text:
    Ruth ODSTRCIL, Appellant, v. Henry T. ODSTRCIL, Appellee.
    No. 14410.
    Court of Civil Appeals of Texas. Houston.
    Nov. 5, 1964.
    Rehearing Denied Dec. 3, 1964.
    Charles C. Smith, Jr., Cameron and Walter M. Hilliard, Caldwell, for appellant

      John M. Lawrence, III, Bryan and Hays Bowers, Caldwell, for appellee.
   WERLEIN, Justice.

Henry T. Odstrcil sued for divorce and settlement of property rights, alleging among other things that the two tracts of land aggregating 249 acres of land, parts of the S. C. Robertson League No. 3 in Burleson County, Texas, more particularly described in his petition, were his separate property. Appellant, Ruth Odstrcil, filed a cross-action for divorce and for partition of the 249 acres, claiming it was community property. After the parties had rested and appellant's motion for an instructed verdict was overruled, the parties stipulated that the jury be withdrawn and that judgment be rendered by the court. The trial court granted appellant a divorce; found that the 249 acres in question was the separate property of ap-pellee; divided equally community property consisting of the sum of $1200.45; and also found that appellant was entitled to $881.00, such sum representing one-half of the $1,006.00 indebtedness assumed by appellee at the time the assets and liabilities of the estate of appellee’s mother, Mrs. Frantiska Odstrcil, were partitioned, and $378.00 later paid on said indebtedness by appellant out of her separate property.

Appellant’s appeal is limited to the part of the judgment finding that the 249 acres was the separate property of appellee and that the $1,006.00 note executed by appellee, which was later paid out of community funds of appellant and appellee, with the exception of said $378.00, represented an indebtedness due the estate of appellee’s mother, and was assumed by appellee in course of partition of the estate of his mother.

Appellee’s mother died intestate on May 16, 1928. She was survived by her husband, Peter Odstrcil, and six children, including appellee. On December 30, 1930 appellant and appellee were married. On January 28, 1933, Peter Odstrcil and his six children, the married daughters being joined by their respective husbands, executed a partition deed in which they undertook to partition between themselves the real estate which Peter Odstrcil and his wife Frantiska owned at the time of her death, consisting of more than 1000 acres with improvements, including Peter Od-strcil’s homestead and also the home which was on the 249 acres occupied by appellant and appellee.

The partition deed recites that the parties executing the same hold in common the lands described therein and also owe several debts due by them in sums and amounts “as hereinafter mentioned, and are desirous in making partition of the said lands as well as prorating the indebtedness now pending on part of said lands and also other indebtedness amounting to about Seventy Five Hundred Dollars * * Then follows the partitioning of tracts of land by metes and bounds to said Peter Odstrcil and each of the six children, and the recitation of the amount of indebtedness each paid or assumed. The partition deed is too long to set out in full. The part thereof pertaining to the tracts partitioned to appellee is as follows:

“That the said Henry T. Odstrcil shall from henceforth have, hold possess and enjoy, in severalty by himself and his heirs and assigns for his part, share, interest and proportion of the said lands and premises, all those tracts or parcels of land in Burleson County, Texas, parts of the S. C. Robertson League No. 3, and described as follows:
[Here the 2 tracts are described by metes and bounds, one containing 6U/2 acres of land and the other 187/ acres]
“And whereas the said Henry T. Odstrcil has executed to Peter Odstrcil his certain Lien note for the sum of One Thousand Six and No/100 ($1006.00) Dollars said Peter Odstrcil acting as Trustee for the Estate of Frantiska Odstrcil Deceased, said note being due and payable on or before five years after date hereof, bearing interest at the rate of Seven (7%) per centum from date, and payable at Caldwell, Texas, which is a valid and existing lien on said land, and the other parties hereto grant, release and convey and confirm unto the said Henry T. Odstrcil the premises above described, with all and singular the rights, hereditaments and appurtenances thereto in anywise belonging, unto the said Henry T. Odstrcil his heirs and assigns forever.
“But it is expressly agreed and stipulated that the Lien is retained against the above described property, premises and improvements until the above described note and all interest thereon are fully paid according to its face and tenor effect and reading when this deed shall become absolute.”

The partition in question was a voluntary partition entered into by all the persons owning undivided interests in the entire land. There is nothing in the record showing the comparative values of the tracts partitioned to the father and the children or showing the value of improvements thereon, or showing that anyone got more than the equivalent of his or her undivided interest in the property. Appellant does not contend that the court did not make a fair and impartial settlement of the community property of the parties (other than the 249 acres claimed by ap-pellee as his separate property) or that the court did not make a proper allowance for the community funds that were used in paying off the $1006.00 note and for reimbursing appellant the sum of $378.00 representing the amount she paid out of her separate funds. The sole contention of appellant is limited to her claim that the 249 acres was community property and that the trial court erred in finding that said vendor’s lien note in the sum of $1006.00 represented an indebtedness due the estate of appellee’s mother, and had been assumed by appellee. This note was executed only by appellee, but after it was assigned by the estate of Frantiska Odstrcil, deceased, by Peter Odstrcil, trustee, to S. P. J. S. T. Lodge, and had been renewed or extended several times by instruments in which appellant joined, it was ultimately paid out of community funds with the exception of the amount paid by appellant out of her separate funds.

After appellant and appellee were married they lived on part of the 249 acres known as the Dunn Place which appellee rented from his father, Peter Odstrcil, prior to the partition. The only testimony with respect to value of the property in 1933 was that of one Ole Langham who had some property nearby, and testified that part of the land was capable of cultivation and part of it was not, and that $4.00 per acre was the reasonable cash market price of the land in “about 1933”.

It is clear that upon the death of his mother, appellee inherited an undivided one-twelfth interest in all of the more than 1000 acres and improvements thereon. This undivided interest vested in appellee immediately upon the death of his mother, subject to the payment of his prorata part of the debts of the intestate. Article 3314, Vernon’s Annotated Civil Statutes, now Sec. 37, Probate Code, V.A.T.S. There is no evidence with respect to the nature, extent or value of the improvements upon the more than 1000 acres of land or upon the 249 acres in question. There is no evidence with respect to the value of the particular tracts partitioned to the various undivided owners. There is no evidence that appellee received in the partition of the tracts to him more property than the equivalent of his interest in the entire property. There is no evidence that Peter Odstrcil got more or less than what would be equivalent to his undivided one-half interest in the property since there is no evidence as to the character and value of the improvements on the land allotted to him. There is no evidence as to which parts of the land were capable of cultivation in 1933 and which were not.

Appellant contends, however, that since appellee executed a vendor’s lien note in the sum of $1006.00 to his father, Peter Odstrcil, as trustee of the estate of his deceased mother, and there is no evidence that appellee owed anything to his mother, such note must have represented payment by appellee to his father for some interest in the real estate in question. This position seems to us untenable. If appellee were purchasing an interest in the land from his father, there is no reason why such note was not made payable to Peter Odstrcil individually. The court actually found that the $1006.00 indebtedness was assumed by appellee by the execution of said note at the time the assets and liabilities of the estate of Mrs. Frantiska Odstrcil were partitioned. The partition deed recites that the parties thereto were desirous of prorating the indebtedness pending on part of the lands, and also other indebtedness amounting to $7500.00. There is no evidence showing whether or not the $1006.00 indebtedness assumed by appellee was part of that “pending on part of the land” or other indebtedness, other than the fact that the note was payable to the trustee of the mother’s estate and by it later assigned. There is nothing to show that any part of the indebtedness assumed by appellee evidenced by his note which was not signed by appellant, was in payment of purchase money for any land or that he received more land than he was entitled to by virtue of his one-twelfth undivided interest in all the lands.

The inception of the title in ap-pellee was at the moment of his mother’s death, some two and one-half years before he married appellant. The partition (in the absence of showing that appellee got more land than he was entitled to), did not operate as a conveyance or transfer of title to any of the acreage partitioned to ap-pellee. In Hamilton v. Hamilton, 1955, 154 Tex. 511, 280 S.W.2d 588, the Court said:

“It seems to be the law generally that a partition deed does not operate as a conveyance or transfer of title, the effect being to divide the property- and to give to each the share which he already owned by virtue of some-prior deed or other conveyance. French v. French, Tex.Civ.App., 188; S.W.2d 586, er. ref.; Jones v. State, Tex.Com.App., 5 S.W.2d 973, the reason being that the parties already-owned their respective interests and' a partition deed from one to another is not the conveyance of title but merely the division of the property so-that each may have exclusive use and-' occupancy and the right to dispose of as he sees fit his own land, to make it. in a form certain instead of an undivided interest in the whole. Cleveland v. Milner, 141 Tex. 120, 170 S.W.2d 472.”

See also Steele v. Caldwell, Tex.Civ.App. 1942, 158 S.W.2d 867.

In Jenkins v. Robinson, Tex.Civ.App.1943, 169 S.W.2d 250, the court stated ’. that the settled rule was:

“ * * * that where title is acquired by either spouse before marriage its status as separate property is fixed at the time of its acquisition,. which status cannot be altered thereafter by the fact that the remainder of the purchase price is paid for with funds of the community estate. Lee v. Lee, 112 Tex. 392, 247 S.W. 828.”

No request was made for findings . of fact or conclusions of law and the court made none. The trial court’s judgment,., therefore, implies all necessary fact findings in support of the judgment. Renfro Drug Co. v. Lewis, 1950, 149 Tex. 507, 235 S.W.2d 609, 23 A.L.R.2d 1114. We find" nothing in the cases cited by appellant in- - consistent with our holding herein.

Judgment affirmed.


source: Caselaw Access Project

author: GRISSOM, Chief Justice.

license: Public Domain

text:
    The STATE of Texas, Appellant, v. Charles R. CARSWELL et ux., Appellees.
    No. 3915.
    Court of Civil Appeals of Texas. Eastland.
    Nov. 20, 1964.
    Rehearing Denied Dec. 11, 1964.
    David L. Boles, Asst. Atty. Gen., Austin, for appellant.
    Park Street, San Antonio, and Gordon L. Hollon, Boerne, for appellees.
   GRISSOM, Chief Justice.

In a suit by the State of Texas against Charles R. Carswell and wife to condemn 0.999 of an acre of land out of a 3.02 acre, tract for construction of Interstate Highway 10 the Carswells obtained a verdict and judgment awarding them $6,425.00. The State has appealed.

The Carswells owned a home consisting of 3.02 acres on a conventional highway which they could enter from their home and travel in either direction. It was an attractive home with many beautiful trees, including about 115 on the tract taken, which tract was immediately in front of the residence. Before the condemnation appellees’ residence was 171 feet from the highway right-of-way but afterwards it was 81 feet therefrom. The tract taken fronted 535 feet on the highway and had a depth of 90 feet. On the land taken, in addition to trees, there were some fences and a part of the driveway.

Appellant’s first two points are that the court erred in failing to grant appellant’s motion for a new trial because there was (1) no evidence, or insufficient evidence, to support the verdict and (2) the verdict was contrary to the overwhelming weight and preponderance of the evidence, manifestly unjust and grossly excessive. Appellant says the unsupported opinion of the witnesses as to the value of the part taken and the remainder will not support the jury findings of the values thereof because the naked and unsupported opinion of a witness does not constitute evidence of probative force. It says that the failure of appel-lees’ witnesses to offer any competent reasons to substantiate their opinions of value and their failure to explain the nature of the damages claimed to the remaining tract and its effect upon various portions of the tract and the relationship of same to market value makes said testimony in legal effect no evidence or, at least, insufficient evidence, to support the finding of damages to the remainder. Appellant says that, although appellees placed five value witnesses on the stand and each testified to his opinion of the value of the part taken and the remainder before and after the taking, no witness substantiated his opinion by testifying to any comparable sales or in any manner substantiate or give reasons in support, of his said opinion. It says appellees failed to give any specific explanation of their-opinions of damages to the remainder, or of' the relationship thereof to market value, and therefore, there was in legal effect no-evidence thereof. Appellant quotes from the Supreme Court’s opinion in Dallas Railway and Terminal Company v. Gossett, 156 Tex. 252, 294 S.W.2d 377, 380, the statement that the naked and unsupported opinion of a witness does not constitute evidence of probative force and will not support a jury finding. That general statement-of the law was made in a personal injury suit where the opinion referred to was the naked, unsupported conclusion of a witness, that a certain street was a one way street.. It also cites Texas Electric Service Company v. Linebery, 162 Tex. 570, 349 S.W.2d 105, and Texas Electric Service Company v. Campbell, 161 Tex. 77, 336 S.W.2d 742.

The jury’s verdict, upon which the judgment was based, was that the part taken had' a value of $1,925.00; that the value of the-remainder before the taking was $19,500.00' and after the taking $15,000.00. In other words, the jury found damages amounting-to $6,425.00, consisting of $1,925.00 as the value of the land taken plus $4,500.00 severance damage. The lowest opinion of ap-pellees’ witnesses of the value of the part-taken was $2,500.00 and the lowest severance damages was placed at $4,500.00. Appellant’s witness Porter put the value of the-land taken at $1,345.00 and the severance-damage at $2,205.00. Appellees’ expert witnesses did not testify to sales of what they testified were comparable properties but they did testify, without objection, to sales,, in 1958, of land fronting on the same highway, four miles south of appellees’ property, which they did not consider as desirable as-appellees’ property, at $3,000.00 per acre. There was evidence that the tract condemned was capable of commercial use. Porter-testified to the sales of property, which he-considered to some degree comparable, in July and October, 1959, and in April and; October, 1960, and in July, 1962. The date of the taking of appellees’ property was August 16, 1963. The record shows that appellees’ land had a broad frontage on a ■major highway, U. S. Highway 87, while the tracts sold, which Mr. Porter testified about, were on relatively minor farm to market or county roads and had comparatively little frontage thereon. It was not disputed that the remainder of appellees’ land was damaged by the taking and that the closer proximity of the new right-of-way to appellees’ home was a cause of such -damage.

Appellant’s contentions that there is no evidence, or insufficient evidence, to support the verdict and that the findings of value are contrary to the overwhelming weight and preponderance of the evidence may be fairly summarized as follows: (a) appellees failed to explain the basis for their opinion that the remainder was damaged ; (b) appellees failed to substantiate their opinions by testimony of comparable ■sales and (c) the quality and credibility of appellees’ evidence was not as good as appellant’s. Appellees say that contention (a), that appellees failed to explain the basis for their opinions that the remainder was damaged by the taking, is simply not true; that Mr. Lewis testified that before the taking .appellees’ residence was set back sufficiently from the highway but that after the taking the residence was less desirable because of its then close proximity to the new highway right-of-way and that Mr. Young testified to the same effect. There was no dispute about the fact that moving the right-of-way 90 feet closer to appellees’ residence damaged the remainder. In cases cited by appellant there was either a dispute over whether there was damage to the remainder or evidence of damage thereto was remote and speculative. Here, there was no dispute over the fact that the taking caused damage to the remainder, the only question was how much the remainder was damaged by the taking. We agree with appellees’ said contentions.

The decisions in the Linebery and Campbell cases cited by appellant are not controlling because findings of damages in those cases were disapproved because the evidence thereof was based upon speculation and conjecture. In the Linebery case, 349 S.W.2d 105, 106, the opinion testimony relied upon by the land owner as to the value of the easement taken and depreciation of the remainder was based solely on surmise and conjecture. The witness testified as to what he took into consideration in forming his opinion as to value.

“I was able to form an opinion that the highest and best use that this land could be employed would be in operating it as a business in conjunction with the fact that the land had oil and gas discovered on it; in other words for the lease of roads, the sale of right-of-ways for both pipe lines, oil lines, for overhead easements, for the sale of water, for the sale of caliche.”

The court held that such testimony had no bearing upon the issue of market value, saying that the true inquiry was not what one person “could exact” as income but was the fair market value of the land.

In the Campbell case, 336 S.W.2d 742, the judgment was reversed because of the admission of evidence not pertinent here. In other cases cited by appellant there was no explanation or reason given for damage found to the remainder and the question whether there was damage to the remainder was in dispute. Such is not the case here. Appellees’ witnesses Grimmell and Fry, as stated, testified to sales of property four miles distant on the same highway and further from Boerne for $3,000.00 per acre. They testified that ap-pellees’ property was more valuable than that property and gave reasons for that conclusion. Appellees produced value witnesses who were unquestionably qualified to testify, as they did, to the market value of appellees’ land at the controlling times. Under the authority of Texas Electric Service Company v. Vest, Tex.Civ.App., 310 S. W.2d 733, and Rayburn’s Texas Law of Condemnation, Section 224, they could properly testify to the market value of the land taken without giving reasons for their opinions. Their testimony raised an issue as to the market value of the land taken. Appellees’ witnesses relative to damage to the remainder did not fail to explain the basis for their opinions and their testimony raised the severance damage issues decided by the jury. Applying the established applicable rules, we overrule appellant’s contentions that there was no evidéhce, or that it is insufficient to support the verdict and that said findings are so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and unjust

Appellant’s third point is that the court erred in not permitting its witness Easley to state his opinion of the value of the part taken and the value of the remainder before the taking. It says that he qualified as an expert and the State was entitled to present his testimony to the jury. It says the fact that the witness took into consideration certain things that should not have been considered as a basis for said opinions did not affect the admissibility of his said opinions and that the court committed reversible error in not admitting it. Appellees reply that the record shows that Easley as a basis for his opinion took into consideration the project for which the property was condemned, and that the project for which property is condemned may not be considered in determining values, except as to the remainder after the taking. They cite Vey v. City of Fort Worth, Tex.Civ.App., 81 S.W.2d 228, wherein an instruction was given that in arriving at the market value the jury should not consider the new highway, the new viaduct and any fact pertaining thereto, and City of El Paso v. Coffin, 40 Tex.Civ.App. 54, 88 S.W. 502, where it was held that when a condemnee’s entire property is included in one general condemnation proceeding for a particular purpose it is not permissible to consider that purpose, or the result thereof, in fixing the owner’s compensation. A property owner is not entitled to the benefit of enhanced values arising from the project and1 the condemnor should not be permitted to benefit from its act if the proj ect for which the land is taken has an adverse effect upon-value. Since the witness had an improper basis for his opinion it was not error to-exclude it. Such testimony was cumulative. We conclude that, in any event, it is not shown that its exclusion was probably harmful, as is required by Texas Rules Civil! Procedure 434.

The judgment is affirmed.


author: COLEMAN, Justice.

text:
    Alvin Lee MAEDGEN et ux., Appellants, v. George Robert KOLODNY, Appellee.
    No. 14399.
    Court of Civil Appeals of Texas. Houston.
    Nov. 19, 1964.
    Rehearing Denied Dec. 10, 1964.

      Stanley F. Swenson, Houston, for appellant.
    Fulbright, Crooker, Freeman, Bates & Jaworski, Newton Gresham, Blake Tartt, Houston, for appellee.
   COLEMAN, Justice.

This is a medical malpractice case. The trial court withdrew the case from the jury and entered a verdict for the defendant. The question presented is whether the evidence was sufficient as a matter of law to raise a question of fact as to the existence of negligence on the part of appellee which was the proximate cause of the damage suffered by appellant.

Appellant, Mrs. Maurice Maedgen, was afflicted with a condition known as Ptosis of the right upper eyelid, characterized by abnormal drooping to the extent that it covered practically all of the right eye. She was unable to maintain the eyelid in an open position by use of the levator muscle normally employed in raising and lowering one’s eyelid.

Dr. George Robert Kolodny undertook to improve this condition by a fascia-lata sling-type operation, by which support is given the upper eyelid by attaching it to the occipital frontalis muscles of the forehead by means of a strip of fascia-lata tissues from the patient’s thigh. He testified that it is a relatively simple matter to so adjust the strips of fascia-lata that the lower edge (tarsal plate) of the upper lid will cover the desired portion of the eye. It was his testimony that at the conclusion of the operation he had placed the lid in a position covering the upper one-third of the cornea. He further testified that when such an operation is a complete success the lid, in forward gaze, covers the upper third of the cornea and cannot come down in downward gaze. In upward gaze, the lid remains immobile also. Movement of the lid can be attained only by an upward wrinkling of the forehead. The cornea is the transparent tissue which blends into the white part of the eye, or sclera, and covers the iris, or colored part of the eye. The unaccustomed exposure of the eye, caused by the operation, tends to cause the development of corneal ulcers. To combat the drying effect of constant exposure of the cornea, the doctor prescribed drops of methácellulose in the eye three or four times a day.

The doctor testified that after the operation, so far as a layman could tell, the right eye was open the same amount as the left eye. The operation was performed August 11, 1960 and appellant was released from the hospital on August 22. The doctor saw her again on August 29 and found the lid in excellent position and she was doing very well when he saw her on September 26. On January 4, 1961, he found that she had a marginal ulcer on her eye at the three o’clock position. He saw her for the last time on January 10, at which time he found that the ulcer had healed. A marginal ulcer consists of a disruption of the epithelium near the edge of the cornea, or an infiltration of white cells into the stroma of the cornea, which may build up to the point that they come to the surface of the cornea. The medical testimony was to the effect that the term “marginal ulcer”, as used in the profession, did not refer to exposure ulcers, but that the cause of their appearance was not definitely known. Ap-pellee testified that little points of in-flamation of the cornea, called punctate keratitis, do come about from exposure of the cornea. He also testified that corneal ulcers may be caused by trauma and that if the eye is open things get into it more readily. He testified that an exposure ulcer could become very severe to the extent that it would penetrate the eye - and cause its loss, but in such a case the ulceration would be most severe in the lowermost part of the cornea because it would be the most exposed. He stated that if the eyelids do not close during sleep, exposure keratitis may develop. He wrote in the hospital records that on August 17 and 19 his examinations revealed that the lid was in an excellent position. He testified that the position in which he found the lid on those dates was exactly the position he had placed it and desired it to be.

Dr. Russell Wolfe, an ophthalmologist, was called as a witness by Mrs. Maedgen. He first saw her May 27, 1961, at which time she had a very extensive ulceration of the right cornea, covering two-thirds of the cornea. Because of its crucial importance-to the case, his testimony will be reviewed extensively. He testified that the condition-would have taken a long time to develop' since it looked rather invalid and chronic,, but that it was a condition that might develop in a few days. In answer to a hypothetical question as to whether he had an opinion based on reasonable medical probability as to the cause of the condition of the-eye which he saw, he stated that he did have an opinion and that he thought “it was-due to the drying-out of the cornea, because of its more or less chronic or permanent exposure to air. * * * If it were wide open to the air during day light hours. * * * during her waking hours * * that would be enough to cause the trouble.” He testified that on the first day he saw her the position of Mrs. Maedgen’s eyelid was high, though he could not say just where-it was positioned. The right eye was muclx more open than the left. He further testified, in answer to a question as to whether ophthalmologists in Harris County would' perform an operation, such as Mrs. Maed-gen had, in such a manner as to seek to1 place the tarsal plate of the upper eyelid at or slightly above the limbus, that he didn’t think anybody would deliberately plan ail-operation to leave the cornea ■ exposed that much for long periods of time, and that it would be contrary to good surgery and tO' the usual and ordinary standards of care-of ophthalmologists of Harris County, Texas, to actually and deliberately so place a lid as to expose the cornea at all times.

Dr. Lowe testified that on March 20, 1961, he examined Mrs. Maedgen and found the fissure of her right eye considerably more open than that of her left eye. She had a marginal corneal ulcer of the right eye at the 10 o’clock position visible without raising the eyelid. The upper lid was at about the upper limbus and that the lim-bus was the area where one can see no further colored part of the eye. He did not remember that there was any reddening of the eyeball or anything in addition to the corneal ulcer. During his treatment of Mrs. Maedgen his tests revealed that the lid was placed at a point too high for her reflex action during sleep, called Bell’s phenomena, to completely roll the cornea of her right eye under the lid. This is one way in which the eyeball of a normal person is kept moist. He testified that he last saw her on May 19, 1961, and that the position of her right eyelid was exactly the same as when he first saw her. He testified that if as the result of an operation an eye was kept from being thoroughly lubricated or watered, an exposure ulcer could come at any time. “Most likely it would come sometime, probably sometime at the beginning you ought to see some signs of an exposure ulcer * * * ”

Dr. Sylvan Brandon undertook the treatment of Mrs. Maedgen’s eye on June 1, 1961. He testified that exposure of the cornea shouldn’t be the result of the operation which was performed on Mrs. Maedgen and that “the operation is not done, ever, this way, so as to leave the cornea exposed.”

Dr. Wendell D. Gingrich testified that when the corneal surface of the eye dries there gets to be a haze of corneal substance, then a sore spot where there is wrinkling of the epithelium and vision becomes increasingly poor to the extent that it is lost. He testified that drying can cause corneal ulcers and that if the eye cannot be closed it is more apt to sustain trauma from external sources than a normal eye. His tests on Mrs. Maedgen’s eye determined that she was suffering from a fungus ulcer. A corneal transplant was attempted and the eye was treated under his supervision, but so much of the eye was opaque that her vision was greatly impaired and will not improve. He testified that when he saw Mrs. Maedgen it was not possible for him to say whether or not the ulcer was related to the ptosis operation nor whether the operation was or was not skillfully done. Under the date of August 30, 1961, he wrote in the hospital records: “ * * * Lids do not close completely. Upper lid too high for complete protection * * * ”

Miss Evelyn Stewart testified that she visited Mrs. Maedgen in the hospital and found her asleep. Her left eye was closed, but her right eye was wide open to the extent that she could see white all around the colored part of the eye.

Miss Butterworth, a former employee of Mrs. Maedgen, testified that she visited her in the hospital and continued to work for her in her florist business until August, 1960. She stated that when she first saw Mrs. Maedgen’s eye after the operation in question “the right eye was open considerably more than the other eye, enough so that the entire pupil showed, and it seems like some of the white showed around it, but the whole pupil did. Anyway, it is more than a normal eye is open — sort of a starey effect.” She further testified that when Mrs. Maedgen was looking straight ahead, her eyelid was above the iris.

Mrs. Plowman, the sister of Mrs. Maed-gen, testified that the first time she saw her sister’s right eye after the patch was removed was a few days after she got out of the hospital. She stated that the right eyelid was above the color of the eye and that she could see some of the white of the eye between the coloring and the lid and that until she had further treatment the position of the lid stayed about the same.

Similar testimony concerning the position of the lid was given by Mrs. Maedgen and by her husband. Mr. Maedgen testified that there was no change in the position of the eyelid from the time he first saw it after the operation while his wife was in the hospital until it was operated on again.

It is argued that the evidence of the lay witnesses as to the position of the eyelid with reference to the colored portion of the eye concerns matters within the field of medical testimony and, therefore, lacks probative force. We are unable to agree with this contention. The testimony given was factual in nature and did not involve medical opinion. A non-expert witness may .give liis opinion on questions of apparent conditions of the body or mind. Shuffield v. Taylor, 125 Tex. 601, 83 S.W.2d 955, opinion adopted.

It is also contended that the testimony related to the condition as it existed some days, weeks, or months after the oper.ation, and that since there was medical testimony that the position of the lid can change from many causes, the testimony lacked probative force as establishing the position at which the lid was placed by Dr. Kolodny during the operation. Dr. Kolod-my testified that he placed the lid at a position covering the upper one-third of the <cornea and that it remained in that position at the time he last saw her. There was no direct testimony that the position of the lid did change by reason of scarring or otherwise prior to the time the eye was seen 'by these witnesses. While the only direct •evidence concerning the placing of the lid '.by Dr. Kolodny was his own testimony, a jury could properly infer from the evidence -of its position a few days after the operation that it was placed in that position by the doctor. Woodward v. Ortiz, 150 Tex. 75, 237 S.W.2d 286. This inference would, •of course, be supported by the testimony that the lid remained in the same position for some months after the operation. The ■doctor was an interested witness and his testimony, even though uncontradicted by ■other direct testimony, would not be binding on appellants.

The testimony of the lay witnesses alone was not sufficient to require the submission of the case to the jury. The Supreme Court of Texas has determined that a patient has no cause of action against his ■doctor for malpractice, unless he proves by a doctor of the same school of practice, with certain exceptions, as the defendant, that the treatment complained of constituted negligence and that it was the proximate cause of the patient’s injuries. Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779, 13 A.L.R.2d 1; Porter v. Puryear, 153 Tex. 82, 262 S.W.2d 933.

Insofar as negligence is concerned the necessary medical testimony was supplied by the appellant. Humphreys v. Roberson, 125 Tex. 558, 83 S.W.2d 311, opinion adopted. However the necessary proof of proximate cause is more nebulous. The medical testimony establishes that the danger to be anticipated from constant exposure lies in the possibility of drying out of the corneal surface resulting in exposure keratitis and exposure ulcers. There is no medical testimony that either of these conditions resulted other than the testimony of Dr. Wolfe. There was testimony that the condition causing the loss of vision was a fungus infection. There was medical testimony that the exposed condition of the eye created greater likelihood of objects getting into the eye with resultant traumatic injury, but there was no direct medical testimony that the fungus infection resulted from appellant’s inability to close her eye. There was medical testimony that inability to lower the upper eyelid, and some degree of exposure of the eye, were the expected results of this operation, and there was no medical testimony that the additional exposure caused by placing the lid at or above the colored portion of the eye, rather than over the upper one-third of the cornea, resulted in the corneal ulcer.

While Dr. Wolfe testified that it was his opinion, based on reasonable medical probability, that the ulcer he saw in appellant’s right eye on May 27, 1961, was due to drying out of the cornea because of its more or less chronic or permanent exposure to air, he testified on cross-examination that many people with normal lids develop corneal ulcers because some agent gets into their eyes from the atmosphere and causes the ulcer. There was no testimony of a traumatic injury to Mrs. Maedgen’s eye. He said that if after the operation Mrs. Maedgen was free from trouble for several months he could not say conclusively that the ulcer was caused by the operation, and that he would not be prepared to state with medical certainty that the ulcer was a result of an exposure following the operation. He also testified, on cross-examination, that the ulcer could have been caused by drying out of the cornea, or from trauma, or some other cause, and that he could not say which. He then said: “I had a very definite opinion at the time, but I couldn’t back it up * * *. I would have said that, at this time, we might expect it from a cornea that had been exposed.” He then said that he was not certain of it. He further testified he was not aware of the likelihood of fungus ulcerations of the eye when he treated Mrs. Maedgen, and that fungus could have been the cause of the ulceration, and was more likely to have been the cause in one with her condition than in one with normal eyelids.

Considering all of this testimony, a jury could properly conclude that Dr. Wolfe was of the opinion, based on medical probability, that the ulcer with which Mrs. Maedgen was afflicted when he treated her resulted from constant exposure caused by the operation, although he was not certain of it and could not testify with medical certainty that the ulcer did not result from some other cause. While the question is not free from doubt, we think this testimony, bolstered by the circumstance that prior to the operation Mrs. Maedgen had never had any trouble with ulcers in her eyes, and that after the operation she had no soreness or ulceration of the left eye, meets the test for proximate causation stated by the Supreme Court of Texas in Porter v. Puryear, 262 S.W.2d 933.

Finally, there is considerable testimony by Mrs. Maedgen of mental anguish by reason of her appearance, described by lay witnesses as “starey,” “terrible,” and “horrible” prior to the subsequent surgery closing the eye completely. While there is no medical testimony that mental anguish could be anticipated as a result of the alleged malpractice, under the particular facts of this case we are of the opinion that the existence of mental anguish as a direct and proximate result of the negligence of appellee was a matter for the determination of the jury. Dobbins v. Gardner, Tex.Civ.App., 377 S.W.2d 665, ref., n. r. e.; Gorsalitz v. Harris, Tex.Civ.App., 360 S.W.2d 574.

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


author: NORTHCUTT, Justice.

text:
    MOORLANE COMPANY and Irvin L. Smith, Appellants, v. HIGHWAY DEPARTMENT of the State of Texas and City of Amarillo, Texas, Appellees.
    No. 7408.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 26, 1964.
    Rehearing Denied Nov. 30, 1984.

      Stone & Stone, Amarillo, for appellants.
    Waggoner Carr, Atty. Gen., T. B. Wright and Robert C. Patterson, Asst. Attys. Gen., Austin, Monning & Monning, Amarillo, for appellees.
   NORTHCUTT, Justice.

This is a suit for damages in the nature of inverse condemnation. Appellants, plaintiffs below, brought this action against the State of Texas, the Highway Department of the State of Texas, and the City of Amarillo seeking to recover compensation for an alleged partial taking of the property rights of access.

Appellants are the owner and lessee of Lots 3, 4, and 5, Block No. 3 of the Glidden and Sanborn addition to the City of Amarillo. This property abuts upon the west side of Pierce Street and the north side of South Second Street in the City of Amarillo. Located on or very near the appellants’ property line, where the same abuts upon Pierce Street, is a brick building. In the east wall of appellants’ building is a truck bay which is used to load and unload trucks •serving appellants’ business. Appellees pursuant to a minute order of the State Highway Commission of Texas and an ordinance of the City Council of the City of Amarillo have constructed a controlled access highway through the City of Amarillo. In the construction of this highway Pierce Street, in front of appellants’ property, has been altered or changed from its previous condition. Prior to the highway construction Pierce Street consisted of a right-of-way 80 feet wide and a pavement 49 feet wide for traffic traveling north and south. The right-of-way of Pierce Street was widened from 80 feet to 112 feet. None of appellants’ land was taken or utilized in the project. The center 54 feet of Pierce Street now consists of an overpass over the Burlington Railroad Station which carries three lanes of traffic on 40 feet of roadway. On each side of the overpass there is a one-way service road 26 feet wide and a sidewalk 3 feet wide.

This is the second appeal of this case by appellants. The first appeal was from the judgment of the trial court denying a temporary writ of injunction wherein the appellants had sought to restrain the appellees from constructing the Pierce Street overpass. The court affirmed the judgment of the trial court and application for writ of error was refused. Moorlane Company v. State, Tex.Civ.App., 360 S.W.2d 918 (error refused). This prior appeal arising out of a suit in equity did not involve the legal remedy of appellants to maintain a suit for damages. Therefore, the appellants brought the present suit seeking damage to their property. Both the appellants and ap-pellees filed a motion for summary judgment in the trial court seeking judgment on the issue of liability vel non of the appellees. Appellants in their motion for summary judgment sought an interlocutory summary judgment establishing that the appellees were liable for damages to the appellants and to set the issue of damages for trial by a jury and that the court issue its writ of inquisition therefor. By such actions the opposing parties agree that the controlling question here involved is one of law and not of fact. The trial court determined that the pleadings, motions, and related papers and exhibits on file in this cause conclusively establish that there was ni genuine issue as to any material fact herein and that the appellees were entitled to judgment as a matter of law and thereafter entered a judgment for the appellees. It is from that judgment that the appellants perfected this appeal.

Appellants present this appeal upon two points of error and present the points under five propositions as follows:

APPELLANTS’ POINTS OF ERROR

“1. The Trial Court erred in granting Summary Judgment to Appellees.
“2. The Trial Court erred in refusing to grant partial Summary Judgment -to Appellants.
“PROPOSITIONS UNDER APPELLANTS’ POINTS OF ERROR
“PROPOSITION NO. I
“Appellants own as an appurtenance to their property which actually physically abuts upon Pierce Street the private right to use the full width of Pierce Street to back trucks into the truck bay in their building.
“PROPOSITION NO. II
“The construction of the approaches to the overpass in front of Appellants’ property has materially interfered with and diminished their private right to use the full width of Pierce Street as á means of access to their actually physically abutting property.
“PROPOSITION NO. Ill
“The diminution of the width of Pierce Street available to Appellants in connection with the use of their property and the construction of the overpass constitutes a damage to Appellants’ property.
“PROPOSITION NO. IV
“The Appellees may not under the guise of the exercise of police power deny the Appellants their previously existing access to Pierce Street from their actually physically abutting property without responding to Appellants for damages resulting therefrom.
“PROPOSITION NO. V
“The Appellees may not under the guise of the exercise of police power materially impair or diminish the Appellants’ rights of previously existing access to Pierce Street from their actually physically abutting property without responding to Appellants for damages resulting therefrom.”

Prior to the time the City built the overpass the appellants had been using practically all of Pierce Street in backing large trucks up to a truck bay which was used to lead and' unload trucks serving appellants’ business. On each side of the overpass there is a one-way service road or street 26 feet wide and a sidewalk 3 feet wide. The sole question here seems to be whether the court erred in holding as a matter of law the appellants were not entitled to recover any damages.

It is stated in the case of Pennysavers Oil Company v. State, Tex.Civ.App., 334 S.W.2d 546 (writ refused) as follows:

“The State has the right under the provisions of Art. 6674w, supra, and its police power to provide for one-way traffic, no U turns, division barriers, no left or right turns, traffic lanes, speeding and parking regulations, circuitous routes; for the changing of highways generally, and is not responsible for loss of trade to abutting landowners as a result of the exercise of this police power, so long as it does not amount to a complete taking of the right of access. City of San Antonio v. Pigeonhole Parking of Texas, Inc., [158 Tex. 318] 311 S.W.2d 218 [73 A. L.R.2d 640]; Grapotte v. Adams, supra ; State, By and Through State Highway Commission v. Burk (Oregon) supra.” (Emphases ours.)

After building the overpass which extended down Pierce Street past the appellants’ property, it left a one-way street in front of appellants’ property 26 feet wide and did not amount to a complete taking of the right of access. See also Lysaght v. City of Fort Worth, Tex.Civ.App., 359 S.W.2d 128 (writ refused).

It is stated in Hammer v. City of Dallas, Tex.Civ.App., 273 S.W.2d 646 (N.R.E.) as follows:

“The question seems to be whether the landowner is entitled to damages for the loss of an operation which is in violation of an ordinance, or which could not be carried on without the use of city property. We think there must be a negative answer to that question. City of Sweetwater v. McEntyre, Tex. Civ.App., 232 S.W.2d 434; J. M. Radford Grocery Co. v. City of Abilene, Tex.Com.App., 34 S.W.2d 830; Harper v. City of Wichita Falls, Tex.Civ.App., 105 S.W.2d 743, writ refused; City of San Antonio v. Fetzer, Tex.Civ.App., 241 S.W. 1034, writ refused. Appellant’s right to have parallel parking in front of his store will not be affected by the street improvement.”

Under this record it is the contention of appellants they were damaged because of the building of the overpass prevented them in using most all of Pierce Street in backing up to the truck bay. The appellees herein acted under their police power in constructing the overpass here involved. The appellants still had access to their property and trucks could load and unload at the truck bay of appellants, although the large trucks could not use this street in its entirety as had been used before the overpass was built and were not entitled to recover damages from appellees because they could not use all or a greater portion of the street in backing the large trucks across the street.

It is stated in the case of Lombardo v. City of Dallas, 124 Tex. 1, 73 S.W.2d 475, as follows:

“The insistence that the right of property or the unrestricted use of property is not subject to the police power has long since been determined adversely to that contention.
“Texas Jurisprudence states the general rule as applied in this state as follows:
“ ‘Generally speaking, municipal corporations have the right, under the police power, to safeguard the health, comfort, and general welfare of their citizens by such reasonable regulations as are necessary for that purpose.
“ ‘The police power is not an arbitrary one: it has its limitations. Thus it is subject to the limitations imposed by the Constitution upon every power of government, and will not be permitted to invade or impair the fundamental liberties of the citizen. Also it is founded in public necessity and only public necessity can justify its exercise. It is commensurate with, but does not exceed, the duty to provide for the real needs of the people in their health, safety, comfort and convenience as consistently as may be with private property rights. The interests of the public generally, as distinguished from those of a particular class, must require the interference.
“ ‘All property is held subj ect to the valid exercise of the police power; nor are regulations unconstitutional merely because they operate as a restraint upon private rights of person or property or will result in loss to individuals. The infliction of such loss is not a deprivation of property without due process of law; the exertion of the police power upon subj ects lying within its scope, in a proper and lawful manner, is due process of law. Moreover, police regulations do not constitute a taking of property under the right of eminent domain; and compensation is not required to be made for such loss as is occasioned by the proper exercise of the police power.’ ”

We are of the opinion, and so hold, the appellees were acting under their police powers and that such actions as taken did not amount to a taking of the right of access to appellants’ property and thereby were not liable for any damages as sought by appellants. We have carefully considered all of appellants’ assignments of error and overrule all of them.

Judgment of the trial court is affirmed.


author: ARCHER, Chief Justice.

text:
    Emery H. HUGHES et ux., Appellants, v. Zelta Harmon McANGUS et al., Appellees.
    No. 11241.
    Court of Civil Appeals of Texas. Austin.
    Nov. 18, 1964.
    Sneed & Vine, J. P. Darrouzet, Austin, for appellants.
    W. Sale Lewis, Vandygriff, Presnal & Baker, Austin, for appellees.
   ARCHER, Chief Justice.

This suit was instituted by appellees against appellants on a promissory note for the original sum of $9,300.00 dated March 1, 1961, bearing 4% interest and payable in monthly installments of $45.00 each.

Four of such monthly payments were paid and credited.

The note provided in case of default in the payment of any of the installments that the holders should have the right to declare the entire balance due, and provided for 10% of the principal and interest as attorney’s fees.

Plaintiffs alleged default in the payments and elected to declare the entire note due and payable, and that the note had been placed in the hands of the attorneys filing the suit for collection and sought 10% as attorney’s fees, and that such was reasonable, and prayed for judgment for $9,319.00 as principal and for $931.00 as attorneys fees, there being no specific prayer for interest, but for costs and such other and further amounts as they might show themselves entitled to in law and equity.

The defendants answered by general denial and the coverture of Katherine B. Hughes.

The case was tried by the Court without the aid of a jury on October 1, 1962 and judgment, dated and signed March 4, 1964, was rendered for the plaintiffs in the sum of $9,655.98 as principal and interest and the sum of $965.59 as attorney’s fees with interest at the rate of 4% from the 1st day of October, 1962 and costs of Court.

At the request of defendants, the Court made Findings of Fact and Conclusions of Law, to the effect that the note was executed by defendants in the sum as alleged by plaintiffs and of the payments and that the note was not barred by limitations. The Court found in favor of the plaintiffs for the amounts set out in the judgment. The note sued on was in evidence and provides for 4% interest and attorney’s fees.

Appellants have assigned as error the action of the Trial Court in allowing judgment against Mrs. Katherine B. Hughes in the face of a plea of coverture. Appellees have conceded this to be error and we will not consider this point further, but will reform the judgment in such manner as to not allow recovery against Mrs. Hughes.

The second point is directed to the action of the Court in awarding interest because there was no prayer for such recovery.

Appellants’ position is that plaintiffs can have no more than that for which they plead and cite Texas Digest, Judgments, <©=>253(2) and West Texas District Baptist Ass’n v. Pilgrim Rest Baptist Church, Tex.Civ.App., 368 S.W.2d 814, er. ref., N.R.E.

We believe that appellants’ contention would be good if the recovery of interest was for damages and not under a contract providing for interest.

The plaintiffs are entitled to 4% interest as provided in the note and such may be recovered in a plea for relief in law and in equity as alleged in the pleadings.

Art. 5070, Vernon’s Ann.Civ.St; 33 Tex. Jur.2d 560; Dunnam v. Dillingham, Tex.Civ.App., 345 S.W.2d 314, no writ history; San Antonio & A. P. Ry. Co. v. Collins, Tex.Com.App., 61 S.W.2d 84 (judgment approved).

The judgment of the Trial Court is reformed so as to deny any recovery against Katherine B. Hughes, but in all other respects, it is affirmed.

Reformed and as reformed, affirmed.


text:
    Paul OBRECHT et al., Appellants, v. Francis OBRECHT et al., Appellees.
    No. 7407.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 19, 1964.
    Rehearing Denied Nov. 30, 1964.

      Gibson, Ochsner, Harlan, Kinney & Morris, Amarillo, Marshall Sherwood, Panhandle, for appellants.
    Carnahan & Fields, Amarillo, for ap-pellees.
   NORTHCUTT, Justice.

This is a declaratory judgment action brought by Paul Obrecht and Elsie Obrecht Lusk, appellants herein, against Francis Obrecht, Dora Belle Obrecht Moore, Edna Obrecht Williams, Anna Obrecht, surviving wife of Fred Obrecht, and Dora Elsie Obrecht, individually and as executrix of the estate of William Henry Obrecht, ap-pellees herein, to have the court construe the will of William Henry Obrecht. After all the evidence was in and all parties had rested and closed, the court dismissed the jury and rendered judgment holding the will devised Section 15, Block M-4 of the J. H. Gibson survey in Carson County, Texas, to Dora Elsie Obrecht for life; and at her death, to descend and pass to Francis Obrecht and Dora Belle Obrecht Russ (Moore), share and share alike. From that judgment the appellants perfected this appeal.

William Henry Obrecht was married to Lodella Rush in 1904. Five children were born to this marriage: Fred, Paul, Elsie, and two children who died in infancy. Mrs. Lodella Obrecht died in 1916 intestate and was survived by her husband, William Henry Obrecht, and by Fred, Paul, Elsie, and Edna Rush, Mrs. Obrecht’s daughter by a former marriage. At the time of the death of Mrs. Obrecht in 1916, she and Mr. Obrecht owned the west half of Section 33; east half of Section 37; all of Section 15; all of Section 18; and the northeast quarter of Section 19; all in Block M-4 of the John H. Gibson survey in Carson County, Texas. Later a full settlement was had with Fred, Paul, Elsie, and Edna as to their interest in their mother’s estate. Fred was deeded the south half of Section 18; Paul was deeded the west half of Section 33 ; and Elsie the east half of Section 37. Edna received cash for her share of her mother’s estate.

In 1925 William Henry Obrecht married Dora Elsie Holcomb. Three children were born of this marriage: Francis, Dora Belle, and a child who died in infancy. Since the sole issue here covers the interpretation as to the conflict in Paragraphs 3 and 4 of the will, we overrule appellants’ points 6 and 7 contending the court erred in not submitting the disputed facts to the jury as we see no issue of fact to be determined by a jury.

Sections 3 and 4 of the will in question are as follows:

“3. And we further provide, will and devise, that in the event of the death of the husband before the wife, all of that certain lot, tract or parcel of land, described as Section No. 15, Blk. M-4, is to descend to the wife, Dora Elsie Obrecht, for and during her natural life, and upon her death to our children, Francis Obrecht and Dora Belle Obrecht-Russ, share and share alike.
“4. And it is further provided with reference to the land described as the N.i^i Sec. No. 18 and the NE of Sec No. 19, Blk. M-4, that in the event of the death of the said husband before the said wife, said property shall descend to and vest in the wife for a period of two years after the death of the said husband, and thereafter shall descend and pass as follows: To our son, Paul Obrecht and daughter, Edna Obrecht Williams, all of the N.E. !4 of said Sec. 19, share and share alike; and to Fred Obrecht, our son, and Elsie Obrecht-Lusk, our daughter, the NW. yA and the N.E. 14, respectively of said Sec. 18, and the remainder of Sec. No. 15, Blk M-4, after the death of both of us, share and share alike. The above provisions as to the NE !4 Sec. 19 and the N. 1/2 of Sec. 18 shall apply only to the surface or fee title, and all mineral rights under said land shall pass to and vest in fee simple in our said children, Elsie Lusk, Francis Obrecht, Paul Obrecht, Dora Belle Russ and Fred Obrecht, share and share alike.”

It is the contention of appellants that the will should be construed as giving Section 15 to Francis Obrecht, Dora Belle Obrecht Russ, Fred Obrecht, and Elsie Obrecht Lusk, share and share alike, after the death of Dora Elsie Obrecht. Fred Obrecht is deceased. Fred’s wife, Anna, disclaimed any interest in the property here involved. There were eight acres originally a part of Section 15 but had been cut off from the section by the railroad right-of-way and also the highway, which was sold by the deceased after the will was made. If we were to interpret the word “remainder” as shown in Paragraph 4 of the will as contended by appellants, it would change the entire effect of Paragraph 3 of the will. Under Paragraph 3, Section 15 was willed and devised to Francis Obrecht and Dora Belle Obrecht Russ (Moore) upon the death of Dora Elsie Obrecht. There would be no remainder as Francis and Dora owned it all if Paragraph 3 is to be considered in its correct interpretation. If the intention of the testator be not clearly expressed by the particular language used, it may be found by looking to the provisions of the will as a whole and to the circumstances surrounding its execution. Republic Nat. Bank of Dallas v. Fredericks, 155 Tex. 79, 283 S.W.2d 39.

This record shows that the appellants, as well as the other children, had received their portion of the deceased’s land and all that Francis Obrecht and Dora Belle Obrecht Russ (Moore) received was Section 15 after the death of their mother. This would make each child of the deceased receive at least one half section of land. Some received more. In our opinion Paragraph 3 of this will is clear and unambiguous and gave and bequeathed Section 15 to Francis Obrecht and Dora Belle Obrecht Russ (Moore).

The general rules governing wills as here involved have been well established by adjudicated cases as follows:

“Where, as in this case, there is a provision that upon a certain contingency the estate given shall pass to another, the law favors the first taker and will construe the words of the will to grant to the first taker the greatest estate which they, by a fair construction in harmony with the will as a whole, are capable of passing.” Darragh v. Barmore, Tex.Com.App., 242 S.W. 714, 716; Renner et al. v. German, supra. “It is elementary that if it does not clearly appear from the language of the will that a less estate was intended to be created the devise will be deemed to be in fee simple.” Pritchett v. Badgett, Tex.Civ.App., 257 S.W.2d 776, 777 (wr. ref.).
“The rule that every part of a will must be given effect, if possible, is subordinate to the rule that a devise shall be deemed a fee simple, unless limited by express words.” Winfree v. Winfree, Tex.Civ.App., 139 S.W. 36, 37 (wr. ref.).

See also the cases of Gilliam v. Mahon, Tex.Civ.App., 231 S.W. 712 and Roberts v. Drake, Tex.Civ.App., 380 S.W.2d 657.

We are of the opinion, and so hold, that this will under Paragraph 3 intended and did devise and bequeath to Francis Obrecht and Dora Belle Obrecht Russ (Moore) Section 15 in fee simple and were entitled to the greatest estate, which their parents were capable of passing.

If it does not clearly appear from the language of the will that a lesser estate was intended to be created, a devise will be deemed to be in fee simple. Article 1291 T.C.S.; Pritchett v. Badgett, Tex.Civ.App., 257 S.W.2d 776 (writ refused). Consequently, that portion of Section 4 of the will as to Section 15 would be of no effect, and the appellees, Francis Obrecht and Dora Belle Obrecht Russ (Moore), are entitled to Section 15 and we overrule all of appellants’ assignments of error.

Judgment of the trial court is affirmed.


author: DENTON, Chief Justice.

text:
    WESTERN FIRE & INDEMNITY COMPANY, Appellant, v. Betty EVANS et vir, Appellees.
    No. 7409.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 26, 1964.
    Rehearing Denied Nov. 30, 1964.
    See also Tex.Civ.App., 368 S.W.2d 114.

      Crenshaw, Dupree & Milam, Lubbock, for appellant.
    Wagonseller & Cobb, Sam Brown, Lubbock, for appellees.
   DENTON, Chief Justice.

This is a workmen’s compensation case. Western Fire & Indemnity Company has appealed from a judgment baséd on a jury verdict finding Betty Evans totally and permanently incapacitated. Betty Evans, a nurse’s aide employed by the Methodist Hospital in Lubbock, Texas, alleged an injury to her low back while lifting a patient on April 10, 1961. She further alleged an aggravation of her condition in the same employment on July 9 of that year.

Appellant’s first point of error complains of the refusal of the trial court to submit its requested special issue inquiring if Mrs. Evans’ incapacity had not been caused solely by conditions unrelated to her hospital employment. This defense was properly pleaded. Thus, the court is required to submit this affirmative defense when there is evidence raising such issue. Rules 277 and 279, Texas Rules of Civil Procedure. The only evidence in the record offering to show any condition which may have caused appellee’s disability other than the injuries sustained in the course of her employment was certain testimony of Dr. Porres. The doctor, testifying from his records, had treated appellee in January, 1961 for abdominal pain in her “right lower region, and again somewhat into her lower abdomen” and some nausea. He next saw her on April 11, 1961, the day after the appellee’s alleged injury. Dr. Porres testified appellee did not tell him of her April 10 injury on that occasion. His records show her “main complaint at that time was pain in the coccyx off and on for six months radiating through her left buttock, was pain on the left side of neck and shoulders between the shoulder blades, indigestion all the time, burning of the epi-gastrium all the time, chest is better but still coughs up dark mucus.” Neither Dr. Porres nor the other two medical witnesses testified that appellee’s incapacity was caused solely by her condition as found by Dr. Porres in his January, 1961 examination. In fact, the low back injury was confirmed by Dr. Ivan Mayfield who treated appellee for this condition. We conclude the evidence was not sufficient to require the submission of the requested issue.

Appellant’s second point of error asserts there was error in appellee’s closing jury argument when he called on appellant’s attorney to explain why he had not called Dr. Loveless as a witness and challenged appellant to explain such omission. Appellant’s counsel made no objection at the time the argument was made, but at the conclusion of appellee’s attorney’s argument, he attempted to give an explanation. When he began his remarks, to-wit: “Just this one thing, the argument that we went shopping for a specialist, number one, I think that when I checked with Dr. Loveless’s office * * Appellee’s objection that it was “hearsay telephone conversation” was in effect sustained by the trial court. No exception was taken and the matter was ended. This court held in the first trial of this case in Tex.Civ.App., 368 S.W.2d 114 the appellee’s attorney had the right to comment on appellant’s failure to call Dr. Loveless as a witness. The facts concerning the relationship between appellant and Dr. Loveless in the present case are identical to those in the first trial. The episode at the close of the argument does not alter our view that the argument complained of presents no reversible error. Tex-Jersey Oil Corp. v. Beck, 157 Tex. 541, 305 S.W.2d 162, 68 A.L.R.2d 1062; Rodman Supply Co. v. Jones (Tex.Civ.App.), 370 S.W.2d 951.

Appellant’s points three through seven complain of the admission of testimony by Doctors Porres, Smith, and May-field, in response to various hypothetical questions propounded by appellee’s attorney on cross-examination. Two questions directed to Dr. Porres relating to the permanency of appellee’s condition were based on hypothetical assumptions. Objection was made that the questions were based on facts not in evidence. A review of the testimony shows the relevant symptoms included in the questions were testified to by the appellee and later by Dr. Mayfield. Two questions propounded to Dr. Smith related to treatment of patients with back injuries by administering injections for relief and their effects on the patients. These questions were clearly invited by previous testimony by Dr. Smith on direct examination when he testified he had suggested “an injection of different points at the lim-bosacral level where the asymmetry was present might be helpful in localizing the point of pain and trouble.” These questions were clearly within the realm of proper examination.

Appellant further contends error was committed by the admission of Dr. Mayfield’s testimony concerning appellee’s condition when such testimony was based on a hypothetical question which was prefaced by the following definition:

“Total incapacity as used under the workmen’s compensation law, means the person who is disqualified or unable to perform the usual tasks of a workman to such an extent that he or she cannot procure and retain employment.”

This question was limited to information acquired by Dr. Mayfield during his examination of appellee. We are of the opinion the question was proper and is not subject to the objection it was an invasion of the province of the jury. Federal Underwriters Exchange v. Cost, 132 Tex. 299, 123 S.W.2d 332. The question included a substantially correct definition of total disability under the Texas Workmen’s Compensation Act Trinity Universal Ins. Co. v. Scott (Tex.Civ.App.), 342 S.W.2d 348 (Refused, NRE).

Appellant’s points of error eight through twenty deal with the admission of portions of the testimony of appellee, her husband, Dr. Smith, Dr. Mayfield, and the forms of questions propounded by appellee’s attorney. A discussion of each point would unduly lengthen this opinion. One of counsel’s questions objected to was never answered and it was withdrawn; other alleged objectionable testimony included appellee’s statement that the doctor and hospital bills had not been paid; that appellant had not paid appellee any weekly compensation; that to get in or out of a hospital “you practically have to sign your life away” ; testimony of appellee’s husband that on the night of her injury appellee had told him she had hurt her back while working; and that appellee could not afford medical treatment for her eight-year-old son. In considering these and other evidence objected to we find nothing in the record which presents reversible error. Some of the evidence was undoubtedly immaterial and irrelevant, but we can not say the evidence complained of was calculated to cause and probably did cause the rendition of an improper judgment. Rule 434, T. R.C.P.

Appellant’s points of error twenty-one through twenty-eight contend the trial court erred in the submission of certain special issues and instructions. Special Issue No. Six inquired if “such total incapacity, if any, is permanent or temporary”. This issue was conditionally submitted, and the jury found in response to Special Issue No. Four that appellee had sustained total incapacity. This method of submission is not subject to appellant’s objection the issue assumes a disputed fact, and as such, an improper comment by the court. Stone v. Texas Employers’ Ins. Ass’n., 154 Tex. 21, 273 S.W.2d 59. Special Issue No. Twelve inquired of the difference between appellee’s average weekly wages before her injury, if any, and her average weekly wage earning capacity during the existence of such partial incapacity, if any. It is appellant’s contention the issue assumed appellee was injured. The jury found appellee did not suffer partial incapacity but total incapacity, and the jury did not answer issue No. Twelve. In view of the jury finding appellant’s contention is without merit. Texas Employers’ Ins. Ass’n. v. Price (Tex.Civ.App.), 336 S.W.2d 304; Texas General Indemnity Co. v. Bridwell (Tex.Civ.App.), 304 S.W.2d 131 (Refused). Objection was also made to the court’s definition of “total incapacity”. The definition as given is as follows:

‘Total incapacity’ as used in this charge, does not imply an absolute disability to perform any kind of labor, but a person disqualified from performing the usual tasks of a workman to such an extent that he is unable to procure and retain employment is ordinarily regarded as being totally incapacitated or totally disabled.”

It is appellant’s contention this definition fails to advise the jury that appellee must suffer loss of wage earning capacity; and it fails to inform the jury that it is not necessary that appellee be able to return to the same kind of work prior to the injury, and one is not disabled if he can obtain and retain employment suited to his condition and experience. The definition as given is not subject to these objections. It is the standard definition of that term and has been approved many times by the Supreme Court and Courts of Civil Appeals. Texas Employers’ Ins. Ass’n. v. Mallard, 143 Tex. 77, 182 S.W.2d 1000; Texas Employers’ Ins. Ass’n. v. Logsdon (Tex.Civ.App.), 278 S.W.2d 893 (Refused, NRE); Texas Employers’ Ins. Ass’n. v. King (Tex.Civ.App.), 346 S.W.2d 380 (Refused, NRE). Other objections were made to the charge but they present no new or novel questions. A discussion of them would further unduly lengthen this opinion. All points have been considered, and all points not specifically discussed are overruled. The judgment of the trial court is affirmed.

Affirmed.


author: WALTER, Justice.

text:
    H. E. BUTT GROCERY COMPANY, Appellant, v. Morris SHACHET et ux., Appellees.
    No. 3929.
    Court of Civil Appeals of Texas. Eastland.
    Nov. 20, 1964.
    Rehearing Denied Dec. 11, 1964.
    Groce, Hebdon, Fahey & Smith, San Antonio, for appellant.
    Porter, Madalinski & Mondin, San Antonio, for appellees.
   WALTER, Justice.

Fannie Shachet and her husband Morris Shachet filed suit against H. E. Butt Grocery Company for damages resulting from alleged personal injuries sustained by Mrs. Shachet when she fell from a bench provided by Butt for its customers. Plaintiffs pleaded that after Mrs. Shachet seated herself in a proper manner upon the bench she suddenly and without warning found herself tossed to the concrete floor in a violent manner causing injuries to her body.

Butt filed a plea of privilege to be sued in Nueces County. Shachets controverted the plea and alleged subdivisions 9a and 23 of Article 1995, Vernon’s Ann.Civ.St. were applicable and sought to retain venue in Bexar County. From a judgment overruling its plea of privilege, Butt has appealed.

It contends there was no evidence and insufficient evidence of negligence and proximate cause under subdivisions 9a and 23 of Article 1995 to justify retention of venue in Bexar County. The Shachets are residents of Bexar County. Butt is a corporation with its principal place of business in Nue-ces County. It owns several stores in Bexar County.

Edward Whitted, Butt’s manager at the store where Mrs. Shachet was alleged to have been injured, testified substantially as follows: We have a table and a bench at the store. The purpose of the barbeque bench and the table is for the use of youngsters, to keep them out of their mother’s hair. It is a sort of a dayroom and we have Comic books there to entertain the youngsters. We maintain the table and bench for the benefit of our customers. Mr. and Mrs. Shachet are regular customers of ours. The benches are redwood outdoor benches. They are very low and very small and we purchased them to be used by children. There is about a ten inch overhang from the end of the bench to the legs that support it. The bench is six feet long. I have no idea how much they weigh.

John Anderson testified substantially as follows: I work at the H. E. B. Store here in San Antonio as a stock boy. I remember the incident when Mrs. Shachet fell from the bench there at the store. I helped her to her car after she fell. I am familiar with the benches there at the store and they are used by anyone who wants to use them. On occasions I have used them myself. I would estimate the benches are about four feet long, about one foot wide and the overhang from the leg to the end of the bench would be about nine inches to one foot.

Mickey Hallam testified substantially as follows: Before I started to work at the store I had used the benches and read Comic books at the place where Mrs. Sha-chet fell. The benches are about five and a half feet long and about one foot wide. A bench is supported by two legs. There is about one foot overhang from the leg to the end of the bench. He was asked “as fár as the heighth is concerned from the floor level to the top, are they regular barbeque tables, the regular heighth?” and he answered “Yes”. If a person sits on the end of a bench it would probably tilt.

Morris Shachet testified substantially as follows: On the 11th of November, 1963, my wife and I were in Butt’s Store. On this occasion we bought some groceries. My wife sat down on a bench in the store. The floor had been washed and it was slippery. When my wife sat down on the bench it flipped over and she fell on the floor. There was no kind of warning given to my wife that the benches were maintained only for kids. No one informed me that if I sat down on the end of the bench it would tilt. My wife was injured as a result of this fall and was confined in the Baptist Memorial Hospital for three days. My wife is eighty years of age and I am seventy nine.

Our Supreme Court in Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368 at page 378 said:

“The ‘no duty’ doctrine is this: the occupier of land or premises is required to keep his land or premises in a reasonably safe condition for his invitees. This includes a duty of the occupier to inspect and to discover dangerous conditions. Smith v. Henger, 148 Tex. 456, 226 S.W.2d 425, 20 A.L.R.2d 853 (1950); Genell, Inc. v. Flynn [163 Tex. 632] 358 S.W.2d 543 (1962). His duty is to protect his invitees from dangers of which he, the occupier, knows, or (because of his duty to inspect) of which he should know in the exercise of ordinary care. If there are dangers which are not open and obvious, he is under a duty to take such precautions as a reasonably prudent person would take to protect his invitees therefrom or to warn them thereof.”

In Camp v. J. H. Kirkpatrick Co., (Writ Ref. N.R.E.), Tex.Civ.App., 250 S.W.2d 413 at page 416 the court said:

“By such a duty rule, the invitee then is under a burden to prove the presence of a danger on the premises and that the owner knew or ought to have known of that danger, that he was negligent in maintaining the premises in that condition, and that such negligence proximately caused the injury.”

A careful study of all the facts and circumstances in evidence leads us to the conclusion that issues of fact were raised on negligence and proximate cause. We have considered all of appellant’s points and find no merit in them. They are overruled.

The judgment is affirmed.


author: COLLINGS, Justice.

text:
    REPUBLIC NATIONAL LIFE INSURANCE COMPANY, Appellant, v. The FIRST STATE BANK OF SAN DIEGO, Appellee.
    No. 3916.
    Court of Civil Appeals of Texas. Eastland.
    Nov. 13, 1964.
    Rehearing Denied Dec. 11, 1964.
    Thomas G. Nash, Jr., Dallas, for appellant.
    Werner A. Gohmert, Alice, for appellee.
   COLLINGS, Justice.

The First State Bank of San Diego brought this suit against Republic National Life Insurance Company for the sum of $3,980.00, together with penalty and attorney’s fees, alleged to be due plaintiff imder the terms of a policy group credit life insurance issued by the defendant insurance company to and for the benefit of the plaintiff bank. The bank sought to recover as a creditor of Mrs. Elfred W. Dob-ie, alleged to have been covered under the terms of said policy at the time of her death. The case was tried before the court without a jury upon stipulated facts. Judgment was entered in favor of plaintiff bank against the defendant insurance company as prayed. The insurance company has appealed.

The facts as stipulated show that on or about May 1, 1960, the appellant insurance company delivered a master group credit life insurance contract to appellee bank which, among other things, provided that “All debtors of the Creditor * * *, whose respective names and amounts of indebtedness as of the effective date of this policy are submitted by the Creditor to the Company * * * shall he initially insured * * * on the effective date of this policy * * *. While this policy is in force, all new debtors * * * may likewise be insured hereunder from the date they become new debtors of the Creditor.” Under the heading of “Coverage of New Debtors” the policy further provided that “New or additional debtors may be admitted to coverage * *

On June 28, 1961, Mrs. Elfred W. Dobie executed a general power of attorney to her son and on June 29, 1961, her son on her behalf executed a promissory note to ap-pellee bank in the sum of $10,115.00, payable March 1, 1962, and secured by a chattel mortgage. On the June report filed by appellee bank with the appellant insurance company Mrs. Dobie was listed for credit insurance and a premium was paid therefor. On February 28, 1962, a renewal note in the sum of $8,980.00 was executed by Mrs. Dobie’s son as her attorney in fact extending the prior note dated June 29, 1961. Appellee bank again listed Mrs. Dobie for credit life insurance on its report to the insurance company and a premium was paid therefor. On September 1, 1962, another note was' executed by Mrs. Dobie’s son for and on her behalf in the sum of $3,980.00, which was a renewal and extension of the note dated February 28, 1962, and constituted the entire balance due on said prior notes. Mrs. Dobie’s name was again listed on the credit life insurance report for that month and a premium was paid to appellant insurance company. On June 6, 1963, Mrs. Dobie died from a coronary heart disease and proof of her death was duly filed. All premiums paid bjr the bank for the coverages sought to be placed in force were tendered and sought to be returned by appellant insurance company to appellee bank but the bank rejected such tender.

In its first three points appellant Republic National Life Insurance Company contends that the court erred in refusing to render judgment in its favor because the bank failed to discharge its burden of proving that Mrs. Dobie was insured under the group credit life insurance contract; that to be eligible for insurance under the group policy it was required that Mrs. Dobie should be “a new debtor”, and that the bank did not sustain its burden of proving that Mrs. Dobie was a new debtor at the time the insurance was sought to be placed upon her life. We cannot agree with this contention. Under the terms of the master policy coverage could exist on the life of Mrs. Dobie if she was initially insured as a debtor on the effective date of the policy or if at the time of the execution of the note sued upon she incurred a new debt with appellee bank as contemplated by the terms of the policy. It is not contended that Mrs. Dobie was initially insured on the effective date of the policy in question. It is contended, and in our opinion correctly, that Mrs. Dobie was a “new or additional debtor” as contemplated by the terms of the policy. The first debt created against Mrs. Dobie on June 29, 1961, came into existence after the effective date of the master policy, to wit, May 1, 1960, and while such policy was still in force. Without question Mrs. Dobie was a new debtor at that time as contemplated by the terms of the policy. The subsequent notes including that of September 1, 1962, in the sum of $3,980.00, which is here in question, were extensions of the original note and likewise constituted “new or additional debts” within the meaning of the policy provisions and are within the coverage applicable to new or additional debtors.

Appellant relies upon Republic National Life Insurance Company v. Spillars, 368 S.W.2d 92 (Sup.Ct.), in support of its contention that Mrs. Dobie was not a new debtor as contemplated by the provisions of the group credit life insurance contract. The facts of the Spillars case are different from those of the instant case. In that case Spillars was indebted to the bank before the insurance company issued the group creditor life insurance contract to the bank. Spillars thereafter executed a note to the bank in renewal of the indebtedness which existed prior to the issuance of the insurance policy. Our Supreme Court held that under those facts Spillars was not “a new debtor” and was ineligible for coverage under the provisions of the policy insuring the bank’s new debtors. In the instant case Mrs. Dobie was not indebted to the bank when appellant insurance company issued the policy sued upon. She was a new debtor at the time of the execution of the note dated June 29, 1961. It is our opinion that under the terms of the policy sued upon she continued to be a new or additional debtor in the execution of each' of the subsequent notes, which were extensions and renewals of such indebtedness.

In appellant’s sixth point it is contended that the court erred in refusing to render judgment in its favor because appellee bank failed to discharge its burden of proving that coverage on the life of Mrs. Dobie was not within the policy exception. Appellant insurance company urged in its pleadings that Mrs. Dobie’s life was excluded from the group coverage by the following policy exception:

“2. Debtors who are delinquent on their contracts of indebtedness on the date insurance under the policy would otherwise have become effective on such debtors.”

Appellant contends that appellee bank failed to show that this exception did not apply to Mrs. Dobie and exclude her from coverage under the policy. We agree with appellant’s contention that since appellant pleaded the exception referred to, appel-lee was required to show that the note in question was not delinquent at the time of Mrs. Dobie’s death on June 6, 1963. Rule 94, Texas Rules of Civil Procedure. But, we cannot agree that appellee failed to establish such fact. It was stipulated that the note in question was executed on September 1, 1962, and payable on September 1, 1963. It was stipulated that Mrs. Dobie died on June 6, 1963, and the note according to the stipulation was therefore not at that time delinquent, since it was not due until September 1, 1963.

The judgment is affirmed.


text:
    Nago L. ALANIZ et ux., Appellants, v. Hilmer B. HAEGELIN et al., Appellees.
    No. 3920.
    Court of Civil Appeals of Texas. Eastland.
    Nov. 20, 1964.
    Rehearing Denied Dec. 11, 1964.

      Utter & Chase, Corpus Christi, for appellants.
    Perkins, Floyd, Davis & Oden, Alice, for appellees.
   WALTER, Justice.

This is a venue suit. Nago L. Alaniz1 and wife, Elvira L. Alaniz, filed suit in Duval County against Rafael Garcia who resides in Duval County and Hilmer B. Haegelin and wife, Margaret H. Haegelin, who reside in Medina County, for damages based on fraud in connection with a real estate transaction wherein plaintiffs purchased a house and lot from Haegelin in Duval County. Plaintiffs allege fraudulent representations about the sound condition of the house were made by defendants in Duval County. Garcia resides in Duval County where the suit was filed. In his plea of privilege Garcia asserted that he was being sued as an agent of the defendants Haegelin. He asserted that Haegelin resided in Medina County and requested the court to transfer the cause of action to that county. The Haegelins filed pleas of privilege asserting that they resided in Medina County and requested the court to transfer the case to that county. The plaintiffs controverted Garcia’s plea of privilege and alleged that Garcia was a resident of Duval County where the suit was filed. They also alleged that they were entitled to maintain venue against Garcia in Duval County under exception number 7 of Article 1995, Vernon’s Ann.Civ.St. The plaintiffs controverted Haegelins’ pleas of privilege and alleged that the court had venue of them in Duval County under exception 7 of Article 1995.

The plaintiffs requested a jury for the plea of privilege hearing. At the close of plaintiffs’ evidence the court granted defendants’ motion for an instructed verdict. Judgment was rendered granting the pleas of privilege of Garcia and the Haegelins and transferring the cause of action to Medina' County. The plaintiffs have appealed.

Appellants contend the court erred in granting the instructed verdict because the evidence raised issues of fact under subdivisions 7 and 4 of Article 1995. They also contend the court erred in granting Garcia’s plea of privilege because the evidence conclusively showed that Garcia was a resident of Duval County.

If the record contains some evidence of probative force to support appellants’ allegation as to the venue facts they were entitled to have their issues submitted to and decided by the jury. In deciding this question we are to discard all adverse evidence and give credit to all evidence favorable to the appellants and indulge every legitimate conclusion favorable to the appellants which might be drawn from the facts proved. In Maryland Casualty Company v. Morua, Tex.Civ.App., 180 S.W.2d 194, at page 195, the court said:

“If an issue of fact is raised by the evidence, it must go to the jury even though a verdict based on such evidence would have to be set aside as not supported by sufficient evidence. Wallace v. Southern Cotton-Oil Company, 91 Tex. 18, 40 S.W. 399.”

We are compelled to hold that the court erred in granting Garcia’s plea of privilege because subdivision 7 of Article 1995, V.A.C.S. authorizes cases of fraud to be brought in the county of the defendant’s domicile. The evidence conclusively shows that Garcia was domiciled in Duval County at the time suit was filed.

Appellants pleaded the following: “That the Defendants did represent to these Plaintiffs that the house purchased was, in all things, sound and in an excellent state of repair with no defects of any type or nature; that in reliance upon the representation of said Defendants, these plaintiffs did enter into a real estate contract and purchased the aforesaid house * * * that the Defendants knew, or in all reasonable probability should have known, that said house had hidden defects which an inspection thereof would not reveal; that in spite of the representation upon which these Plaintiffs relied, the roof of the house leaks which has ruined the ceiling and portions of the living room and the southwest bedroom; that in addition thereto, the floors, window sills, walls and- foundation of said house is infested with termites- * * * that Plaintiffs have been damaged in the sum of Three Thousand Five Hundred and no/100 Dollars ($3,500.00), all because of the misrepresentations of the Defendants, and their agent, Rafael Garcia, upon which these Plaintiffs relied to their detriment. * * * that the misrepresentations and fraud upon which these Plaintiffs-rely to their detriment occurred in San Diego, Duval County, Texas”.

A careful study of all the facts and circumstances in evidence leads us to the conclusion that they raise issues of fact on all of the elements of actionable fraud.

The judgment is reversed and the cause is remanded.