removal of sand and gravel from its land places it in the position of a mineral lessee or owner, and cites the case of Warran Petroleum Corp. v. Monzingo, 157 Tex. 479, 304 S.W.2d 362, 65 A.L.R.2d 1352 in support thereof. Appellant contends that its right to remove “minerals” was absolute, and consequently there is no duty befalling appellant to provide lateral support. The position is untenable. The leading Texas decision bearing on the meaning of the term “minerals” as it is used in the Texas law concerning mines and minerals is Heinatz v. Allen, 147 Tex. 512, 217 S.W.2d 994 (Tex.Sup.). Sand and gravel under the circumstances of this case are not minerals. Psencik v. Wessels, 205 S.W.2d 658 (Tex.Civ.App.), writ ref.; Winsett v. Watson, 206 S.W.2d 656 (Tex.Civ.App.), writ ref.; See 40 Tex.L.Rev. 163. Compare Street v. Sinclair Pipeline Co., 386 S.W.2d 350 (Tex.Civ.App.), no writ hist., with Kenny v. Texas Gulf Sulphur Co., 351 S.W.2d 612 (Tex.Civ.App.), writ ref., both decisions by the same court. The case of Cline v. Henry, 239 S.W.2d 205 (Tex.Civ.App.), writ ref., n. r. e., cited by appellant, involving a waiver of homestead rights, is unpersuasive and is not in point.

None of appellant’s due process or other constitutional rights have been violated in this case. The trial court’s holding that removal or change in the type and nature of the easement rights of appellee is not feasible under the circumstances is fully supported by the evidence. Moreover, the trial court’s methods of providing for lateral and subjacent support for ap-pellee’s easements outlined above is supported by the evidence, and the trial court’s remedy was the only solution developed by the testimony. Appellant’s defense was principally that no lateral support was required. Under the difficult and complex circumstances, the trial court’s remedy was reasonable and necessary to protect ap-pellee’s easement rights. The trial court provided for supplemental relief on application of the parties to relieve inequities and hardships which might develop in the future, and we believe the judgment is in all things correct.

We have carefully reviewed each contention made by appellant, and finding no error in the trial court’s judgment, it is affirmed.


author: CHAPMAN, Justice.

text:
    SUN OIL CO., Appellant, v. HIGH PLAINS UNDERGROUND WATER CONSERVATION DISTRICT NO. 1, Appellee.
    No. 7687.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 26, 1968.
    Rehearing Denied April 8, 1968.
    Charles F. Heidrick and E. M. Cage, Dallas, Stubbeman, McRea, Sealy & Laugh-lin, W. B. Browder, Jr., James G. Noland and Gene L. Jameson, Midland, for appellant.
    Nelson, McCleskey & Harriger, and Don Graf, Lubbock, for appellee.
   CHAPMAN, Justice.

This opinion is in lieu of our opinion announced March 6, 1967.

Sun Oil Co. brought suit in Hockley County by petition filed on October 27, 1965, against Earnest Whitaker and Doyle Henderson for temporary and permanent injunction to restrain the defendants from interfering with the exercise by Sun of rights it claimed to the free use of fresh water from the Ogallala formation for the purpose of injecting it into the San Andres oil formation to effect secondary recovery of oil under an oil and gas lease executed by Whitaker’s predecessor in title.

Chronologically, the case leading up to this appeal developed substantially as follows:

On November 30, 1965, the High Plains Underground Water Conservation District No. 1 filed its plea in intervention in the controversy between Sun and Whitaker. On December 13, 1965, Sun filed its plea of privilege to the plea in intervention, asserting its right, as against intervenor, to be sued in Dallas County, its residence in Texas. A motion to strike the intervention was filed on the same day, as was Sun’s answer to the plea in intervention, subject to its plea of privilege and motion to strike. The plea of privilege was controverted by affidavit filed on December 20, 1965, urging Subdivisions 4, 5, 27 and 29a as exceptions to Art. 1995.

On April 5, 1966, Whitaker and Henderson filed their first amended answer, in which they allege the property was within the boundary and confines of the High Plains Underground Water Conservation District No. 1 and Sun was not entitled to an injunction for the reason it had not complied with the rules and regulations of the water district. On the same day Whitaker filed a cross action againt the water district seeking to enjoin it from issuing Sun a permit to locate a well upon his property. Henderson has disclaimed in the case and will not be referred to hereafter.

On June 16, 1966, Whitaker filed a counterclaim against Sun asking for an injunction decreeing it has no right to use any of the Ogallala formation water for reinjection, secondary water flooding and pressuring purposes. On June 20, 1966, the water district filed its first amended controverting affidavit urging the hereinbefore named exceptions to exclusive venue and on the same day its amended plea in intervention seeking a declaration by the court that the use of underground water for flooding purposes constitutes “waste” as that term is defined in Art. 7880-3c(B) (6).

On June 21, 1966, Whitaker filed his first amended cross action in which he alleged the water company had breached its duty in failing to prevent “waste” under Art. 7880-3c. By his first supplemental answer Whitaker pleaded the purpose for which Sun contemplated using the fresh water constitutes “waste” within the definition of Art. 7880-3c. Then on July 5, 1966, the trial court entered its order overruling Sun’s plea of privilege.

Though the trial court and this court construed the oil and gas lease under which Sun seeks the use of water from the Ogalla-la formation for secondary oil recovery in the temporary injunction hearing and the Supreme Court of Texas affirmed both courts, it held the basic issue to be tried is the probable right of Sun to permanent in-junctive relief which could not be disposed of in a piecemeal trial, noting in its opinion that the parties sought by written agreement to eliminate in the temporary injunction proceeding all issues raised by the water district’s pleading and one of the defenses raised by Whitaker’s answer, i. e., those issues “concerning or relative to ‘waste’ or ‘escape’ of underground water from one underground reservoir to any other reservoir as mentioned, provided or defined in Article 7880-3c A (6) (c) or said Article 7880-3c D (4) (c),” or “concerning or relative to the clause ‘for any other purpose’ as mentioned or provided in said Article 7880-3c D (3).”

In its reasoning furnishing the basis for its conclusion that it could not decide the principal question in the appeal from the temporary injunction the Supreme Court stated, “Whitaker pleaded * * * Sun’s proposed use of water is prohibited by statute. The trial court permitted the water district to intervene by overruling Sun’s motion to strike the plea in intervention. The water district’s pleading also asserts that Sun’s proposed use of the water is prohibited by statute as well as by its rules. If we assume that Sun’s interpretation of the lease is correct, Sun would yet not be entitled to a permanent injunction to protect it from interference with its water flooding program if its proposed use of the water is prohibited by statute. With the latter issue stipulated out of this trial and appeal, we are not at liberty to determine the merits of the issue; * *

“If we should hold that under a proper interpretation of its lease Sun has a legal right to free use of all water from the Ogal-lala formation reasonably necessary for production of the oil underlying the land * * * and leave the statutory waste issue undetermined, as we are required to do, our decision could well be nothing more than an advisory opinion.”

We are completely without authority to hold that the water company discharged the burden incumbent upon it under any of the exceptions pleaded to Art. 1995.

“The dominant purpose of our venue statutes is to give a person who has been sued the right to defend such suit in the county of his residence, except under well-defined exceptions.” A. H. Belo Corporation v. Blanton, 133 Tex. 391, 129 S.W.2d 619 (1939) ; Meredith v. McClendon, 130 Tex. 527, 111 S.W.2d 1062 (1938); Newlin v. Smith, 136 Tex. 260, 150 S.W.2d 233 (1941); City of Mineral Wells v. McDonald, 141 Tex. 113, 170 S.W.2d 466 (1943); Burtis v. Butler Bros., 148 Tex. 543, 226 S.W.2d 825 (1950).

The Supreme Court of Texas has consistently held that to deprive a defendant of the right of trial in the county of his domicile the burden rests upon the party opposing to allege and prove, if defendant asserts his privilege, that the case comes within the particular exception or exceptions. A. H. Belo Corporation v. Blanton, supra; Meredith v. McClendon, supra; Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91 (1935); Newlin v. Smith, supra; City of Mineral Wells v. McDonald, supra; Burtis v. Butler Bros., supra.

“A plea of privilege in the prescribed form is prima facie proof of defendant’s right to change of venue. It is then incumbent upon plaintiff (intervenor here), having filed the proper controverting plea to establish by competent evidence all facts essential to maintenance of the (intervenor’s) action in the county where it is brought.” 60 Tex.Jur. 2d, Venue, Sec. 203, pp. 41-42 and many cases cited under Footnote 20. “ * * * neither the allegations in the petition nor those of the controverting plea may be considered as evidence of the truth thereof. Indeed, the controverting plea is not proof of anything; it merely entitles the plaintiff (intervenor) to make proof of the facts therein alleged.” 60 Tex.Jur.2d, Venue, Sec. 202, p. 40 and cases cited under Footnotes 13 and 14.

No evidence whatever having been offered by intervenor, the prima facie right to change of venue acquired by Sun’s filing of its plea of privilege was not overcome by evidence introduced.

We have no authority in this action to interpret the “free water” clause. Neither can we pass upon the water company’s right to intervene. No final order having been entered in the case, the intervention question is not such a final judgment as will authorize an appeal. “Under the general rule that a final judgment is one that disposes of all issues and parties in the case, a judgment which fails to dispose of all issues between the original parties and an in-tervenor, is not appealable.” Kimmel v. Lytton, 371 S.W.2d 927 (Tex.Civ.App.— Waco, 1963, writ refused).

None of the parties have cited a case in which an appellate court has passed on the venue question where a defendant sued by an intervening party has asserted a plea of privilege. Indeed, we believe there is none in Texas.

Appellee’s contention that its controverting plea must be sustained to avoid multiplicity of suits has little force in view of our Supreme Court holding in Union Bus Lines v. Byrd, 142 Tex. 257, 177 S.W.2d 774.

Therefore, if the intervenor’s alleged rights must be tried simultaneously with the principal issue, i. e., the construction of the “free use of oil, gas, coal, wood and water” clause in the original suit, we have no alternative except to hold that in view of the intervention, cross actions and counterclaims involving essentially the same subject matter, that Sun is not entitled to its plea of privilege. Accordingly, we hold that Sun, having instituted the suit in Hockley County, submitted itself to the jurisdiction of the court where the suit was filed as to all matters arising out of or incidental to the subject matter of the suit, and thereby waived its right to be sued in the county of its domicile in an intervention arising out of such cause of action. Not in an intervention, but in a cross action our Supreme Court so held. Zachry v. Robertson, 147 Tex. 307, 214 S.W.2d 949 (1948). Judgment of the trial court is affirmed.

      . All article references are to Vernon’s Texas Civil Statutes.

      . Sun Oil Company v. Whitaker, Tex., 424 S.W.2d 216.

      . Parenthetical statements are ours.


text:
    Celeste PHILLIPS, Appellant, v. Irene Seaborn Jones WHITESIDE, Appellee.
    No. 80.
    Court of Civil Appeals of Texas. Houston (14th Dist.).
    March 27, 1968.
    Pritchett Harvey, Houston, for appellant.
    U. S. Ardoin, Houston, for appellee.
   BARRON, Justice.

This is an action of trespass to try title filed by plaintiff-appellant, Celeste Phillips, against Irene Seaborn Jones White-side, defendant-appellee, for title and possession of the south one-half of Lot No. 20 in Block No. 5 of Blossom Heights, Section One, a subdivision of the E. P. Whitehead Survey in Harris County, Texas. At the conclusion of the testimony the trial court withdrew the case from the jury and rendered judgment in favor of Mrs, White-side, appellee, and decreed that Mrs. Phillips take nothing. Mrs. Phillips has duly perfected her appeal from the judgment below.

The evidence wholly fails to make a case in favor of appellant. Documents were introduced into evidence showing that on March 20, 1954, the property was deeded by one Carl F. Modglin (agreed to be the common source of title) to Celeste S. Phillips, a widow. On the same date Mrs. Phillips executed a deed of trust mortgage to Ralph B. Lee, trustee for Carl F. Modglin, to secure the payment of one certain vendor’s lien note in the principal sum of $2,961.49, payable in monthly installments of not less than $35.00 each, including interest, the first installment being due on or before April 20, 1954, and providing for attorney’s fees and for acceleration of maturity in event of default, the note providing that the holder shall have the option “without demand or notice to the maker” to declare the note “immediately due and payable and may thereupon foreclose the liens given to secure its payment.” The deed of trust was given as additional security and was cumulative of the vendor’s lien retained in the deed. On October 3, 1956, Ralph B. Lee, trustee, conveyed to Carl F. Modglin the property above described. It was recited that default had been made in the payment of the note and that the deed of trust was being foreclosed according to its terms. The deed of the trustee recited that Modglin purchased the property at public sale for the sum of $100.00. All necessary recitals for foreclosure were recited in the trustee’s deed and the deed appears to be regular in all respects. On October 24, 1956, Modglin and Irene Seaborn White-side executed a contract of sale of the property involved to appellee for a total consideration of $2,858.02, reciting a cash payment to Modglin of $250.00 by appellee. On May 21, 1964, Modglin, pursuant to the contract, executed a general warranty deed to Irene Seaborn Whiteside, a feme sole, covering the property involved, and the deed was duly filed and recorded.

The testimony is somewhat difficult to understand. However, the substance of the testimony was that appellant’s former husband had agreed to go into a partnership with appellee in the cafe business, that the former husband left and returned to California. The implication was that there was some type of oral agreement between the parties and that the former husband, Jones, did not fulfill his agreement. The record shows, however, that after the foreclosure, appellant, for some time, paid rent to appellee, Mrs. Whiteside, on the property involved. She stopped paying rent finally and removed from the property.

Appellant alleges that a tender to Mrs. Whiteside of $2,608.02, with interest and other costs, but no money, was ever paid into the registry of the court and we find no evidence of such tender in the record. Appellant, somewhat belatedly, took the position that no demand for payment by Mrs. Phillips was made by Modglin prior to the institution of this suit, and that there is • no evidence of his intention to accelerate maturity of the note by affirmative action toward enforcing the declared intention. The claim is that the foreclosure is void. There is no testimony in the record on this subject one way or the other so far as we have been able to determine. Modglin is not a party to this suit and did not testify.

Appellant relies upon the case of Jernigan v. O’Brien, 303 S.W.2d 515 (Tex.Civ.App.), no writ, and cases cited therein. But we do not find that case applicable here. As stated above, the note in the case at bar provided for acceleration of maturity at the holder’s option without demand or notice to the maker, and the note further provided for waiver of notice and presentation for payment. Moreover, the deed of trust expressly provided that any deed executed by the trustee “shall be full evidence and prima facie proof of each and all matters therein recited, and no other proof shall be requisite thereof, including maturity of the indebtedness, the request that trustee sell the mortgaged property” and other matters relating to the foreclosure and sale. The note and deed of trust in the Jernigan case included none of the provisions above providing for waiver of demand, notice and presentation for payment, nor provisions for presumption of regularity in the event of foreclosure. The case and authorities cited in support thereof are not in point. However, we find cited in the Jernigan case an’ exception to the rule there stated, to-wit: Bankers’ Life Co. v. Miller, 68 S. W.2d 574 (Tex.Civ.App.), writ ref., involving a deed of trust and note similar to those in this case.

The above provisions of the note and deed of trust that in case of sale of the property a presumption arises that all prerequisites to the sale have been performed, and provisions providing for waiver, presentation and demand are valid, and we overrule appellant’s contentions. There is nothing in the record which would create a fact issue to be submitted to the jury, and appellee having shown record title in her, we affirm the trial court’s judgment. See Jacobson v. National Western Life Ins. Co., 403 S.W.2d 528 (Tex.Civ.App.), no writ; Bateman v. Carter-Jones Drilling Co., 290 S.W.2d 366 (Tex.Civ.App.), writ ref., n. r. e.; 39 Tex.Jur.2d Sec. 153, p. 210.

Judgment affirmed.


author: BARRETT, Commissioner.

text:
    Olga HOWE, Respondent, v. M. E. MORRIS, Treasurer of the State of Missouri as Custodian of the Second Injury Fund, Appellant.
    No. 53126.
    Supreme Court of Missouri, Division No. 2.
    April 8, 1968.
    Quinn & Quinn, William B. Quinn, Julia M. Quinn, Timothy G. Noble, Robert L. Weise, St. Louis, for respondent.
    Norman H. Anderson, Atty. Gen., Jefferson City, Gene R. Spengel, Jr., Sp. Asst. Atty. Gen., St. Louis, for appellant.
   BARRETT, Commissioner.

The State Treasurer as custodian of the Second Injury Fund has appealed a circuit court judgment which affirmed an Industrial Commission award to Olga Howe of total and permanent disability benefits against the fund amounting, after the employer-insurer’s liability, to 253 weeks at $42.50 a week and thereafter for the remainder of the employee’s life $27.50 a week. The attack on the award is twofold; first, that “the award was clearly contrary to the overwhelming weight of the evidence.” The basis of this ground is that the evidence showed that after the employee’s right shoulder injury on January 29, 1965, she was able to and did resume the same type of work, said to be sedentary, for several months (appellant asserts sixteen months) and, therefore it is urged that there was no basis “for permitting her to quit work altogether and now contend that the Second Injury Fund owes her permanent total benefits including a life pension.” In the second ground of attack it is asserted that there “was not sufficient evidence to warrant the award” because “the evidence clearly showed that employee at the time of her shoulder injury on January 29, 1965, was already 66 years old and seriously disabled.” In this connection it is urged that she had been retired from one employment and was not physically “capable or suitable for other than sedentary type of work such as that of a housemaid, which work she was pursuing.” (Emphasis supplied.) In short, it is argued that because of her preexisting disability she was “not employable in the open labor market” and since she now draws social security benefits of $100.00 a month it is “unfair to allow her permanent total benefits including a life pension from the Second Injury Fund when she chose to quit work some sixteen months after her shoulder injury.” Unfortunately, no authorities are cited in support of the second point (Cole v. Morris, Mo., 409 S.W.2d 668, 671) and the only authorities cited in support of the first point are Seabaugh’s Dependents v. Garver Lumber Mfg. Co., 355 Mo. 1153, 200 S.W.2d 55 and the statute (RSMo 1959, § 287.490) both relating to the findings and awards of the commission and the scope of appellate review.

Only the respondent, Olga Howe, offered any evidence, there was no countervailing or contrary proof by either the employer-insurer or the state and so the basic facts stand undisputed. This is not to say that the appellant was bound to offer conflicting evidence but of necessity in this posture the state’s position is that upon this record only one inference is permissible and thereunder as a matter of law the respondent is not entitled to an award.

In brief, these are the circumstances upon which the award was made: In 1958, then 58 years of age (she was born November 1, 1899), Olga was employed by Mrs. Mary Kennard Wallace, 4976 Pershing Place, St. Louis, as a second floor maid. She worked eight hours a day, six days a week, and was paid $150.00 a month, room, board, laundry and uniforms. She pressed and mended Mrs. Wallace’s uniforms but her primary duties were to dust, make beds and generally care for five bedrooms and three baths.' This is the employment the state characterizes as “sedentary type of work.” On January 29, 1965, after more than six years, Olga in descending the rather dark front hall stairway “missed the lower steps and I fell over against the baseboard.” Her left hip was sprained but her principal injury was “a comminuted fracture of the neck of the right scapula.” For this injury she was hospitalized from January 29, 1965 to February 20, 1965. At the hearing one of the doctors reported the bony deformities resulting and offered the opinion that “she has a permanent partial disability of the right upper extremity at the shoulder of about 30 percent as a residual.” Another expert estimated “a disability at the right shoulder amounting to a loss of fifty percent.” In any event, after this injury and treatment, Olga returned to her employment with Mrs. Wallace, at first she “could only do mending” but by the end of March “I just went lightly about my work.” She could see, however, that Mrs. Wallace was not happy with her, she “seemed very aggravated with me,” and on June 6, 1965, she left her employment and “went on social security.” On November 10, 1965, she went to work for Mrs. N. B. Gregg as a second floor maid but this work “was much too heavy for me. Much too hard” and at the end of six months she quit that employment and has not worked since, “Because I am not able to do it any more.” She now lives alone in a room at 4923 Mardel and takes most of her meals out. It is in returning to Mrs. Wallace’s employment and her six months with Mrs. Gregg that the state refers as conclusively establishing that “she was still able to resume the same type of work” and that therefore the award was contrary to the weight of the evidence, even though this particular injury was an “additional injury to her person.”

Briefly, these were Olga’s prior injuries and disabilities: As stated she had worked as a bookkeeper in Belleville for 10 years before coming to St. Louis. In 1949 she fell on a sidewalk at home and fractured both wrists. In November 1950 because of osteoarthritis Dr. Blair operated on her right hip. In March 1951 she entered a hospital “for manipulation” of her right hip and in the process her right hip was fractured necessitating another operation and the insertion of an “intramedullary nail.” In 1953 because of osteoarthritis she was again under the care of Dr. Blair “for a hip arthroplasty of her left hip.” In 1964 a cataract was removed from her right eye. Olga’s career and work record should be interpolated here: 1950 to 1953 she was married and a homemaker. In 1953 she was employed by Mrs. Haws to do general housework. After her 1953 operation she did not work again until 1955 when she went to work as a cashier at Famous-Barr — from which she was retired after five years. Without detailing their examinations and reports the doctors concluded that “since this person has made a reasonable effort to return to her former occupation as a housemaid, hut was unable to continue this type of work because of her physical impairment that she may now be considered permanently and totally disabled.” Aside from her shoulder injury rated at 30%, one doctor rated both wrists at “about 30 percent as residual of injuries sustained in 1949,” and her legs and hips at “about 50 percent” and that the “combined disabilities” had resulted “in a prior permanent partial disability of about 85 percent of the individual as a whole.”

In general response to the appellant’s statement that after leaving Famous-Barr Olga “was not physically capable or suitable for other than sedentary work which was precisely the type of work she had been doing since at least 1953” it may only be said that “(t)he purpose of the Second Injury Fund law [is] to encourage employment of the partially handicapped.” Apropos here is Lieneke v. Evangelical Deaconess Hospital, Mo., 418 S.W.2d 142. In that case it was contended that under the evidence the “respondent was totally disabled prior to the last accident, and therefore the Second Injury Fund cannot be held liable for compensation.” The evidence as a whole was considered, the court pointed out that the state “has failed to accord respondent the benefit of the rule that on review of a Workmen’s Compensation case the evidence, together with all the reasonable inferences to be drawn therefrom, will be viewed in its light most favorable to support the finding and award.” The court noted the purpose of the Second Injury Fund law “to encourage employment of the partially handicapped” and concluded that the award of total and permanent disability was supported by competent and substantial evidence. In its conclusion here the state urges that the commission “should have allowed only a nominal recovery against the Second Injury Fund based upon the prior disabilities combining with the shoulder injury to produce a greater overall disability than the sum of the two.” Consequently the state contends that this court should reverse the decision and remand this cause with directions to the commission “to make a finding against the Second Injury Fund other than permanent total disability.” This particular argument raises questions of inconsistency of claims as well as the power of courts on review but above all it presupposes that the state’s position appears as a matter of law but, as indicated throughout the case “does not descend to a question of law only.” Buzzard v. Morris, Mo., 410 S.W.2d 71, 72. The commission’s award is supported by competent and substantial evidence and this court could not under the rules make another and contrary finding. Lieneke v. Evangelical Deaconess Hospital, supra; Grant v. Neal, Mo., 381 S.W.2d 838; Cole v. Morris, Mo., 409 S.W.2d 668. And for the reasons indicated the judgment is affirmed.

STOCKARD and PRITCHARD, CG, concur.

PER CURIAM.

The foregoing opinion by BARRETT, C., is adopted as the opinion of the court.

All of the Judges concur.


author: HIGGINS, Commissioner.

text:
    Allen L. BUTCHER, Appellant, v. Hiram H. MAIN, Jr., Respondent.
    No. 52754.
    Supreme Court of Missouri, Division No. 1.
    April 8, 1968.

      Sherman Landau, St. Louis, for appellant.
    Carter, Fitzsimmons & Brinker, Paul E. Fitzsimmons, Clayton, for respondent Main.
   HIGGINS, Commissioner.

Action for $27,500 damages for loss of services and consortium and for medical expenses as a result of injuries sustained by plaintiff’s wife in an automobile collision. Plaintiff appeals from verdict and judgment for defendant.

The collision occurred about 3:00 p. m., June 18, 1960, on U.S. Highway 66 bypass, a north-south highway of four lanes, two for traffic proceeding in each direction. Big Bend Boulevard is an east-west road intersecting Highway 66 just south of the collision scene.

Four automobiles were involved in this casualty, all being northbound in the northbound lane immediately adjacent to the center line of Highway 66. According to statements taken by the investigating officer, Olon O’Connor, driver of the lead automobile, stopped his automobile at a point about 200 feet north of Big Bend in order to make a left turn; Madeline Politte Ratchford, next in line, came over the hill at the intersection, saw Mr. O’Connor stop but could not stop, and struck the rear of the O’Connor automobile; Harryetta Butcher, plaintiff’s wife, came through the intersection, saw the cars ahead stopping, started slowing her own car, and was struck in the rear by an automobile driven by defendant Main. Mrs. Butcher also collided with the rear of the Ratchford automobile. Defendant came through the intersection and the Butcher car “stopped in front of me. I applied my brakes but hit her.” Trooper John J. McCue testified from these statements and his examination of physical evidence at the scene that there were no skid marks; that car No. 1 (O’Connor) stopped, waiting to make a left turn off Highway 66 approximately 200 feet north of Big Bend, and was struck in the rear by car No. 2 (Ratchford) ; that car No. 2 was struck in the rear by car No. 3 (Butcher) and, as car No. 3 was stopping, car No. 4 (Main) struck the rear of car No. 3, forcing a chain reaction effect of cars No. 3 with No. 2 and into No. 1. A northbound motorist, when south of Big Bend, can see 200 feet north of the intersection. None of the occupants of the cars complained to the trooper of injuries, and all four vehicles were driven from the scene.

Appellant contends first that the court erred in denying his motion for directed verdict on the issue of liability because the same collision was in Butcher v. O’Connor, Mo., 401 S.W.2d 490, where, when plaintiff attempted to charge O’Connor, Ratchford, and Main with liability, the court said “that the proximate cause of her (Mrs. Butcher’s) injuries is the fact that defendant Main’s car collided with the rear end of her automobile.” 401 S.W.2d l.c. 493[1]. He argues “such ruling * * * is similarly controlling in this present case.”

Butcher v. O’Connor, supra, was remanded generally for a new trial to plaintiff against defendant Main without any direction. All issues, including liability, were thus open issues because the former opinion “became and, so far as the facts are the same, remained ‘the law of the case,’ but it is not as to all issues ‘res adjudicata.’ * * ‘The law of the case’ applies where a general principle of law is declared as applicable to the facts of the case. If it is remanded generally all issues are open to consideration on a new trial. The pleadings may be amended or new and controlling facts produced. Often a second appeal presents a totally different case from that appearing on the first appeal.” Creason v. Harding, 344 Mo. 452, 126 S.W.2d 1179, 1183[1].

Appellant charges the court with error “in rejecting the testimony of the doctors (McCall, Hogencamp, Rush, Stein, and Rosenberg) who treated Mrs. Butcher for the injuries sustained in the collision of June 18, 1960.” He contends there was no proper basis “* * * for excluding the testimony of the physicians who treated her and had personal knowledge of her injuries and physical conditions.” He cites Huffman v. Terminal Railroad Ass’n of St. Louis, Mo., 281 S.W.2d 863, 871 [10, 11] : “A physician, in stating his expert opinion on a patient’s condition, may testify to what the patient said (an exception to the hearsay rule) concerning his present, existing symptoms and complaints. However, he may not base his opinion upon or testify to statements of the patient with respect to past physical conditions, circumstances surrounding the injury, or the manner in which the injury was received * * *. (And where) the ‘history’ of pain which the doctor stated as having been related by plaintiff to him was otherwise in evidence * * * objection that ‘history’ of previous conditions of pain was prejudicially permitted as the basis in part of the physician’s opinion must fall.”

There is, of course, no quarrel with this rule, but appellant is beyond help from it because the record fails to show sufficient foundation for the admission of evidence offered through his doctors, and the judge is not shown, therefore, to be guilty of an abuse of discretion in this respect.

The admission or exclusion of expert opinion testimony is a matter within the discretion of the trial court, Eickmann v. St. Louis Public Service Co., 363 Mo. 651, 253 S.W.2d 122, 130[1]; and a doctor’s opinion, like that of any expert, is in the nature of a conclusion of fact, but it must have a substantial basis in the facts actually established and it cannot be invoked to establish the facts, Craddock v. Greenberg Mercantile, Inc., Mo., 297 S.W.2d 541, 548[9].

Plaintiff was not in the car with his wife and no other witness was offered to show how she may have been injured, if so, in the collision. Mrs. Butcher did not testify in plaintiff’s case prior to the offer of any of the doctors’ testimony and, after closing, plaintiff reopened his case to read from Mrs. Butcher’s deposition “in view of the fact that we felt it would be better to have this testimony before the jury; otherwise there might be a reflection what her testimony would have been if we had produced her. It is limited to that.”

The reopening was, perhaps, not intended to be limited, but if the ruling was correct at the time it was made the trial court is not to be convicted of error because subsequently there was other testimony which might have resulted in the different ruling if it had been before the court when the ruling in question was made. Gough v. General Box Co., Mo., 302 S.W.2d 884, 888[6].

Dr. McCall testified that he saw Mrs. Butcher June 20, 1960, and diagnosed a cervical sprain or strain of the neck. He saw her again on June 25, 1960, and on October 7, 1960, when she was improved to the extent he discharged her. All this was in evidence. Plaintiff also asked a lengthy hypothetical question of Dr. McCall seeking his opinion that her “injuries are etiological or causative factors in the woman’s complaints.” The question contained assumptions that Mrs. Butcher was struck from the rear “with such force as to violently jerk her head and neck backward and then forward, and that immediately following that she began to experience pains in her neck, etc.” Under the foregoing authorities the objection to the question due to lack of foundation to support the quoted assumption Was properly sustained, the quoted answer was properly stricken, and the offer of the quoted answer properly denied.

Dr. Rosenberg saw Mrs. Butcher December 14, 1960, and last saw her September 27, 1962. She complained to him of pain in her neck and headaches and he found “pain with tenderness palpated along the cervical vertebrae. * * * and pain was palpated also at the right third and fourth lumbar area.” She had tenderness in the neck when last seen September 27, 1962. He also was asked to consider these symptoms and to express an opinion “whether or not they are permanent in nature.” The objection that the “question would have to be predicated upon the testimony of Mrs. Butcher (not in evidence), and no foundation whether she had these pains for twenty-eight months or what the nature of them is” was, for the reasons previously indicated, properly sustained and the offered opinion on permanency where no observation over the 28-month period was shown was properly refused.

Dr. Gray first saw Mrs. Butcher March 20, 1964. She was complaining of pain in the upper back and his diagnosis was “neuritis of the dorsal segments.” He saw her June 10, 1964, when her back pain continued, July 10, 1964, when her left arm and shoulder were hurting, and July 20, 1964, when no significant improvement was shown. Similar conditions existed August 17 and 24, 1964. He had X rays made of her back Otcober 22, 1964. Ultimately Dr. Gray was asked, considering “the period she has been under your care and taking into account the information * * * obtained from the hospital record, do you entertain any opinion as to the etiology, that is the origin of her present pain and disability?” Upon objection that there was no foundation “because she hasn’t appeared in court or has been tied up or connected in what he found had any connection with this accident of 1960” the court refused the opinion that Mrs. Butcher had some “preexisting arthritis of the neck and back * * * also had some narrowing of a disc space in the * * * neck, which was aggravated by injury” and the subsequent offer to prove that Dr. Gray found a whiplash injury to the neck, a permanent condition. These rulings were also well within the court’s discretion for the reasons previously stated. There was simply no foundation or connection laid between Mrs. Butcher’s 1964 examination by Dr. Gray and the collision in 1960.

Appellant does not develop his contention with respect to testimony of Drs. Hogen-camp, Rush, and Stein, and the transcript does not show refusal of any offer of testimony from them. The contention is thus without merit as to them also.

Appellant complains he was denied “the right to inquire of the jurors on voir dire examination whether any of them were engaged in the casualty insurance business, and also whether any juror was engaged in the general insurance agency business or was an agent for a casualty insurance company.”

Prior to voir dire examination of the jury, plaintiff asked leave to ask five questions of the jury covering the above subjects. The proposed questions were identical to those offered by plaintiff for the court to ask of the jury in Kiernan v. Van Schaik, 3 Cir., 347 F.2d 775, 777. Defendant Main objected to the request, asserting “the cumulative effect of all five of those particular questions is an attempt to emphasize the question there is insurance involved.” The court’s ruling was to “permit a general question * * * whether they or any immediate member of their family have been or are employed by any corporation engaged in adjusting and investigating claims, * * * about the insurance, whether any of them have an interest in this insurance company, but your objection whether they have an interest in any insurance company will be sustained.” The questions, if any, actually asked of the jury by plaintiff are not shown in the transcript, but the questions permitted the plaintiff by the court were proper questions for determining the connection, if any, prospective jurors might have had in the insurance company interested in the defense of the case on trial. Having offered to permit such inquiry, the court was well within the province of a trial judge to reasonably circumscribe the voir dire examination in that respect by limiting the number of questions and imposing other limits on the nature of the examination. Gooch v. Avsco, Inc., Mo., 340 S.W.2d 665, 667[2], The federal trial judge erred in Kiernan v. Van Schaik, supra, not for refusing to ask the five tendered questions, but for refusing to make or permit any “reasonable inquiry whether prospective jurors are or have been connected with the business of investigating or paying accident claims, either as employees, agents or stockholders of insurance companies or claims agencies without suggesting the existence of insurance in the case.” 347 F.2d l.c. 782[11],

The court, at defendant’s request, gave Instruction No. 4 (MAI 28.01 modified), which directed a verdict for defendant if the jury believed that Harryetta Butcher either failed to keep a careful lookout or was following too closely; that such conduct was negligent; and that such negligence directly caused or contributed to cause plaintiff’s damages, if any. Appellant contends there was no competent evidence that plaintiff’s wife either failed to keep a careful lookout or was following too closely. His only authority is Butcher v. O’Connor, supra, under which he argues, as in the first point, that this matter has already been settled.

This is the defendant’s instruction, and the court, in determining if it is supported by substantial evidence, considers the evidence in the light most favorable to defendant. Dawley v. Hoy, Mo., 341 S.W.2d 111, 116[5].

Mrs. Butcher was under duty to keep a proper lookout for the presence of other vehicles such as that of Mrs. Ratchford in front of her, and to be aware of the situations and conditions of danger in order to take appropriate precautionary measures to avoid injury to herself and to others within an existing area of peril. Miller v. St. Louis Public Service Co., Mo., 389 S.W.2d 769, 771 [2], In addition to evidence previously stated, Mrs. Ratchford testified that her speed was 15 to 20 miles per hour; that after clearing the intersection she saw O’Connor when two or three car lengths ahead of her car either stopped or almost stopped. She applied brakes for an emergency stop but was unable to do so and ran into the rear end of O’Connor’s automobile. Thereafter, Mrs. Butcher ran into the rear end of Mrs. Ratchford’s automobile and Mrs. Ratchford did not hear the sound of any collision to her rear prior to being struck by Mrs. Butcher. Defendant Main was following Mrs. Butcher at a distance of about two car lengths when he noted she was making a sudden stop. He saw no brake lights or other stop signals on the Butcher automobile at this time. He heard a crash ahead of the Butcher automobile before he struck Mrs. Butcher. Mrs. Butcher (by deposition) was a car length or so behind Mrs. Ratchford when she first saw her. There was no reason she did not see 'her sooner. She did not know if Mrs. Ratchford was moving or stopped, nor did she know whether she was moving or stopped when struck by defendant. Under these circumstances, it would be for the jury to say whether, had Mrs. Butcher been keeping a careful lookout, she would or should have seen the Ratchford car and appreciated the situation sooner and in time to have slackened her speed as opposed to an abrupt stop, either by braking or prior collision, and thus have enabled defendant to stop in time to avoid colliding with Mrs. Butcher. Boehm v. St. Louis Public Service Co., Mo., 368 S.W.2d 361, 367[4].

Referring again to the evidence, and particularly to Mrs. Butcher’s testimony that she was following Mrs. Ratchford by a car length or so at ten to fifteen miles per hour, and also to her lack of judgment on Mrs. Ratchford’s speed when she started to slow, the jury also could reasonably infer that Mrs. Butcher was closer to Mrs. Ratch-ford than was safe and prudent and that such constituted negligence which directly caused the accident. Sundermeyer v. Lentz, Mo., 386 S.W.2d 16, 20 [5],

Judgment affirmed.

HOUSER and WELBORN, CC, concur.

PER CURIAM:

The foregoing opinion by HIGGINS, C., is adopted as the opinion of the court.

All concur.