author: HUGHES, Justice.

text:
    James O. GERST, Savings and Loan Commissioner et al., Appellants, v. JEFFERSON COUNTY SAVINGS AND LOAN ASSOCIATION, Appellee.
    No. 11324.
    Court of Civil Appeals of Texas. Austin.
    April 28, 1965.
    Rehearing Denied May 19, 1965.

      Waggoner Carr, Atty. Gen., Hawthorne Phillips, First Asst. Atty. Gen., Stanton Stone, Executive Asst. Atty. Gen., John W. Fainter, Jr., Asst. Atty. Gen., Jim Bob Bryan, Counsel for Savings & Loan Dept, of Texas, Heath & Davis, Dudley D. McCalla, Austin, McNicholas & Crawford, Beaumont, for appellants and cross-appellee.
    C. K. Richards, Jake Jacobsen, Brown, Sparks & Erwin, Frank C. Erwin, Jr., Austin, for appellee and cross-appellants.
   HUGHES, Justice.

This suit by Jefferson County Savings and Loan Association is in the nature of an appeal from an order entered by the Savings and Loan Commissioner of Texas, James O. Gerst, on September 24, 1964, approving an application of Beaumont Savings and Loan Association for authority to operate a branch office in the City of Beaumont.

The Commissioner and the two loan associations are the only parties and they will be referred to as “Commissioner,” “Beaumont” and “Jefferson,” respectively.

All parties moved for summary judgment. The motion by Jefferson was granted; the others denied.

The principal question presented by this appeal is reflected by the summary judgment rendered below, and we quote the following therefrom:

“ * * * since the order entered on September 24, 1964, by defendant James O. Gerst, Savings and Loan Commissioner of Texas, granting the application of defendant Beaumont Savings and Loan Association to open and operate a branch office of said association at the corner of 11th and Lucas Streets in the City of Beaumont, Jefferson County, Texas, does not contain any finding by the Commissioner that there is a public necessity for the proposed branch and that the volume of business in the community in which the proposed branch of the association will be conducted is such as to indicate a profitable operation, which are the same basic standards which are set for the granting of an application for an original charter of a savings and loan association required by the provisions of Section 2.08(3), Article 852a, Vernon’s Texas Civil Statutes, such order is invalid and of no legal force and effect under the rulings of the Supreme Court of Texas in Southwestern Savings and Loan Association of Houston v. Falkner, 160 Tex. 417, 331 S.W.2d 917, and the law and the facts are with the plaintiff and against the defendants, and that the motion for summary judgment filed by plaintiff Jefferson County Savings and Loan Association should be granted and that the motions for summary judgment filed by each of the defendants, James O. Gerst, Savings and Loan Commissioner of Texas, and Beaumont Savings and Loan Association should be refused; * *

In the Southwestern case cited by the trial court in its judgment, the Supreme Court construed Arts. 881a-l to 881a-69, V.T.C.S., prior to their repeal. Acts 1963, 58th Leg., p. 269. In its opinion the Court stated:

“Petitioner contends that the statutes are unconstitutional if they be given the interpretation we have given them because they set no standards by which approval or disapproval of branch offices is to be determined. Generally, a legislative delegation of rule-making authority must fix standards in order to be valid. Housing Authority of City of Dallas v. Higginbotham, 135 Tex. 158, 143 S.W.2d 79, 130 A.L.R. 1053. But under our interpretation of Article 881a—2 the same basic standards are set for the approval or disapproval of applications to open branch offices as are set for the granting of an application for a charter in the first instance. The statutory standards of public convenience and advantage, and adequate population to assure reasonable support are sufficient statutory basis for the rules and regulations.”

In Benson v. San Antonio Savings Association, 374 S.W.2d 423, Texas Sup., the Court said:

“In Southwestern Savings and Loan Ass’n of Houston v. Falkner, 160 Tex. 417, 331 S.W.2d 917, we held that approval of the Commission for the establishment and operation of branch offices by building and loan associations is impliedly required by the provisions of Arts. 881a-2 and 881a-7, otherwise the purpose of the two statutes would be largely nullified. We further decided in that case that the same basic standards which govern the approval or disapproval of the application for an original charter shall apply to applications for the opening of branch offices, since excessively zealous competition may be waged quite as effectively by setting up branch offices as by the granting of charters in the first instance.”

In 1963, the Legislature enacted the Texas Savings and Loan Act, effective January 1, 1964, which now appears as Art. 852a, Vernon’s Ann.Tex.Civ.St.

Sec. 2.08 of Art. 852a provides that the Commissioner shall not approve any application for a charier for a savings and loan association unless he affirmatively finds and so states in writing, inter alia, that “(2) the character, responsibility and general fitness of the persons named in the Articles of incorporation are such as to command confidence and warrant belief that the business of the proposed association will be honestly and efficiently conducted in accordance with the intent and purpose of this Act and that the proposed association will have qualified fulltime management; (3)there is a public need for the proposed association and the volume of business in the community in which the proposed association will conduct its business is such as to indicate profitable operation; * * *.”

The Texas Savings and Loan Act does not contain any express prerequisites for obtaining authority from the Commissioner for the opening of a branch office for a savings and loan association which has been granted a charter. In fact, it contains no express authority for the establishment of branch offices for such associations. However, and it is not contested here, ample implied authority may be found in Secs. 2.13 and 2.14 of Art. 852a for the creation of branch offices of such an association.

Beaumont does not, as we understand it, contend that the Commissioner complied with and made all the findings required by Sec. 2.08, Art. 852a, but it contends that the Commissioner has made all of the findings required of him by the rules promulgated by the Building and Loan Section of the Finance Commission of Texas under the provisions of Art, 342-114, V.T.C.S., which authorizes the promulgation of rules for savings and loan associations, inter alia, which are not “inconsistent with the Constitution and Statutes of this State.”

These rules do not contain the requirements prescribed in Sec. 2.08(2) (3), Art. 852a, supra, and the order of the Commissioner under attack here does not contain a finding on such matters.

It is the position of the Commissioner and Beaumont that the order of the Commissioner of September 24, 1964, “entered pursuant to lawful and proper rules and regulations, is deemed to be valid until the invalidity of said rules is alleged and proven by proper pleadings and proof.”

The record does not disclose that Jefferson has alleged the invalidity of the rules promulgated for the Commissioner and it has not alleged that the order of the Commissioner is not reasonably supported by substantial evidence.

The record does disclose that the order of the Commissioner involved here does contain all of the findings required by the rules promulgated and in force for his guidance when such order was issued.

Sec. 11.12 and paragraphs (1) (b) and (2) of Art. 852a read:

“Any party with an interest in the subject matter thereof who is dissatisfied with any act, order, ruling or decision of the Commissioner taken or made, or with any rule or regulation promulgated by the Commissioner and the Building and Loan Section of the Finance Commission in connection with the administration of this Act, may secure judicial review thereof in the following manner:
“(1) Venue, (a) Proceedings for review of a removal order entered pursuant to Section 8.14 of this Act, may be instituted by filing a petition as in civil actions generally against the Commissioner, as defendant, either in a district court of Travis County, or in the district court of the county in which any person affected by such order resides or of the county in which the principal office of the association affected by such order is located.
“(b) Proceedings for review of other acts, orders, rulings or decisions of the Commissioner or of any rule or regulation promulgated by the Commissioner and the Building and Loan Section of the Finance Commission may be instituted by filing a petition as in a civil action generally against the Commissioner, as defendant, in a district court of Travis County and not elsewhere.
“(2) Time for Filing. Any petition for judicial review must be filed within thirty (30) days after the action, order, ruling or decision of the Commissioner is final or the rule or regulation complained of is promulgated.”

The rules for the Commissioner which were in force on September 24, 1964, were promulgated and adopted November IS, 1963, and were made effective January 1, 1964. Jefferson filed its Original Petition herein on October 15, 1964.

The Commissioner and Beaumont take the position that the suit by Jefferson is an attack on the rules adopted for the Commissioner effective January 1, 1964, and hence is barred by Sec. 11.12(2) of Art. 852a.

The suit by Jefferson is not by its terms an attack on the rules, however, this may be its practical effect.

There are many questions present but not presented in the case before us. The language of Sec. 11.12 defining the persons who may seek judicial review is very broad. If it includes the interloper or the merely curious and is not confined to those persons having a justiciable interest, it would be of doubtful validity. If paragraph (2) of Sec. 11.12 is construed to include a person having no present controversy under a rule or regulation promulgated for use by the Commissioner or a person on whom the rule has no immediate impact, the requirement that he may or must petition for judicial review of such rule or regulation within the thirty days prescribed would be of doubtful validity. These sections would require courts to give advisory opinions, a function the courts may not perform. The missing ingredient has been called the “ripeness for review.” See 2 Am.Jur.2d, Administrative Law, Sec. 583, p. 410; also 28 Tex.L.Rev. 376 (1950).

We are of the opinion that if there is a conflict between the requirements of the statutes and the rules promulgated by the Building and Loan Section of the Finance Commission then, to such extent, such rules are void and of no force or effect. The only authority needed to support this conclusion is the statute, 342-114, under which the rules were promulgated. This statute expressly limited the content of the rules to matters not inconsistent with the Constitution and statutes.

The general law on this subject is stated in 2 Am.Jur.2d, Administrative Law, Sec. 300, p. 126, from which we quote:

“Administrative rules and regulations, to be valid, must be within the authority conferred upon the administrative agency. A rule or regulation which is broader than the statute empowering the making of rules, or which oversteps the boundaries of interpretation of a statute by extending or restricting the statute contrary to its meaning, cannot be sustained. To the extent that a regulation is not in conformity with the statute and with controlling judicial interpretations of the statute it conflicts with the meaning of such statute and so is unauthorized; and regulations must conform, not only with the statute under which they are issued, but also with the constitution and other laws.
“Administrative agencies must strictly adhere to the standards, policies, and limitations provided in the statutes vesting power in them. A rule or regulation to be valid may only implement the law, and regulations are valid only as subordinate rules and when found to be within the framework of the policy which the legislature has sufficiently defined.”

It is our opinion that the order approving the application of Beaumont for authority to operate a branch office in the City of Beaumont is invalid for failure of the Commissioner to make all the affirmative findings specified in Sec. 2.08, Art. 852a, and not previously found by him, the rules to the contrary notwithstanding. Southwestern Savings and Loan Association of Houston v. Falkner, supra.

Our decision is limited to the case before us. Whether the requirement of rules for the establishment of branch offices are more lenient or more onerous than the statutory requirements, and their validity in either case, is not before us. All that we do hold, in this respect, is that the rules as read or as interpreted cannot supplant the statutes.

We also hold, for the reasons above stated, that Jefferson is not precluded by Sec. 11.12(2) of Art. 852a from attacking the order granting the application of Beaumont or the rules under which it was approved. Appellants’ first four points which present the questions discussed above are overruled.

Point five is that the trial court erred in holding that Jefferson was not estopped from attacking the order granting Beaumont’s application and the rules and regulations under which it was issued.

Beaumont made the following allegations in its amended answer:

“There are common directors of plaintiff herein, Jefferson County Savings and Loan Association, and Orange Savings and Loan Association of Orange, Texas. On information and belief, this defendant alleges plaintiff herein is directed and controlled by the same persons and common stockholders (whether in their own names or through controlled corporations) who direct and control Orange Savings and Loan Association. On the 15th day of May, 1964, pursuant to an application, filed by Orange Savings and Loan Association, a branch office to be located in Vidor, Texas, was granted Orange Savings and Loan Association by an order entered by the Savings and Loan Commissioner of Texas on said date. Said order of May 15, 1964 made none of the findings complained about in Paragraph 6 of plaintiff’s original petition on file herein and therefore is, in this regard, the same as the order complained of in plaintiff’s original petition herein. * * * Inasmuch as there are common directors of plaintiff and Orange Savings and Loan .Association, and since plaintiff is believed to be under the control and direction of the same persons controlling and directing Orange Savings and Loan Association, such persons and the plaintiff association, controlled by them, are prohibited and estopped from attacking the validity of an order alleged by plaintiff to be void, but which is not materially different from an order under which they claim and have obtained a substantial benefit.”

These allegations were made the subject of special exceptions by Jefferson which the trial court sustained.

Accepting the truthfulness of the allegations made by Beaumont, we are of the opinion that the exception was properly sustained.

In our opinion, the elements of estoppel are not present. If a mistake was made in granting the application of Orange, it was the mistake of the Commissioner. There are no allegations that Orange made any representations to the Commissioner to induce him to waive any statutory requirements. There is no allegation that Orange did anything except what the Commissioner required it to do. There is no allegation that Orange took any position on the sufficiency of the requirements made by the Commissioner. Orange is guilty only of compliance with the rules prescribed for the Commissioner. There is no basis for estoppel.

There is no showing that the question of estoppel was considered by the Commissioner. In fact, the contrary appears. Sec. 11.12(5), Art. 852a provides, in part, that on the trial on appeal “no evidence shall be admissible which was not adduced at the hearing on the matter before the Commissioner or officially noticed in the record of such hearing.”

Giving full effect to this statute, as we do, no issue of estoppel could be tried by the court below, and the court correctly declined to try it.

We also doubt that the Commissioner, had such matter been presented to him, would have had authority to resolve it. See Trapp v. Shell Oil Co., 145 Tex. 323, 198 S.W.2d 424. This case is authority for the rule that neither the Railroad Commission nor the District Court on appeal has jurisdiction to determine issues not within powers committed to the agency by law. We are not advised of any authority conferred by law on the Commissioner to adjudicate the validity of a plea of estoppel between adverse parties interested in the issuance of a permit to establish and operate a branch office for a savings and loan association.

Jefferson has filed an appeal from that portion of the trial court’s judgment remanding this case to the Commissioner for further proceedings not inconsistent with its judgment and its point of error is that this portion of the judgment is erroneous.

The judgment, in this respect, was authorized by statute. Sec. 11.12(6).

It is our opinion that this is a purely procedural statute and that it does not raise any constitutional problems. The court, under this statute, has not attempted to exercise any judgment or discretion vested in the Commissioner. Under the court’s judgment, which we affirm, the Commissioner is advised only that he has not fully complied with the law and has not made findings which he is required to make and the case is remanded to him in order that he may do so. What these findings may be are left to his discretion.

The practice of remanding cases to administrative agencies is always sustained when authorized by statute, and frequently when it is not so authorized. We quote from 2 Am.Jur.2d, Sec. 764, p. 664:

“While some cases hold that a court which is restricted to review on the record may not, without express authority therefor, remand the case to the agency, pending the court’s determination of the validity of an order, for the taking of additional evidence, the general rule is that even in the absence of statute, a court which sets aside an administrative determination has the power to remand the case to the administrative agency where such power is necessary to effectuate the demands of justice, and statutes frequently grant such authority to the courts. The court does not encroach upon the administrative functions by such procedure, and there is nothing in the principles governing judicial review of administrative acts which precludes the courts from giving an administrative agency an opportunity to meet objections to its order by correcting irregularities in procedure, or supplying deficiencies in its record, or making additional findings where these are necessary, or supplying findings validly made in the place of those attacked as invalid.” Italics ours.

Jefferson’s point on its appeal is overruled.

The judgment of the trial court is affirmed.

Affirmed.

      . Morrow v. Corbin, 122 Tex. 553, 62 S.W.2d 641.

      . Here the question is asked, “May the validity of a regulation be challenged by one to whom tbe regulation bas not yet been specifically applied?” Tbe answer was, “The case law provides no clear cut answer * *

      . It is not contended that the requirements of the rules are identical with the requirements of the statutes.


source: Caselaw Access Project

author: COLLINGS, Justice.

license: Public Domain

text:
    Sam HOUTCHENS et ux., Appellants, v. KYLE’S GROCERY CORPORATION, Appellee.
    No. 3973.
    Court of Civil Appeals of Texas. Eastland.
    April 23, 1965.
    Rehearing Denied May 21, 1965.
    Warren Burnett and Robert D. Pue, Odessa, for appellants.
    Key, Carr & Clark, Lubbock, Hackney & Crawford, Brownfield, for appellee.
   COLLINGS, Justice.

Sam Houtchens and wife Bertha Houtch-ens brought suit against Kyle’s Grocery Corporation for damages alleged to have been sustained when Mrs. Houtchens slipped on a potato sprout in front of a potato bin in defendant’s grocery store in Brownfield, Texas, and was thrown against a meat counter and thereby suffered a fractured pelvis and ruptured spinal disc. The trial court granted defendant’s motion for summary judgment and Mr. and Mrs. Houtchens have appealed.

Appellants present one point in which they contend that the court erred in granting summary judgment against them; that there was evidence which when considered in the light most favorable to them raised material issues of fact and from which it might be reasonably concluded that appellee failed to discharge its duty of ordinary care to Mrs. Houtchens and that such negligence was a proximate cause of her injury.

In Smith v. Bolin, 153 Tex. 486, 271 S.W.2d 93, 94, (Sup.Ct.) it is stated that

“In determining the question of whether or not material issues of fact were raised by the evidence, the court must, under the law, first view all the evidence in the light most favorable to the petitioners; disregard the conflicts in the testimony; and indulge, in favor of the petitioners, every intendment reasonably deducible from the evidence. White v. White, 141 Tex. 328, 172 S.W.2d 295; Fitz-Gerald v. Hull, 150 Tex. 39, 237 S.W.2d 256. A summary judgment is not proper if the evidence raises issues of fact to be determined by a court or jury.”

In appellee’s motion for summary judgment it was alleged that the pleadings, depositions and supporting affidavit showed that there was no genuine issue as to any material fact and that appellee was, therefore, entitled to a summary judgment in its favor. The material facts as shown by the record are in substance as follows:

Mrs. Houtchens stated in her deposition that she entered appellee’s store late in the afternoon on Wednesday, February 28, 1962; that as she was walking down one of the isles in the store she slipped on a potato sprout near the potato bin and fell; that she did not see any potato sprouts on the floor on that day prior to her fall, but that she had been in the store the previous day and saw several sacks of potatoes; that the eyes on such potatoes had grown to an extent that the sprouts were sticking out all over the sacks. Mrs. Houtchens stated that after she fell she saw Donald Brown, an employee of appellee, pick up some sprouts off the floor but she didn’t know how many; that he showed the sprouts to her and stated: “That damned nigger didn’t clean up after moving the potatoes.” Appellee’s employee, Brown, testified by affidavit stating that he saw Mrs. Houtchens slip and went to help her. He stated that he found potato sprouts on the floor where Mrs. Houtchens had slipped. He said, however, that he did not see any potato sprouts on the floor before Mrs. Houtchens slipped; that he had no knowledge of any potato sprouts being on the floor prior to or at the time Mrs. Houtchens slipped; that he had no knowledge of how the potato sprouts came to be on the floor prior to or at that time, and that he had no knowledge as to how long the potato sprouts had been on the floor prior to the time of the accident; that the first knowledge he had of the potato sprouts being on the floor was after Mrs. Houtchens had slipped. He further stated that he had no knowledge that anyone had failed to clean up the sprouts. He admitted that he had made some statement to Mrs. Houtchens about someone not cleaning up the potato sprouts at the time of the accident but that such statement was merely a supposition on his part. Ernie Davis, a colored employee of appellee, on the occasion in question, also testified by deposition. He was responsible for cleaning the store, did some “stocking” when necessary and “eyed” the potatoes or removed sprouts from them; that he was the only person who removed sprouts from the potatoes; that he swept every isle of the store the first thing each morning and an average of five times each day; that on Monday and Friday afternoons, when he removed the potatoes from the bin to “eye” them, he swept around the bin; that he also spot swept between the times of regular sweeping if something was on the floor; that the only times he cleaned the potatoes and removed the sprouts was on Mondays and Fridays ; that he accomplished this task by removing the potatoes from the bin, taking them back, sweeping around the rack, cleaning and replacing the potatoes and then sweeping around the bins again. He stated that he did not remove the potatoes to “eye” them on the day that Mrs. Houtchens fell or the day before; that he always did this work on Mondays and Fridays and that the accident occurred on Wednesday.

In H. E. Butt Grocery Co. v. Johnson, 226 S.W.2d 501, (San Antonio Civil Appeals, 1949) the essential requirements to show liability in “slip and fall” cases is stated as follows:

“ 1. That the defendant put the foreign substance upon the floor, or,
“2. That the defendant knew the foreign substance was on the floor and wil-fully or negligently failed to remove it, or
“3. That the foreign substance had been upon the floor for such a period of time that it would have been discovered and removed by the defendant, had the defendant exercised ordinary care.”

It is our opinion that in the instant case there is no showing that appellee placed the potato sprouts upon the floor, or had knowledge that the sprouts were on the floor and wilfully and negligently failed to remove them, or that such sprouts had been upon the floor for such a period of time that they would have been discovered and removed if appellee had exercised ordinary care. Appellants’ contention that there was evidence tending to show that appellee put the potato sprouts upon the floor is apparently based upon the uncontradicted testimony that there were several sprouts on the floor, and the further uncontradicted evidence that appellee’s employee Davis “eyed the potatoes”; that it was his invariable practice to load all of the potatoes in baskets and wheel them to the back of the store, to sweep the floor in the area of the bin, to eye the potatoes, to return them to the bin and again to sweep the floor in the area around the bin. The evidence falls short of showing that appellee placed the potato sprouts on the floor. As stated in Dill v. Holt’s Sporting Goods Store, 323 S.W.2d 644, (Houston Civil Appeals, 1959):

“The mere presence of a foreign substance on a stairway of a store open for business is insufficient to warrant an inference that the defendant placed or left it there or had knowledge of its presence, or that it had been there long enough to have enabled the defendant to discover and correct it by ¡he exercise of ordinary care.”

Appellants rely upon the statement which Mrs. Houtchens’ deposition testimony shows to have been made to her by Donald G. Brown immediately after the accident to the effect that “That damned nigger didn’t clean up after moving the potatoes.”

Appellants contend that the alleged statement by Brown tended to support the theory that Brown had knowledge of the presence of the sprouts on the floor prior to the time Mrs. Houtchens slipped and fell and had negligently failed to remove the sprouts. In this connection appellants rely upon H. E. Butt Grocery Co. v. Johnson, supra, in which a witness testified that shortly after the accident there involved the defendant’s store manager stated “I thought that had been taken care of.” Appellants also rely upon J. Weingarten Inc. v. Reagan, 366 S.W.2d 879, (Waco Civ.App.1963), where a witness stated that an employee of the defendant said: “I told the boy to remove those beans.” In each of those cases it was held that the testimony concerning the statement of the employee of the store was admissible because it tended to support the theory that the defendant had prior knowledge of the dangerous condition involved. The statement by Brown in the instant case is clearly distinguishable from the testimony concerning the statement in the H. E. Butt Grocery Company case. In that case the statement by the store manager that he thought the matter had been taken care of plainly indicates that he had prior knowledge of the existence of the dangerous condition. The statement in the Weingarten case that “I told the boy to remove those beans” also shows a prior knowledge of the fact that the beans were on the floor and that the employee who was instructed to remove them had failed to do so. Such is not true of the statement by Brown that the employee Davis “didn’t clean up after moving the potatoes.” Brown testified that prior to the time Mrs. Houtchens slipped and fell he had not seen the sprouts on the floor and had no knowledge that they were there. There was no evidence whatever to the contrary. There was no evidence that he had seen the sprouts before the accident, that he knew they were there, or that they had been there for such a time that he should have known of their presence. The statement by Brown that Davis “didn’t clean up after moving the potatoes, considered in context was obviously the statement of an opinion, guess or conclusion, not based upon personal observation or knowledge and therefore does not constitute probative evidence to show that Brown had knowledge of the existence of the sprouts on the floor prior to the time of the accident in question.

In Volume 2, Texas Law of Evidence by McCormick and Ray at page 218, it is stated that the difference between fact and opinion “is the vaguest sort of difference in degree, and the two shade into each other by indistinguishable gradations.” We recognize the correctness of this statement and the difficulty in making the distinction in some cases. In support of the judgment in the instant case we must presume that the trial court considered and held the statement by Brown to Mrs. Houtchens to be an inadmissible statement of opinion or conclusion and not a statement of fact constituting evidence of probative force. We agree with the presumed holding.

The judgment is affirmed.


author: TIREY, Justice.

text:
    HOUSTON LIGHTING & POWER COMPANY, Appellant, v. TENN-TEX ALLOY & CHEMICAL CORPORATION, Appellee.
    No. 4321.
    Court of Civil Appeals of Texas. Waco.
    April 15, 1965.
    Rehearing Denied May 13, 1965.
    Baker, Botts, Shepherd & Coates, Alvin M. Owsley, Jr., Houston, for appellant.
    Butler, Binion, Rice, Cook & Knapp, John L. McConn, Jr., Houston, for appellee.
   TIREY, Justice.

This action (nonjury) was brought by Tenn-Tex Alloy & Chemical Corporation against Houston Lighting & Power Company to recover the amount of alleged overcharges for electrical services made by appellant against appellee under a written contract for the billing months of August and December, 1960, and January, February and March, 1961, the contract having been executed August 31, 1956, for the purpose of furnishing a high voltage electric service by defendant to plaintiff. The bills were paid as rendered and plaintiff claimed that it had been overcharged in the total sum of $26,143 for the months above named. Judgment was rendered in favor of plaintiff for the amount sued for plus interest, and judgment was rendered against defendant on its cross-action. The contract is in evidence and the parties have stipulated that such contract is unambiguous. The sole question before the court is an interpretation of the written contract. The judgment is assailed on one point. It is to the effect that the Court erred in its construction of the contract. As we understand the parties, the only provisions of the contract which are involved in this dispute are:

“NET MONTHLY BILL
“D The amount of the net monthly bill shall be whichever is higher of the amounts determined under (i) and (ii) below subject in each case to the applicable adjustments stated under (iii) below:
“(i) Rate: kva Charge
$900.00 first 1,000 kva or less
.80 per kva next 1,000 kva
.60 per kva all additional kva, plus
Kwh Charge
5.5 mills per kwh first 200,000 kwh
4.5 mills per kwh next 200 kwh per kva
3.5 mills per kwh next 200 kwh per kva
3.0 mills per kwh all additional kwh
“(ii) Minimum: The sum of (a) the kva charge applicable to the highest kva established during the 12 months ending with the current month and (b) the kwh charge applicable to 200 kwh for each kva of said highest kva and (c) the adjustments stated below. In no event shall the sum of (a) and (b) be less than $2,000.00.
“(iii) Adjustments: (not in dispute)
* *
“KVA USED IN CALCULATING THE NET MONTHLY BILL
“H. The KVA charge to be used in calculating the net monthly bill shall be determined in accordance with the following provisions:
(1) If the highest KVA established in any month, whether it is the highest ON PEAK KVA or the highest OFF PEAK KVA, is equal to or less than the highest ON PEAK KVA established in any of the twelve months ending with and including the current month, such highest KVA for the current month shall be deemed to be the KVA for billing purposes.
“(2) If the highest OFF PEAK KVA established in the current month exceeds 100% but not 150% of the highest ON PEAK KVA established in the twelve months ending with and including the current month, the customer shall be billed only for such highest ON PEAK KVA so established during said period.
“(3) Should the highest OFF PEAK KVA established in any month exceed 150% of the highest ON PEAK KVA established in the twelve months ending with and including the current month, then the excess obove 150% shall be deemed for billing purposes to have been taken as additional ON PEAK KVA and shall be added to the highest ON PEAK KVA established in said twelve months period, which highest ON PEAK KVA, as increased by such excess, shall be the KVA for billing purposes for the current month. Such KVA so established for billing purposes shalll also be deemed, for future billing purposes, as the highest ON PEAK KVA established in such current month.”

At appellant’s request, the trial court filed Findings of Fact and Conclusions of Law. (It is without dispute that the contract in suit was prepared by the appellant, and that it was in effect during all the billing periods involved in this suit.)

FINDINGS OF FACT
* * * * * *
“Under paragraph D of the contract, entitled ‘NET MONTHLY BILLING,’ it is provided the amount of the bill shall be whichever is higher, the calculation under (i), or the calculation under (ii), subject in each case to the adjustment stated under (iii).
“1. July 22, 1960, to August 23, 1960, Billing Period:
“a. In calculating the minimum under D (ii) for the billing period July 22, 1960, to August 23, 1960, defendant used 16,650 as the highest kva established during the twelve months ending with the current month. By using 16,-650 the minimum billing under D (ii) was the higher of the two calculations under D (i) and D (ii) and amounted to $31,454.20.
“b. 16,650 was the ‘on peak’ kva established in June, 1959, so it was established more than twelve months before the billing period July 22 to August 23, 1960.
“c. The highest kva established during the twelve months ending with August 23, 1960, was 12,540, the ‘on peak’ kva established in June, 1960. When 12,540 is used as the highest kva established in the twelve months ending with the current month, the minimum charge under D (ii) is $25,289.20, which is less than the regular charge under D (i), which is $26,-243.20, so the latter charge is applicable under paragraph D of the contract.
“d. The amount charged for the billing period by Houston Lighting & Power Company was $31,454.20. The amount which should have been charged is $26,243.20.
‘2. November 22, 1960, to December 22nd, 1960, Billing Period:
“a. In calculating the minimum under D (ii) for the billing period November 22, 1960, to December 22nd, 1960, defendant used 16,650 as the highest kva established during the twelve months ending with the current month. By using 16,650 the minimum billing under D (ii), was the higher of the calculations under D (i) and D (ii), and amounted to $31,521.40.
“b. 16,650 was the ‘on peak’ kva established in June, 1959, so it was established more than twelve months before the billing period July 22 to August 23, 1960.
“c. The highest kva established during the twelve months ending with December 22, 1960, was 12,630, the ‘on Peak’ kva established October, 1960. When 12,630 is used as the highest kva established in the twelve months ending with the current month, the minimum billing under D (ii) is less than the regular billing under D (i), which is $26,454.-40, so the latter charge is applicable under paragraph D of the contract.
“d. The amount charged for this billing period by Houston Lighting & Power Company was $31,521.40. The amount which should have been charged was $26,454.40
'3. December 22, 1960 to January 23, 1961, Billing Period:
“a. In calculating the minimum D (ii) for the billing period December 22, 1960, to January 23, 1961, defendant again used 16,650 as the ‘highest kva established during the twelve months ending with the current month.’ By using 16,650 the minimum billing under D (ii) was the higher of the calculations under D (i) and D (ii) and amounted to $26,044.60.
“b. 16,650 was the ‘on peak’ kva established in June, 1959, so it was established much more than twelve months before the billing period December 22, 1960, to January 23, 1961.
“c. The highest kva established during the twelve months ending January 23, 1961, was 12,630, on ‘on peak’ kva established in October, 1960. When 12,630 is used for the billing period January 23, to February 28, 1961, as the highest kva established in the twelve months ending with the current month, the minimum billing under D (ii) is $20,014.60, which is higher than the regular billing under D (i), so the minimum billing is applicable under paragraph D of the contract.
“d. The amount charged for this billing period by Houston Lighting & Power Company was $26,044.60. The amount which should have been charged was $20,014.60
‘4. January 23, 1961, to February 28, 1961, Billing Period:
“a. In calculating the minimum under D (ii) for the billing period January 23, to February 28,1961, defendant used 16,650 as the highest kva established during the twelve months ending with the current month. By using 16,-650, the regular billing under D (i) was the higher of „ the two calculations under D (i) and D (ii) and amounted to $31,074.60.
“b. 16,650 was the ‘on peak’ kva established in June, 1959, so it was established considerably more than twelve months before the billing period January 23, 1961, to February 28, 1961.
“c. The highest kva established during the twelve months ending with February 28, 1961, was 12,630, the ‘on peak’ kva established in October, 1960. When 12,630 is used as the highest kva established in the twelve months ending with the current month the minimum charge under D (ii) is $23,-838.60, which is more than the regular charge under D (i), which is $1,891.80, so the minimum charge is applicable, under paragraph D of the contract.
“d. The amount charged for this billing period by Houston Lighting & Power Company was $31,074.60. The amount it should have been charged was $23,838.60.
“5. February 28, 1961, to March 31, 1961, Billing Period:
“a. In calculating the minimum under D (ii) for the billing period February 28, to March 31, 1961, defendant used 16,650 as the highest kva established during the twelve months ending with the current month. By using 16,650, the minimum billing was the higher of the two calculations under D (i) and D (ii), and amounted to $31,118.20.
“b. 16,650 was the highest ‘on peak’ kva established in June, 1959, so it was established considerably more than twelve months before the billing period February 28, 1961, to March 31, 1961.
“c. The highest kva established during the twelve months ending with March 31, 1961, was 12,630, the ‘on peak’ kva established October, 1960. When 12,630 is used as the highest kva established in the twelve months ending with the current month, the minimum billing under D (ii) is $25,088.20, which is less than the regular billing under D (i), which is $28,-519.20, so the latter billing is applicable under paragraph D of the contract.
“d. The amount charged for this billing period by Houston Lighting & Power Company was $31,118.20. The amount which should have been charged was $28,519.20.”

Plaintiff, Tenn-Tex Alloy & Chemical Corporation, paid to Houston Lighting & Power Company, under protest, the following sums:

“BILLING PERIOD: AMOUNTS PAID;
$31,454.20 July 22 to August 23, 1960
31,521.40 November 22, 1960 to December 22, 1960
26,044.60 December 22, 1960 to January 23, 1961
31,074.60 January 23, 1961 to February 28, 1961
31,118.20.” February 28, 1961 to March 31,1961
“CONCLUSIONS OF LAW
“I.
“In calculating the ‘NET MONTHLY BILL’ under D(i), (ii), and (iii), one must follow the formula set forth in paragraph H of the Contract entitled, ‘KVA USED IN CALCULATING THE NET MONTHLY BILL,’ and nothing else.
“II.
“When this formula provided for in the Contract is used, the correct bill for the period July 22 to August 23, 1960, is $26,243.20; the correct bill for the period November 22 to December 22, 1960, is $26,454.40; the correct bill for the period December 22, 1960, to January 23, 1961, is $20,014.60; the correct bill for the period January 23, to February 28, 1961, is $23,838.60; and the correct bill for the period February 28,1961, to March 31,1961, is $28,519.20.
“HI.
“Plaintiff is therefore entitled to judgment in the sum of $26,143.00 plus interest at the rate of six per cent (6%) from October 12, 1961, to June 19, 1964, the date the court announced its decision in this cause, which is a total of $30,596.98, with interest thereon at six per cent (6%) from and after the date of judgment herein.”

Thereafter, appellant filed a “Request for Additional Findings of Fact.” They are:

“(a) The highest KVA established in each of the 12 month periods ending with the months in dispute was 20,130 KVA which was established in April, 1960. (b) The KVA charge (expressed in KVA’s applicable to the KVA referred to in (a) above was and is 16,650.”

The Court refused to so find, but made additional Findings of Fact. They are:

“I.
“Paragraph D entitled ‘Net Monthly Bill’s is only one clause of the Contract in question and it does not stand alone. Paragraph D is governed by Paragraph H entitled ‘KVA used in calculating the Net Monthly Bill.’ Paragraph H begins with the mandate: ‘The kva charge to be used in calculating the net monthly bill shall be determined in accordance with the following provisions:’ (followed by H-l, 2 and 3).
“II.
“20,130 KVA were used in April, 1960, by the plaintiff. While this is the highest kva used by plaintiff during each of the twelve-month periods ending with the months in dispute, it was Off Peak usage and did not establish a ‘highest kva’ for the month of April, 1960, or any other month. Under Paragraph H-2 of the Contract, this Off Peak usage called for applying as the kva for the month of April, 1960, the highest On Peak kva established during the preceding twelve month period (which was 16,650 kva established in June, 1959). Such application did not alter the fact that the 16,650 kva was established in June, 1959, and remained alive as a highest kva under Paragraph H-2 of the Contract only through May, 1960, and not thereafter.
“HI.
“Off Peak kva usage can establish a ‘highest kva’ for billing purposes only under Paragraph H-3.
“Paragraph H-3 expressly provides for establishing a highest kva during an Off Peak period only when the usage exceeds 150% of the highest On Peak kva established during the preceding twelve-month period. In such event, (a) only the excess above 150% is added to such previously established On Peak kva and a new ‘highest kva’ is thereby established; and, (b) such newly established ‘highest kva,’ although established in an Off Peak month is expressly designated as the ‘highest On Peak kva’ in order to become established and preserved as the ‘highest kva’ for billing purposes for the future months.
“For ‘use in calculating the net monthly bill,’ the highest kva established in each of the twelve-month periods ending with the months in dispute were:
Month in Dispute Highest KVA Month Established
August, 1960 12,540 June, 1960
December, 1960 12,630 October, 1960
January, 1961 12,630 October, 1960
February, 1961 12,630 October, 1960
March, 1961 12,630 October, 1960.*’

Only two witnesses testified:

Charles Edward Oney testified to the effect that he was with the Tennessee Products and Chemical Company, and that Tenn-Tex is a division of Tennessee Products, and that Tenn-Tex Alloy and Chemical Corporation, plaintiff, appellee here, is a division of that company, and that he has been Chief Engineer since June 1959, and that a part of his duty is to check the power bills to see that these various companies are billed correctly according to the contracts under which they operate. (It was stipulated that the billings from appellant to appellee for the period from July 22, 1960 to August 23, 1960, was $31,454.20; that the billing for the period from November 22, 1960 to December 22, 1960 was $31,521.40; that the billing for the period from December 22, 1960 to January 23, 1961, was $26,-044.60; that the billing for the period from January 23, 1961, to February 28, 1961, was $31,074.60; that the billing for the period from February 28, 1961, to March 31, 1961, was $31,118.20, and that the foregoing amounts were paid by appellee to appellant) . The witness, testified in detail as to how he checked the charges made for electric services furnished by appellant to ap-pellee, and his testimony was to the effect that from July 22, 1960, to August 23, 1960, the sum of $31,454.20 was charged by appellant against appellee, and that under the contract appellant was entitled to make a charge of the sum of only $26,243.20, and that there was an overcharge on said bill of $5,211.00; that the charge made by appellant to appellee for electrical services from November 22, 1960, to December 22nd, 1960, was the sum of $31,521.40, and that the correct charge for such service under the terms of the contract was $26,454.40, and that the amount of overcharge for that period of time was $5,067.00; that the charge made by appellant to appellee from December 22, 1960 to January 23, 1961, was $26,044.60, and that the correct charge for such service under the contract was only $20,014.60, and that it made an overcharge for that period of time of $6,030.00; that the charge made by appellant to appellee for the period from January 23, 1961 to February 28, 1961, was $31,074.60, and that the correct charge for such service under the contract was only $23,838.60, and that the amount of overcharge paid by appellee to appellant was $7,236.00; that the charge made by appellant to appellee from February 28, 1961 to March 31, 1961, $31,118.-20, and that the correct charge for such service under the contract was only $28,-519.20, and that the amount of the overcharge paid by appellee to appellant was $2,599.00, and that the aggregate of the overcharges which were wrongfully collected by appellant from appellee amounted to the sum of $26,143.00.

Appellant called Mr. Thomas A. Standish as a witness, and he testified to the effect that he was an electrical engineer; that he was a graduate of the University of North Dakota in 1935 in electrical engineering; that he was employed by appellant as superintendent of the rate research department, and that he had been working in electrical rates for appellant since 1943. Mr. Standish testified to the effect that he had prepared the figures derived from the electrical usage of appellee covering the years 1959, 1960 and 1961, and had reduced them into a tabular form that company’s on-peak KVA, off-peak KVA and the KVA charges applicable to the KVA on-and-off-peak periods, and the kilowatt hours and the dollars and the rate fuel adjustments; that by so doing that this document showed or made it possible to compare both the bill for the actual service rendered, and the bill computed according to the minimum billing provision of the contract; that the document is marked Exhibit D-2. He also testified to the effect that the five periods in question in this case are marked in the lefthand column 1, 2, 3, 4 and 5.

As we understand Mr. Standish’ testimony, it is to the effect that the billings made by appellant to appellee for the five periods in question were correct. The Trial Court did not so find.

We have given our best efforts and much time to the consideration of this record and the briefs of the parties, and after so doing it is our view that the construction placed upon the contract by the Trial Court is correct ; that the findings of fact made by the Trial Court are supported by the evidence, and that the findings of the Trial Court and its conclusions of law are correct.

Accordingly point 1 is overruled, and the judgment of the Trial Court is affirmed.

WILSON, J., sat on argument in this case but thereafter ascertained that he was disqualified and did not further participate.


text:
    STATE of Texas, Appellant, v. Mabel Cozart LYNCH et al., Appellees.
    No. 4360.
    Court of Civil Appeals of Texas. Waco.
    April 29, 1965.
    Rehearing Denied May 20, 1965.
    Waggoner Carr, Atty. Gen., of Texas, Fred Spence, Asst. Atty. Gen., Austin, for appellant.
    Mac L. Bennett, Jr., Normangee, Robert Burroughs, Centerville, for appellees.
   TIREY, Justice.

This is a condemnation case (nonjury). The State brought the action to condemn for highway purposes 9.734 acres of land out of tracts totaling 75 acres in Leon County. The Special Commissioners awarded to appellees the sum of $3,048.00 jointly. The State filed its objections to the award, and upon trial in the County Court it awarded to defendants jointly the total sum of $3,170.35, and credited the sum of $3,048.00 awarded by the Special Commissioners on the judgment, and inasmuch as the appellees had withdrawn the sum of $3,048.00 deposited in the registry of the County Court, the Court rendered judgment against the State of Texas in favor of appellees jointly for the sum of $122.35 with interest and costs. The State has appealed. (The State acquired J4 undivided interest in the tract before the condemnation suit was instituted, and only a % undivided interest is involved in this proceeding.)

The judgment is assailed on what the State designates as five points. They are to the effect that the Court erred:

(1-2) In its finding of fact No. 8 that the reasonable cash market value of the Ys undivided interest, exclusive of 9.734 acres actually taken, immediately after the taking on November 14, 1963, was $9,329.65, because there is no evidence to support such a finding, and that the evidence is insufficient to support such finding;

(3-4) In rendering judgment in the amount of $3,170.35, because there is no evidence to support the judgment;

(5) That the judgment is excessive in the amount of $460.35.

We overrule each of the foregoing points for reasons hereinafter briefly set out.

At the State’s request, the court filed Findings of Fact and Conclusions of Law. We quote the pertinent parts:

“BASED UPON THE AGREEMENTS, UNDERSTANDINGS, AND STIPULATIONS MADE IN OPEN COURT BY THE PARTIES AND FROM THE EVIDENCE ADDUCED I MAKE THE FOLLOWING
“FINDINGS OF FACT
“1.
“That within this suit the State of Texas was acquiring 9.734 acres of land out of a 75 acre tract of land in Leon County, Texas.
“2.
“That all prerequisites and preliminary requirements of law have been duly and legally complied with and the only question before the Court was the reasonable cash market value of the $4ths undivided interest owned by the Defendants in the 9.734 acres of land actually taken and the decrease in value, if any, of the yths interest owned by the defendants in the remainder of said tract of land as a result of the taking.
“3.
“That on November 14, 1963, the plaintiff deposited in the registry of the Court the sum of $3,048.00, for the use and benefit of the defendants and that the date of November 14, 1963, was the day of taking.
“4.
“That the defendants, Mabel Cozart Lynch, a widow, William Rhodes Lynch and wife, Mary Lynch, Mayme Lynch Hamilton and husband, Roy S. Hamilton, Edna Lynch McDonald and husband, Floyd E. McDonald, Gertrude L. Brawner and husband, G. J. Brawner, Vernon E. Lynch and wife, Vera Mae Lynch, Gene C. Lynch and wife, Mary Lynch, Mary Ellen Lynch Cauthern and husband, W. E. Cauthern, Herman R. Lynch and wife, Eva Lynch, Lillian Handley Claybourn and husband, Raymond Claybourn and Blanche Handley Walser and husband, Alvin E. Walser are the defendants and own an undivided J^ths interest in and to the 75 acres out of which the 9.734 acres was taken and own an undivided y¿ths interest in and to the 65.266 acres, being the remainder of said 75 acres after such was taken as their interest might appear.
“5.
“That the defendants, as their interest may appear, are entitled to and own, -Hiths of the reasonable cash market value of the 9.734 acres of land actually taken on November 14, 1963.
“6.
“That the reasonable cash market value of the undivided $4ths interest owned by the defendants in the 9.734 acres of land actually taken by the State for Highway purposes on November 14, 1963, considered as severed land, was $1,622.35.
“7.
“That the reasonable cash market value of the ^ths undivided interest owned by the defendants in the tract of land, exclusive of the 9.734 acres actually taken, immediately before the taking on November 14, 1963, was $10,877.65.
“8.
“That the reasonable cash market value of the %ths undivided interest owned by the defendants in the tract of land, exclusive of the 9.734 acres actually taken, immediately after the taking on November 14, 1963, was $9,329.65.
“9.
“That the total sum defendants are entitled to recover is $3,170.35 less the sum of $3,048.00, heretofore deposited in the registry of the Court, being in the remaining sum of $122.35.
“BASED UPON THE FOREGOING FINDINGS OF FACT, I MAKE THE FOLLOWING
“CONCLUSIONS OF LAW
“1.
“That judgment should be entered that the above named defendants do have and recover of and from the State of Texas the sum of $3,170.35.
“2.
“That said judgment be credited with the sum of $3,048.00 heretofore deposited in the registry of this Court by the State of Texas on November 14, 1963, leaving a balance of $122.35, for which judgment should be rendered against the State and that said $122.35 bear interest from November 14, 1963, at the rate of six (6%) per cent per annum.”

This cause is ruled by the pronouncements in State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194 and 979 (979 being opinion of the Court on motion for rehearing). In the opinion on motion for rehearing, points (3-5), we find this significant statement:

“It is a general rule that improvements situated upon the portion of land taken are to be considered as a part of the realty. They ordinarily have no market value separate from the land. Therefore, when such improvements are taken or destroyed their value can be reflected in the finding as to the value of the land taken, and evidence of their value is admissible for that purpose. As an alternative, however, if the improvements which are situated upon the portion of land taken are essential to the use and enjoyment of the remainder of the land, or if their replacement, by removal or reconstruction, is necessary in order to obviate depreciation in the value of the residue, the cost of removal, and/or reconstruction and/or replacement may be a proper inquiry in connection with the issue of diminished market value of the remainder.
íjí * * ‡ *
“(7,8) This opinion must not be construed as attempting to furnish an inflexible rule to be followed in all similar cases.”

See also opinion of this court: State of Texas v. Waco Independent School District, Tex.Civ.App., 364 S.W.2d 263 (n. r. e.), and cases there cited.

Going back to appellant’s points 1 and 2, which are to the effect that there is no evidence to sustain the Court’s finding that the reasonable cash market value of the Y undivided interest, exclusive of the 9.734 acres actually taken, immediately after the taking, was $9,329.65. As we understand the record, it is to the effect that the market value of the land before the taking was $200.00 per acre. Therefore, the value of the entire tract before the taking would be 75 acres times $200.00, which equals $15,000.00. Since the evidence is without dispute that after the taking the market value decreased $20.00 per acre, or the reasonable cash market price was $180.00 per acre; so, the 65.266 remaining acres would be $11,747,880. The price of 65.266 acres at $200.00 per acre equals $13,153,200. i/6th of the $11,747,880 equals $1,957.98. So, if we take the i/£th, which is $1,957.98, from the $11,747.88, we have the value of $4th equaling $9,789.90, which is a little more than the Court found to he the market value.

Mr. Lynch, one of the owners, testified on cross-examination to the effect that the cost of the construction of the tank on one tract for the purpose of furnishing stock water for the pasture was $302.20, of which was his cost, and that he had another cost of additional fencing, which would amount to some $401.00. It appears from the foregoing that there is evidence to sustain the above finding, and that the State’s contention is without merit, and, therefore, the State’s position that there is no evidence or insufficient evidence to sustain the finding, is overruled. In addition to the authorities cited, see also Currie v. Glasscock County, 212 S.W. 533 (n. w. h.); City of Denton v. Chastain et ux., Tex.Civ.App., 156 S.W.2d 554, 556 (n. w. h.); Cook v. Eastland County, Tex.Civ.App., 260 S.W. 881; Pillot v. City of Houston, Tex.Civ.App., 51 S.W.2d 794; State of Texas v. Bernhardt, Tex.Civ.App., 334 S.W.2d 203, 205 (n. w. h.). Perhaps it should be pointed out that Mr. Lynch testified to the effect that in order to use successfully the two segregated tracts for stock farming it would be necessary to build a small crib or bin with a pen and loading chute on each tract, and testimony was tendered to the effect that a pen 30' by 30' with loading chute would cost approximately $850.00, and that a 12' by 12' crib would cost approximately $295.00. As we understand the holding of our Supreme Court in the Carpenter case, and State of Texas v. Waco Independent School District, supra, these items were proper for the trial court to take into account in arriving at his finding in this cause. We think the evidence is ample to sustain the judgment of the trial court, and each of appellant’s points is overruled, and the judgment of the Trial Court is affirmed.

On Motion for Rehearing

In the last paragraph of our opinion there is a clause beginning:

“ * * * and testimony was tendered to the effect that a pen 30' by 30' with loading chute would cost approximately $850.00, * *

The sum of $850.00 is a typographical error and should have been $82.50. Accordingly, the clause is corrected and hereafter it shall read:

“ * * * and testimony was tendered to the effect that a pen 30' by 30' with loading chute would cost approximately $82.50, * * *.”

Since this cause was tried without the aid of a jury it was the duty of the Trial Judge to pass upon the credibility of the witnesses and weight to be given to their testimony, and he could reject the testimony of any witness in whole or in part if he saw fit to do so. See Hood v. Texas Indemnity Ins. Co., 146 Tex. 522, 209 S.W.2d 345 (Sp.Ct.), points (1-3).

In this cause the State condemned for highway purposes 9.734 acres out of two tracts totaling 75 acres, and the Trial Judge, after hearing the testimony of the witnesses, found that the reasonable cash market value of the ^th undivided interest owned by appellees exclusive of the 9.734 acres actually taken, immediately before the taking was $10,877.65; and further found that the reasonable cash market value of the )4th undivided interest in question exclusive of the 9.734 acres actually taken, immediately after the taking was $9,329.65. The Court further found that appellees were entitled to recover $3,170.35 less the sum of $3,048.00 formerly deposited into the registry of the Court, leaving a balance due and owing appellees of $122.35, and entered judgment accordingly.

We have again carefully reviewed, the entire statement of facts, and we are of the view that the evidence here tendered is ample to support the judgment entered by the trial court and that such judgment is not against the great weight and preponderance of the evidence under the doctrine announced in Re King’s Estate, 150 Tex. 622, 244 S.W.2d 660 (Sp.Ct.).

Being of the foregoing view appellant’s motion for rehearing is overruled; also because of the views heretofore expressed, and because appellant’s have had an opportunity to present fully their views in oral argument, and having carefully considered appellant’s motion for rehearing, and having reviewed the statements of facts, we are of the view that further oral argument would be unnecessary and, accordingly, appellant’s motion to present oral argument on motion for rehearing is denied.


author: PARKER, Justice.

text:
    The STATE of Texas, Appellant, v. Ellis D. WHEELER, Appellee.
    No. 6762.
    Court of Civil Appeals of Texas. Beaumont.
    April 29, 1965.
    Rehearing Denied May 19, 1965.

      W. G. Walley, Jr., Beaumont, for appellant.
    Alto V. Watson, Beaumont, for appellee.
   PARKER, Justice.

This is an eminent domain case involving the total taking of lands owned by Ellis D. Wheeler, hereinafter called appellee, by Jefferson County for and on behalf of the State of Texas, hereinafter called appellant, for highway purposes. By stipulation, the sole issue in the case was the reasonable market value of the parcel of land taken. Trial was to a jury which returned a verdict finding the market value of the property taken as $36,700.00. Upon the verdict judgment was rendered by the trial court.

First in consideration will be appellant’s seventh point of error urging that the trial court erred in overruling its objections to that portion of the court’s charge to the jury reading as follows:

“In this connection, in valuing the land, you shall take into consideration permanent improvements in the land, insofar as such improvements add to or increase or enhance the value of the land as such.”

Appellant contends that by such instruction “the trial court directed the jury to consider permanent improvements to the extent that the same enhanced the value of the land as such, but refused to limit the jury’s consideration to the amount of such enhancement,” leaving the jury free to include as part of the damages the value of movable improvements. The instruction submitted by appellant requested substituting the word “may” for “shall” and the word “only” to be inserted before “insofar”. The word “insofar” limited the jury to the extent or degree the improvements added to or enhanced the land as such and no more. This is the same instruction given in County of Nueces v. Salley, Tex.Civ.App., 348 S.W.2d 397.

There were three aluminum “M&P” type portable buildings and a trailer house on the property. The jury was instructed “permanent improvement means something done to or put on the land which the occupant cannot remove or carry away with him either because it has become physically impossible to separate it from the land or because in contemplation of law, it has been annexed to the soil and it is therefore to be considered a part of the freehold.” In arriving at the amount of damages there is nothing to indicate that the jury improperly considered the value of movable property located on the land. The word “shall” was correctly used in this instruction in connection with the definition of permanent improvements also contained in the court’s charge. Appellant’s seventh point of error complaining of the court’s charge as above set forth is overruled.

The appellee in person made an argument to the jury. Counsel for appellant successfully limited it to a very short one by his objections. Appellant’s first three points of error as grouped and briefed together assert error in the following three portions of said argument and the court’s actions in regard thereto:

1. “This was mine. That represents my life’s savings—
“Mr. Walley: Now, if your Honor please, there isn’t any substance or fact in the record about this representing his life’s savings. As a matter of fact, I know it doesn’t; there is nothing in the record—
“The Court: The jury will disregard the remarks about—
“Mr. Walley: About it and I move for a mistrial.
“The Court: —life’s savings. The motion is denied. Go forward.”
2. “When I said I am a welder, I mean I have welded in oilfields and shipyards and refineries, and everywhere I could burn rods. I have burned, and likewise everywhere I could be burned those rods have burned me.”
This was objected to by counsel for appellant as being outside the record and as appealing to the prejudice and sympathy of the jury. Counsel for appellant requested that the jury be instructed not to consider it. The Court instructed appellee to stay in the record and go forward.
3. “You know, there comes a time when all of us reach the end of our earning capacity, and during our earning capacity, we try to do what we can, because we realize that social security and pensions, and all those things are not enough. And I have tried, through my efiforts and the efforts of my family, my best to build up something. We would have liked to have had a good time but we tried to save and we tried to accomplish something, and we thought we had * * * ”

Appellant contends that all of the foregoing argument was prejudicial and inflammatory, and that the court also erred in overruling its motion for mistrial urged by it in regard to the third portion of such argument. In connection with the first portion of the argument, the court promptly instructed the jury to disregard the same. Such instruction sufficiently cured the alleged error. Ramirez v. Acker (S.Ct.1940) 138 S.W.2d 1054.

In connection with the second portion of the argument, it was also objected to by appellant as being outside the record. There is testimony in the record from appellee that he was a welder and pipefitter and he had been so engaged for some thirty years. The argument was not outside the record and we do not consider it as inflammatory or as an appeal to the prejudice and sympathy of the jury.

In reference to the third portion of the argument appellant’s third point reads: “The error of the trial court in overruling appellant’s motion for mistrial and in failing to sustain appellant’s objection and motion to the trial court to instruct the jury to disregard the following prejudicial and inflammatory remarks of the appellee Ellis D. Wheeler while personally addressing the jury.” It is asserted in appellant’s brief that this point of error is “Germane to Grounds No. 29, Appellant’s Amended Motion for New Trial, Tr., p. 29.” Actually, said assignment of error is set out on p. 33 of said Transcript and it fails to complain of the court’s ruling on appellant’s motion for mistrial. Under Rules 374 and 418, Texas Rules of Civil Procedure, said point in respect to mistrial was waived and is not available to appellant on this appeal. Although appellant’s objection — i. e., that this third line of argument was outside the record, prejudicial and inflammatory — was overruled, the trial court did admonish appellee before the jury, “Go forward with your argument. Stay within the record, sir.”

Appellee at the conclusion of his argument stated:

“Cancel everything I have said. Thank you. Cancel everything that I have said. I want you all to do what the court tells you to do.”

It was held in Ramirez v. Acker, supra, that the withdrawal of objectional remarks by counsel will cure the error and render the effect of the argument harmless. Similarly, appellee’s request to the jury at the conclusion of all his argument that the jury disregard the same sufficiently cured the alleged errors.

Viewing the argument and the entire record, appellee’s argument was not prejudicial and inflammatory to appellant as calculated to and probably causing the rendition of an improper judgment. Each and all of the alleged errors as to the argument complained of by appellant, singly and collectively, not only do not amount to such a denial of the rights of appellant as were reasonably calculated to cause but probably did not cause the rendition of an improper judgment. The amount of damages awarded by the jury is lower than would have been supported by the evidence. Accordingly, points of error 1 through 3, both inclusive, are overruled.

Appellant’s fourth point of error is as follows:

“The trial court erred in sustaining appellee’s motion in limine, reading as follows :
“ ‘Defendant moves the Court to instruct counsel for the State that they will not mention directly or by inu-endo or insinuations that the subject property was purchased by the con-demnee for speculation in condemnation and that they will instruct the witnesses accordingly.’
which such ruling was rendered extremely harmful, and prejudicial to the rights of appellant in view of the highly prejudicial and inflammatory statements of the appellee in his personal closing argument to the jury.”

Such motion to suppress also contained the following:

“Defendant moves that the Court enter this proper order and that in such instruction, counsel be instructed as prayed and that such instructions must be obeyed until or unless counsel is given permission to do otherwise outside of the presence and hearing of the jury.”

During the trial appellant did not request permission of the court to be allowed to present such evidence during the main trial or after Wheeler’s argument. The market value at the time of taking is not measured or controlled by the consideration paid by appellee when he bought the property. Further, appellant waived any right to complain by failing to attempt to obtain permission to offer evidence thereon during the main trial. Such point of error of appellant is overruled. (No. 4)

Appellant’s fifth point of error is:

“The trial court erred in excluding the testimony of the witness Hall with respect to the conversation between such witness and the appellee immediately prior to the time the subject property was purchased by appellee tending to show that the property involved was purchased by appellee for the speculative purpose of disposing of the same to appellant rather than for the purpose of ‘investing life savings’ in the property.”

Hall did testify that appellee talked to him about the value of the property before appellee bought it some four years before this suit was brought. Hall said that he advised appellee to purchase; that appellee did purchase and placed commercial buildings thereon. Hall’s testimony that was excluded was his discussion with appellee as to appraisal methods used by Hall when employed to represent a litigant in condemnation proceedings and that appellee took a course in real estate appraisal taught by Hall. Such conversations occurred before appellee’s purchase. After this suit was instituted, appellee requested Hall to treat their previous conversations as confidential, which Hall refused to do. This was excluded. The testimony of Hall contained in the bill of exception had no bearing on value at the time of taking. Such point of error is overruled. (No. 5)

Appellant’s sixth point of error is:

“The trial court erred in admitting into evidence over the proper and timely objection of appellant, testimony pertaining to the policy of the urban renewal in Port Arthur with regard to the removal of permanent improvements from lands acquired by such entity, which improper testimony, under the record, was highly prejudicial to appellant.”

Over appellee’s objection, appellant introduced evidence showing that after the taking of the property that buildings affixed to the soil as part of the permanent improvements were sold by appellant to a third party named Cupit. The latter in turn sold one building to appellee for $1100.00 and another building to Mrs. Staggs. Then appellant moved the court, in limine, to suppress further evidence as to movement and sale of any property situated on the land after the commencement of the condemnation procedure. Any rebuttal to the introduction of such evidence was invited by appellant. Each and all of the alleged errors complained of by appellant, including this, singly and altogether, do not amount to such a denial of the rights of appellant as were reasonably calculated to cause and probably did cause the rendition of an improper judgment, or were such as probably prevented the appellant from making a proper presentation of this case to this court. Accordingly point of error No. 6 is overruled.

Judgment of the trial court affirmed.


author: CHADICK, Chief Justice.

text:
    Beatrice Bernice STEELE, Appellant, v. E. P. ORTS, Appellee.
    No. 7631.
    Court of Civil Appeals of Texas. Texarkana.
    May 4, 1965.
    Rehearing Denied May 25, 1965.

      William F. Billings, Fanning, Billings, Harper, Pierce & Gilley, Dallas, for appellant.
    Harold E. Wood, Chancellor & Wood, Dallas, for appellee.
   CHADICK, Chief Justice.

This was a suit to determine the priority of deed of trust (contractual) liens upon real property created to secure indebtedness evidenced by promissory notes. The judgment of the trial court is affirmed.

Rab Enterprises, Inc., borrowed $6,000.00 from E. P. Orts on January 4, 1963. A promissory note for that sum was secured by a deed of trust lien affixed upon a lot in the Hampton and Industrial Addition to the City of Dallas, Dallas County, Texas. Pending closure of the transaction a title examiner discovered in the deed of trust records of Dallas County, Texas, a deed of trust covering the same property from Rab Enterprises, Inc., to Beatrice Bernice Steele, Trustee, dated June 22, 1961, given to secure the payment of certain indebtedness described in the instrument in this manner:

“ * * * one certain promissory note * * * of even date herewith (hereinafter referred to as note), executed by the undersigned, payable to Francis Albert Steele, or order at Dallas, Texas, as follows: $1,598.00 payable in equal successive monthly installments of $94.00 each for seventeen months; $5,293.24 payable in successive equal monthly installments of $61.50 each; It is agreed that if default be made in the payment of any principal or interest on said note, or in the performance of the covenants or agreements herein contained, or any of them, then at the option of the legal holder of said note, the whole of the principal debt herein secured shall become due and payable, and may be collected by suit or by proceedings hereunder; and it is further agreed that if said indebtedness is not paid when due, and is placed in the hands of an attorney for collection, or if collected through the Probate Court, ten per cent, additional on full amount thereof shall be added as attorney’s fees.
“It is also agreed that this Deed of Trust covers any and all renewals of the above described indebtedness.”

Orts required a release of the lien created by the deed of trust instrument as a prerequisite to making the loan.

Francis Albert Steels, (shown by the record to be the same person as F. A. Steele), the payee in the note mentioned in the deed of trust, executed and delivered to Orts a release, the instrument, excepting its heading and the acknowledgment, as follows:

“WHEREAS, on the 22nd day of June, A.D.1961, Rab Enterprises Inc., a Texas Corporation of the County of Dallas, State of Texas, did execute, acknowledge and deliver to of the County of Dallas, State of Texas a certain Deed of Trust on the following described real estate, situated, lying and being in the County of Dallas in said State of Texas, to-wit: Being Lot 30 in Block 10 of the Hampton and Industrial Addition a Subdivision on a part of the G. W. Dooley Survey, Abstract No. 390, Dallas County, Texas, according to a Plat thereof recorded in Volume 8, Page 185-6 of Map Records of Dallas County, Texas to secure the prompt payment of two certain promissory notes executed by the said Rab Enterprises Inc. and payable to the order of F. A. Steele as follows: One note dated June 22, 1961 in the face amount of $5,293.24 payable in successive monthly installments of $61.50 each; and one note dated June 22, 1961 in the face amount of $1,598.00, payable in successive monthly installments of $94.00 each bearing interest from at the rate of per cent, per annum.
“AND WHEREAS, Said notes with accrued interest thereon, has been fully paid to F. A. Steele the legal and equitable holder and owner of such note.
NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS: that F. A. Steele of Dallas County, State of Texas, in consideration of the premises and of the full and final payment of said notes, the receipt of which is hereby acknowledged, have this day and do by these presents release, discharge and quitclaim unto the said Rab Enterprises Inc. heirs or assigns, all the right, title interest and estate in and to the above described property, which I have or may be entitled to by virtue of said Deed of Trust and do hereby declare the same fully released and discharged from any and all liens created by virtue of said Deed of Trust above mentioned.
“WITNESS my hand, this 3rd day of January, A.D.1963.
F. A. Steele
“WITNESSES:

Orts, being satisfied with this release, consummated the loan on January 4, 1963.

Shortly before April 1, 1964, it came to Orts’ attention that a Substitute Trustee had posted notices preliminary to foreclosing the lien created by the June 22, 1961, deed of trust. Orts instituted suit against Beatrice Bernice Steele and the substitute trustee. A temporary injunction issued staying a sale under foreclosure. Mrs. Steele and the substitute trustee filed pleading in answer, and both sides moved for summary judgment. Judgment was entered by the trial court decreeing that the deed of trust lien securing Orts’ note dated January 4, 1963, in the sum of $6,000.00 was a first and superior lien upon the property involved. Bernice Beatrice Steele alone has perfected an appeal from that decree.

Mrs. Steele’s affidavit and exhibits show that she was divorced from F. A. Steele June 27, 1961, and in the divorce proceeding the court ordered F. A. Steele to secure the payment of certain indebtedness in the amount of $7,113.43 by a deed of trust on the Hampton and Industrial Addition lot. Steele was president of Rab Enterprises Inc. at the time. Accordingly, in anticipation of the divorce decree of June 27, 1961, a deed of trust and deed of trust note dated June 22, 1961, was executed. As of the same date, June 22, 1961, Francis Albert Steele executed his personal note payable to Mrs. Steele for $6,891.24, and delivered it and the deed of trust note to Mrs. Steele. Thus the June 22, 1961, Rab Enterprises Inc., note secured by the deed of trust lien was placed with Mrs. Steele as collateral to secure F. A. Steele’s personal note.

Mrs. Steele purposes to reverse the trial court judgment on the legal proposition that F. A. Steele’s release instrument does not describe the indebtedness secured by the deed of trust lien and consequently does not evidence payment of the indebtedness and release of the lien she holds as collateral security; alternately, that the inconsistency of the descriptions of indebtedness in the two documents was sufficient to put Orts on notice that F. A. Steele was probably not the owner and holder of the indebtedness described in the deed of trust, such notice depriving him of the protection of the registration statutes. The relevant parts of the two documents have been set out. Principally, the difference in the descriptions is that the June 21, 1961, deed of trust describes the indebtedness as one note wherein $1,598.00 is payable to Francis Albert Steele in 17 successive monthly installments of $94.00 each, and $5,293.24 is payable to Francis Albert Steele in successive monthly installments of $61.50 each, while the release describes two notes, one in the sum of $1,598.00 payable to F. A. Steele in successive monthly installments of $94.00 each, and another of $5,293.24 payable to F. A. Steele in successive monthly installments of $61.50 each. The descriptions are similar in that the total indebtedness, $6,891.24, is the same in both instruments, the payee of the note or notes is the same in both, each has the same date, and they are in complete agreement as to the amount of the monthly installments.

There is no suggestion in the record that Orts had actual notice that Mrs. Steele held or claimed an interest in or to the deed of trust note, nor is his good faith clouded by the slightest evidence. The rule applicable here is clearly stated in Traders’ National Bank v. Price, Tex.Com.App., 228 S.W. 160, (Sec. A, Op.Adpt.), in this language: “An affirmative declaration, or an act equivalent to such declaration, by the record owner of the note that same had been paid, satisfied, or canceled, or the lien released or extinguished, would protect one dealing with the land in good faith for a valuable consideration and without notice.” This rule was quoted and reaffirmed in Pustejovsky v. K. J. Z. T. Lodge, 124 Tex. 504, 79 S.W.2d 1084, (Op.Adpt.); and Ragan v. Day, 94 S.W.2d 1207, (Tex.Civ.App.1936, writ refused).

Whether the indebtedness is represented by one or two notes, the record unmistakably shows F. A. Steele to be the record owner and holder of the $6,891.24 indebtedness represented by the note or notes and deed of trust lien securing it. The law does not require Orts to go beyond Steele in seeking a release of the deed of trust lien. See Moran v. Wheeler, 87 Tex. 179, 27 S.W. 54; Rogers v. City of Houston, 94 Tex. 403, 60 S.W. 869; Wood v. Sparks, 59 S.W.2d 361 (Com.App. Sec. A).

The appellant’s point of error is overruled. The judgment of the trial court is affirmed.