author: NORTHCUTT, Associate Justice.

text:
    Mildred Faye CHANDLER, Appellant, v. Ida BESSINGER, Appellee.
    No. 7519.
    Court of Civil Appeals of Texas. Amarillo.
    Sept. 20, 1965.
    Sheehan & Conner, Friona, for appellant.
    Brown & Shuman, Lubbock, for appel-lee.
   NORTHCUTT, Associate Justice.

For convenience we will use the statement made by appellee as to the nature and result of this case as follows:

This is a suit by Ida Bessinger, a widow, against Mildred Faye Chandler, individually and as Administratrix of the Estate of James H. Chandler, deceased. Ida Bes-singer was the mother of James H. Chandler, deceased, and alleged in her petition that she filed a claim for $8,240.00 against the estate of James H. Chandler with Mildred Faye Chandler, Administratrix, of his estate, but that said claim was rejected and that the suit in question was filed to perfect a claim against the estate of James H. Chandler and against Mildred Faye Chandler, individually, and to establish a constructive trust on real and personal property belonging to the estate situated in Parmer County, Texas. The petition then followed with a specific allegation of ownership by Ida Bessinger of a specific numbered savings and loan association certificate for $5,000.00, which she delivered to her son, James Chandler, for safekeeping. The petition further alleged that Ida Bes-singer delivered $3,000.00 cash to her son with instructions to place the same in the Littlefield Federal Savings & Loan Association in her account so that she would have a total of $8,000.00 in her account. It then alleged that contrary to Plaintiff’s instructions and without her knowledge or consent that her son, James H. Chandler, delivered the numbered certificate and the $3,000.00 check to said association and obtained the cancellation of the old certificate and the issuance of a new certificate for $8,000.00 under the name of Mrs. J. H. Chandler and/or James Chandler. The petition alleged a lack of authorization for this action. It also alleged an absence of knowledge on the part of the Plaintiff relative to these transactions. It further alleged the absence of a gift or intention to make a gift relative to this transaction. It further alleged that the new certificate was surrendered for cancellation by James Chandler without the knowledge, consent or authorization of Mrs. Bessinger (who was also known as Mrs. J. H. Chandler) and that upon cancellation of such certificate a check was issued payable to the order of Mrs. J. H. Chandler (one and the same person as Ida Bessinger) and James Chandler for $8,000.00, which was deposited to the account of James Chandler in the Security State Bank & Trust Company of Littlefield, Texas, and was paid to his account. The check was endorsed in the name of Mrs. J. H. Chandler but the petition denied that the endorsement was made by Mrs. Chandler (Mrs. Bessinger) or anyone authorized by her.

Upon the trial of the case proof was made relative to all of these allegations concerning the transactions surrounding the issuance and surrender of these various certificates.

Upon the trial of the case and after the presentation of all of the evidence, the jury was retired under the charge of the court and in answer to special issues submitted by the court answered that Ida Bessinger was the owner of the $8,000.00 investment certificate at the time the same was surrendered for cancellation, that James Chandler converted the cash proceeds paid upon the surrender of said certificate but that Ida Bessinger did not at any time give to James Chandler her right, title and interest in and to said investment share certificate in the amount of $8,000.00. Based upon these findings of the jury the court entered judgment for the Plaintiff, Ida Bessinger, against the Defendant, Mildred Faye Chandler as Administratrix of the estate of James H. Chandler, deceased, for the sum of $8,000.00, together with interest thereon at the rate of six per cent (6%) per annum from January 1, 1962, until paid, to be paid out of the funds of said estate in due course of administration, together with costs in this action, to be paid in the same manner.

This appeal is presented upon two assignments of error. Appellant’s first point is that the court erred in permitting the plaintiff to introduce in evidence her Exhibit No. 8 without first establishing a proper predicate as provided in Vernon’s Ann.Tex.Civ.St., Article 3737e. Plaintiff’s Exhibit 8 was the record kept by the bank of the account of James Chandler showing the deposits received and the checks paid. Mr. Jim Copeland, cashier of the bank, was the witness testifying as to the exhibit. He was not the cashier when the deposits were made and had been cashier for only two weeks prior to the date of the trial. He testified he was in charge of all the records of the bank and the records kept by the hank before he became cashier were turned over to him. (It was agreed that copies would be here used instead of originals). He testified that he had with him the records of the bank relative to deposits and had the records of James Chandler’s account and that such ledger records that he had in his possession were customarily kept by the bank and were kept in the regular course of business as a part of the records of that bank. This testimony was objected to and was sustained at the time because the records had not been admitted in the evidence. Then the witness testified Exhibit 8 was the ledger sheet of James Chandler that he had been testifying about and that was ordinarily kept in the ordinary course of business of the bank and were the records he was custodian of and responsible for the proper keeping. There were considerable other questions and cross-questions asked of the witness before the exhibit was admitted. The exhibit as well as the evidence of Mr. Copeland showed a deposit of $8,000.00 to the credit of the account of James Chandler as being made on January 2, 1959. When these records were offered the appellant objected on the grounds that the proper predicate had not been laid and proper foundation under the Business Records Act and that Mr. Copeland was not qualified under V.T.C.S., Article 3737e.

It is stated in Tex.Jur.2d, Sec. 55, p. 90, as follows:

“Judicial notice is taken by the courts of both state and federal laws concerning banking, and of commonly known banking methods and procedures. Thus, it is known judicially that banks keep complete records of all transactions relating to the deposit of money; * * * ”

We are of the opinion, and so hold, that when the cashier testified Exhibit 8 was the ledger records customarily kept by the bank and were kept in the regular course of the business as part of the records of that bank, the same was admissible. Heid Bros. v. Commercial Nat. Bank, Tex.Com. App., 240 S.W. 908, 24 A.L.R. 904.

It is stated in Smith Detective Agency v. Security Nat. Bank, Tex.Civ.App., 260 S.W. 273 (writ dismissed) as follows:

“When these entries were offered they were objected to by appellant on the general ground that no sufficient predicate had been laid. The court was not informed by this objection as to what was in the mind of appellant’s attorney when he made the objection, or as to what predicate would be necessary to be laid to render the evidence admissible. It was shown before the evidence was offered, by the testimony of the head bookkeeper, that, though he made none of the entries, they were correctly made. The books appear to have been those kept in the regular transaction of the business of appellee. We think this predicate was sufficient to render the books admissible. Heid Bros. Inc., v. Commercial Nat. Bank, etc. (Tex.Com.App.) 240 S.W. 908, 24 A.L.R. 904. However, the objection made was too general to be considered by this court. Bohanan v. Hans, 26 Tex. 445; Cabrera v. State, 56 Tex.Cr.R. 141, 118 S.W. (1054) 1058. This assignment is therefore overruled.”

The introduction of Exhibit 8 was to show $8,000.00 was deposited to the account of James Chandler on January 2, 1959. Appellant did not point out in any manner an objection to the amount of the $8,000.00 deposited nor any other place the deposit came from. Eaton v. Rutherford, Tex.Civ.App., 163 S.W.2d 247 (writ refused wm).

If we be in error in holding the exhibit was properly admitted, it would be harmless error because the check for the $8,000.00 and the deposit slip showing James Chandler deposited the $8,000.00 to his account on January 2, 1959, in the bank were introduced in evidence and were before the jury. See Daniels v. United States Rubber Co., Tex.Civ.App., 199 S.W.2d 533 (N.R.E.) where it is stated:

“ ‘It would seem that the time has come to make a third logical extension of the rule, and to require for the admission of an entry or record merely the evidence of any competent person that the entry was made in the regular course of business, and as a part of the records of some establishment. Non-production of the person who made it, or any other circumstances, should be matters affecting the weight and not the admissibility of the entry.’
“If it was error for the court to admit Pixley’s testimony, it was a harmless one, since the auditor in making his audit used the books in making it and his audit was based at least in part upon the information he secured from the records of the Rubber Company and said audit was before the jury, so we believe that if it was error at all, it was not of such magnitude as to cause a reversal of this case.”

Appellant’s first point of error is overruled.

Appellant’s second point is that the case should he reversed for the reason that testimony of plaintiff was allowed in evidence which related transaction with a deceased person in violation of the so-called Dead-Man’s Statute, Art. 3716, V.T.C.S., over proper objection to the same by defendant. The testimony and proceedings complained of under this point as being in violation of Art. 3716 took place on redirect examination by appellee’s attorney as follows :

“Q. Now, I want to ask you about some very specific things. Mr. Conner said here awhile ago that anything that — that they would like to know and felt that the jury would like to know anything pertinent to this, would be interesting. Now, I want us to tell him something pertinent to this. I want to ask you about this $12,000.00 that you said you lost. I want you to tell us what happened to that $12,000.00.
A. Well, my son borrowed it from me—
MR. CONNER: Your Honor, I object—
A. —and he signed a note and she signed a note for it.
MR. CONNER: Your Honor, I object to the testimony on the . basis of Article 3716, transactions between the deceased person and a party to the suit. MR. BROWN: And I submit, Your Honor, that they have asked and demanded to know, and we say that they have waived any protected given them by the named article and that we are entitled to a right to explain what happened, because they asked and asked and asked, when she tried her best to avoid it. Now, I am saying that we have a right to explain to this jury the things they were asking about.
THE COURT: The objection is overruled.
MR. CONNER: Note my exception.

Q. Now, Mrs. Bessinger, would you tell us some of the details about that $12,000.00 that you loaned to your son ?

A. Well, I loaned it to him after I had sold my home, and he bought a lot of cars, and he didn’t have the money to pay for them, and so I loaned it to him, and she signed the note and he signed the note, and—
Q. And where was that?
A. —and the note — that was in Lit-tlefield, Texas, when they lived there.
Q. All right. Now, where is that note?
A. Well, it disappeared, I guess, like everything else, it was in the safe and it disappeared. There wasn’t nothing in there that I got to see anything of.
Q. In whose safe?
A. In James’es safe. She got her brother-in-law and they went through the safe, and they never showed me or told me nothing after he passed away.
Q. Have you ever been paid that $12,000.00?
A. I haven’t been paid a penny of it.
Q. Any part of it?
A. Any part of it.
Q. Do you know when you made the loan of the $12,000.00?
A. Well, I don’t remember the date.
Q. But you know that you did have a note signed—
A. Yeah.
Q. —James and his wife.
A. I had a note from both of them, I certainly did.”

None of these matters had been gone into until appellant on cross-examination kept questioning appellee about her financial condition and the loss of $12,000.00 until appellant stated she could tell where it went but she was not supposed to. Then appellant’s attorney stated: “Yes, well, we don’t want you to tell anything that you are not supposed to, but if there is anything pertinent to this case, we certainly would appreciate your giving that information, Mrs. Bessinger, you understand, don’t you?” We believe that after appellant continued to try to show appellee fraudulently received old-age assistance and was trying to hide what became of the $12,000.00 and questioning her by asking if she did not steal her son’s baby from the hospital and adopt it out, if she did not kill a man and if she did not threaten to kill her son’s wife and daughter, that appellee was entitled to show that her son borrowed the $12,000.00.

The $12,000.00 was not involved in this suit and was only brought into the case by appellant’s attorney on cross-examination. The appellee did not testify as to any transaction with her deceased son involving the $8,000.00 sued for in this case.

Appellant brought out these matters on cross-examination in such a way as that appellee’s counsel had the right to bring out the details and explain or qualify the same in any manner which was justified by the facts and which he determined necessary. Bethel v. Yearwood, Tex.Civ.App., 142 S.W.2d 927 (writ dismissed, judgment correct); Adam v. Adam, Tex.Civ.App., 127 S.W.2d 1001; Matthews v. McLen, Tex.Civ.App., 131 S.W.2d 24; Reyes v. Escalera, Tex.Civ.App., 131 S.W. 627; Reynolds v. Porter, Tex.Civ.App., 54 S.W.2d 1086. See also Re Estate of Merton E. House, Deceased, Anna Cole Leflang v. W. Rollin Smith, Administrator, 159 A.L.R. 401, and the many cases there cited. We are of the opinion, and so hold, that appellant waived any benefit she might have had under Article 3716 by her cross-examination of appellee.

Judgment of the trial court is affirmed.


source: Caselaw Access Project

author: WALTER, Justice.

license: Public Domain

text:
    William CRAWFORD et al., Appellants, v. Mrs. Madge E. YEATTS, Appellee.
    No. 3950.
    Court of Civil Appeals of Texas. Eastland.
    Oct. 15, 1965.
    Rehearing Denied Nov. 5, 1965.

      Kilgore & Kilgore, James A. Kilgore, Dallas, for appellant.
    McMahon, Smart, Sprain, Wilson & Camp, Hugh F. Rives, Jr., Abilene, for appellee.
   WALTER, Justice.

Mrs. Madge E. Yeatts recovered a judgment against William Crawford and associates for $17,064.00 for permanent damage to her farm allegedly caused by the negligent disposal of salt water. The parties will be designated as they were in the trial court. The defendants have appealed.

The jury found that salt water from defendants’ pit penetrated the sub-surface strata and polluted plaintiff’s property which was negligence and a proximate cause of the salt water pollution of plaintiff’s property; that defendants failed to seal the pit so as to prevent the salt water from penetrating the sub-surface strata; that this was negligence and a proximate cause of the pollution and that defendants deposited more salt water into the pit than it was capable of handling; that this was negligence and a proximate cause of the pollution; that salt water from defendants’ well number 6 escaped into the sub-surface strata of plaintiff’s property and polluted same, which was negligence and a proximate cause of her damage.

Defendants’ points asserting that the undisputed evidence shows that any recovery based upon the foregoing findings would be barred by the two year statute of limitation cannot be sustained. Defendants rely upon Houston Water-Works Company v. Kennedy, 70 Tex. 233, 8 S.W. 36; Tennessee Gas Transmission Company v. Fromme, 153 Tex. 352, 269 S.W.2d 336. The statute of limitations was tolled by agreement of the parties from September 20, 1962 until the suit was filed on May 31, 1963. The salt water pit was constructed in October 1950. The pit was never sealed. Defendants contend that plaintiff’s cause of action accrued not later than 1951 after all of their wells were producing and the tank bottoms were being drained into the pit and burned. Plaintiff contends that her cause of action did not accrue until she discovered salt water damage to her land or until she should have discovered it by reasonable diligence. We believe that plaintiff’s contentions are sustained by the following cases: Baker v. City of Fort Worth, 146 Tex. 600, 210 S.W.2d 564; Beck v. American Rio Grande Land & Irrigation Co., Tex.Civ.App., 39 S.W.2d 640, (Refused); Geochemical Surveys et al. v. Effie H. Dietz, Tex.Civ.App., 340 S.W.2d 114, (Ref. N.R.E.).

Defendants contend there was no evidence to warrant the submission of the negligence, proximate cause, and damage issues.

Mrs. Madge E. Yeatts testified substantially as follows: I own a farm in Jones County. I have a four room house, a cistern and a well on the place. My present tenant is M. D. Bagley. Approximately seventy-four acres of my farm is in cultivation. Approximately fifty-six acres is in a pasture and the balance is planted in sorghum alum and is in the soil bank. I executed an oil and gas lease on my place to Mr. John Byram in 1946. At the time I leased the land in 1946, the water was good. I had no salt problems with the water at that time. Some new renters moved into the house on my farm in 1958 and I had the water tested by the City and County Health Unit in Abilene. The report from the water analysis showed that the water was taken from a cistern and that no coliform organisms were found. The report further states that “no coliform organisms found indicates that the samples at the time of taking was of good bacteriological quality.”

The oil and gas lease which I executed to Mr. Byram was assigned to Con-Tex Petroleum Corporation and by it assigned to Mr. Crawford and his associates. Eight wells have been drilled on my place. Five of them are producing and three of them are dry holes. The operator constructed a pit near the tank battery on the south central part of my land. The first time I knew anything about a salt water problem was in the spring of 1962 when the man who was working my land called my attention to it

I retained Dr. Frank Conselman of Abilene and turned the investigation over to him. I had no knowledge of Mr. Crawford’s water flood program and was never given notice that any of the wells were being plugged. The only producing wells on my place are out in the middle of the sorghum alum patch. The water supply for my farm is the well and the cistern. There is a crack in the cistern. I do not know when the crack first appeared.

M. D. Bagley testified substantially as follows: I have lived in the Hodges community since 1937, and I have been farming for myself fifteen or sixteen years. I have rented Mrs. Yeatts’ land since 1960 or ’61. I talked to Mrs. Yeatts about damage to her land in 1962.

I noticed a spot up in the field northwest of the house. I noticed a few spots around well number 6 which is a dry hole. I drove through the sorghum alum field and noticed some spots on the road as I was driving through the patch. I am talking about the area between wells numbers 2, 3, 4 and 5 out in the area where the sorghum alum was growing. Some spots have showed up lately in the cotton patch. They are spots that just don’t grow very good vegetation and have a little whiteness around the edge. I notified Mrs. Yeatts about this in the fall of ’61 or the early part of ’62. I would estimate some of these spots were 20 or 30 feet long and maybe 10 feet wide. After the investigation started, the water from the well tasted “salty and grimy like to me.” My brother had lived on this place in 1948 and I visited him and drank water from the well and cistern at that time. The water from the cistern at that time tasted good to me. The first time I ever noticed the salt taste in the water well was in 1962.

I am acquainted with the salt water pit near the tank battery. I have never seen the pit overflow but I have seen evidence of it because I have seen the oil on the sides of the pit and out in the edge of the field. It appears to me that the spots are getting larger. There were spots around well number 6 where the vegetation stopped growing and there were spots where the .grass wouldn’t even grow. I would estimate the spot out in the cotton field to be about fifty feet square. In 1962 there were some mesquite trees out in the pasture that died and a few trees dried up around the house. When the cistern went bad, the tenants drank water from the well. Last year sometime I saw water coming into the cistern through a crack.

Mr. Troyce Bagley testified substantially as follows: I rented Mrs. Yeatts’ farm from 1947 to 1955 and from 1958 to 1960. While I lived in the house on her farm I used the water from the well and the cistern. At that time the water from the well and the cistern was very good. I tasted it from both sources and did not notice the taste of salt in it at that time. Sometime around 1958, a crack developed in the cistern. We continued to use the water from the cistern and it tasted all right. During the latter part of 1950 and the first part of 1951 I was employed by Mr. Crawford as a pumper. I was acquainted with the location of the salt water pit near the tank battery on the lease. I would estimate that from twenty to thirty barrels of salt water ran into this pit each week. I observed the salt water flowing into the pit from about 1951 to 1955.

William Crawford testified substantially as follows: My associates and I operate the lease on Mrs. Yeatts’ property. I actually supervise the management of these operations. I was President of Con-Tex Petroleum Corporation from 1943 until it was dissolved in the early fifties. When Con-Tex was dissolved, the interest in the Yeatts’ lease was assigned to me and my partners. I do not have a degree in engineering or in geology but I have been in the oil business since about 1920. In drilling, completing and producing oil wells, I am acquainted with the fact that the Railroad Commission is the regulatory rule making body. I have made it a point to familiarize myself with such rules and regulations. Yeatts’ number 6 was drilled in 1951 to a total depth of 2,475 feet. We had a hole full of salt water at that depth. It was plugged on September 28, 1951. Before constructing the B. S. pit near our storage tank, I did not consult with a ground water expert. I selected the location for the pit. I did not line the pit nor dyke it. It was built in 1950. I deposited all of the salt water or connate water that was produced on the Yeatts’ lease for about thirteen years into this pit. I did not keep records on the amount of salt water the lease produced. When asked where the salt water went that was deposited into the pit Mr. Crawford answered: “It either evaporated at the time they burned the pit, cleaned it out, which was about twelve inches deep or it entered into the soil itself through some porous area.” The salt in the salt water will not evaporate and I doubt if it will burn. After using this pit for thirteen years on or about July 1, 1963, I covered it up after Mrs. Yeatts had complained to me about damage to her land. I covered the pit to show my good faith because we did not produce enough salt water to require a pit and we hauled off the B. S. from the tanks when they were cleaned. When we covered the pit in 1963, there was no salt in the bottom of the pit.

The Railroad Commission of Texas authorized the conversion of well number 3 in connection with my water flooding operations in the Tannehill sands reservoir. The order provided that before the well was used for water injection purposes it must be so cased and completed that water could enter no other strata than that approved for water flooding. The order further provided that prior to the use of any additional wells for injection purposes the operator must file with the Commission Engineering Department a plat showing such additional injection well. Well number 3 is in the southwest corner of the lease and is a considerable distance from the house. We did not use well number 3 but used well number 2 as our injection well. Well number 2 is within seven hundred feet of Mrs. Yeatts’ house. Approximately 24,117 barrels of water were injected into Yeatts number 2. Most of the water that I injected into it came from either the Collins or the Harp lease and was injected under varying pressures up to 575 pounds per square inch. I was acquainted with Rule 20 of the Railroad Commission which provides “Fresh water, whether above or below the surface, shall be protected from pollution, whether in drilling, plugging or disposing of salt water already produced.”

Dr. Frank Conselman testified substantially as follows: I live in Abilene and I am a Consultant Geologist. I have inspected and conducted and supervised an investigation with reference to the existence, source and extent of salt water pollution on Mrs. Yeatts’ farm. Mrs. Yeatts’ water well and cistern received their water from the ground water supply. The cistern is not connected to the roof of the house. It has a crack in it and is receiving water from the ground water, so in effect, it is another water well rather than a true cistern. As a result of my investigation I came to the conclusion that pollution from salt water existed on Mrs. Yeatts’ land. First I think the salt water pit is a source of contamination. The salt content of the water deposited in the pit will not evaporate and it will not burn in an open pit. In my opinion well number 6 is probably causing some of the salt water pollution. In my opinion the salt water which was found to exist on Mrs. Yeatts’ place may contaminate the surface in the future. From my investigation it is my opinion that the Crawford lease produced on the average of about two barrels of salt water a day. This would amount to about six tons of salt per year. The damage or pollution which I found to exist on Mrs. Yeatts’ property will be permanent.

Mr. Arthur L. Jenke, who is a geological engineer engaged in the business of ground water investigations and the production of oil and gas, testified that there was a distribution of salt in the area around well number 6; that there is a fresh water stratum in that area and that some of the salt has probably gotten into the fresh water zone and from the fresh water zone perhaps into the well and cistern. After giving the foregoing testimony Mr. Jenke was asked the following questions and he gave the following answers: “I thought you just stated that a certain amount of salt was deposited in an area of that well through the drilling of that well? A. We are speaking of a drilling well and not a leaking well. Q. Oh, I didn’t mean to limit my question to a leaking well. I asked if Well #6 was a contributing factor? A. In a sense of a drilled well through a saline formation, it would be a contributing factor, yes, sir.”

The evidence outlined above and other facts and circumstances in evidence constitute some evidence of probative value and support the jury’s answers. Appellants’ no evidence points are overruled.

Defendants contend the findings of the jury on the damage issues are excessive. We have considered this point in the light of all the facts and circumstances in evidence and have concluded that the amount of the verdict is not excessive. World Oil Co., Inc., v. Hicks, 103 S.W.2d 962, (Tex.Com. of Appeals); Flanigan v. Carswell, 159 Tex. 598, 324 S.W.2d 835, (Sup.Ct.); Wilson v. Freeman, 108 Tex. 121, 185 S.W. 993.

We have considered all of the evidence and have concluded that the jury’s answers are not contrary to the great weight and preponderance of the evidence. In Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

Appellants’ point that there was no evidence from which the jury could determine the reasonable market value of plaintiff’s land immediately after the salt water pollution cannot be sustained. Mr. John Berry, a real estate appraiser, inspected the Yeatts’ property and testified to its value before and after the damage. We consider this some evidence of probative value.

Defendants’ thirty-third point reads as follows:

“The error of the Trial Court in submitting to the jury various issues, including Special Issues 2, 7, 10, 18, 20, 22, 24, 25 and 26, using the words 'polluted’ and ‘pollution’ without any definition of the term. The submission by the Court in this manner constituted an unfavorable comment upon the weight of the evidence and included an inference to the jury that ‘pollution’ was synonymous to ‘damage’. Issues submitted upon the question of pollution alone were evidentiary issues and their submission in the Charge was calculated to and did mislead the jury into the rendering of an improper verdict upon issues of negligence, proximate cause and a grossly excessive verdict as to the amount of the damages.”

Plaintiff’s contention is that the issues do not constitute a comment upon the weight of the evidence and are not evi-dentiary and further states that the defendants failed to request the definition of the words pollution and polluted and cannot now complain about them. The plaintiff further contends that the defendants have waived their objection to special issues 18, 20, 22, 24, 25 and 26, because in their objections to the court’s charge they said they objected to the word “pollution” in special issues 18, 20, 22, 24, 25 and 26 and to the word “polluted” appearing in some of said issues “for the same reasons heretofore advanced by the defendants in objections to previous issues submitted by the court using such words.”

This point may be multifarious because it contains more than one alleged error and attempts to complain about many separate rulings of the court. Defendants may have waived their objections to some of the issues, nevertheless, we will consider the point. Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478.

Defendants contend that the words “polluted” and “pollution” should have been defined. Words in common use and having no legal or technical meaning need not be defined. The court did not err in failing to define these words.

Defendants objection that such submission constitutes a comment on the weight of the evidence cannot be sustained. Rule 272, Texas Rules of Civil Procedure prohibits the court from commenting on the weight of the evidence. Special issue number 7 is one of the issues involved. It reads as follows:

“SPECIAL ISSUE NO. 7
Do you find from a preponderance of the evidence that such negligence, if any, was a proximate cause of the salt water pollution of the plaintiff’s property, if you have found that it was so polluted ? Answer ‘Yes’ or ‘No’.”
Can it be said that by the use of the word “pollution” the court assumed a controverted issue of fact or indicated to the jury his opinion on the question of pollution or unduly emphasized the matter? We think not. By the use of the words, “if you have found that it was' so polluted”, the court specifically negated any such comment. We hold that the court did not invade the province of the jury and comment upon the weight of the evidence by the use of the words “polluted” and “pollution”.

The court refused to give the following issues requested by the defendants:

“SPECIAL ISSUE NO.-
Do you find from a preponderance of the evidence that any portion of the injury to plaintiffs land, if any you have found, can be attributed to the operations of oil operators other than the defendants?
Answer ‘Yes’ or ‘No’.
Answer: --
If you have answered the foregoing Special Issue ‘Yes’ then you will answer the following Special Issue, otherwise you need not answer.
SPECIAL ISSUE NO. -
Do you find from a preponderance of the evidence that the portion of the injury to the plaintiff’s land attributable to the operations of oil operators other than the defendants, if you have found, is divisible.
In answering the foregoing Special Issue you are charged that the term ‘divisible’, as used in the foregoing Special Issue, means that the injury caused by the operations of the defendants and the injuries caused by the operations of other oil operators can be apportioned with reasonable certainty.
Answer ‘Yes’ or ‘No’.
Answer:--
If you have answered the foregoing Special Issue ‘Yes’, then you will answer the following Special Issue, otherwise you need not answer.
SPECIAL ISSUE NO. -
What portion of the reduced value of the plaintiff’s lands found by you to be the result of injury to her lands in Special Issue No.-do you find to be reasonable apportioned to the operations of the defendants?
Answer in Dollars and Cents
Answer:-.”

The defendants filed a cross-action against Burk Royalty Company and alleged that the damage to the plaintiff’s land was the direct and proximate result of the negligent acts of Burk. Thereafter, the court granted Burk’s motion for severance.

The Supreme Court in Landers v. East Texas Salt Water Disposal Co., 151 Tex. 251, 248 S.W.2d 731 said:

“Where the tortious acts of two or more wrongdoers join to produce an indivisible injury, that is, an injury which from its nature cannot be apportioned with reasonable certainty to the individual wrongdoers, all of the wrongdoers will be held jointly and severally liable for the entire damages and the injured party may proceed to judgment against any one separately or against all in one suit.”

The defendants did not oppose the severance of their cross-action against Burk and they will have an opportunity to be heard on the merits of their cross-action in a separate case. The requested issues were properly refused.

We have examined all of defendants'1 points and find no merit in them. They are overruled.

The judgment is affirmed.


author: PER CURIAM.

text:
    N. F. ROBERTS et ux., Appellants, v. The FIRST NATIONAL BANK OF KILLEEN, Appellee.
    Motion No. 13277.
    Court of Civil Appeals of Texas. Austin.
    Oct. 27, 1965.
    Rehearing Denied Nov. 17, 1965.
    Mitchell & Gilbert, Arthur Mitchell, Austin, for appellants.
    Skelton, Bowmer, Courtney & Burleson, Byron Skelton, Temple, for appellee.
   PER CURIAM.

This motion was filed by appellants on October 13, 1965, for an extension of time for filing the transcript of the record in this Court. See Rule 386, Texas Rules of Civil Procedure.

Final judgment was rendered below on July 30, 1965. There was no motion for a new trial. Notice of appeal and appeal bond were timely filed. The sixty days allowed for filing the record in this Court expired on September 28, 1965. Rule 386, T.R.C.P.

The transcript was tendered for filing to the Clerk of this Court on September 29, 1965. This tender was refused.

On September 21, 1965, Mr. Hugh L. Taggart, the trial court clerk, wrote attorney for appellant that the transcript in this case was complete and would be forwarded to him upon the payment of $207.00 transcript fees. Nothing further transpired in the matter until September 27, 1965, when Mr. Taggart received $207.00 in money order from Mr. N. F. Roberts, an appellant.

On the same day, September 27, Mr. Taggart mailed the transcript to appellant’s attorney in Austin, Texas. This transcript was received in the office of such attorney at about 4:30 p. m. on September 28, 1965, appellant’s attorney not being personally present in the office at the time of receipt of the transcript.

If we had any discretion under these circumstances, we would exercise it in behalf of appellants. Believing that we have no discretion under the Supreme Court ruling in Matlock v. Matlock, 151 Tex. 308, 249 S.W.2d 587, we overrule appellants’ motion.

Appellants could have obtained the transcript over a period of several days between September 21 when appellants were notified by mail that the transcript was ready and the last day for filing, September 28.

The transcript could have been picked up on September 27 when Mr. Taggart received payment for it, and it could easily have been brought to Austin by the end of the next day.

The transcript could have been brought to this Court from appellants’ attorney’s office in Austin after its receipt there and before our Clerk closed her office.

Further, if appellants had instructed Mr. Taggart to mail the transcript to our Clerk and it had been so mailed on the day it was mailed, it would have been timely. Rule 5, T.R.C.P.

The motion is overruled.

ARCHER, C. J., not participating.


text:
    A. L. CRAIG et al., Appellants, v. STEPHENVILLE STATE BANK, Appellee.
    No. 3992.
    Court of Civil Appeals of Texas. Eastland.
    Oct. 1, 1965.
    Rehearing Denied Nov. 5, 1965.
    David L. Tisinger, Austin, Clyde Sweeney, Stephenville, for appellants.
    Ennis Favors, Stephenville, for appellee.
   WALTER, Justice.

The Stephenville State Bank filed suit against A. L. Craig and Miller Rhoades on a note for $10,500.00, secured by a chattel mortgage on two trailers. It also sued J. H. Stelfox and Miller Rhoades on a note for $7,350.00, secured by a chattel mortgage on two trailers.

Rhoades and Stelfox filed a verified answer in which they denied execution of the note sued on. Stelfox and Rhoades also filed a motion for summary judgment in which they alleged that the note sued on was the consideration moving from them to the bank for the sale of two truck trailers weighing in excess of 4,000 pounds, each being subject to the Certificate of Title Law of the State of Texas. They further alleged in said motion that the title to said vehicles had never been transferred to the bank on any of the trailers involved, and that the bank, therefore, had never issued or delivered a certificate of title to Rhoades or Craig. It further contended that the sale was made in violation of the Certificate of Title Law and that such sale was void and that the note sued upon was void.

Craig also filed a verified answer in which he pleaded there was no consideration for the note sued upon; that the bank did not comply with the Certificate of Title Law and therefore the note sued upon was void; that he had requested the bank to deliver a certificate of title to the trailers but it had refused. Craig also pleaded that he was entitled to the return of $2,000.00 which he had paid to the bank.

The bank had repossessed some trucks and Trailers from Hamilton Trailer Company. It also secured a release from the referee in bankruptcy of the Hamilton bankrupt estate. It sold all this equipment to Rhoades for $21,000.00. Rhoades executed his note for $21,000.00 and a chattel mortgage on the equipment to the bank and took possession of the equipment. Rhoades told the bank at the time of purchase that he did not want the trailers in his name.

In a non-jury trial the court rendered judgment for the bank. Rhoades, Stelfox and Craig have appealed.

The judgment recites that all parties and their attorneys appeared and waived a jury and announced ready for trial. In this non-jury case, no motion for a new trial was a prerequisite to an appeal. Rule 324 Texas Rules of Civil Procedure. However, the appellants J. H. Stelfox and Miller Rhoades filed motions for a new trial. In their motions they did not assign as error the action of the court in rendering judgment on the merits at a hearing on motion for summary judgment, neither did they assign as error the action of the court in overruling their motions for summary judgment. However, they have points on these two matters.

The Supreme Court held in Park v. Essa Texas Corporation et al., 158 Tex. 269, 311 S.W.2d 228, that in a non-jury case a motion for a new trial was not a prerequisite to an appeal but the filing of such a motion was not prohibited. The court held that in such a case where a “non-prerequisite” motion for a new trial had been filed, the time for filing the record in the Court of Civil Appeals began to run from the date the motion for new trial was overruled. The court said in Burnett v. Meletio, Jr., Tex.Civ.App., 351 S.W.2d 912, (Writ Ref.N.R.E.) :

“While it is true that in a case tried before the court a motion for new trial is not essential for appeal, yet it is equally true that when a motion for new trial is filed the moving party, on appeal, is confined to the assignments presented in said motion. Rule 323, Texas Rules of Civil Procedure; Humphreys v. Humphreys, Tex.Civ.App., 200 S.W.2d 453.”

See also Williams v. Brown, Tex.Civ.App., 362 S.W.2d 177. Based upon the foregoing authorities we cannot consider Rhoades and Stelfox’ points that the court erred in granting judgment on the merits at a hearing on motion for summary judgment and in overruling their motions for summary judgment.

The appellants’ points that the court erred in not holding that the attempted sales of the trailers to Craig and Stelfox were void because of the bank’s failure to deliver the certificates of title to appellants, cannot be sustained.

Mr. Maguire, the executive vice-president of the hank, testified that when Rhoades sold the trailers to Craig Craig’s note was applied on Rhoades’ $21,000.00 note to the bank; when Rhoades brought the Stelfox note to the bank it was placed in what they called a reserve account; that sometime thereafter some of the credits from the-reserve account were applied to Rhoades’ $21,000.00 note until it was paid off and at such time he refunded $750.00 interest to Mr. Rhoades, because it had been paid before maturity.

At the time this suit was filed, the transaction which Rhoades originally had with the bank wherein he purchased certain trucks and trailers and paid for them by executing his note to the bank for $21,000.00 had terminated. Neither Rhoades nor the bank complied with the Certificate of Title Law. The transaction amounted to a contract to sell. Such a contract to sell without delivery of the certificate of title is not illegal as between the parties. Rush v. Smitherman, Tex.Civ.App., 294 S.W.2d 873, (Writ Ref.).

Craig testified that he purchased the trailers from Rhoades. He was asked, “Actually you didn’t buy the trailers, did you” and he answered, “Yes, I did” and he was asked, “You bought them outright” and he answered, “Yes.”

Mr. Maguire testified the agreement was that the bank would keep the titles until the notes were paid. He was asked, “That was your agreement with Mr. Rhoades or Mr. Craig” and he answered, “Everybody concerned.” Stelfox testified that he purchased the trailers from Mr. Rhoades and that he signed a note in blank and a chattel mortgage in blank and gave them to Mr. Rhoades.

No findings of fact or conclusions of law were requested by the appellants. “It is elementary that when the appellant contests the trial court’s judgment without requesting findings of fact or conclusions of law, we must assume that the trial court’s findings were all in support of its judgment; and the judgment must be affirmed if there is any evidence of probative force to support it upon any theory authorized by law.” The City of Abilene v. Meek, Tex.Civ.App., 311 S.W.2d 654, 656, (Writ Ref.).

Section 1 of Article 1436-1, Vernon’s Ann.P.C., known as the Certificate of Title Act, provides:

“ * * * in the enactment hereof it is hereby declared to be the legislative intent and public policy of this State to lessen and prevent the theft of motor vehicles and house trailers, and the importation into this State of, and traffic in, stolen motor vehicles and house trailers, and the sale of encumbered motor vehicles and house trailers without the enforced disclosure to the purchaser of any and all liens for which any such motor vehicle or house trailer stands as security, and the provisions hereof, singularly and collectively, are to be liberally construed to that end.”

The bank did not sell or offer to sell the trailers to Craig and Stelfox. The record shows conclusively that Rhoades made the sales. At the time the bank financed the Stelfox and Craig notes, it had in its possession the certificate of title to said trailers. In First State Bank of Corpus Christi v. Austin, Tex.Civ.App., 315 S.W.2d 390, (Writ Ref.), the court said: “The money lender may protect himself by retaining the title papers in his possession or by causing a lien to be noted upon the papers.”

We have considered all of the appellants’ points and find no merit in them. They are overruled.

The judgment is affirmed.


author: PARKER, Justice.

text:
    The STATE of Texas, Appellant, v. Leon D. NESOM et ux., Appellees.
    No. 6789.
    Court of Civil Appeals of Texas. Beaumont.
    Sept. 23, 1965.
    Rehearing Denied Oct. 21, 1965.
    W. G. Walley, Jr., Beaumont, for appellant.
    Chilton O’Brien, Beaúmont, for appel-lees.
   PARKER, Justice.

This is an eminent domain case. In response to the three special issues submitted, the jury found that the market value of the land condemned by The State of Texas was $2,700.00 and that the taking resulted in no damage to the remainder of the land owned by appellees, Leon D. Ne-som and wife. Judgment was entered upon the jury verdict.

Appellant urges error on the part of the trial court in refusing to set aside the verdict of the jury and the judgment of the court thereon because there is no evidence to support jury finding $2,700.00 to be the market value of the strip of land owned by appellees condemned by appellant, The State of Texas, for highway purposes as of April 29, 1964. The sole witness testifying as to the value of the condemned tract was Edwin Terry, an expert real estate appraiser. This witness detailed his educational background, training and experience, qualifying himself to give his opinion as to the market value of real property in the area of the land involved in this proceeding. The property involved was unimproved, non-income producing property. The comparable sales approach was the only technique that could be used in appraising this specific property. Terry considered sales of several properties in helping him form his opinion and estimate of the market value of the property involved. Although not a participant in any of such sales, he testified that as to each he had confirmed the details of each sale by talking with the respective sellers and buyers. He calculated the basis of each sale upon dollar per front foot fronting on roads or streets. The appraisal Terry made of the market value of the appellees’ entire tract of land was $5,400.00, or $25.00 per front foot. His opinion of the value of the parcel of land of appellees being condemned was $1,463.00, or $70.00 per front foot. He further testified there was no difference in the value of the remainder of appellees’ land immediately before and immediately after the taking of the strip needed for highway purposes. There was no other competent evidence as to the value of the property taken. Testimony of the expert witness, Terry, concerning comparable sales of other property considered by him in reaching his opinion of the market value of the property under consideration was admissible for the limited purpose of showing a basis of the opinion value thereof stated by this expert witness. State v. Oakley, 163 Tex. 463, 356 S.W.2d 909, 95 A.L.R.2d 1207 (1962). The jury’s finding of $2,700.00 exceeds the maximum estimate of value of the only witness thereon and there is no other competent proof of value. The verdict and judgment for damages being unsupported by proof is excessive as a matter of law to the extent that it exceeds the highest value placed upon the property by probative evidence, to-wit: $1,463.00. Gulf, C. & S. F. R. Co. v. Fink, Tex., 18 S.W. 492; State v. Spears, Tex.Civ.App., 374 S.W.2d 250; City of Houston v. Ready, Tex.Civ.App., 370 S.W.2d 210; Roberts v. State, Tex.Civ.App., 350 S.W.2d 388.

In the argument to the jury, appellant objected to the following argument as being entirely beyond the record and moved the court to instruct the jury not to con-sider the statements for any purpose, which the trial court overruled, to-wit:

“Now Mr. Walley (counsel for Appellant) omitted to mention that he had another appraiser sitting in this courtroom that the County, I presume, paid.
“He (counsel for Appellant) asked you on voir dire whether or not you knew Mr. Jef Russell, an appraiser here in this case, and I think it’s a fair assumption and comment that there was another appraiser. * * * ”
“ * * * Mr. Nesom’s tax money went to pay the appraisers, both of them, just like yours did, and mine did, and Judge’s did, and Mr. Walley’s did, and everyone else’s here that’s paying taxes. I don’t know why the County feels that they have some proprietorship rights in those opinions they have, and I say to you, you don’t have to consider that as binding upon you.”

On voir dire examination of the members of the jury panel in this cause, counsel for plaintiff inquired of the panel if they knew Mr. Jef Russell or Mr. Edwin Terry, who might testify in this cause as witnesses. There is no evidence that Russell was a witness under the control of appellant, that he was employed by appellant to investigate and evaluate facts and report an expert opinion or that he was not as available to appellees as he was to appellant. However, this was not an argument to the jury that Russell’s testimony would have been unfavorable to appellant and that the failure of appellant to call him to testify was a suppression of evidence.

Such argument was not a denial of the rights of the appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment. Accordingly, appellant’s point of error as to this argument is overruled.

From the comparable sales detailed by witness Terry, appellees prepared a typewritten statement which the trial court permitted to be introduced into evidence over appellant’s objection. This exhibit deals with three comparable sales. Taking the first sale, the language is as follows:

“If the Nesom tract is valued on the same front foot basis that Mr. Terry-testified to for his comparable Tract No. 3 on Kingsley Drive, then the total value of the Nesom tract would be 215 x $33.33, or $7,165.95. On this basis the portion of the Nesom tract that is being taken for highway purposes, which is 261/697 of $7,165.95, or $2,-683.37.”

The other two sales are dealt with in like language. Such an exhibit being based entirely upon hearsay and hypothetically assuming facts completely unproven as facts, the exhibit was not admissible evidence of any probative force for the purpose of proving facts. Terry had testified to the calculations on the Kingsley Drive tract. The trial court in State v. Oakley, supra, instructed the jury that:

“You are instructed that testimony by witnesses not having first hand knowledge of the matter stated that certain properties had sold for certain prices shall not be considered as evidence that such properties have sold or that such properties have sold for the prices stated, or as evidence of the market value of the property involved, but may only be considered as being information which the witnesses testified they gathered for the purpose of forming an opinion of the market value of the property involved.”

Appellant’s point of error relating to this exhibit is overruled as not being a denial of the rights of the appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment.

It was error for the trial court to enter judgment for $2,700.00 with no proof that the value of the condemned property was over $1,463.00. This error may be cured by remittitur. Unless appellees within two weeks after the filing of this opinion file a remittitur in the amount of $1,237.00, this case will be reversed and remanded for new trial. If such remittitur is executed and filed with the clerk of this court within said time, the judgment will be affirmed for the balance.


author: DUNAGAN, Chief Justice.

text:
    G. H. MELTON et ux., Appellants, v. The STATE of Texas, Appellee.
    No. 151.
    Court of Civil Appeals of Texas. Tyler.
    Oct. 14, 1965.
    Rehearing Denied Nov. 4, 1965.

      David M. Kendall, Jr., Woodruff, Hill, Bader & Kendall, Dallas, for appellants.
    Waggoner Carr, Atty. Gen. of Texas, Fred M. Talkington, Asst. Atty. Gen., Austin, for appellee.
   DUNAGAN, Chief Justice.

This is an appeal from a judgment entered by the County Court of Hopkins County in a condemnation case.

The appellee, The State of Texas, was plaintiff in the court below, but will hereafter be referred to as the state, and appellants were defendants therein and will hereafter he referred to as defendants. Special commissioners were duly appointed and hearing held which resulted in an award of $10,000.00. Both the state and the defendants duly and timely perfected appeals from the award. Trial was had to a jury in the County Court, which resulted in a verdict and judgment of $8,890.01 for the defendants, being $1,109.99 less than the award of the commissioners.

The state brought this condemnation proceeding to condemn 7.891 acres of land out of a 45.59 acre tract of land which the defendants had purchased November 13, 1959. The date of taking in this case is November 29, 1961.

Prior to institution of this proceeding, Interstate Highway 30 had been constructed. The whole property had frontage on a service road of Interstate 30 for 1,970 feet, and was bounded on the East by a farm to market road which dead-ended into the frontage road. The property at the time of the taking was located near but outside of the City Limits of Sulphur Springs.

Upon the 45.59 acre tract of land was situated a farm house, a dairy barn, and several out buildings. However, the portion under condemnation was entirely raw acreage. The property had no city utilities except electricity. It did have the use of a private three-fourth inch water line. These are substantially the physical facts and features of the property on the date of taking, November 29, 1961, and they are the same facts and features as of the date the defendants purchased the property, November 13, 1959, for a total sum of $15,000.00, or $329.-00 per acre for the 45.59 acres and all the improvements thereon.

The property at the date of purchase and the date of taking was being used as a rural homesite and for cattle grazing, a dairy farm and dairy show lot.

The 7.891 acres taken is an irregular shaped tract, which severed the subject property, leaving a 7 plus acres remainder on the East side. The part taken had 542.6 feet of frontage on the frontage road.

There is no question raised as to the right of the state to take the property or as to the procedure followed. In fact, the parties entered into a stipulation by which it was agreed that the only questions to be resolved were the fair market value of the property taken and the damage, if any, to the remainder.

The defendants contend that the trial court erred in:

(1) Excluding from consideration by the jury evidence that the property in question was in the process of being developed as a shopping center;

(2) Refusing to allow Theron Moore to testify to steps that had been taken to develop the property as a shopping center;

(3) Excluding from the evidence a plat showing development of the property as a shopping center;

(4) Refusing to permit defendant, G. H. Melton, to testify that he purchased the property for the purpose of developing it;

(5) Refusing to permit defendant, G. H. Melton, to testify as to the plans and work that had been done in developing the property as a shopping center;

(6) Refusing to permit cross-examination of the state’s witness, Froneberger, concerning her knowledge of the use being made by the defendants of the property as a shopping center.

Throughout the trial in the County Court, it was the position of the defendants that their property should be valued as commercial property rather than as farm or ranch land. It was the position of the state, on the other hand, that it had no value as commercial property.

The defendants in their brief say:

“While Defendants have here asserted 18 points of error, their position can easily be summarized by stating that it is their earnest belief that, during the trial of this case, the trial court effectively prevented them from establishing the value of the property for use as a shopping center, and even kept the jury from considering it; while, at the same time, giving the State free rein to establish that the property was usable only for raising cattle or possibly as a residence. * * * ”

Defendants’ first witness, Theron O. Moore, testified that he was interested in the construction of a shopping center in or around Sulphur Springs, and he came to Sulphur Springs for the purpose of determining what lands were available. He made an extensive survey of the area and found that there were not too many desirable sites. He determined what, in his opinion, would be the best site for a shopping center, and that was the 45-acre tract owned by the defendants. Moore was also permitted to testify why he thought the property was feasible as a shopping center, and the type of study he had made. The witness Moore further testified that he contacted defendant, G. H. Melton, and they had discussions about development of a shopping center.

Defendant G. H. Melton testified that he purchased the property for the purpose of developing it and corroborated witness Moore’s testimony as to what had already been done at the time of taking with reference to a shopping center. He testified that, in his opinion, the highest and best use for the property was commercial and, within that category, the best use would have been as a shopping center.

Defendants’ next witness, David Lemmon, testified in his opinion the highest and best use of the property was commercial but that after the taking it would have no commercial use.

Defendants’ witness Bailey testified that the highest and best use of the property was for commercial or residential development or both.

The state objected to witnesses Moore and Melton testifying as to proposed plans or intended uses of the land for a shopping center and the court excluded such testimony. Also, on cross-examination of Vira Froneberger, she was asked if she knew that there was a proposed shopping center on this property after Melton had purchased it. The state objected on the ground that this was going into a hypothetical proposed shopping center and the objection was sustained. The defendants contend that the trial court committed error in excluding such evidence.

We think the proffered testimony relating to plans and intended use of the property for a shopping center was wholly speculative. The defendants had done nothing toward altering the surface or subsurface of the property nor had any improvements been placed upon it pursuant to any such plans or intended uses. How the property might best be developed was not a matter for the jury’s consideration. The trial court did not err in excluding it. Bruner v. State of Texas, 391 S.W.2d 149, (Tex.Civ.App.) 1965, n. w. h. at this time; Lower Nueces River Water Supply District v. Collins, 357 S.W.2d 449, (Tex.Civ.App.) 1962, writ refused, n. r. e. and authorities cited.

In any event, market value in such a case should be based upon a reasonable cash value and a reasonable use for reasonable adaptability, and not upon some speculative, contemplated use to be made of the land. Cravens v. City of Amarillo, 309 S.W.2d 903, (Tex.Civ.App.) 1958, writ dismissed and other authorities there cited. Also see: State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194, 979 (S.Ct.); Texas Electric Service Company v. Campbell, 336 S.W.2d 742, (S.Ct.) 1960; Texas Power & Light Co. v. Hill, 27 S.W.2d 842, (Tex.Civ.App.) 1930, writ dismissed.

In regard to defendants’ complaint of the court’s action in excluding from the evidence a plat showing development of the property as a shopping center, the record does not show that the defendants at any time offered the plat into evidence, nor in perfecting any Bill of Exception offered the plat. The excluded plat is not before this court. The record shows the following:

“Mr. McDaniel: While the jury is out, we can handle this now or we can handle it later. We understand that you are going to offer a plat showing a subdivision drawn of the land, is that correct?
“Mr. Bader: We don’t know * *

Since the excluded evidence of which the defendants complain is not in the record or part of a Bill of Exceptions, or shown to have been offered in evidence at any time, thus there is nothing for the appellate court to review. American Guaranty Life, Health and Accident Insurance Company v. State of Texas, 332 S.W.2d 135, (Tex.Civ.App.) 1960, n. w. h.; Gulf Paving Co. v. Lofstedt, 144 Tex. 17, 188 S.W.2d 155, (S.Ct.) 1945; McCarthy v. City of Amarillo, 307 S.W.2d 595, (Tex.Civ.App.) 1957, n. w. h. Defendants’ Points 1 through 6 are overruled.

The defendants by their Point of Error No. 8 complain that: “The trial court erred in refusing to instruct the jury, in its charge, that, in determining market value, the jury was entitled to consider all of the uses to which the property was reasonably adaptable, and for which it either was or would in all probability become available within the reasonable future.”

The defendants objected to the court’s charge and the court’s refusal to give their requested definition of market value. The court gave the following charge:

“You are instructed that the term ‘market value’ is the price the property will bring when offered for sale by one who desires to sell, but is not obliged to sell, and is bought by one who desires to buy, but is under no necessity of buying.”

The defendants requested the following instruction:

“You are instructed that the term ‘market value’ is the price the property will bring when offered for sale by one who desires to sell, but is not obliged to sell, and is bought by one who desires to buy, but is under no necessity of buying, taking into consideration all of the uses of which it is reasonably adaptable and for which it either is or in all reasonable probability will become available within the reasonable future.”

The definition given by the trial court is, in effect, the one approved by the Supreme Court in State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194, 979 and was properly given here. South v. Texas Eastern Transmission Corporation, 332 S.W.2d 442, (Tex.Civ.App.) 1960, n. w. h.; Frost v. State of Texas, 284 S.W.2d 232, (Tex.Civ.App.) 1955, n. w. h.; Herndon v. Housing Authority of City of Dallas, 261 S.W.2d 221, (Tex.Civ.App.) 1953, n. w. h.; Eubank v. State, 330 S.W.2d 510, (Tex.Civ.App.) 1959, writ refused, n. r. e.

This court in the case of Jones v. City of Houston, 380 S.W.2d 761, n. w. h., in an opinion written by Justice Sellers said: “This charge is the approved charge of the Supreme Court in the case of State v. Carpenter et al., 126 Tex. 604, 89 S.W.2d [194] 979, and we find nothing in the record rendering this definition inapplicable to the facts in this case.” The definition of “market value” in the Jones case was substantially the same as the definition given in the case at bar. In the instant ease, we adhere to our holding in that case and this point is overruled.

Moreover, defendants’ Point 8 should be overruled on the additional grounds that they have not properly preserved their complaint to this court. Upon examination of the transcript, we find that the instrument designated “Defendants’ Objections to the Court’s Charge” contains the obj^tion to the definition and the special requested definition. It is not signed by the trial judge, however, and contains nothing to show that this instrument was ever presented to the trial court or acted upon by him or other notations indicating that it was ever presented to the court or acted upon by him as provided by Rules 272 and 276, Texas Rules Civil Procedure. Gowan v. Reimers, 220 S.W.2d 331, (Tex.Civ.App.) 1949, writ refused, n. r. e.; Ramsey v. Polk County, 256 S.W.2d 425, (Tex.Civ.App.) 1953, n. w. h.

The defendants urge by Points 9 and 10 that the trial court erred in sustaining plaintiff’s motion to suppress evidence of the sales of tracts of land of one acre or less and in refusing to allow the defendants to show sales of property which were one acre or less in size. The record, either by the Statement of Facts or by a Bill of Exception, does not contain the excluded evidence or show what it was, thus there is nothing for this court to review. American Guaranty Life, Health and Accident Insurance Company v. State of Texas, supra; McCarthy v. City of Amarillo, supra; Gulf Paving Company v. Lofstedt, supra.

However, we think the trial judge was entirely within his discretion in omitting evidence of sales of one acre or less. Morgan v. State of Texas, 343 S.W.2d 738, (Tex.Civ.App.) 1961, writ refused, n. r. e.; State v. Oakley, 163 Tex. 463, 346 S.W.2d 909, 95 A.L.R.2d 1207, 1962; Bruner v. State of Texas, supra; Holcombe v. City of Houston, 351 S.W.2d 69, (Tex.Civ.App.) 1961, n. w. h.; State v. Helvey, 375 S.W.2d 744, (Tex.Civ.App.) 1964, n. w. h.; Continental Development Corporation v. State, 337 S.W.2d 371, (Tex.Civ.App.) 1960, n. w. h.; Cravens v. City of Amarillo, supra; Reynolds v. State, 390 S.W.2d 493, (Tex.Civ.App.) 1965, n. w. h. at this time, and the defendants have shown no error or harm, since they have not brought the excluded evidence to this court.

Defendants next say that the trial court erred in excluding from the evidence testimony concerning sales of other land comprising the Spring Village Shopping Center and in holding that as a matter of law property acquired for Spring Village Shopping Center was not comparable to the property in question. The sales complained of were located North of Interstate 30 along the main street in the City of Sulphur Springs. The property had been subdivided for some time. It was in the City Limits and was within a highly-developed area. There were streets, utilities and improvements involved. It was also shown that the property had been zoned commercial and second residential. We think the defendants’ contentions here made are controlled by the holding of the Supreme Court in the case of State v. Willey, 360 S.W.2d 524, 1962, wherein the court said: “It has long been held in this state that even though a tract of land is adaptable to subdivision for commercial and residential lots one seeking to prove the value of such a tract of land may not show what the price of the lots would be if subdivided, or show the price for which already subdivided lots were selling. * * * ” Citing numerous authorities for such holding.

The court further held that “The admission of the testimony as to the sale price of lots in the subdivided areas undoubtedly prejudiced the State’s case. * * * ” The court went on to further hold that the admission of testimony as to sales in subdivided areas as being comparable to- an undeveloped tract was reversible error and accordingly reversed and remanded the cause.

A discretion is lodged in the trial court relative to whether evidence tendered purporting to show sales of comparable property to that condemned shall or shall not be admitted. Bruner v. State, supra, and authorities therein cited.

The defendants contend that State v. Helvey, supra, supports their contention. With this we do not agree. The facts in the Helvey case are distinguishable from the facts in the instant case. Defendants’ Points 11 and 12 are overruled.

The defendants further contend that the answers to the Special Issues are against the great weight and preponderance of the evidence and that the damages awarded are grossly inadequate. This contention is overruled.

The state placed the testimony of five value witnesses before the jury, which ranged from $329.00 to $650.00 per acre for the part taken with no decrease in value to the remainder, or a total of from $2,600.00 to $5,200.00.

The defendants placed the testimony of four value witnesses before the jury, which ranged from $4,000.00 to $6,000.00 per acre for the part taken, and decrease in the value of the remainder from $14,-990.00 to $47,500.00 or a total of from $46,550.00 to $95,500.00.

The jury found the value of the 7.891 acres of land taken to be $5,129.11 and $3,760.90 for damages to the remainder, totaling $8,890.01. After careful review of all of the evidence, we find it is ample to support such award, and the same is not against the great weight and preponderance of the evidence. In re: King’s Estate, 244 S.W.2d 660.

Defendants’ remaining Points have been considered and are overruled.

Finding no reversible error in the record, the trial court’s judgment is affirmed.

SELLERS, J., not participating.


author: DONNELLY, Judge.

text:
    Oscar P. KASTEN, Respondent, v. Ora N. GUTH, Appellant.
    No. 51089.
    Supreme Court of Missouri, Division No. 1.
    Nov. 8, 1965.

      Stephen N. Limbaugh, Limbaugh, Limbaugh & Russell, Cape Girardeau, for respondent.
    Francis Toohey, Jr., Roscoe D. Moore, Perryville, for appellant.
   DONNELLY, Judge.

This is an election contest wherein Oscar P. Kasten, contestant-respondent, contests the election of Ora N. Guth, contestee-appellant, as Superintendent of Schools of Perry County, Missouri.

The election was held April 2, 1963. The name of Ora N. Guth appeared on the printed ballot. Oscar P. Kasten was a write-in candidate.

We have jurisdiction because the case involves title to an “office under this state.” Art. V, § 3, Const. of Missouri 1945, V.A.M.S.; Kasten v. Guth, Mo.Sup., 375 S.W.2d 110.

Kasten filed a notice of election contest in the Circuit Court of Perry County, Missouri. Guth moved to dismiss said notice and her motion was sustained. Kasten appealed to this Court and the cause was reversed and remanded. Kasten v. Guth, supra.

The case was tried by the Circuit Court of Perry County, Missouri, without a jury. The County Clerk of Perry County tabulated the results of the election with the following results:

“Ora N. Guth ts. T-H
Oscar P. Kasten O O
Oscar Kasten to
Kasten is,
Oscar P. Casten ^
Oscar P. Caston ¶ — <
Clarence P. Kasten T — J
Oscar P. Kaston VO
Oscar B. Kasten
Oscar A. Kasion t-H
Oscar R. Kastel H
Oscar R. Kasten
Francis P. Kasten t
Oscar Kastel t — I
Paul P. Kasten t-<
Oscar J. Kasten
Arthur Kasten
Mr. Kasten of Uniontown
O. P. Kasten
O. Kasten
T. Casten
Oscar Kassel
Oscar P. Kesten
Kaston
Oscar P. Kastan
Osc. Kasten
Oscar C. Kasten
Oscar P. Kastn
Oscar P. Kaster
Kassel

After hearing the evidence, the Circuit Court of Perry County, Missouri, found that, of the votes cast in the above tabulation, the following votes should be counted for Oscar P. Kasten:

“Oscar P. Kasten 1,050
Oscar Kasten 75
Oscar P. Casten 4
Oscar P. Caston 1
Mr. Kaston of Uniontown 1
O. P. Kasten •2
Oscar P. Kaston VO
Oscar P. Kesten Cn
Oscar P. Kastan ft
Osc. Kasten H
Oscar P. Kastn H
Oscar P. Kaster CO
Total 1,147”

The Circuit Court of Perry County, Missouri, then held that Ora N. Guth received a total of 1137 votes and Oscar P. Kasten received a total of 1147 votes, declared Oscar P. Kasten the winner of the election, ordered Ora N. Guth to give up the office to Oscar P. Kasten, and to deliver to Oscar P. Kasten all books, records, papers, property, and effects pertaining to the office.

Guth’s after-trial motions were overruled, and she has perfected an appeal to this Court. We will consider her allegations of error.

First, appellant urges that the returns from the Longtown District should be voided because the evidence showed that the election there was not conducted in compliance with the provisions of Section 111.620 RSMo 1959, V.A.M.S. Some of the ballots cast and counted did not contain the Judge’s or Clerk’s initials and did not have black stickers placed over the numbers marked on the ballots. “ * * * The uppermost question in applying statutory regulation to determine the legality of votes cast and counted is whether or not the statute itself makes a specified irregularity fatal. If so, courts enforce it to the letter. If not, courts will not be astute to make it fatal by judicial construction. Gass v. Evans, 244 Mo. [329] loc. cit. 353, 149 S.W. 628; Hehl v. Guion, 155 Mo. 76, 55 S.W. 1024. ‘Such a construction,’ says this court, speaking through Barclay, J., in

Bowers v. Smith, 111 Mo. [45] loc. cit. 55, 20 S.W. 101, 16 L.R.A. 754, 33 Am.St.Rep. 491, ‘of a law as would permit the disfranchisement of large bodies of voters, because of an error of a single official, should never be adopted, where the language in question is fairly susceptible of any other. Wells v. Stanforth (1885), 16 Q.B.Div. 245.’ Again (pages 61, 62, of 111 Mo., page 105 of 20 S.W. [16 L.R.A. 754, 33 Am.St.Rep. 491]): ‘If the law itself declares a specified irregularity to be fatal, the courts will follow that command irrespective of their views of the importance of the requirement. Ledbetter v. Hall (1876), 62 Mo. 422. In the absence of such declaration, the judiciary endeavor, as best they may, to discern whether the deviation from the prescribed forms of law had or had not so vital an influence on the proceedings as probably prevented a free and full expression of the popular will. If it had, the irregularity is held to vitiate the entire return; otherwise it is considered immaterial.’ ” Nance v. Kearbey, 251 Mo. 374, 383, 384, 158 S.W. 629, 631 [3], See also Riefle v. Kamp, 241 Mo.App. 1151, 247 S.W.2d 333; and Bernhardt v. Long, 357 Mo. 427, 209 S.W.2d 112. Sec. 111.620, supra, does not itself make the specified irregularities fatal. The point is without merit.

Appellant further cites Section 129.840 RSMo 1959, V.A.M.S., and questions the actions and practices of conducting the elections in various school districts in the county. The respondent sent a letter to a member of each school board in the county requesting that they inform the voters as to the proper procedure for a write-in candidate and spelled out in each letter how this should be done. In Long-town District the chairman of the meeting wrote the name of Oscar P. Fasten on the blackboard before the meeting and advised those attending that if they wanted to vote for respondent they should cross out appellant’s name and write in respondent’s name. In Belgique District and in Boxdorfer District respondent’s name was written on the blackboard. In Altenburg District, one of the election officials shouted to someone voting that if he wanted to vote for the write-in candidate to be sure to insert the “P” in Oscar P. Fasten. In Frohna District someone asked how to vote for the write-in candidate and it was explained that he had to write Oscar P. Fasten to make it legal. “The well-established rule, here applicable, is that an election irregularity is not fatal to the validity of the whole return of the precinct unless made so by the statute on the subject or unless the irregularity is such as ‘probably prevented a free and full expression of the popular will.’ Bowers v. Smith, 111 Mo. 45, loc. cit. 61, 62, 20 S.W. 101, 16 L.R.A. 754, 33 Am.St.Rep. 491; Hehl v. Guion, 155 Mo. 76, loc. cit. 83, 55 S.W. 1024; Nance v. Fearbey, 251 Mo. 374, loc. cit. 383, 158 S.W. 629; McCrary on Elections (4th Ed.) p. 171; 9 R.C.L. p. 1093, par. 102; 15 Cyc. 372, 373.” State ex rel. Thompson v. Arnold, 278 Mo. 672, 684, 213 S.W. 834, 837. “As a general rule an election will not be annulled even if certain provisions of the law regarding elections have not been strictly followed in the absence of fraud.” Armantrout v. Bohon, 349 Mo. 667, 672, 162 S.W.2d 867, 871.

While the irregularities referred to should not be encouraged, they were not sufficient to constitute fraud, and in the absence of fraud we will not deprive the voters of their votes. This point is ruled against the appellant.

Appellant next urges that the trial court erred in finding that the seventy-five votes cast for Oscar Fasten should be counted for Oscar P. Fasten, for the reason that there was another Oscar Fasten residing in Perry County. In fact, there was another Oscar Fasten residing in Perry County. He was Oscar R. Fasten, an automobile dealer in Altenburg, Missouri.

Judge Holman, in Kasten v. Guth, supra, anticipated this question and at 375 S.W.2d 110, 116, said: “As to the votes cast for Oscar Fasten, we have the view that said name is so similar to Oscar P. Fasten that they should be counted for contestant unless it should appear from the evidence that there was a person residing in Perry County (other than contestant) who had the name of Oscar Fasten and who possessed the qualifications specified in § 167.010 for the office here involved. In the event it should appear that there were on the date of the election two residents of Perry County bearing the name of Oscar Fasten and possessing the aforesaid qualifications, then the court shall determine from all of the evidence in the case the identity of the person for whom those voters intended to cast their ballot.”

Section 167.010 RSMo 1959, V.A.M.S., in effect at the time of the election on April 2, 1963, read in part as follows: “ * * * The qualified voters of each and every county in this state shall elect a county superintendent of public schools at the annual district school meeting held on the first Tuesday in April, 1943, and every four years thereafter. Said county school superintendent shall be a citizen of the county and at least twenty-four years old. He shall have taught or supervised schools as his chief work during at least two of eight years next preceding his election, or shall have spent the two years next preceding his election as a regular student in a recognized college or university or shall have a master’s degree with a major in school administration. At the time of his election he shall hold a certificate authorizing him to teach in the public schools of Missouri, and shall have completed at least one hundred and twenty semester hours of college work, including at least fifteen hours in the field of education, not less than five of which shall have been in school supervision and administration; or he shall be serving as county superintendent of public schools.”

Oscar R. Fasten testified that he resided in Altenburg, Missouri, is a Chevrolet dealer in that community, that people from Perryville occasionally trade with him, and that he has a “Fasten, Altenburg, Missouri” Chevrolet emblem on the cars he sells. His formal education extended through the eighth grade. He testified that he was not a candidate for Perry County Superintendent of Schools in the election, did not advise anyone that he was a candidate, that no one discussed the election with him or about being a candidate for the office, and that he did not campaign for the office. He testified further that he had never taught school and had never been a county superintendent of schools for any county. He was well known in the community.

Oscar P. Fasten, respondent, was reared in Perry County, attended grades one through eight in Uniontown, grade nine in Perryville and grades ten through twelve in Cape Girardeau. He attended Southeast Missouri State College and the University of Missouri. He started teaching after he left high school and over a period oí many years taught school in Cape Girardeau County, Perry County, Madison County and Stoddard County. He campaigned extensively for the office of Superintendent of Schools, personally traveled over the county soliciting votes, and used radio and newspaper advertising, cards and handbills.

One witness testified that when he voted and wrote “Oscar Fasten” he intended to vote for respondent.

There is some question on the evidence adduced whether respondent was qualified for the office. There was testimony that respondent, on the date of election, had only 2.7 semester hours of credit in Supervision and Administration when 5 semester hours were required. (§ 167.010, supra.) Appellant contends that if both Fastens (Oscar P. Fasten and Oscar R. Fasten) were not qualified for the office, the guide-lines set forth in Fasten v. Guth, supra, would not be applicable. We do not so construe the language quoted above from said case. We are of the opinion that respondent has shown by substantial evidence that when the voters voted for “Oscar Fasten”, they intended to cast their ballots for respondent. The trial court did not err in this regard.

Appellant next urges that the trial court erred in counting for respondent the votes cast for Oscar P. Casten, Oscar P. Caston, Mr. Faston of Uniontown, O. P. Fasten, Oscar P. Easton, and Oscar P. Faster. We recognize the obvious fact that it is virtually impossible to ascertain the identity, for example, of the four voters who voted for Oscar P. Casten. The trial court must weigh the evidence available and determine its sufficiency. On the evidence, and considering the circumstances set forth above, we are of the opinion that the trial court did not err in counting these votes for respondent. Fasten v. Guth, supra, Gumm v. Hubbard, 97 Mo. 311, 11 S.W. 61.

Appellant next contends that the trial court erred in ordering respondent placed in office, for the reason that respondent did not have the necessary statutory educational qualifications for the office under Section 167.010 RSMo 1959, V.A.M.S., in effect at the time. As hereinbefore stated, there was testimony that respondent had only 2.7 semester hours of credit in Supervision and Administration when 5 semester hours were required.

“The general rule is that the eligibility of candidates is not a competent issue in an election contest, as queried in the Nance case, supra, 20 C.J., § 275, p. 217, § 289, p. 225; 29 C.J.S. Elections, § 249, p. 361, § 266, p. 375.” Mansur v. Morris, 355 Mo. 424, 432, 196 S.W.2d 287, 293. An inquiry as to respondent’s eligibility for the office would properly be by quo warranto. Davenport v. Teeters, Mo.App., 273 S.W.2d 506, 513. Appellant’s point is without merit in this proceeding.

Finally, appellant contends that the ballots of Uniontown District should not be counted for the reason that the district meeting was held in a parochial school building and not at the schoolhouse. The record on this point reads as follows:

“Q. Where was the election held?
“A. Uniontown Lutheran School.
“Q. Is that schoolhouse in the Union-town District?
“A. It has an old schoolhouse there yet, but it is not fit, and the district decided to change about and decided one meeting to have the meeting one year at the Lutheran school and the next year at the Catholic school hall.
“Q. Have you looked at the building?
“A. I was in it. The last meeting we had there the people complained. It is not fit for a meeting anymore, and that is why it was put before the meeting and they decided that it would be changed about.”

Section 165.200 RSMo 1959, V.A. M.S., in effect at the time of the election, provided that the annual meeting of each school district should be held on the first Tuesday of April of each year in the district schoolhouse. According to the record the location of the schoolhouse was changed for voting purposes. In any event, there is no evidence here that the voters were deprived of a “free and full expression of the popular will.” Nance v. Kearbey, supra. The election in Uniontown District should be upheld. State ex rel. Mercer County v. Gordon, 242 Mo. 615, 624, 147 S.W. 795, 797; State ex rel. Marlowe v. Himmelberger-Harrison Lumber Co., 332 Mo. 379, 58 S.W.2d 750, 752.

The judgment is affirmed.

All concur.