author: FANNING, Justice.

text:
    SOCONY MOBIL OIL COMPANY, Inc., Its operating division Mobil Oil Company, and Magnolia Pipe Line Company, a Corporation, Appellants, v. Gordon MAYER, d/b/a Gordon Mayer Construction Company, Appellee.
    No. 7496.
    Court of Civil Appeals of Texas. Texarkana.
    April 30, 1963.

      Donald C. Canuteson, Dallas, Smead & Harbour, Longview, for appellants.
    Roberts & Smith, Kenley, Ritter & Boy-land, Longview, for appellee.
   FANNING, Justice.

This is a venue case. Appellants-have appealed from an order overruling their pleas of privilege to be sued in Dallas County, Texas.

Appellee sued to recover damages from appellants and another named defendant who did not file a plea of privilege.

Briefly, the basis of plaintiffs’ suit was to the effect that defendants were guilty of negligence in maintaining defective pipe lines, failing to inspect the pipe lines, failing to repair the pipe lines, permitting oil to escape and flow into Hawkins Creek, allowing large quantities of oil to collect under and near a bridge owned by appellee, failing to notify appellee that a dangerous situation existed, failing to recapture and pick up the escaped oil, creating a dangerous condition, that a fire was started from an unknown source which spread to the oil and burned, damaged and destroyed the bridge to such an extent the bridge had to be rebuilt.

Appellants in their brief state that Mobil Oil Company is not a legal entity and is merely an operational division of Socony Mobil Oil Company, Inc. This statement is not challenged by appellee’s brief, and ap-pellee has also offered no proof to the contrary. There is no evidence in the record to show that Socony Mobil Oil Company, Inc., or its operational division, Mobil Oil Company, owned or had any connection with any pipe line involved in this suit, and there is no evidence in the record which would warrant the overruling of the plea of privilege of Socony Mobil Oil Company, Inc., and its operational division, Mobil Oil Company, and the judgment of the trial court overruling the plea of privilege of appellant Socony Mobil Oil Company, Inc., and its operational division, Mobil' Oil Company, is reversed and the cause as to Socony Mobil and Mobil is ordered transferred to a District Court of Dallas County, Texas.

We however sustain venue in Gregg County, Texas, as to appellant Magnolia Pipe Line Company. Magnolia owned a pipe line, which had a “pulled collar”, and there was a loss therefrom of 125 barrels of East Texas crude oil or perhaps more. There was also testimony to the effect that the pipe line was “walked” or tested at 10 day intervals, and that it could have possibly been ten days prior to the time of the oil leak since the pipe line was last tested by the agents of Magnolia. There was evidence that the loss of oil occurred near a creek and that the banks of the creek had been ditched so that oil could drain into the creek. There was further testimony to the effect that oil went on down that first creek and then flowed into Hawkins Creek. A witness also testified that he walked down the creek, and testified to the further effect that he found evidence of oil having come from the area of appellant Magnolia’s pipe line (where the “collar” had pulled loose) and traced the course of oil from Magnolia’s pipe line to the first creek to Hawkins Creek. Oil which “went down the creek” ran into Hawkins Creek. Oil which “went down the creek” was allowed to and did collect around appellee’s bridge. Fire from some unknown origin started and spread to the oil which had dangerously collected under appellee’s bridge, resulting in fire damages to the bridge to such an extent it had to be rebuilt. Magnolia’s pipe line, the creeks, the fire, and the damaged bridge in question were all in Gregg County, Texas, and all of the alleged negligence occurred in Gregg County, Texas.

In East Texas Oil Refining Company v. Mabee Consolidated Corp., Tex.Civ.App., 103 S.W.2d 795, wr. dism., 133 Tex. 300, 127 S.W.2d 445, oil (from a break in a pipe line) was allowed to flow into a creek and around a drilling rig, with the oil becoming ignited from an unknown source resulting in fire damages to the rig, and the court held that the evidence. supported a jury finding that the defendant was negligent in failing to discover the break in the pipe line and in failing to prevent the oil from flowing around the rig. This case also upheld a jury finding that defendant permitted the oil to be ignited although there was no evidence as to how the fire was started, and held that even if the fire was ignited by a third party, such would not have exonerated the pipe line owner from negligence in preventing the fire. We quote from the court’s opinion in the above referred to case as follows:

“The jury found that, if appellant had used ordinary care, it could have discovered the breakage of its pipe line in sufficient time to have prevented the oil from flowing down the creek and around appellee’s rig. By its negligence, so found, appellant caused a dangerous instrumentality to spread upon and saturate the premises of ap-pellee. Appellant by its special requested issue No. 2 sought to ascertain from the jury if some third party ignited the oil. If some third person intentionally or accidentally ignited this oil, would that relieve appellant from liability under the facts and findings of the jury in this case? If A negligently permits a can of explosive to be placed upon the premises of B, and then fails to guard it, and C, passing along the premises, throws a rock, or does some other act to cause this to explode and wreck the house of B, can it be said that the act of C would exonerate the negligence of A? The facts and findings in this cause are to some extent analogous to the liability imposed upon the keeper of a vicious animal, or the owner of an electric power line who negligently permits a dangerous instrumentality to trespass upon the premises of another. 20 R.C. L. Negligence, § 47-48. The acts of a third party, done intentionally or innocently, would not have exonerated appellant from its acts or its failure to act to' prevent the fire as found by the jury. Appellant was charged with knowledge that East Texas crude oil was inflammable and easily ignitable, and to look out for the perils ahead. (Emp. added) The facts and findings here are controlled hy the following extracts taken from 45 Cor.Jur. pp. 934, 936:
“ ‘If the misconduct is of a character which, according to the usual experience of mankind, is calculated to invite or to induce the intervention of some subsequent cause, the intervening cause will not excuse him and the subsequent mischief will be held to be the result of the original misconduct.’
“ ‘The rule seems to he well established that the intervention of an independent agency does not break the causation in cases where the intervention of such agency ought to have been expected to occur according to ordinary experience; and that in such cases the original wrongdoer is liable for all injuries which follow as a direct result of the original negligence acting in combination with such intervening agency, even though the resulting injury could not have been produced by the original negligence alone.’ ”

After carefully reviewing the record we hold that there was ample evidence of probative force to uphold the various implied findings of the trial court in support of its judgment on negligence and proximate cause with respect to appellant Magnolia, and that the trial court correctly sustained venue in Gregg County as to Magnolia under subdivision 9a of Art. 1995, Vernon’s Ann.Civ.St. The judgment of the trial court overruling appellant Magnolia’s plea of privilege is affirmed.

Costs are adjudicated in the following manner: one-half to be paid by appellant Magnolia, and one-half to be paid by ap-pellee Mayer.

Affirmed in part and reversed and rendered in part.


source: Caselaw Access Project

author: WERLEIN, Justice.

license: Public Domain

text:
    Mrs. Mattie HALBERT et al., Appellants, v. The UPPER NECHES RIVER MUNICIPAL WATER AUTHORITY, Appellee.
    No. 14094.
    Court of Civil Appeals of Texas. Houston.
    May 2, 1963.
    Rehearing Denied May 23, 1963.

      Stone & Stone, Wm. Emerson Stone, Jr., Jacksonville, for appellants.
    Johnston & Johnston, Luther C. Johnston, Franklin C. Williams, Palestine, for appel-lee.
   WERLEIN, Justice.

This condemnation suit was brought by appellee, Upper Neches River Municipal Water Authority, sometimes called District, to acquire the surface of 321.02 acres of land, a part of 820.3 acres consisting of four contiguous tracts of land owned by appellants, in Anderson County, Texas. Judgment was rendered on the jury verdict vesting title to the surface of the land in appel-lee and awarding appellants $4,857.60 in addition to the sum of $16,900.00 awarded by the Special Commissioners and theretofore deposited by appellee in the registry of the County Court of Anderson County and withdrawn by appellants, with interest on the sum of $4,857.60 from May 2, 1961, the date of the taking, until payment thereof to the Clerk of the County Court of said county.

Appellee is a conservation and reclamation district created by Article 8280-157 of Vernon’s Annotated Texas Statutes, pursuant to and as expressly authorized by Sec. 59 of Article XVI of the Constitution of the State of Texas, Vernon’s Ann.St., with power of eminent domain, and authority to exercise such rights, powers, privileges and functions as provided by the act creating it and by the general laws of the State pertaining to water control and improvement districts not in conflict with the provisions of such act. The District’s powers are exercised through a Board of Directors consisting of three members appointed by the Governor of Texas, with the advice and consent of the senate.

On March 3, 1961 the District adopted a resolution showing the necessity for acquiring the surface of the land in question for the Blackburn Dam and Lake Palestine, and in effect instructing the general manager of the District to file eminent domain proceedings against the owners of the property involved in this suit for the location, construction, operation and maintenance of said dam and lake. Lake Palestine has a firm supply of 40,000,000 gallons of water per day and some 8,000 acres of land have been acquired for Stage II and Stage III of the project below State Highway No. 155. In order to complete the program much more land will have to be acquired.

This suit was regularly brought and the necessary allegations are set out in appel-lee’s petition or statement, showing, among other things, the necessity of acquiring the property of appellants consisting of the surface of said 321.02 acres. On January 18, 1962 the trial court set as the time for trial March 13, 1962 at 9 o’clock a. m. On March 12, 1962, appellants filed what they called a “Plea to The Jurisdiction In The Form of an Answer to the Condemnor’s Allegations of the Right to Take.” In its motion to strike such plea filed March 13, 1962, appel-lee alleged that appellants’ plea was filed without leave of court less than seven days prior to March 13, 1962; that it set up new matter never before alleged by appellants, and that such pleading came as a surprise to appellee and appellee was not prepared to proceed with the trial unless such plea was stricken. The court granted appellee’s motion to strike and the case proceeded to trial.

Appellants in their brief state that they do not question appellee’s right to acquire lands north of the Blackburn Dam site at elevation 327 mean sea level and below. In their plea, which was stricken, they allege in substance that the question of public use is jurisdictional, and that this suit should be dismissed insofar as it concerns the land lying between elevation 327 feet and 355 feet because such land is not reasonably essential to the successful operation of Lake Palestine, and hence the taking of such land is in violation of the State and federal Constitutions ; that appellee holds a permit from the State Board of Water Engineers to appropriate annually from the Neches River 196,000 acre feet which is equivalent of a water supply capable of producing 174,977,-000 gallons per day, and that the City of Palestine has not authorized a bond issue to finance such a program; that appellee is not empowered by the Article creating it, and amendments thereto, to build the water supply as contemplated by appellee, and that until the electorate duly qualified to vote on a tax and/or revenue bond issue votes an amount sufficient to permit the building of a dam for Stage III and the acquisition of some 12,000 additional acres of surface on which to place the additional water, the taking is clearly not in the public interest, nor is it a taking for a public purpose, and that full protection at this time of the public interest of the City of Palestine has been more than adequately served by Stage II of the project which creates a water supply of 40,000,000 gallons per day.

Appellants in their first four Points assert that the judgment of the trial court should be reversed because no public use exists for the land lying above elevation 327 feet mean sea level and below elevation 355 feet and because the court struck the pleading of appellants which questioned the right of the Authority to take land lying between said elevations, and further because the trial court refused appellants’ specially requested Issue No. 1 as to the right to take the land below elevation 355 and above elevation 327.

Appellants admit that their first four Points are not germane to any errors assigned either in their original or their amended motions for new trial. They assert, however, that such Points of Error are of the fundamental type and that this Court is required to consider them although not assigned as errors in the trial court. Rule 374, Texas Rules of Civil Procedure, provides that a ground of error not distinctly set forth in the motion for new trial, in cases where a motion for new trial is required, shall be considered as waived. It is our view that appellants have waived their assignments of error contained in their first four Points by not including them in their original or amended motions for new trial. The trial court was not given an opportunity to consider or pass upon such assignments.

Prior to filing their so-called plea to the jurisdiction, appellants did on November 2, 1961, in their motion for right to open and close, make the following statement : “Secondly, Defendants-Condemnees deny that Plaintiff-Condemnor in this cause is clothed with authority and the right of eminent domain as to the land lying above elevation 327 as aforesaid and that in addition to the issue of market value of that surface acreage and the damages to the remainder, there exists the question of the right to take.” In view of the fact that appellee was informed by said motion that appellants were questioning appellee’s right to take land above elevation 327, we are of the view that the trial court should not have stricken appellants’ plea to the jurisdiction questioning the right or authority of the District to take above such elevation. As stated, however, appellants have waived such error by failing to assign the same in the trial court. Their reason for not assigning such action as error appears to be their mistaken view that such error was fundamental and therefore could be raised in the appellate court for the first time without having assigned it in the trial court.

“Fundamental error” has become, under the late decisions of our Supreme Court, somewhat of a rarity. It is only when the point is one that involves a matter of public interest and where the record affirmatively and conclusively shows error that the rule of fundamental error may be invoked. In McCauley v. Consolidated Underwriters, 157 Tex. 475, 304 S.W.2d 265 (1957), our Supreme Court in a per curiam opinion stated:

“Since the Rules make no provision for consideration of errors apparent on the face of the record, the concept of fundamental error is much narrower than it was under Art. 1837, and many errors formerly treated as fundamental may not be so regarded now. The majority opinion in the Ramsey case does not attempt to give an all-inclusive definition of the term, but holds that an error which directly and adversely affects the interest of the public generally, as that interest is declared by the statutes or Constitution of our State, is fundamental. When the record affirmatively and conclusively shows that the court rendering the judgment was without jurisdiction of the subject matter, the error will also be regarded as fundamental.”

The Supreme Court, in Ramsey v. Dunlop, 1947, 146 Tex. 196, 205 S.W.2d 979, in discussing its action in refusing an application for writ of error for want of merit in the case of City of Santa Anna v. Leach, Tex.Civ.App., 173 S.W.2d 193, said:

“It follows that that action did not in any sense amount to a holding that the court of civil appeals is without authority to consider fundamental error when it is apparent on the face of the record. We were merely adhering to the rule that an appellate court will not go into the statement of facts to examine and weigh the evidence in order to determine whether an error was committed, even though it may be claimed to be fundamental. See Houston Oil Co. v. Kimball, 103 Tex. 94, 122 S.W. 533.”

In the instant case no fundamental error is apparent on the face of the record. The unsworn plea of appellants does allege lack of jurisdiction because of excess taking by the District but no lack of potential jurisdiction is shown. In order to decide whether the taking complained of by appellants was excessive and not necessary for the purpose contemplated by appellee, it would be necessary to go into the statement of facts and to examine and weigh the evidence in order to determine whether an error was committed. Appellants’ plea to the jurisdiction merely alleges certain facts and conditions which might raise a fact issue as to whether or not there was an excess taking. Although we were not required to do so, we have read the statement of facts and find that the evidence introduced does no more than raise a fact issue as to whether the taking above elevation 327 and below elevation 355 was necessary for the purposes and completion of the project that had been duly authorized. Neither the plea nor the evidence shows conclusively that the taking above 327 was not necessary for the purposes of the project. This Court cannot say as a matter of law that the property taken above elevation 327 and below elevation 355 was not for a public use.

In the instant case the error, if such there was, does not affect the interest of the public generally. It merely affects the taking of private property of certain individuals in which the public generally would not be interested. In this respect, the present case is distinguishable from Ramsey v„ Dunlop, supra, which involved an election to a public office in which the entire com--•munity was interested.

In Schafer v. Stevens, Tex.Civ.App.1961, 352 S.W.2d 471, the court reiterated the rule enunciated in McCauley v. Consolidated Underwriters, supra; Ramsey v. Dunlop, supra; City of Deer Park v. State ex rel. Shell Oil Co., etc., 154 Tex. 174, 275 S.W.2d 77, 85; and then stated that it had been held many times, both before and since promulgation of the new Rules in 1941, that when it is necessary to examine the statement of facts to discover error, the error is not fundamental (citing numerous cases).

Appellants did not assign in the trial court error in refusing their requested issue, and hence they have waived any possible error in such connection. After their plea to the jurisdiction was stricken, there was no pleading which would support the submission of such issue, and no trial amendment was requested. Rules 277 and 279, T.R.C.P., require submission only of such issues of fact as are controlling and are raised both by the pleadings and the evidence, and it is not error to refuse to submit issues not thus supported. It would be impossible to determine whether the refusal of the court to give appellants’ requested issue was error without going into the statement of facts. Therefore, if the trial court did err, the error would not be of the fundamental type.

After eliciting from appellee’s agent, Louis J. Flanagan, that he had made in behalf of appellee a bona fide offer to purchase appellants’ property involved in this cause, the following evidence was adduced by appellee’s counsel:

“Q. What was your offer that you made to him at that time?
“A. $16,900.
“Q. That was for the surface rights of the land, we will say, that was included within the take line?
“A. Yes, sir.”

After the latter answer, appellants’ counsel objected to the amount of the offer being placed before the jury and asked that the same be stricken from the record, saying, “It is not necessary for the purpose of this hearing.” Appellee’s counsel replied, “We have no objection to it being stricken.” Thereupon counsel for appellants asked that a mistrial be declared. The court promptly struck the testimony as to the amount offered and instructed the jury not to consider it, but overruled appellants’ motion for mistrial.

At the time appellee’s counsel asked Mr. Flanagan what the amount was he had offered appellants, appellants made no objection, nor did they object to the next question and answer. Had they objected to the question, it is quite likely that the court would have sustained the objection and the witness would not have been permitted to testify to the amount that he offered appellants. The questions were so framed as to apprise opposing counsel of the nature of the answers sought. It is our view that the objection came too late. Hix v. Wirt, Tex.Civ.App., 220 S.W.2d 530, writ ref., n. r. e. The only objection made by appellants was, “It is not necessary for the purpose of this hearing.” It has been held that objections should be specific and not general. Jones v. Parker, Tex.Civ.App., 193 S.W.2d 863, writ ref., n. r. e., and should not be addressed to the sufficiency or weight of the evidence but to its admissibility. Gulf, C. & S. F. R. Co. v. Williams, Tex.Civ.App., 290 S.W. 846, error ref.; Early-Foster Co. v. Mid-Tex. Oil Mills, Tex.Civ.App., 208 S.W. 224, error ref.

Later, during his testimony, said witness was asked his opinion as to the value of the surface of the land in question, and answered, “$16,900.00.” No objection was made to such question or answer. We are of the opinion that there is no reversible error in the court’s refusing to declare a mistrial. Rule 434, T.R.C.P. It will be noted that there is no evidence in the record that appellants offered to sell to appellee the land in question for $16,900.00, or for any other amount. It was of course necessary for appellee to prove that it had failed to agree with appellants on the value of their land to be taken as a prerequisite to prosecuting the condemnation suit. Isaac v. City of Houston, Tex.Civ.App., 60 S.W.2d 543, error dism.; Article 3264, Sec. 1, V.A.T.S.; Aronoff v. City of Dallas, Tex.Civ.App., 316 S.W.2d 302, writ ref., n. r. e.

The evidence shows that one W. L. Pickens, owner of an oil, gas and mineral lease from appellants on the 820.3 acres of land, which includes the 321.02 acres in question, was not made a party to this suit. It is appellants’ contention that the trial court erred in proceeding with the trial since Pickens was a necessary and indispensable party. The lease which was executed in 1954, had been kept alive by payment of rentals, but there had never been any production on any part of the 820.3 acres. To special issues submitted, the jury found that the reasonable cash market value per acre of the mineral fee estate, subject to the leasehold estate of W. L. Pickens, under the 401.02 acres (representing the 321.02 acres plus 80 acres immediately west of the take line) was, immediately before taking the surface of the 321.02 acre tract on May 2, 1961, $20.00. The jury found the mineral estate was the same value immediately after the taking on said date. The findings of the jury are amply supported by the evidence.

Since this suit was brought to condemn only the surface of the 321.02 acres, it is our view that Pickens was not an indispensable party to the suit.

“The law is settled in this State that the minerals in place may be severed from the surface; that when so severed they constitute separate and distinct estates; that the ‘fee simple title’ to the surface estate may be in one person and the ‘fee simple title’ to the mineral estate in another person; they each constitute ‘real property’ * * *.” County School Trustees of Upshur County v. Free, Tex.Civ.App., 154 S.W.2d 935, writ ref., w. o. m.

In that case the property covered by the lease had been developed and oil produced for more than ten years without need of the use of the surface of the two strips of land being condemned, whereas in the instant case there had never been any development on any part of the land. The court stated:

“If we are correct in our conclusion that appellants have the authority by exercise of the right of eminent domain to acquire the fee simple title to the surface estate only, and subject to the rights of the owners and lessees of the mineral estate, as they seek to do in this suit, then the owners and lessees of the oil and gas mineral estate are not necessary parties, since their rights are not in any way to be affected by the proceedings. 20 C.J. 919, Sec. 336.”

It is true that the lessee Pickens could have been joined as a proper party since the lease confers upon him the usual surface rights incident to the exploration and development of the property for oil, gas and other minerals. Appellee, however, does not seek to condemn the rights of Pickens either in the mineral estate or surface. Appellee’s suit does not in any way adjudicate such rights which Pickens might assert independently of the proceeding brought against appellants, since his rights and appellants’ are separate and distinct. Ft. Worth & D. S. P. Ry. Co. v. Judd, Tex.Civ.App., 4 S.W.2d 1032, writ dism.

In National Ass’n of Audubon Societies v. Arroyo Colorado Nav. Dist. of Cameron and Willacy Counties, Tex.Civ.App., 110 S.W.2d 150, the condemnee who held the leasehold estate, contended that the State of Texas, owner of the fee simple estate, was a necessary party to the suit brought to condemn the leasehold estate. The court, through Justice Slatton, rejected such contention, and held that the legislature has delegated authority to navigation districts to determine for themselves the necessity of the taking, and has lodged in such districts the discretion to determine what estate or interest in the required property shall be condemned. Appellee in the present proceeding is clothed with the same discretionary power, and unless such discretion is palpably abused by the District, the courts will not intervene. See Sinclair Pipe Line Co. v. Peters, Tex.Civ.App., 323 S.W.2d 651.

In Calvert v. Harris County, Tex.Civ.App., 46 S.W.2d 375, the County brought suit against the owner of land to widen Almeda Road. The court limited the damages to the value of the land taken exclusive of the minerals, stating that the possibility of minerals being at a particular place was very uncertain and if the minerals were underneath the land taken, they could be extracted by drilling upon the owner’s land lying adjacent to the right-of-way taken. There was nothing to prevent the lessee in the present case from exploring and drilling for oil upon the land taken or upon lands adjacent thereto. The cases relied upon by appellants do not sustain their contention.

Appellants complain of certain cross-examination of their witnesses, B. F. Douglas and Louie Burks. The resolution of appellee dated January 26, 1961, which was admitted in evidence without objection, in substance gives the public generally and adjoining land owners reasonable access to Lake Palestine subject to the rules and regulations of the District. Counsel for ap-pellee on cross-examination of said witnesses, over appellants’ objections, was permitted to interrogate them as to the effect of such resolution on shoreline Lake property. Both witnesses testified in effect that such right of ingress and egress would not add any value to the remaining property. Louie Burks testified in substance that he didn’t think the lakeshore would be worth a dime unless appellants had a deed to the property down to the water edge.

We fail to see how the admission of such testimony has caused harm to appellants. Rule 434, T.R.C.P.' Had said witnesses testified that the privilege of access to the shoreline had added to the value of the remaining land, appellants might have some cause to complain on the ground that the District could at any time revoke such privilege. Perkins v. State, Tex.Civ.App., 150 S.W.2d 157, error dism.

On direct examination appellants’ witness, Louie Burks, testified that the 321.02 acres were of the reasonable market value of $125.00 per acre. He also testified at some length as to how he arrived at that value. On cross-examination he was asked what the over-all increase in the value of lands was since 1940 in the area of the 820 acres. Upon objection by appellants,, appellee limited the question to the Halbert 820 acre tract. Appellants then objected that the material date was May 2, 1961 and that the value of the property in 1940 had no materiality, was irrelevant and not the-proper test. Over such objection, the witness was permitted to testify that the-value of the property had advanced four to five times since 1940. After further examining the witness as to the land and improvements, counsel for appellee undertook to examine him as to the value placed upon-said tract as shown by the inventory in the Halbert Estate which had been signed by Mr. Burks on July 9, 1945 as one of the-appraisers of the estate. Appellants’ objection to such value as being too remote-was overruled and the witness read the valuation of $8,200.00 from the inventory which had not been introduced in evidence,, thus showing that a valuation of $10.00 per acre had been placed upon the tract.

Appellee takes the position that such cross-examination was proper to test the accuracy and credibility of the witness, and to show his bias and prejudice. Since the purpose of cross-examination is to test the accuracy and credibility of a witness, the manner of such cross-examination and its extent must rest largely in the discretion of the trial judge. Texas Law of Evidence, McCormick and Ray, Second Ed., Vol. 1, p. 462, § 592. In Evansich v. Gulf C. & S. F. R. R. Co., 61 Tex. 24, our Supreme Court said.

“As all issues of fact must be determined by the testimony of witnesses, it would seem that any fact which bears upon the credit of a witness would be a relevant fact, and this whether it goes to his indisposition to tell the truth, his want of opportunity to know the truth, his bias, interest, want of memory, or other like fact.”

In Murray v. Morris, Tex.Civ.App., 17 S.W.2d 110, error dism., the court said:

“ ‘The purpose of cross-examination is to sift and to modify and have the witness explain what has been said on his direct examination, and if the witness by this process can be discredited and the weight of his testimony weakened, the right should not be denied.’ ”

See also 44 Tex.Jur., p. 1141, § 145.

Although great latitude must be allowed in cross-examination, it is our view that the trial court abused its discretion in permitting the cross-examination with respect to the land increasing four to five times in value since 1940 and as to the value placed upon the tract of land in the inventory. The jury, however, was evidently not influenced by the $10.00 per acre value placed on the tract as of 1940 in the inventory as evidenced by its finding of $60.00 per acre as the land’s value. As men of common sense and judgment, the jury probably knew that the value placed upon the land in an inventory some twenty years before was not of any materiality or weight in determining the reasonable market value of the land in 1961. The large increase in the value of land throughout this State within the last twenty years is a matter of common knowledge.

Under the circumstances of this case and in view of the fact that some thirteen witnesses testified at length as to the value of the land in question, seven of whom testified to values less than the value found by the jury, and five, in addition, to Mr. Burks, to values greater than the jury found, we have concluded that it cannot be said the evidence elicited on cross-examination by appellee was calculated to cause and probably did cause the rendition of an improper verdict and judgment. Rule 434, T.R.C.P.

We find no merit in appellants’ eleventh point. On cross-examination, ap-pellee’s counsel asked appellants’ witness, J. W. Hardeman, whether he permitted his taxes to go delinquent on his property. The court promptly and properly sustained appellants’ objection to the question which was not answered, and instructed the jury not to consider it for any purpose. Counsel for appellee then asked the witness whether he made enough on his farm to pay his taxes. The court sustained appellants’ objection and the question was not answered.

Appellants assert that the court erred in admitting evidence as to the income or lack of income from the farming operations of appellants’ witness, B. F. Douglas. This witness testified at length on direct examination as to his own 565 acres of land in the vicinity of the land in question, and as to the type of farming, grasses, and livestock operations thereon, the number of cattle he ran on such land and the number of calves he marketed. He then testified that some of the cleared land of the Hal-bert tract was comparable to some of the land he had acquired, and also testified as to the nature of the Halbert property, its reasonable cash market value, and its highest and best use, which he said was growing cattle and marketing them. On cross-examination he was asked what his net return was on his half of the 100 calves he had marketed in 1961, and was permitted to answer that he had made a nice profit of about $3,000.00 for his part. The testimony of Mr. Douglas as to values was based largely on the income he thought would be derived from cattle operations on the land in question. The trial court did not err in permitting the witness to answer as he did on cross-examination.

We have considered all of appellants’ Points of Error with the exception of their Point 5, which is multifarious, and which is based upon alleged cumulative errors consisting largely of assigned errors hereinabove discussed. We overrule such point. Johnson-Sampson Const. Co. v. W. & W. Waterproofing Co., Tex.Civ.App., 274 S.W.2d 926, ref., n. r. e.; Darling v. Panhandle & Santa Fe Ry. Co., Tex.Civ.App., 209 S.W.2d 660, ref., n. r. e.; Rule 418(b), T.R.C.P.

Judgment affirmed.


text:
    James T. SEDDON et al., Appellants, v. B. Mark HARRISON, Appellee.
    No. 14003.
    Court of Civil Appeals of Texas. Houston.
    April 25, 1963.
    Rehearing Denied May 23, 1963.

      Hay, Kirk, Van Keuren & Baggett, Russell T. Van Keuren, Houston, for appellants.
    Markwell, Stubbs, Decker & Dalehite, Henry G. Dalehit, Jr., Galveston, for ap-pellee.
   WERLEIN, Justice.

The opinion of this Court handed down March 21, 1963 is, on rehearing, withdrawn and the following opinion is substituted therefor.

James T. Seddon and H. M. Boyd brought this suit in the form of an action in trespass-to-try title. The property involved is 5-acre Lot 2 in Block 28 of San Leon Farm Home Tracts out of the Amos Edwards League in Galveston County, Texas. At the conclusion of appellants’ evidence, the trial court granted appellee’s motion for an instructed verdict and rendered judgment in his favor.

In appellants’ chain of title is a deed dated September 5, 1912 from Eagle Land Company to Joe H. Eagle conveying property described as follows:

“Lying and being situated in Galveston County, Texas, and being a part of the Amos Edwards league of land with its excess and being all of the property conveyed by Joe H. Eagle to Eagle Land Company on the 23rd day of April, A.D. 1910, by deed recorded in Volume 241 pages 613 to 628, inclusive, of the Deed Records of Galveston County, Texas, saving and excepting such portions thereof as Eagle Land Company has since deeded to other persons as shown by the Deed Records of Galveston County, Texas * * *”

Appellants neither proved nor attempted to prove what lots had been sold by Eagle Land Company or which lots remained unsold by such company on September 5, 1912, and hence failed to establish record title to the lot in question. The applicable rule is stated in Mills v. Pitts, Tex.Sup.1932, 121 Tex. 196, 48 S.W.2d 941, 84 A.L.R. 319, as follows:

“Since a plaintiff in trespass to try title must recover on the strength of his own title, he can never recover by merely showing a claim under deeds to those parcels of land which remain unsold by the grantors on particular dates without any proof whatever of the specific parcels of land which were unsold.”

See also Ball v. Carroll, 42 Tex.Civ.App. 323, 92 S.W. 1023, writ den.; Brown v. Foster Lumber Co., Tex.Civ.App., 178 S.W. 787, writ ref.; Smith v. United States, 5th Cir. 1946, 153 F.2d 655.

Joe H. Eagle in his conveyance to San Leon Company on September 10, 1912 described the land conveyed as being all of the property conveyed by Eagle Land Company to Joe H. Eagle on the 5th day of September, 1912, thus using the insufficient description of the land as described in the deed from Eagle Land Company to Joe H. Eagle. On March 24, 1920 San Leon Company conveyed the lot in question to Clarence W. Hughes who, on March 29, 1950, conveyed it to appellants. This latter deed and other evidence shows that Clarence W. Hughes was at such time residing in Gila County, Arizona.

Appellants contend that although they did not show title to the lot in question by reason of their failure to prove which lots had been previously deeded to other persons by Eagle Land Company as shown by the deed records of Galveston County, Texas, they may nevertheless recover on the theory of lost deed or presumption of grant. Actually they did not attempt to introduce any evidence of lost deed or presumption of grant, although they now contend that a fact issue was raised with respect thereto by certain evidence adduced at the trial. We do not agree. We find no evidence in the record that would warrant submission of an issue with respect to a lost deed or presumption of grant. The instant case is factually distinguishable from the cases relied upon by appellants, such as Magee v. Paul, Tex.Sup. 1920, 110 Tex. 470, 221 S.W. 254; Unknown Heirs of Thomas v. Harris County Houston Ship Channel Navigation Dist., Tex.Civ.App.1928, 6 S.W.2d 396, aff’d Masterson v. Harris County Houston Ship Channel Navigation Dist., Tex.Com.App., 15 S.W.2d 1011, 67 A.L.R. 1324; Miller v. Fleming, Tex.Sup., 149 Tex. 368, 233 S.W.2d 571.

In the present case there is nothing to show from whom appellants might have derived title under a lost deed or presumption of grant. There is no missing link in their chain of title. They introduced in evidence a regular chain of conveyances from the sovereignty of the soil to themselves. The only defect was in the description of the property in the deed from Eagle Land Company to Joe H. Eagle dated September 5, 1912, which defect was carried over in the deed from Joe H. Eagle to San Leon Company dated September 10, 1912. There are no recitals in ancient instruments or in any ■deed subsequent to September 5, 1912 from which it could be presumed that the deed to Joe H. Eagle included the land in controversy in this suit. There is no showing -of any assertion of claim to the land by appellants’ grantor, Hughes, to whom the lot was conveyed on March 24, 1920, prior to his deed to appellants on March 29, 1950. There is no showing with respect to payment of taxes on the lot in question. There is no showing of possession or claim to the right of possession of such land prior to appellee’s possession of the lot at the time appellants first contacted appellee’s wife in 1950 before they purchased the lot in question. There is no evidence showing reputation in the neighborhood as to ownership •of such lot.

Appellants assert, however, that the fact John S. Akin as Vice President of Eagle Land Company executed the deed from such company to Joe H. Eagle, and later as Vice President and presiding member of San Leon Company, executed the deed from such company to Hughes, is evidence which negatived the fact that the property in question had been “deeded to other persons as shown by the deed records •of Galveston County, Texas” prior to September 5, 1912. The San Leon Farm Home Tracts contain hundreds of lots, as shown by the map introduced in evidence. The fact that John S. Akin executed the deed from Eagle Land Company to Joe H. Eagle in 1912 and then executed the deed from San Leon Company to Hughes some eight years thereafter, constitutes no evidence of probative force that the lot in question had not previously been conveyed or that it was included in the deed from Joe H. Eagle to San Leon Company.

Appellants also say that they exercised dominion and control over the property by putting a “For Sale” sign on the lot or fence post giving their name, address and telephone number, after they purchased the property in 1950. We do not consider this circumstance, together with the other circumstances relied upon by appellants, of sufficient probative force to warrant submission of an issue with respect to a lost deed or presumption of grant in appellants’ chain of title. Furthermore, it would have been improper to submit such issue had appellee objected, since there was no pleading by appellants of any lost deed or presumption of grant and no mention of any lost deed in appellants’ abstract of title as required by Rule 793, Texas Rules of Civil Procedure.

Appellants contend that the trial court erred in instructing a verdict against them because they were entitled to recover possession of the lot in question even though their title was not good, since appellee had become their tenant and therefore could not dispute their title and right to possession. Lorino v. Crawford Packing Co., Tex.Sup.1943, 142 Tex. 51, 175 S.W.2d 410; Berry v. Jagoe, 45 Tex.Civ.App. 6, 100 S.W. 815, writ den.; Tyler v. Davis, 61 Tex. 674. In deciding this issue we must view the evidence in the light most favorable to appellants and indulge against the action of the court every inference that may properly be drawn from the evidence. White v. White, 1943, 141 Tex. 328, 172 S.W.2d 295; Texas Employers’ Ins. Ass’n v. Boecker, Tex.Civ.App., 53 S.W.2d 327, writ ref.

The evidence shows that when appellants were considering buying the lot in controversy, they met appellee’s wife at her home located on Lot 4, Block 28, a few hundred feet from Lot 2 in the same block, and asked her if the cow grazing on the lot was their cow, and if she had any claim to the lot. She said they were just grazing it, not claiming it. A few days after the lot was deeded to appellants, they asked appel-lee whether he had any claim on the lot and he told them he wasn’t claiming it. Appellant Seddon testified, “I told him he could go ahead and use the property until we decided what we were going to do with it, or words to that effect.” Some time later, in 1950 and/or the early part of 1951, ap-pellee expressed an interest in buying the lot and on several occasions had discussions with appellant Seddon with respect thereto, but the parties could not agree upon the price.

At the time appellants first inspected the lot, it, together with Lot 1 adjoining it on the west and Lot 3 adjoining it on the east, was enclosed by a fence, and appellee’s cow was grazing on it. Appellee testified his fence was around all four of the lots, and included Lot 4 upon which he resided. The “For Sale” sign which ■ appellants had fastened to a stake on Lot 2 was about 30 inches in length and about 16" or 18" wide. When appellant Seddon found it on the ground some two or three weeks later, he nailed it to a fence post on the land where it remained from 1950 to 1955, when appellants undertook to sell the lot.

There is no testimony that appellee continued to use the land after being told by Seddon he could use it. Appellants assert, however, that appellee admitted' he had possession of the lot by his plea of not guilty, and also in his cross-action which was dismissed without prejudice prior to the selection of the jury. McCormick v. Stowe Lumber Co., Tex.Civ.App., 356 S.W.2d 450, writ ref., n. r. e.; 24 Tex.Jur.2d 205, Evidence, § 631.

Appellants introduced in evidence without limitation as their Exhibit 1 the following paragraph of such cross-action:

“Cross-plaintiff B. Mark Harrison says that he is and was at the time of the filing of this suit owner of the title and' in possession of the above described tract of land; and he, the said Cross-plaintiff B. Mark Harrison, alleges that he and those whose title he-has and holds have had and held peaceable, continuous and adverse possession of the lands and tenements above described, cultivating, .using and enjoying the same for more than ten consecutive yea^s, after Cross-defendants’ alleged cause of action, if any, accrued, and before commencement of this suit.”

We have concluded that appellee’s-plea of not ¡guilty and the foregoing plea in appellee’s abandoned cross-action cannot be construed as an admission by appellee of possession by him of the premises in question from the time in 1950 when appellant Seddon told appellee he could go ahead and use the property. Appellants’ suit was not brought until April 16, 1956. The paragraph in the dismissed pleading with respect to possession merely states that ap-pellee is and was at the time of filing the suit in possession of the above described' tract of land. Appellee further alleges in such plea that he and those whose title he has and holds have had and held peaceable, continuous and adverse possession of the lands and tenements above described, cultivating, using and enjoying the same for more than ten consecutive years, after cross-defendants’ alleged cause of action, if any, accrued, and before commencement of this suit. It will be noted that he and those whose title he holds have had possession. There can be no question that those whose title he held were never tenants of appellants. There is nothing to show during, what period appellee himself had possession or that his possession at the time suit was filed extended back to 1950. Moreover,, it is our view that appellants cannot accept a part of such plea favorable to them and repudiate another part in the same sentence which is unfavorable to their claim. The rule is set out in 10 R.C.L., p. 1089, Sec. 289, as follows:

“As a general rule .documentary evidence is held tó be conclusive against the party introducing it. He may not impeach it, and he will not be permitted to accept a part which is in his favor and repudiate another part which is opposed to his claim or defense. And this applies as well to documents forming a part of a record of a cause as to other documents.”

In 24 Tex.Jur.2d 382, 383, Evidence, § 718, it is stated:

“If a party introduces a statement of his adversary in evidence, he is ordinarily bound by it. For example, a party who introduces without limitation a pleading of his adversary will generally be bound thereby.”

Appellants, therefore, may not accept the statement in such plea that appel-lee was in possession of the property without also accepting the further statement in the same sentence that such possession is and was adverse. A party who introduces his adversary’s pleading without limitation is concluded thereby. Lincoln v. Pohly, Tex.Civ.App.1959, 325 S.W.2d 170, writ ref., n. r. e.; Stancil v. Mills & Exports Co., Tex.Civ.App., 146 S.W.2d 787; Texas & N. O. Ry. Co. v. Patterson & Roberts, Tex.Civ.App., 192 S.W. 585.

In Cotton Belt Gin & Mill Supply, Inc. v. Alltex Precision Co., Tex.Civ.App.1961, 351 S.W.2d 369, it was held that the plaintiff was bound by every statement contained in a letter of cancellation written by the defendant which was introduced in evidence by plaintiff without any limitations or restrictions. See also Horwitz v. Jefferson County Traction Co., Tex.Civ.App., 188 S.W. 26, writ ref.

We are not unmindful of the fact that where it is shown that a party was in possession of land, there is a rebuttable presumption or inference that such possession continued. The kind of possession appellee had at the time he was grazing his cow may be presumed to have continued. However, such possession was before the statement made by Seddon giving appellee the right to use the property, and hence such possession and the presumed continuance thereof could not possibly be referable to such statement.

“The relation of landlord and tenant is created by contract, either expressed or implied, by the terms of which one person designated ‘tenant’ enters into possession of the land under another person known as ‘landlord’ * * * also, as has been said, ‘A tenant is one who occupies the premises of another in subordination to that other’s title and with his assent express or implied.’ ” 16 R.C.L., p. 530.

See also Ft. Worth v. Barlow, Tex.Civ.App., 313 S.W.2d 906, writ ref., n. r. e.; Dolen v. Lobit, Tex.Civ.App., 207 S.W. 143; and City of Tyler v. Ingram, Tex.Sup., 1942, 139 Tex. 600, 164 S.W.2d 516.

There is no evidence in the record before us of any tenancy relationship. When appellant Seddon told appellee he could use the property, appellee made no response whatever. He may or may not have heard what appellant stated. There is no-evidence that he accepted appellant’s offer and thereupon agreed to become appellants’ tenant. He did not indicate by any act or conduct that he was using or would use the land as appellants’ tenant. The statements made by appellee and his wife that they were not claiming the land were made before appellant’s statement that appellee could go ahead and use the property, and' hence cannot possibly be construed as evidence that appellee intended to accept any offer of tenancy by appellants. The fact that appellee made several efforts to buy the lot in controversy and thereby recognized that appellants were the owners thereof, is not sufficient to establish a landlord and tenant relationship. Victory v. Stroud, 15 Tex. 373; Berry v. Jagoe, 45 Tex.Civ.App. 6, 100 S.W. 815, writ den. The fact that appellants maintained a large “For Sale” sign on the property constitutes no evidence of probative force of a tenancy relationship between the parties.

We have concluded that there is no evidence of probative force that any relationship of landlord and tenant existed between appellants and appellee.

Judgment of the trial court is affirmed.


author: MASSEY, Chief Justice. RENFRO, Justice

text:
    John G. STREET, Jr., Appellant, v. CONTINENTAL CASUALTY COMPANY, Appellee.
    No. 16314.
    Court of Civil Appeals of Texas. Fort Worth.
    April 19, 1963.
    Rehearing Denied May 31, 1963.

      Herrick & McEntire, Stone, Parker, Snakard, Friedman & Brown, and Lawton G. Gambill, Fort Worth, for appellant.
    Pepper & Markward, and Robert C. Pepper, Fort Worth, for appellee.
   MASSEY, Chief Justice.

Our opinion in this case, filed under date of March 15, 1963, is withdrawn and the following substituted therefor.

This case was originally dismissed in the trial court after the court sustained exceptions to plaintiff’s pleadings to the effect that a legally qualified dental surgeon was not a legally qualified physician or surgeon within the terms of a policy upon which suit was brought. Upon appeal we held that lawful surgery performed upon the insured by a licensed doctor of dental surgery constituted operative procedure performed by a “legally qualified physician or surgeon” within provisions of the policy providing for operative procedure performed by a legally qualified physician or surgeon. Street v. Continental Casualty Co., Tex.Civ.App., 339 S.W.2d 680.

This appeal is from a judgment for defendant following a trial on the merits.

The jury found that the acts which Dr Treadwell performed upon the mouth of plaintiff constituted “operations”.

Issue No. 4 was as follows: “Comparing the severity of the operation, if any, which was performed on the plaintiff by Dr. Treadwell on the 22nd day of March, 1958, with the operations which are named in the insurance policy involved in this suit, what amount of money, if any, do you find from a preponderance of the evidence would be comparable and reasonable for the defendant to pay the plaintiff for such operation, if any? Answer in dollars and cents, if any.” Issues Nos. 5, 6, 7 and 8 were identical except for dates. None of said issues were answered by the jury.

Special Issue No. 21 and the jury’s answer were as follows: “Do you find from a preponderance of the evidence that objectively determined, on the basis of comparative severity, the operations, if any you have found, performed by Dr. Tread-well as a dentist upon the mouth of plaintiff were not of comparative severity with, ‘Sinus: Cutting into other than puncture, multiple’, as listed in the policy in question ? In connection with the preceding Special Issue No. 21, you are instructed that the term, ‘comparative severity’, means of substantially equal risk, involvement of time, expense and physical affect upon the human body. Answer: ‘They were not comparative’, or, ‘They were comparative’, as you may find.” Answer: “They were not comparative.”

Other issues submitted are not material to this appeal.

The judgment recites that the court accepted and filed the verdict and “The court upon its own motion finds * * * that on the verdict of the jury in answer to Special Issue No. 21, together with the evidence in this cause, the pleading and the law, plaintiff is not entitled to recover * * *«

In three points of error the plaintiff contends the court erred in rendering judgment for defendant because Issue No. 21 was not a controlling issue, and there was no evidence or insufficient evidence to support the answer of the jury thereto.

Part III of the policy under the heading, Surgical Expense, provides: “When injury or sickness shall cause any member of the Family to undergo any operation named herein which is performed by a legally qualified physician or surgeon while this policy is in force as to such member, the Company will pay the actual expense incurred for such operation, including post operative care in the hospital, but not in excess of the amount set opposite the operation nor in excess of $500.00 for all operations performed as the result of any one accident or any one period of sickness.” The policy then lists 198 operations and the amount of money the Company will pay for each listed operation. Dental surgery is not listed in the schedule. Immediately following the schedule, however, it is provided: “The Company will pay, subject to the limit provided, for operations not named above amounts objectively determined on the basis of comparative severity with operations which are named, but not less than the minimum nor more than the maximum amounts provided for operations named.”

Dr. Treadwell testified that plaintiff’s complaint was a periodontal involvement, or pyorrhea treatment, and involved the tissues and structures around the teeth. He performed a curettage to remedy the situation. From March through May, 1958, he performed five different operations which consisted of deadening and blocking and giving anesthesia and packing with a cautery, then taking an instrument and curetting the lining of the periodontal pocket to healthy tissue.

The witness was asked: “Referring to Plaintiffs’ Exhibit No. 1, which is this Policy, do you see there an operation listed that is based upon your knowledge, of comparable severity, to the operation that you performed on John Street.” The witness answered it would be the maxillary sinus. The witness was apparently referring to a portion of the policy which provides:

“Sinus
“Cutting into other than puncture
“Ethmoid
“Single -_ $150.00
“Bilateral- 200.00
“Other
“Single.. 100.00
“Multiple__ 150.00
“Puncture . 20.00”

The doctor testified that maxillary sinus was not named in the schedule but would come under “Other”. He was then asked: “Now, you’re pointing, Doctor, to a place on the Exhibit, Plaintiff’s Exhibit No. 1, under ‘Sinus.’ Then under that, there are two headings one, ‘Cutting into other than puncture; Ethmoid.’ Then the second heading is, ‘Sinus; Other.’ And you have pointed to the ‘Single,’ which you interpret ‘Other’ would be the Maxillary, would include the Maxillary Sinuses.” He answered, “I guess it would.”

He was asked if the maxillary was comparable to each of the five operations he performed on plaintiff and answered, “The time would be similar, I’d think.” He testified he was not authorized to do an Ethmoid as that was out of his field. The maxillary, he testified, is above the upper teeth, he did not know where the Ethmoid was located. Multiple means more than one operation under the policy heading “Other”. He testified that in addition to time, in some cases, pain would be similar, “something like that”. He had never done a sinus operation. He further testified that “anything in the mouth that you do is an operation.” He treated plaintiff oyer a period of three months for periodontitis, which treatment consisted “of full mouth curettage done in 5 different operations.” He charged $30.00 for each “operation”. He was asked, “You didn’t mean that a single $100.00 operation (in the policy schedule) was comparable to one of these $30.00 operations, did you?” and he answered, “Well, the $30.00 and $100.00, No, it couldn’t be the same.” When asked on what basis of severity operations listed under “Other” in the policy were comparable to the operations performed, he replied: “Well, the time basis, and of course, when you give anesthetics and such as that, you naturally run into a risk, and that would be about the only thing that I would see.” He testified that the maxillary sinus operation was the only one of the 198 in the policy schedule that had any comparability to the work he did on plaintiff.

The jury has exclusive power to determine the credibility of the witnesses and the weight to be given their testimony. 24 Tex.Jur.2d, p. 352, § 705. It may accept part of a witness’ testimony and reject the remainder if the facts of the case justify such action, Varnado v. City of Groves, Tex.Civ.App., 329 S.W.2d 100, and may determine any reasonable inferences that may be drawn from the facts. The evidence was such as to support the jury’s finding to issue No. 21; hence, plaintiff’s points of no evidence and insufficient evidence are overruled.

We sustain, however, plaintiff’s contention that issue No. 21 is not a controlling issue and that the jury’s answer thereto does not support judgment for the insurance company. Plaintiff’s cause of action for recovery of expenses incurred for operations performed by Dr. Treadwell is not dependent upon an affirmative finding that the operations performed were of comparative severity with the operation listed in the insurance policy as “Sinus: Cutting into other than puncture, multiple”.

Neither does the jury’s answer to issue No. 21 constitute a finding that plaintiff is not entitled to recover any sum of money under the policy of insurance. Thereby is established only that the plaintiff may not recover the sum of money provided to be paid under the policy schedule for the one operation (among the 198 listed) inquired about in the issue. Neither does the jury’s answer constitute a finding that the operations performed were not of comparative severity with one or more of the other 198 operations listed.

As related to the “operations” performed upon plaintiff by Dr. Treadwell, March 22, 1958, May 2, 1958, May 16, 1958, June 6, 1958, and June 20, 1958, the plaintiff could not have been entitled to less than the amount of $5.00 even were the multiple operations considered as one operation. This is so because in connection with the schedule of 198 operations was provided that the company would, in the event of liability under the policy, be obliged to pay for operations not specifically enumerated “amounts objectively determined on the basis of comparative severity with operations which are named, but not less than the minimum nor more than the maximum amounts provided for operations named”. (Emphasis supplied.) It is observable from the schedule that the minimum amount to be payable for any “operation” was $5.00. The jury found that plaintiff had an “operation” or “operations”. Whether any single “operation” the plaintiff underwent was or not specifically set out in the schedule he could not have been entitled to less than $5.00. That being the minimum amount payable under the contract of the parties there could be no proper judgment for less than said minimum amount in the event it be established that the insurance company was liable thereon. Such was so established.

The fact that the evidence offered by the plaintiff on the trial was presented under the theory that the operation performed was of comparative severity to that inquired about in issue No. 21 (which the jury answered against him) did not foreclose the plaintiff in his right to recover under a theory that said operation was of comparative severity to one or more of the other 197 operations of the schedule. Decision thereof was a matter for conclusion by the jury.

In our opinion the state of the verdict was synonymous with and comparable to one by which the plaintiff has established liability on the part of the defendant sued, but where the jury has failed to find the amount of damages to which he was entitled; or to one by which the plaintiff has shown his right to have the defendant perform his correlative duty under a contract, but where the jury could not agree what that correlative duty was.

It may be that there are some such cases where the plaintiff is confronted with an insuperable barrier to ever effecting his recovery, but his difficulty will always be in persuading the jury to find matters which measure the relief to be granted, in view of his entitlement. The law will afford him the opportunity to continue to strive for a verdict of damages, restitution, or other recovery, so long as he continues to be successful in persuading juries to find that the defendant is liable to him. In this plaintiff was successful on the trial below. Judgment for his adversary was improperly rendered against him.

Judgment is reversed. The cause is remanded for another trial.

RENFRO, Justice

(dissenting).

I would overrule plaintiff’s contention that issue No. 21 was not a controlling issue.

Since Dental Surgery was not listed in the policy under “Surgical Expense”, the plaintiff had the burden of proving that the operations performed by the dentist “were of comparative severity with operations which are named.” Plaintiff was free to offer evidence on any of the 198 operations which were named in the policy. The evidence offered, however, was limited to a comparison with maxillary sinus. Issue No. 21 was specific and definite. It placed before the jury the only operation upon which any evidence had been offered as to comparable severity.

The plaintiff did not object to the submission of Issue No. 21, hence, he waived any defects, definitions, omissions or faults therein, and was bound by the jury’s finding thereon. Rule 274, Texas Rules of Civil Procedure.

I would affirm the judgment of the trial court.


author: TIREY, Justice.

text:
    STATE FARM FIRE & CASUALTY COMPANY, Appellant, v. Hazel ULTEIG, Appellee.
    No. 4135.
    Court of Civil Appeals of Texas. Waco.
    May 9, 1963.
    Rehearing Denied May 23, 1963.

      Vinson Elkins, Weems & Searls, Gaius G. Gannon, Jr., Houston, for appellant.
    Butler,, Binion, Rice & Cook, Thomas L. Moore, Collins & Moore, Houston, for appellee.
   TIREY, Justice.

This is a suit on a policy of fire insurance issued by appellant insuring the home of Dean Ulteig and wife, Hazel, located in Houston. Appellant admitted liability unless the fire was intentionally and willfully started by the insured, and obtained the right to open and close. At the close of the evidence the Court overruled defendant’s motion for instructed verdict and submitted one issue to the jury. It is:

“Do you find from a preponderance of the evidence that Dean * * * Ulteig caused the destruction of the house at 1630 Woodcrest by intentionally and willfully setting fire to it on February 5, 1960?
“In connection with the foregoing issue you are instructed as follows:
“The term 'willfully’ means with evil intent or malice.
“The term ‘intentionally’ means a settled direction of the mind toward the accomplishment of a particular act.
“You are further instructed that in order to find that an act was ‘willfully and intentionally’ done you must find from a preponderance of the evidence that a person had sufficient exercise of his judgment to understand the nature and effect of his act.”
To which the jury answered: “We do not”.
(The parties, by agreement, took a majority verdict ten to two).

The decree recited that the Ulteigs had been granted a divorce and that Mrs. Ulteig had remarried and that she is now Mrs. Hazel E. Pilcher, and the Court decreed to her $1634.66,, with interest at 6% per annum from May S, 1960, until paid, and further decreed the sum of $3,000.00 with accrued interest until paid, and taxed all costs against the insurance company. The amounts decreed to Mrs. Pilcher are not assailed, except on the ground that there was no liability on the policy on account of the willful and intentional burning by her former husband, at which time they were separated but not divorced.

The judgment is assailed on 14 points. The first six points are grouped under one assignment and points 1 to 5 inclusive assert that the Court erred in overruling appellant’s motion for instructed verdict because the evidence conclusively showed that Dean Ulteig intentionally and willfully burned the building covered by the policy; that there was no evidence and insufficient evidence to raise a fact issue that Ulteig did not willfully and intentionally set fire to the building; that the Court erred in overruling appellant’s motion for judgment non obstante veredicto because there was no evidence and insufficient evidence to support the verdict. Point 6 is to the effect that the entry of the judgment in Mrs. Ul-teig’s favor directly contravenes the public policy of the State of Texas.

Testimony was tendered to the effect that on December 4,1959, Mrs. Ulteig filed suit for divorce and she was awarded the temporary use of the home during the pendency of the divorce action, but her husband would not surrender the premises and Mrs. Ulteig would not press the point and she and their young son moved to the home of her sister. On February 5, I960,, the residence covered by the policy burned to the ground. At the time of the fire Ul-teig was the only person living in the house. On February 8, 1960, after the fire, the Ulteigs were divorced and Mrs. Ulteig was awarded all proceeds that may be available from the fire policy. Thereafter, Ulteig was indicted by the Harris County grand jury during May 1960 term for willfully burning the house, and doing so with the intent to defraud, and on October 28, 1960, he plead guilty to the charge of arson and was sentenced to five years in the penitentiary, and later he was released on probation. Appellant tendered in evidence Ulteig’s confession and the plea of guilty made in open court. It is appellant’s contention that the only competent evidence in the record as to the cause of this fire was Ulteig’s confession and plea of guilty that he willfully set it, and since the public policy of Texas prohibits the recovery by one spouse, even though innocent,, where the other has intentionally set the fire, the appellant was entitled to an instructed verdict at the conclusion of all the evidence; or, to a judgment notwithstanding the verdict of the jury. Appellant relies on Jones v. Fidelity & Guaranty Ins. Corporation, Tex.Civ.App., 250 S.W.2d 281, w. ref., and Bridges v. Commercial Standard Ins. Co., Tex.Civ.App., 252 S.W.2d 511, n. w. h. It is appellant’s contention that the foregoing cases are identical on the facts with the present appeal, in that the spouse, innocent of the arson,, had separated from the other at the time of the feloniously caused fire, and was innocent of any wrong doing. Appellant also contends that Ulteig’s confession and plea of guilty was admissible as a declaration against interest in view of his absence from the jurisdiction during these proceedings, and cites McCormick and Ray, Vol. 2, Sec. 1002, p. 2; also citing Missouri-Kansas-Texas Railroad Company v. McFerrin, 156 Tex. 69, 291 S.W.2d 931, point p. 940. Appellee’s reply to the foregoing contention is to the effect that since appellant filed an admission of liability and admitted that plaintiff was entitled to recover, unless Ulteig intentionally’and willfully set fire to the house, it assumed the burden of proving its defense by a perponderance of the evidence, and that it was appellant’s duty to discharge this burden. Appellee further contends that a plea of guilty on the part of Ulteig is not a bar to a civil suit; that other evidence may be received, weighed and balanced against such plea of guilty,, and that the evidence is to be viewed favorably to the jury’s verdict if there is evidence to support it. Citing Simmons & Simmons Construction Company v. Rea, 155 Tex. 353, 286 S.W.2d 415. Appel-lee contends that she is entitled to tender evidence and make inquiry as to the conduct of her former husband. In this connection, evidence was tendered to the effect that Ulteig was a heavy smoker and drinker, and was inclined to fall asleep with burning cigarettes; that Mrs. Ulteig had knowledge of three times that he had set a contour chair on fire when he fell asleep with a burning cigarette; that while her husband was drunk and smoking he had also set fire to blankets and quilts; that on the afternoon of February 5, 1960, Ulteig started drinking; that about 10:30 that evening he was seen driving away from his home, and that he usually made a trip to the Seven-Eleven Store for beer before it closed in the evening; that the witness Connor, one of Ulteig’s neighbors, was awakened by Ulteig knocking at the door and shouting shortly after he had gone to bed; that Connor’s wife said: “That is Dean, don’t let him in, he’s drunk”; that Connor went to the door and Ulteig told him: “My house is on fire”; that Ulteig was dressed in his under shorts,, and said he leaped out a window; that about 12:30 a neighbor, Mrs. Slavin, woke up and saw fire and called Mrs. Ulteig, who, with her son, was staying with her sister; that while she was talking to Mrs. Ulteig she could hear Dean Ulteig at the door of the house where Mrs. Ulteig was staying; that Dean said: “Mike (meaning Mrs. Ulteig) I have to talk to you. I know what you think, but I didn’t burn the house.” That Ulteig was drunk and that he told Mrs. Ulteig that he did not set the fire; that he did not know how it started. Connor further testified to the effect that the fire started in the den; that he saw nothing to indicate that the fire was intentionally set; that he smelled no kerosene or gasoline or anything inflammable when he went to the scene immediately after being awakened. Testimony was tendered to the effect that Johnson, the local agent for the insurance company, inspected the premises a day or so later in the company of Ulteig and found no evidence of arson; that Ulteig told him : That the first thing he remembered that the house was full of smoke, and that he had to jump out the front window; that on February 8, 1960, Johnson sent forward the notice of the loss, listing the cause of the fire as unknown; that Ulteig moved back into the house the same night of the fire and continued to live there; that he had no other place to stay; that after the fire the neighbors could see Ulteig showing his friends about the site of the fire. Testimony was tendered to the effect that because of Ulteig’s drunkenness he was refused visitation rights with his son, and made persistent efforts to see the child; that he made a threat to Mrs. Ulteig with respect to a confession if she did not let him see the child, but Mrs. Ulteig still refused. Testimony was tendered that up to this time the insurance company had never given any indication that they were not going to pay the loss. At the insurance company’s request Mrs. Ulteig had obtained four estimates on the house. The company failed to make payment and Mrs. Ulteig filed this action on April 14, 1960. On April 19, 1960, Ulteig made a confession that he had set the fire in a suicide attempt. On June 8, 1960, the Harris County grand jury returned an indictment against him and one count was for willfully burning a house within the city of Houston, and one count for willfully setting fire to insured property with intent to defraud. Testimony was tendered to the effect that Ulteig remained in jail from July to October 1960 without a drink; that the case was set and reset four or five times; that on October 7, 1960, a Mr. Powell from the company handling the adjusting of this claim called the District Attorney’s Office and said: “A plea of guilty would knock the lawsuit out. They’d be out $4,000.00 but would be satisfied with $2,000.00 restitution”. On October 11, 1960, the Probation Department completed their pre-sentence investigation and recommended that Ulteig would not be a good risk for probation, although he had not been previously convicted of a felony. During this period of time Ulteig was not interested in probation and wanted a jury trial. On October 28, 1960, Ulteig, having been in jail since July of that year, appeared in Court, pleaded guilty to arson by willfully burning a house and received a five year sentence. He had been promised that the District Attorney’s Office would recommend probation. That same day Ul-teig was free for the first time in four and one-half months. The above statement of evidence is gleaned substantially from ap-pellee’s brief. Appellant, in its reply brief, says in effect that appellee’s review of the evidence is substantially correct; that a careful study reveals a fairly accurate description both before and after the fire, but contends the evidence shows nothing, except hearsay, as to the cause of the fire, and does not controvert Ulteig’s confession and plea of guilty in which he states that he intentionally and willfully set fire with the intention of taking his life; that appellee’s argument that because Ulteig was a heavy drinker and that after four and one-half months without alcohol, that he would confess so that he could get a drink, is without any foundation because Ulteig signed his confession on April 19, 1960, sometime before he was indicted and placed in jail; that there is no evidence to vary or contradict the statements made by Ulteig in his confession or the statements made by him before the court upon his plea of guilty, unless it can be said that the hearsay statements attributed to him some few hours after the fire made to his wife while drunk, constituted evidence of probative value and that such statements should not have been admitted as part of the res gestae. In appellant’s reply brief we find the following statement:

“It is true that the time period intervening in this particular case between the event and the statement is not so great as to militate against its spontaneity. Likewise, the fact that it may be self-serving does not in every case make the statement inadmissible. However, the fact that they were made away from the scene of the event by a person whose mental faculties had been dimmed by alcohol certainly gives reasonable grounds to suspect their spontaneity and reliability.” Citing McCormick and Ray, Texas Law of Evidence, Volume 1, Sec. 917, page 691.

In the Simmons case heretofore cited, our Supreme Court said:

“The test for determining if there is evidence of probative value to support a jury verdict is whether reasonable minds might differ with respect thereto.”

So, the question here is: Is there evidence of probative value to support the jury verdict to the effect that Ulteig did not cause the destruction of the house by intentionally and willfully setting fire to the house on February 5, 1960? We think there is. Needless to say that this question has given us some concern, and we have read carefully the entire statement of facts in order to arrive at our conclusion in this matter. We have previously detailed some of the pertinent parts of the testimony. In addition thereto the witness, Connor, a neighbor (across the street) testified to the effect that the fire started in the den and that he saw nothing to indicate that the fire was intentionally set; that he did not smell any kerosene, gasoline, or anything inflammable immediately after he went to the scene after being awakened by Ulteig. Mr. Johnson, the local agent for the insurance company, inspected the premises a day or so later in the company of Ulteig, and Mr. Johnson said he found no evidence of arson, and that Ulteig told him: “that the first thing he remembered was that the house was full of smoke; and that he had to jump out the front window.” On February 8, 1960, three days after the fire, Johnson sent forward the notice of proof of loss, listing the cause of the fire as unknown. No doubt the foregoing testimony had tremendous effect on the majority of the jurors. Moreover, the fact that Mrs. Ulteig did not give consent for her husband to see the son and the fact that she did not file this suit until April 14, 1960, and that Ulteig did not sign his confession until April 19, 1960, just five -days after she filed her suit to recover this loss, and that Ulteig’s history of drinking, and the way he had been acting prior to the fire, no doubt had great bearing on ten of the jurors. The witness, Mrs. Slavin, also testified to the fact that she saw Ulteig driving off about 10:30 that evening, and when she awoke at 12:30 and called Mrs. Ulteig, she could hear Ulteig at Mrs. Ulteig’s door. The fact that the jury could not agree, is some proof that reasonable minds might differ with respect to the fact as to whether Ulteig did or did not willfully set fire to the house. Since we are of the view that there is evidence in this record of probative value to support the jury verdict, it follows that we are of the view that the court did not err in overruling appellant’s motion for an instructed verdict, nor its motion for judgment non obstante veredicto, and each of the points from 1 to 6 inclusive are overruled.

But appellant says in points 7 and 8 that the Court erred in admitting the testimony from the witness, Mrs. Warren, concerning hearsay statements by Ulteig to Mrs. Ulteig relative to the cause of the fire, as well as admitting testimony from Mrs. Ulteig as to statements made to her by her husband following the fire, and as we understand appellant’s contention, it is to the effect that the statements complained of are not admissible as being part of the res gestae, and that they are purely hearsay, and do not come within any of the exceptions to the hearsay rule. We overrule each of these contentions. With reference to the rule as to res gestae, our Supreme Court in City of Houston v. Quinones, 142 Tex. 282, 177 S.W.2d 259, made this statement of the Rule:

“ * * * that res gestae evidence is not the witness speaking but the transaction voicing itself, (citing cases). In determining whether evidence is admissible, each case must be tested by its own facts; and if upon a fair analysis a statement after the event does not appear to be a continuation of such event, it cannot be res gestae, even though made near the time of the occurrence. Statements must be either a part of the transaction or made under such circumstances as to raise a reasonable presumption that they are spontaneous utterances of facts arising out of the transaction itself, and so soon thereafter as to exclude the presumption that they are the result of premeditation or design. If they are not in their nature a part of the occurrence, they do not constitute a part of the res gestae, and are inadmissible.” See points 6 to 8.

Our Supreme Court has not changed or modified the foregoing rule. We believe the application of the foregoing rule to the factual situation here brings the admission of Ulteig on the night of the fire within the res gestae rule. Under the record, Ulteig was in a state of intoxication, was dressed in his underwear, and his statements to the effect that he was awakened by the smoke in the house and that he had to jump out the window and go to his neighbor, were made under such circumstances as to raise a reasonable presumption that they were spontaneous utterances of facts arising out of a transaction relating to the fire, and we are of the view that the actions and statements of Ulteig as disclosed by his dress and exclamations he made were made so soon after he was. awakened by smoke in the house as to exclude the presumption that his statements were the result of premeditation or design. Ten of the twelve jurors trying the case took this view. See Prater v. Traders & Gen. Ins. Co., Tex.Civ.App., 83 S.W.2d 1038, n. w. h., but cited with approval by our Supreme Court in Great American Indem. Co. v. Elledge, 159 Tex. 288, 320 S.W.2d 328, is in accord with this view, point 1. Moreover, we believe that the testimony complained of is admissible independently of the res gestae rule, for the reason that it is the best evidence available and proved exactly what happened at the time, or just prior to the time that Ulteig ran out of the house. We think the jury had a right and had the duty to take into consideration all the facts and surrounding circumstances disclosed by the suddenness with which Ulteig left the house, and the fact that he was in his underwear, and the fact that there was evidence that the fire started in the den, and there was nothing to indicate that he had willfully placed kerosene or any other inflammable material in the house for the purpose of burning it. We think under the record as a whole the statements of Ulteig that he did not set the house on fire appears to have been made in a natural manner without circumstances of suspicion. That leads us to say that the testimony tendered is sufficient to present a fact issue under all the facts and circumstances as to whether Ulteig did or did not intentionally set the house on fire. In the Prater case, supra, Justice Alexander cites from Commonwealth v. Trefethen, 157 Mass. 180, 31 N.E. 961, 24 L.R.A. 235, the following :

“The fundamental proposition is that an intention in the mind of a person can only be shown by some external manifestation, which must be some look or appearance of the face or body, or some act or speech; and that proof of either or all of these, for the sole purpose of showing the existing state of mind or intention [of the person is proof of a fact from which the state of mind or intention], may be inferred. * * * ”

We think under the cases here cited the testimony complained of was admissible.

Appellant’s point 11 is to the effect that the Court erred in failing to grant it a new trial, for the reason that the jury’s negative answer to issue 1 was against the overwhelming weight and preponderance of the evidence so as to result in manifest injustice to appellant. We have carefully considered all the evidence and the record as a whole, and we are of the view that since appellant assumed the burden of proving that Ulteig intentionally and fraudulently set the house on fire, that we cannot honestly say that the verdict of the jury is so against the great weight and preponderance of all the evidence as to be clearly wrong and unjust, and this point is overruled. We have considered each of the other points and each is overruled. Ap-pellee’s cross-points have been considered and each is overruled.

The judgment of the trial court is affirmed.