author: DIXON, Chief Justice.

text:
    MACK TRUCKS, INC., Appellant, v. DAL-TEX TIRE SERVICE, INC., Appellee.
    No. 16006.
    Court of Civil Appeals of Texas. Dallas.
    April 27, 1962.

      Ivan Irwin, Sr., Dallas, for appellant.
    James S. Mahon, Dallas, for appellee.
   DIXON, Chief Justice.

This case presents a question of priority between two chattel mortgages.

The parties have agreed on a stipulation of the facts. On August 31, 1957, appellant, Mack Trucks, Inc., sold to James E. Walker of Dallas County a Mack Tractor for a consideration of $13,369.00. After the application of a down payment there remained an unpaid balance of $12,792.52 payable in monthly installments over a period of 36 months of $355.32 each.

At the time of the sale Walker executed an application for a Certificate of Title pursuant to Art. 1436-1, Vernon’s Ann. Penal Code. He also executed a chattel mortgage to secure payment of the balance due. A Certificate of Title was issued to Walker by the Texas Highway Department, which Certificate refers to appellant's lien. The chattel mortgage was filed for record in Dallas County by Mack Trucks, Inc. on September 12, 1957.

The chattel mortgage contained these two provisions:

“Truck complete with cab and chassis and all added and/or substituted appurtenances and equipment.”

In the body of the mortgage, the following provision is to be found:

“Any equipment, repairs or accessories placed upon said property during the life of this mortgage shall become component parts of said property and be subject to this mortgage.”

During the life of the above mortgage and on June 6, 1959 appellee Dal-Tex Tire Service, Inc. sold to James E. Walker four truck tires and tubes. The new tires and tubes were mounted on the tractor which was already mortgaged to appellant. The old tires and tubes were removed. Appellee took title to the old tires and tubes, allowing Walker a credit of $160 on the purchase price of the new tires and tubes. It is agreed that $160 was the reasonable value of the old tires and tubes at the time appellee took possession of them. To secure payment to appellee of the balance due Walker executed a chattel mortgage on the new tires and tubes. This chattel mortgage was recorded in Dallas County by appellee on August 7, 1959.

At the time appellee filed its mortgage for record Walker was in default on his payment to appellant on the Mack Tractor. Sometime in September 1959 appellant peacefully repossessed the tractor which at the time was equipped with the new tires and tubes appellee had sold to Walker. Following notice by registered mail a sale of the tractor was held September 28, 1959 pursuant to the terms of appellant’s chattel mortgage. The tractor was bought by appellant, and Walker’s indebtedness to appellant was duly credited. But there remained after said credit a deficiency indebtedness of $1,000 still due appellant.

At the time appellant repossessed the tractor there was an unpaid balance due ap-pellee of $373.24 on the new tires and tubes appellee had sold to Walker. This amount is the agreed value of the tires and tubes.

Demand was made on appellant by ap-pellee for the mortgaged tires and tubes. Appellant refused. Appellee filed suit. Judgment was rendered for appellee for $213,24, the agreed value of the tires and tubes less the credit of $160.

Meantime the new tires and tubes by agreement of the parties have been placed in storage to await the outcome of this litigation.

OPINION

Art. 1436-1, § la, of our Penal Code expressly provides that the Certificate of Title Act shall not apply to the filing or recording of a lien created only upon tires, batteries, or other automobile accessories. Therefore the Certificate of Title issued to Walker cannot be considered a material factor in this case. The only question before us is whether appellee’s later dated and recorded chattel mortgage on the tires and tubes alone is superior to appellant’s earlier dated and recorded chattel mortgage on the whole tractor, including the tires and tubes which appellee had sold to Walker.

Appellant contends that its lien is superior to that of appellee, therefore the judgment of the trial court should be reversed on appeal and judgment rendered for appellant. Appellee has not filed a brief.

We have not been cited to and we know of no Texas case exactly in point. The two Texas cases which come nearest to the point are Firestone Service Stores v. Darden, Tex.Civ.App., 96 S.W.2d 316, no writ history; and Star Finance Corp. v. Chain Investment Co., Tex.Civ.App., 146 S.W.2d 291.

In Firestone Service Stores v. Darden, supra, it was held that the tire company’s later lien on new tires was superior to the motor company’s claim to said tires by reason of its mortgage on the whole automobile. However, the court was careful to point out that the motor company’s mortgage covered only the automobile and the standard attachments. It did not include a provision that the motor company’s mortgage covered other accessories and equipment thereafter placed upon the automobile. The court then held that the tires being easily identified by serial numbers, and being so attached that they were easily removed without injury to the automobile, did not become a part of the automobile by the rule of accretion or accession, citing Clark v. Wells, 45 Vt. 4, 12 Am.Rep. 187.

In Star Finance Corp. v. Chain Investment Co., supra, the court also decided the issue in favor of the tire company and its mortgage. But again the facts differ from the facts in the instant case. In the cited case the old tires were not traded to the tire company. The automobile owner retained possession of the old tires. Apparently he used the new tires and the old tires alternately on his automobile. Thus there were times when the new tires were not attached to the automobile.

Appellant frankly states that authorities in other jurisdictions are divided on the question. Cases which tend to support appellant’s view are: Lincoln Bank & Trust Co. v. Netter, 253 S.W.2d 260 (Ky.); Matthews v. Couie, 35 So.2d 794 (La.App.); Dersch v. Thomas, 138 Cal.App.Supp. 785, 30 P.2d 630; and Twin City Motor Co. v. Rouzer Motor Co., 197 N.C. 371, 148 S.E. 461.

Cases which appellant admits hold to the contrary are: Bousquet v. Mack Motor Truck Co., 269 Mass. 200, 168 N.E. 800; Clarke v. Johnson, 43 Nev. 359, 187 P. 510; and Franklin Service Stations v. Sterling Motor Co., 50 R.I. 336, 147 A. 754.

A discussion of the question with authorities cited will also be found in 1 C.J.S. Accession § 4, pp„ 415, 417; and 14 C.J.S. Chattel Mortgages §§ 118, 120, pp., 727-729.

Some of the cases apparently turn on the question whether title to the added accessories remains in the seller of the accessories under the terms of a conditional sales contract. If so, the added accessories, though placed on the automobile, are subject to the claim of the seller of the said accessories in preference to the mortgage held by the seller of the automobile.

In the instant case we are of the opinion that the mortgage of appellant includes the new tires and tubes subsequently sold by appellee and mounted on the tractor. The terms of the mortgage so provide, being in that particular unlike the mortgage in the Firestone Service Stores case above cited. The mortgage was recorded, so constituted constructive notice to appellee. In Texas a conditional sales contract is only a mortgage. Art. 5489, Vernon’s Ann.Civ.St.; 12 Tex.Jur.2d pp. 8, 39. Therefore, legal title to the new tires and tubes after their purchase passed to Walker. Title was not retained by appellee. Fourmentin v. Scott, Tex.Civ.App., 216 S.W. 901; Stephens v. Cox, Tex.Civ.App., 255 S.W. 241; Barton v. Lary, Tex.Civ.App., 283 S.W. 920. Appellee accepted title and possession from Walker of the old tires and tubes, allowing Walker a credit of $160 on the purchase price of the new tires and tubes. These new tires and tubes were mounted on the tractor in place of the old tires and tubes which were subject to appellant’s general mortgage on the whole tractor. We hold that under the particular circumstances of this case the mortgage of appellant on the tires and tubes in question was superior to that of appellee. It follows that appellant’s foreclosure of its mortgage and its purchase of the mortgaged property at the foreclosure sale vested good title to the tires and tubes in appellant.

The judgment of the trial court is reversed and judgment is here rendered for appellant for title and possession of the tires and tubes in question.

Reversed and rendered.


source: Caselaw Access Project

author: HUGHES, Justice.

license: Public Domain

text:
    W. A. LEE, Jr., et al., Appellants, v. Robert S. CALVERT, Comptroller of Public Accounts of Texas, et al., Appellees.
    No. 10955.
    Court of Civil Appeals of Texas. Austin.
    April 18, 1962.
    Rehearing Denied May 9, 1962.

      Lant, Savage, Counts & Winn, Dallas, Powell, Rauhut, McGinnis, Reavley & Lochridge, Larry E. Temple, Austin, for appellants.
    Will Wilson, Atty. Gen., Marietta Mc-Gregor Payne, Asst. Atty. Gen., Austin, for appellees.
   HUGHES, Justice.

This suit is brought for the recovery of inheritance taxes paid by, or for the account of, Marian Jean Dooley Lee under protest.

The question to be determined is whether or not the taxpayer, Mrs. Lee, was the legally adopted daughter of Katherine Marie Dooley, decedent, at the time of her death and entitled to preferential classification as such under Art. 14.02, or was properly classified by the Comptroller under the more onerous classification prescribed by Art. 14.06, Taxation General, Vernon’s Ann. Civ. St.

It is our opinion that Mrs. Lee was not the legally adopted daughter of decedent at the time of decedent’s death, and that the classification made by the Comptroller, affirmed by the Trial Court, should be sustained.

The main facts were stipulated. We quote from the stipulation:

“Marian Jean Dooley Lee was placed in the home of Leslie B. Dooley and his wife, Katherine Marie Dooley on July 5, 1917, by the New York Foundling home and she remained with the Dooleys until the time of her marriage.
“2. After the customary period of probation of custody had expired, Marian Jean Dooley Lee was held out to be the adopted daughter and was in fact considered to be the adopted daughter of the said Katherine Marie Dooley and Leslie B. Dooley.
* * * ⅛ * ' ⅜
“3. Prior to 1936 the Dooleys made no attempt to legally adopt Marian.
“4. Subsequently, it was called to the attention of the said Leslie B. Dooley and Katherine Marie Dooley that a child should be adopted by legal proceedings, and for that purpose, they went to a certain attorney who was a friend of theirs, to-wit, John F. Murphy, who was then a practicing lawyer in Dallas, Texas, and employed him to effectuate legally the adoption of said Marian Jean Dooley Lee. On the advice of the said attorney, the said Katherine Marie Dooley and Leslie B. Dooley executed on December 2, 1936, a Deed of Adoption, dated the day of execution, duly acknowledged before the said John F. Murphy, a notary public in Dallas County, Texas. The Deed of Adoption was recorded and reads as follows:
“ ‘State of Texas
County of Dallas
“‘That we, Leslie B. Dooley, and Katherine Marie Dooley of the State and County aforesaid, have by this instrument adopted Marian Jean (Dooley) a child of parents unkown to us, now twenty years of age (and who has continuously resided with us since July 5th, 1917) as our legal heir, hereby conferring on the said Marian Jean Dooley all the rights and privileges, both in law and equity, appertaining to this act of adoption for all purposes retroactive and to be effectual from the 5th day of July, 1917.
“ ‘WITNESS our hands at Dallas, Texas, this the 2nd day of December, 1936.
“ ‘s/ Katherine Marie Dooley
“ ‘s/ Leslie B. Dooley
“ ‘[Acknowledgments]’
“5. Said Marian Jean Dooley Lee was and is considered by said Leslie B. Dooley and, during her lifetime, by the said Katherine Marie Dooley to be their adopted daughter, and both said Leslie B. Dooley and Katherine Marie Dooley thought that the final legal steps had been taken to adopt the said Marian Jean Dooley Lee in accordance with the requirements of law and that the said Marian Jean Dooley Lee had been adopted by them upon the filing of the said Deed of Adoption in the Deed Records of Dallas County, Texas, and had been assured by the said attorney, whom they had employed for that purpose that such adoption had been effected.
“6. In reliance upon the advice of their attorney that this action constituted a legal adoption by them of the said Marian Jean Dooley, the Dooleys, being laymen, believed that Marian Jean Dooley was their adopted daughter and had no reason to believe that any additional actions might be necessary to effect a valid adoption.
“7. Katherine Marie Dooley died testate March 14, 1956, and under the terms of her will, certain properties were devised by her to Marian Jean Dooley Lee and her children Lawrence Lee and Lana Lee.
“8. On February 20, 1959, in a suit in which Marian Jean Dooley Lee, joined by her husband, W. A. Lee, J.r., were plaintiffs, and Leslie B. Dooley and all of the heirs of Katherine Marie Dooley and Leslie B. Dooley were defendants, and in which neither the State of Texas nor any of the public officials who are defendants in this cause were parties, the 101st District Court of Dallas County, Texas, entered a Declaratory Judgment, a copy of which is immediately hereinafter set forth. This suit had been filed on December 11, 1958.”

The judgment in this case is set out in full in the stipulation. It contains many findings of fact and conclusions of law. We do not quote these, but we do quote the declarations of law made by the Court in its judgment:

“A. That Question (1), to-wit: ‘By their act of accepting custody beyond the probationary period of the said Marian Jean Dooley Lee from the New York Foundling Home for the purpose of adoption, were not Leslie B. Dooley and his wife legally obligated to adopt said child, and did not the said Marian Jean Dooley Lee have a legal right to be adopted?’ be answered as follows: YES.
“B. That Question (2), to-wit: ‘Was not Marian Jean Dooley Lee a proper subject for adoption on July 5, 1917 at the time she was placed in the home of Leslie B. Dooley and wife, and did not Leslie B. Dooley and his said wife in legal effect adopt Marian Jean Dooley Lee by their act of accepting custody of the said Marian Jean Dooley Lee, in considering and treating her always as their adopted daughter, and in holding out to the world that she was in fact their adopted daughter?’ be answered as follows: YES.
“C. That Question (3), to-wit: ‘Did not Leslie B. Dooley and his said wife execute a deed of adoption on the 2nd day of December, 1936 and intend thereby to acknowledge validity of adoption of Marian Jean Dooley Lee as of the 5th day of July, 1917, the date of the placing of said child in said home and, was not said instrument filed of record in the Deed Records of Dallas County, Texas?’ be answered as follows: YES.
“D. That Question (4), to-wit: ‘Were not the adoption papers intended to be of the effect and were they not in fact of the effect that they were merely a confirmation of the previous act of adoption of Marian Jean Dooley Lee by Leslie B. Dooley and his said wife?’ be answered as follows: YES.
“E. That Question (5), to-wit: ‘Did not Leslie B. Dooley and his said wife intend to take into their family the said child, and give her the rights, privileges and duties of a child and heir, and did not said child in legal effect have the rights, privileges and duties of a child and heir?’, be answered as follows: YES.
“F. That Question (6), to-wit: ‘Has not the said child been considered in fact by all the heirs and next of kin of the said Leslie B. Dooley and his said wife, all of whom have been made parties to this suit, to be in legal effect the legally adopted daughter of Leslie B. Dooley and his said wife?’, be answered as follows: YES.
“G. That Question (7), to-wit: ‘Has not the plaintiff herein considered herself to be in legal effect the legally adopted daughter of Leslie B. Dooley and his said wife ?’, be answered as follows: YES.
“H. That Question (8), to-wit: ‘Was not there an attempted compliance with the statute for adoption of said Marian Jean Dooley Lee?’, be answered as follows: YES.
“I. That Question (9), to-wit: ‘Was not the New York Foundling Home acting in loco parentis for Marian Jean Dooley Lee when it placed the child in the home of Leslie B. Dooley and his said wife?’, be answered as follows : YES.
“J. That Question (10), to-wit: ‘Was not the attempted compliance with the law for adoption and the agreement between Leslie B. Dooley and his said wife and the New York Foundling Home, and the holding out to the world by Leslie B. Dooley and his said wife that the said Marian Jean Dooley Lee was their adopted daughter, followed by reliance thereon and performance thereto by Marian Jean Dooley Lee ?’, be answered as follows: YES.
“K. That Question (11), to-wit: ‘Would it not be inequitable and grossly unfair to Marian Jean Dooley Lee after having performed services and rendered affection to Leslie B. Dooley and his said wife, for the said Leslie B. Dooley and his said wife and their privies to deny the adoption of Marian Jean Dooley Lee and the status of Marian Jean Dooley Lee as their adopted daughter?’, be answered as follows: YES.
“L. That Question (12), to-wit: ‘Is Marian Jean Dooley Lee in legal effect the legally adopted child of Leslie B. Dooley and his said wife?’, be answered as follows: YES.”

Appellants’ first point of error is that the Court erred in failing to hold that the 1937 Validating Act validated the 1936 attempted adoption of Marian Jean Dooley by Leslie B. and Katherine Marie Dooley.

The attempted 1936 adoption was by the execution and recording of the adoption deed dated December 2, 1936.

At this time, 1936, the only statutory or legal method provided for the adoption of persons was by judicial adoption under the provisions of Chapter 77, p. 300, 42nd Leg., Acts 1931. This Act expressly repealed Title 3 of the Revised Civil Statutes of Texas, Revision of 192S, which authorized adoption by deed.

The Validating Act of 1937, upon which appellants rely, reads:

' “That all adoption papers which were signed by an adopting parent or parents, or natural parent or parents of a child, prior to January 1, A.D.1919, and under the terms of which any child was attempted to be adopted, and all attempts made in good faith to effect an adoption of any child subsequent to January 1, A.D.1919, and which failed of valid consummation through irregularities in the compliance with the then existing laws of this State, be and the same are hereby validated and made of binding force and effect, although said adoption papers were not properly signed and executed or authenticated or acknowledged as required for deeds, and were not, prior to the death of the adopting parent or parents, or prior to the death or disappearance of the natural parent or parents, filed for record with the County Clerk of the adopting parent’s or parents’ residence.” Acts 45th Leg. p. 1324, Ch. 490, Sec. 2, Art. 46b, 1938 Supp. Vernon’s Tex.Civ.Stat.

Appellants state that: “It should be immediately apparent from the very language of the 1937 Act that it was designed for and intended to encompass the very factual situation presented by this case.” The only case they cite as being in point to sustain this view is Hardy v. Wernette, 114 S.W.2d 951, affirmed 134 Tex. 229, 134 S.W.2d 1032 (1938). We do not so consider that case. There suit was brought to annul an adoption judgment entered in 1936 in a judicial proceeding in the District Court of Bexar County because of certain irregularities in the proceedings. The Court of Civil Appeals held that the adoption judgment was validated by the Validating Act of 1937. The Supreme Court held the adoption to be regular and valid and, hence, did not need validating. Whether or not the 1937 Act applies to irregular judicial adoption proceedings we do not decide. There were no such proceedings here.

We are in complete accord with appellants that our adoption statutes and legislative acts validating adoptions should be given a liberal construction. This does not authorize us, however, to write a validating Act or to distort the plain language of the 1937 Act and apply it to attempted adoptions completely without its scope.

We hold that the 1937 Act does not apply to and does not validate an adoption deed executed in 1936 for the reason that it, the deed did not fail of “ * * * valid consummation through irregularities in the compliance with the then existing laws of this State * *

The 1936 deed of adoption did not so fail because there was then no existing law with which such deed could comply. At such time the statutes authorizing adoption by deed had been repealed.

It is our opinion that the attempted adoption of Mrs. Lee by deed executed in 1936 did not constitute her a “legally adopted child” within the meaning of that term as used in Art. 14.02, supra. Calvert v. Johnston, 304 S.W.2d 394, Austin Civil Appeals, writ ref. N.R.E., 157 Tex. 590, 305 S.W.2d 778.

We are also of the opinion that appellants are not aided here by the declaratory judgment rendered by the District Court of Dallas County. That judgment, we believe, was a mere advisory opinion which the courts are without jurisdiction to render. It was a non-adversary proceeding. There was no controversy, justiciable or otherwise, between the parties to it. We need cite only the recent case of California Products, Inc. v. Puretex Lemon Juice, Inc., 160 Tex. 586, 334 S.W.2d 780, to sustain this ruling.

The only parties, so far as this record discloses, who had a justiciable controversy at the time the Dallas judgment was rendered over the status of Mrs. Lee as a legally adopted child of decedent, was Mrs. Lee and the State of Texas. The State was not a party to the suit and is not prejudiced by the judgment therein rendered. The effect of the judgment as between the parties to it is not before us.

The judgment of the Trial Court is affirmed.

Affirmed.

      . Plaintiffs below were W. A. Lee, Jr., Leslie B. Dooley, and Katherine Whyte, Independent Executors (trix) of the will of Katherine Marie Dooley. Defendants were Robert S. Calvert, Comptroller of . Public Accounts, Jesse James, Treasurer and Will Wilson, Attorney General, all of Texas, who were sued in their official capacities only.


author: CLAYTON, Justice.

text:
    The STATE of Texas, Appellant, v. Ramon A. BENAVIDEZ and 32 Bottles of Beer, Appellee.
    No. 5532.
    Court of Civil Appeals of Texas. El Paso.
    April 18, 1962.
    Rehearing Denied May 9, 1962.
    Stephen L. Haley, County Atty., Seminole, for appellant.
    Arthur G. Smith, Seminole, for appellee.
   CLAYTON, Justice.

This case is an appeal from an order of the District Court of Gaines County, Texas denying an application of the State of Texas for the forfeiture and disposition under the Texas Liquor Control Act of 32 bottles of beer containing 32 ounces each. Suit was brought under the provisions of Vernon’s Annotated Penal Code, Article 666-42 (b) of said Act.

On the trial before the court without a jury the parties entered into a stipulation which served as a Statement of Facts (Rule 263, Texas Rules of Civil Procedure). In substance, this stipulation was as follows:

In February, 1961 the defendant Benavi-dez was acquitted by a jury in the County Court of Gaines County of a criminal charge of unlawful possession of beer in a dry area (Gaines County) for the purpose of sale. Subsequently the forfeiture suit was filed in the District Court against Ben-avidez and the identical bottles of beer which had been seized. The stipulation of the parties further recited that the evidence produced by the State and the defendant would be the same as in the criminal case, that is, that the State would again offer evidence to the effect that the defendant unlawfully possessed beer for the purpose of sale in a dry area and the defendant would again offer evidence that he owned the beer in controversy and that he possessed it, not for sale, but for his personal consumption; and that the District Court admitted in evidence the judgment of acquittal entered in the County Court over the objection of the State, and denied the forfeiture, holding “that forfeiture in such cases may be predicated only upon a conviction of the Defendant”. The State appealed.

In the first point of error the State urges that the trial court erred in allowing the introduction of the judgment of acquittal entered in the County Court. In the State’s second point of error it is contended that the trial court erred in holding that forfeiture in the case before it could be predicated only upon a conviction of the defendant.. These points, being interrelated, will be discussed together.

27 A.L.R.2d 1140, 1Í2, recites:

“Proceedings for the forfeiture of property which was allegedly the subject matter of or used in a criminal transaction giving rise to a right of forfeiture have, in a number of cases, been held barred as against a claimant who showed that, in a previous criminal prosecution, he was acquitted of the same criminal acts relied upon to justify the forfeiture”,

citing Coffey v. United States (1886), 116 U.S. 436, 6 S.Ct. 437, 29 L.Ed. 684, (no Texas cases cited). However, 27 A.L.R.2d at page 1142 further states that the rule in the Coffey case “has been severely criticized or ignored in a number of cases refusing to give the prior acquittal the effect of a bar in the forfeiture proceedings, the courts either limiting the Coffey case strictly to its facts or rejecting it in toto.” Under this annotation the only Texas decision cited was that in Stewart et al. v. State, 244 S.W.2d 688 (Civ.App., error ref.). However, the Stewart case is not applicable here, since there was no mutuality of parties in the criminal transaction and the forfeiture proceedings, nor was the subject matter the same.

McCormick and Ray on Evidence, second Edition, “Exceptions to Hearsay Rule”, If 1279, pps. 149-150, contains this statement:

“As a general rule a judgment in a prior case determining issues of fact will not be received as evidence of those facts in a later suit. This rule of exclusion has been consistently followed by Texas courts. Strange as it may seem, the- courts have applied here the principles of res judicata and estop-pel by judgment, i. e., the former judgment is to be received only when the parties to the present case are the same as in the earlier suit or are claiming under them; and when received are conclusive of the issues. If the sitúation is not one for the application of res judicata or estoppel by judgment then the former adjudication is not admissible. Many of the cases have involved the offer of a judgment of conviction of a crime against the convicted person in a civil suit, as evidence of the fact that he committed the crime charged, and the Texas courts have rejected the evidence.”

We believe that the cases rejecting such evidence will be found to be cases in which there is not mutuality of parties, or of subject matter, or both.

A somewhat different statement of Texas law appears in 17 Texas Jurisprudence, “Evidence — Civil Cases” — p. 575, ¶ 238:

“Where both a civil suit and a criminal prosecution are based on the same transaction, a plea of guilty by the Defendant in the criminal prosecution, or a judgment of conviction based on such a plea, is admissible against him as an admission in the civil suit * * * ” (Emphasis supplied).

This rule was applied in the late case of White v. State of Texas, 329 S.W.2d 446 (Civ.App., 1959). We consider this rule to be based upon a judicial admission or admission against interest (the plea of guilty) and we believe this to be the law of this State where there is a plea of guilty, even though there be a diversity of parties.

The Texas rule as to the admissibility in a civil action of an acquittal or conviction in a prior criminal action based on a plea of not guilty is far from clear, especially so where there is a diversity of parties in the two actions, even though the actions grew out of the same transaction. We hold the instant case to be a civil proceeding, even though it is based upon provisions of Article 666-42 of the Texas Liquor Control Act which are incorporated in Volume 1A of the Texas Penal Code. This Article, relative to suit for forfeiture under the Act, provides:

“Notice of pendency of such suit shall be served on any person found in possession of the beverages or property at the time of seizure in the manner prescribed by law and the case shall proceed to trial as other civil cases?’ (Emphasis added).

We now examine the facts of the instant suit, as set out in the stipulation of the parties or “agreed case”. Here there is a complete mutuality of parties, the State of Texas being the prosecutor in the criminal case and the Plaintiff in the forfeiture proceedings, and the Defendant being the same person in both actions. The subject matter is the same: The alleged unlawful possession by the Defendant of beer in a dry area, the same beer as that sought to be forfeited to the State in the civil action. The testimony, if reproduced, would have been the same on the part of the State and of the defendant. The ultimate fact to be established by the State (and denied by the defendant) is the same, i. e., that the beer was an “illicit beverage” as defined in Article 666-3a(4) of the Texas Liquor Control Act. If it was an illicit beverage it was subject to seizure and forfeiture under the provisions of Article 666-42(a) and (b) of the Act. If it was not an illicit beverage it was not subject to seizure and forfeiture. When this issue is joined by the parties it can only be resolved in a trial on the merits. In just such a trial in the County Court of Gaines County a jury found the defendant not guilty of unlawfully possessing the beer for the purpose of sale in a dry area as had been charged in the complaint and information. We are therefore drawn to the inescapable conclusion that the beer was not possessed in violation of the Liquor Control Act and therefore was not an illicit beverage, and that the issue was res judicata and estoppel by judgment as between the parties. We further hold, in line with the above, that the District Court properly admitted in evidence the judgment of acquittal entered in the County Court. Appellant’s Point I is overruled.

Appellant’s Point II, asserting that the trial court erred in holding that forfeiture “in such cases” may be predicated only upon a conviction of the defendant, is likewise overruled, our opinion in this respect being limited to the facts of the instant case.

The judgment of the trial court is affirmed


author: COLLINGS, Justice.

text:
    TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant, v. Billy Van WILLIAMS, Appellee.
    No. 3712.
    Court of Civil Appeals of Texas. Eastland.
    April 20, 1962.
    Rehearing Denied May 18, 1962.
    Charles J. Lieclc, Jr., Dist. Atty., Edward E. DeWees, Jr., Asst. Dist. Atty., San Antonio, for appellant.
    Stateson, Deane & Ward, San Antonio, for appellee.
   COLLINGS, Justice.

The Texas Department of Public Safety brought suit in the corporation court of the City of San Antonio against Billy Van Williams to have him adjudged an habitual violator of the traffic laws under Article 6687b, Section 22, Vernon’s Ann.Tex.Civ. St. At a hearing in the corporation court Williams was found to be an habitual violator of such laws by reason of having had four different traffic law convictions within a twelve months’ period. Williams appealed to the County Court at Law Number 2 of Bexar County and after a hearing that court held that his payment of the four fines shown by the evidence did not constitute him an habitual violator under the statute because it was found by the court that two of the cases in which he had paid fines were not convictions. The Texas Department of Public Safety has appealed.

The evidence shows that two of the four .convictions alleged against appellee Williams were based upon payment of fines by him by mail in cases in which he did not make an appearance either in person or by an attorney in the court which assessed the fine. We cannot agree with appellant’s contention that proof of payment of a fine by mail in a misdemeanor case shows a conviction. Mooneyhan v. Benedict, Tex.Civ.App., 284 S.W.2d 741; Article 518, Vernon’s Ann.C.C.P. For the reasons stated the evidence would not have sustained a finding that Williams was convicted of four different violations of the traffic laws within a period of twelve months. The trial court properly found that proof of the payment of such fines by mail did not show convictions, and that the State failed to establish its charge that Williams was an habitual violator of the traffic laws.

The judgment is affirmed.


author: MURRAY, Chief Justice.

text:
    Mary BROWN, Appellant, v. Dimple WRIGHT et al., Appellees.
    No. 13913.
    Court of Civil Appeals of Texas. San Antonio.
    April 25, 1962.
    Rehearing Denied May 16, 1962.
    E. P. Lipscomb, San Antonio, for appellant.
    Hattie E. Briscoe, San Antonio, for ap-pellees.
   MURRAY, Chief Justice.

This suit was instituted on May 1, 1961, in the District Court of Bexar County, Texas, by Mary Brown, a feme sole, against Dimple Wright, a feme sole, and Roberta Wright, also a feme sole, seeking to recover in a trespass to try title suit, the title and possession of Lot 4, Block 8, New City Block 2144, within the corporate limits of the City of San Antonio, Bexar County, Texas, the property being also described as 1932 Lyons Street.

The trial was before the court without the intervention of a jury and resulted in judgment for the defendants, and plaintiff, Mary Brown, has prosecuted this appeal.

Appellant, who resided at 1930 Lyons Street, was claiming the premises at 1932 Lyons Street by the ten-year statutes of limitation, Arts. 5510 and 5513, Vernon’s Ann.Civ.Stats. Defendants offered in evidence a warranty deed from General Investment Corporation to Dimple and Roberta Wright, dated October 11, 1945, conveying the lot herein involved.

The evidence shows that prior to 1949 appellant, Mary Brown, and appellee Dimple Wright lived as next-door neighbors, the former living at 1930 Lyons Street, and the latter at 1932 of that street. Both residences were on the bank of the Alazan Creek. In 1949 there was a flood and all of the residences lying along the banks of the Alazan Creek were damaged. The residence at 1932 Lyons Street was so badly damaged that Dimple Wright moved away and never returned to occupy the premises. Mary Brown testified that thereafter the house was vacant. Children played in it and transient people often occupied it at night. The authorities told her that she would have to clean up the house. She was afraid of fire, as her house was only six feet from the Wright house. Thereafter she put some kind of fence around both houses and undertook to keep the children and transient people from entering the vacant house. She also cleaned up the house, and in 1958 rendered it for city taxes as her property. There was other testimony along this same line.

The burden of proof was upon Mary Brown to show that she held open, adverse and peaceful possession of the premises for ten years or more. Arts. 5510 and 5513, Vernon’s Ann.Civ.Stats. The proof must be clear and satisfactory. Moore v. Wooten, Tex.Com.App., 280 S.W. 742. Appellant was asi interested witness, her testimony was not conclusive. Hudson v. Hudson, Tex.Civ.App., 265 S.W.2d 137.

The evidence in this case fails to show such exclusive, adverse, uninterrupted peaceful possession of the property by appellant as to establish title under the ten-year statute of limitation, and even if the evidence had been sufficient to establish these facts, it was not conclusive in its nature, and under all the evidence the trial court did not err in finding, in effect, that Mary Brown had not discharged the burden of establishing title under the ten-year statute of limitation, and in awarding the lot to appellees who held a warranty deed to it.

The judgment is affirmed.


author: WERLEIN, Justice.

text:
    The CITY OF HOUSTON, Appellant, v. Carey SELPH et al., Appellees.
    No. 13897.
    Court of Civil Appeals of Texas. Houston.
    April 26, 1962.

      R. H. Burks, City Atty., John Gano, Sr., Asst. City Atty., Houston, for appellant.
    Ralph S. Carrigan, Houston, Baker, Botts, Shepherd & Coates, Houston, of counsel, for appellee Carey I. Selph.
   WERLEIN, Justice.

Dorothy Patton and husband, Charles G. Patton, and Martin B. Hawkins, plaintiffs, sued Carey I. Selph to recover damages for personal injuries sustained by them when the car driven by appellee, Selph, ran into the back of the Patton car which had stopped behind a line of cars that had come to a stop on Memorial Drive in the City of Houston. A police car belonging to the City of Houston and driven by one Cub-stead, a police officer, which had been following the Selph car about the same distance behind as the Selph car had been following the Patton car, ran into the rear of the Selph car, striking it with such force that it was caused to strike the Patton car again. Appellee Selph, as third party plaintiff, sued the City of Houston, third party defendant, to recover over against the City as contribution one-half of any amount which he might be forced to pay in the event plaintiffs recovered judgment against him.

The trial court entered judgment for the plaintiffs, based on the jury verdict, in the total sum of $9,000.00, and in favor of appellee Selph against the City of Houston in the sum of $4,500.00. The City of Houston has appealed from the judgment against it, and has assigned some seventeen points of error.

We think appellant’s third point to the effect that the City of Houston is not liable to Selph for contribution because Cub stead was acting in a governmental capacity, is decisive of this case. Since Cub-stead was acting in a governmental capacity, the original plaintiffs did not have a cause of action against the City of Houston, nor did they sue the City. The rule is well established that contribution cannot be recovered in a tort action from a party against whom the injured party had no cause of action. Wheeler v. Glazer, 137 Tex. 341, 153 S.W.2d 449, 140 A.L.R. 1301; Patterson v. Tomlinson, Tex.Civ.App., 118 S.W. 2d 645, writ ref.; West Texas Utilities Co. v. Renner, Tex.Com.App.1932, 53 S.W.2d 451, 456; Sattelberger v. Telep, 14 N.J. 353, 102 A.2d 577; 18 C.J.S. Contribution § 11, p. 19.

The undisputed evidence pertinent to Point Three can be summed up as follows : Cubstead at the time of the collision was a police officer of the City of Houston, assigned to the Vice Squad. He was driving an unmarked police car belonging to the City. Since police officers in the Vice Squad work in pairs, he had with him his “partner,” Police Officer Harmon. As customary in the Vice Squad, the officers wore plain clothes, but they had badges or credentials with them and carried pistols. The police car was equipped with radio which came on when the automobile was started, thus enabling the officers to be in constant contact with the police dispatcher. The car was assigned to such officers and they took turns in keeping it at their respective homes when off duty. They were not permitted to use the car except in connection with their work as police officers.

The collision in question occurred about 10 a. m. on October 29, 1958. Officer Cub-stead had kept the car the night before. On that morning he had picked up Officer Harmon, and had checked in on the radio with the police dispatcher, and was driving to the police station. When asked if they worked in shifts, he said technically yes, but they worked any hours that their duties required regardless of days or nights. At the time in question he was assigned to day duty but didn’t know what shift he was on; that they just worked on any case until it was finished and they would be in and out of the police station, and sometimes away from home as long as two or three days at a time; and that as an officer with the Vice Squad he was subject to call on a 24-hour basis.

Cubstead testified that normally when he started on his duties, he would first pick up his partner and then if he had a special assignment he would go direct to it, and if not he would go to the police station; that the reason he was furnished the car was that he was assigned to 24-hour call and time would be saved if he did not have to go to the police station but could go direct to the place of an investigation; that he was at all times in contact with the police dispatcher from the minute he started the car and was subject to being called by him at any moment; that he had checked in after picking up his partner and had given the police dispatcher their number; and that at the time of the accident he was on duty as a law enforcement officer driving the police car in the performance of his duties.

He also testified in effect that as a member of the Vice Squad his general activities involved numerous under-cover investigations of violations of law conducted at irregular hours of the day and night; that they did not work on any specifically designated shifts or duty hours of the day or night, but worked such hours as were necessary to conduct their investigations; that they were on duty as law enforcement officers from the time they left their homes in the police car and had checked in with the police dispatcher until they returned home and checked off the air with police headquarters; that he performed no function for the City other than his duties as a law enforcement officer; that sometimes in making their investigations they relied on tips or information called in by people other than his chief, or department head, and in such event they would go immedi-átely to investigate such information, whether day or night, and it was necessary to have the car assigned to them available for such purpose; that he didn’t recall working on any special investigation on the day of the accident.

It is appellee’s contention that on the occasion in question Cubstead was merely transporting himself and his partner from their respective homes to the police station, and that hence he was not at the time engaged in governmental service for the City but merely engaged in performing a proprietary duty. It is true that Cubstead was on his way to the police station at the time of the collision, and he didn’t recall that he was working on any specific investigation or assignment at such time. During the time he was driving to the station, however, he was on duty and subject to call at any moment, in which event he would not have continued on his trip to the police station but would have gone directly to the place where the investigation was to be conducted. His duties at the time encompassed far more than mere transportation of himself and Harmon to the police station. He had checked in with the police dispatcher and was in constant contact with him. He was then and there engaged in performing his services as a law enforcement officer, keeping in touch with police headquarters and ready at any moment to respond immediately to any assignment, investigation or the apprehension of law violators as directed by headquarters.

We think this case is distinguishable from City of Houston v. Shilling, 1951, 150 Tex. 387, 240 S.W.2d 1010, 26 A.L.R.2d 935, and City of Houston v. Wolverton, 1955, 154 Tex. 325, 277 S.W.2d 101, relied upon by appellee. In the Shilling case one of the grounds for recovery by plaintiff of damages for personal injuries resulting from a collision of a garbage truck owned and operated by the city and plaintiff’s automobile, was the negligence of the city by its garage employees in failing to properly inspect and repair the brakes of the truck involved in the accident. The court held that the maintenance of the garage by the Garbage Department of the city was not a governmental function and hence the city was liable to plaintiff for injuries sustained by her as a result of the collision.

In the Wolverton case the court held in effect that a city milk inspector, delivering a city-owned automobile to the city garage for inspection and repair, who was also carrying with him his book to be audited and collections to be turned in, was engaged primarily in a proprietary capacity in aid of the city’s proprietary function of operating a garage, and hence the city was liable for damages resulting from the collision involving the city car.

Cubstead at the time in question was not engaged in any proprietary function, nor was the police dispatcher with whom he had checked in, nor was the police headquarters where he would, but for the accident in question, continue performance of his duties as a law enforcement officer unless dispatched on some other assignment before or after arriving at the police station. He was not going to the police station to engage in any proprietary function. There is no evidence of any defective condition of the police car or of any defect in the street, or of any other condition associated with the performance of any proprietary function of the City which might have contributed to the accident. The use being made of the car assigned to him and his partner was necessary in the performance of his governmental duties. The act performed by the City through Cubstead, its law enforcement officer, was public in nature and performed at the time in furtherance of general law enforcement for the interest of the public at large, and in the exercise of a governmental function. It was not performed primarily for the pecuniary or other benefit ■of those within the corporate limits of the municipality. City of Houston v. Quinones, 142 Tex. 282, 177 S.W.2d 259, 261; City of San Angelo v. Deutsch, 1936, 126 Tex. 532, 91 S.W.2d 308; City of Dallas v. Smith, 1937, 130 Tex. 225, 107 S.W.2d 872; City of Wichita Falls v. Robison, 121 Tex. 133, 46 S.W.2d 965; Valdez v. Amaya, Tex.Civ.App.1959, 327 S.W.2d 708.

We are not unmindful of the tendency in some jurisdictions to abrogate the rule of law that exempts cities from liability for negligence in the performance of governmental functions. It is our view that if the present rule of immunity as established in this State by a long line of authorities is to be changed, it should be done by legislative enactment. City of Port Arthur v. Wallace, 141 Tex. 201, 204, 171 S.W.2d 480, 481.

Since it conclusively appears from the record that Cubstead at the time of the collision in question was as a matter of law engaged in performing solely a governmental function, the trial court erred in rendering judgment for contribution against the City.

Judgment reversed and rendered.


text:
    Katie Marie BARNETT, Appellant, v. Arlie Wayland BARNETT, Jr., Appellee.
    No. 13925.
    Court of Civil Appeals of Texas Houston.
    April 5, 1962.
    Rehearing Denied May 17, 1962.

      Shead, Dearman & Wiswell, William C. Shead, Houston, for appellant.
    Solito, Vetrano & Murr, Peter S. Solito, Houston, for appellee.
   WERLEIN, Justice.

Appellant sued her husband for divorce on the ground of cruel treatment. Appel-lee, in his amended petition, denied appellant’s allegations of cruel treatment and pleaded recrimination, condonation and adultery on the part of appellant. The case was tried without a jury. At the conclusion of appellant’s evidence, the trial court on motion of appellee denied the divorce and entered judgment for appellee. _

Appellant asserts that she made out a prima facie case for divorce and that the court erred in entering judgment for ap-pellee because the judgment is contrary to the undisputed evidence and unauthorized as a matter of law.

Since the record contains no findings of fact or conclusions of law by the trial court, the trial court’s judgment implies all necessary fact findings in support thereof. In seeking to determine whether there is any evidence to support the judgment and the court’s implied fact findings, “it is proper to consider only that evidence most favorable to the issue and to disregard entirely that which is opposed to it or contradictory in its nature.” Renfro Drug Co. v. Lewis, 19S0, 149 Tex. 507, 235 S.W.2d 609, 23 A.L.R.2d 1114.

We think it would serve no useful purpose to set out testimony of appellant, as to cruelty on the part of appellee or her own acts of cruelty admitted by her on cross-examination. It will suffice to say that we have carefully read the statement of facts and are of the opinion that appellant testified to alleged acts of cruelty on the part of appellee which would support a judgment for divorce in her favor had the court entered such judgment. She also testified to conduct on her part which would amply support a finding by the court of cruelty and recrimination.

Appellant, when asked if she had' had illicit relations with certain men, refused to answer on the ground that it might incriminate her. The court did not require her to testify in those instances, and it will be presumed that the court did not consider such refusal to testify as evidence of guilt or wrongdoing. Article 4633, Vernon’s Annotated Texas Statutes. There was other sufficient and competent evidence to sustain the judgment and it will be presumed that the court based its judgment thereon. 24 Tex.Jur.2d § 553, p. 48.

Judgment affirmed.


author: POPE, Justice.

text:
    R. H. WILKINS, d/b/a Wilkins Drilling Company, Appellant, v. A. Allen FECHT et al., Appellees.
    No. 13929.
    Court of Civil Appeals of Texas. San Antonio.
    April 25, 1962.
    Rehearing Denied May 16, 1962.
    Perkins, Floyd, Davis & Oden, Lawrence H. Warburton, Jr., Alice, for appellant.
    John F. Ryan, Laredo, P. W. Minter, Hebbronville, for appellees.
   POPE, Justice.

The question presented is whether defendant Allen Fecht was an “owner of any gas, oil or mineral leasehold interest in land” under the terms of Article 5473, Vernon’s Tex.Civ.Stats. The court awarded plaintiff, R. H. Wilkins, a personal judgment for $1,398.50 for work he did on an oil well, but denied his claim for a mechanic’s lien. This was a correct decision.

A laborer’s lien under Art. 5473 attaches only to that property which is specifically mentioned in the statute. The proceeds of the sales of oil produced from a well are not included in the statute and are therefore not reached. Crowley v. Adams Bros. & Prince, Tex.Civ.App., 262 S.W. 883. See Jeffers, Statutory Lien on Oil and Gas, 13 Tex.L.Rev. 180.

The only right in the well which Fecht held was the right to the proceeds from the well. His interest was embodied in a letter contract made with Gus Cormier in 1959. Cormier, in turn, had acquired his interest from the owner and operator, O. W. Killam, by a letter contract in 1954. By that contract Cormier would receive five-eighths of eight-eighths of the money collected by Killam for the oil he sold. Cor-mier, in 1959, contracted with defendant Fecht, “that as and when the said Gus Cor-mier receives remittances for the ⅝ or %ths production * * * he will immediately thereupon endorse such remittances over to” Fecht. The agreement provided that neither the owners nor Cormier would be responsible for any expenses incurred by Fecht. Since Fecht had rights only to the proceeds of the oil, he was not an owner of an oil, gas, or leasehold interest.

The judgment is affirmed.


text:
    Betty RHODES et vir, Appellants, v. Edgar SHERRILL, Jr., Appellee.
    No. 13911.
    Court of Civil Appeals of Texas. San Antonio.
    April 25, 1962.
    See also 352 S.W.2d 249.
    T. Kellis Dibrell, San Antonio, Fred V. Klingeman, Karnes City, Dibrell, Gardner & Dotson, San Antonio, for appellants.
    J. O.. Faith, Ronald Smallwood, Karnes. City, for appellee.
   POPE, Justice.

This is a venue suit. Edgar Sherrill, Jr., and his wife, Betty Sherrill, were divorced in 1954 by the District Court in Karnes County. The decree granted custody of their child to the mother, and restricted her from moving the child from Karnes County without prior consent of the court. She later married Barry Rhodes and they moved with the child to Brazos County. Sherrill filed a pleading in Karnes County asking for a re-adjudication of the custody orders, and also asking that Betty Rhodes be held in contempt for moving the child to Brazos County. Betty Rhodes and her husband filed a plea of privilege. The court granted the plea as to the custody matter but retained venue over the contempt matter. The court ordered that certified copies of the Karnes County proceedings be sent to Brazos County.

As we understand the nature of this appeal, Betty Rhodes and her husband are not complaining about the court’s retaining jurisdiction on the claimed past contempt. The court proceeded to hear that matter and decreed that Betty Rhodes was guilty. See Ex parte Webb, 153 Tex. 234, 266 S.W. 2d 855. What they do complain about is the fact that the court did not order the original papers transferred to Brazos County. They reason that future custody orders as well as future claims of contempt arising out of those orders should be determined in Brazos County. They urge, therefore, that the original papers should have been transferred. Rule 89, Texas Rules of Civil Procedure. Their complaint is that the trial court’s order implies that future contempt matters might also be conducted in Karnes County, since the original papers are retained there. In our opinion, the order is not subject to that construction. Sending certified copies to Brazos County was a. substantial compliance with Rule 89, and the trial court’s decree on venue does not operate to retain jurisdiction over future violations of custody orders.

The judgment is affirmed.


author: STOCKARD, Commissioner.

text:
    UNION ELECTRIC COMPANY, a Missouri Corporation, Respondent, v. Charles JONES and Esther Jones, his wife, Appellants.
    No. 49093.
    Supreme Court of Missouri, Division No. 2.
    April 9, 1962.
    Motion for Rehearing or for Transfer to Court en Banc Denied and Opinion Modified May 14, 1962.

      Robert B. Baker, Ellington, for appellants.
    J. B. Schnapp of Schnapp & Cooper, Fredericktown, J. Ben Searcy, Eminence, for respondent.
   STOCKARD, Commissioner.

This appeal arises out of proceedings brought by Union Electric Company to obtain title to certain land by condemnation to construct electric generating facilities.

Union Electric is a public utility authorized to engage in the manufacture and transmission of electric current for light, heat and power, and for the sale thereof to the public. It obtained the approval of the Missouri Public Service Commission to build, operate and maintain in Reynolds County, Missouri, additional electric generating facilities comprising “a high head pumped storage electric generating station, consisting of five major components, to-wit: a dam, a lower pool, an upper pool, a water way, and a pumping and generating stations, together with necessary transmission lines leading therefrom.” Union Electric proposes to construct the dam across the East Fork of Black River which appellants assert, and Union Electric does not deny, is a nonnavigable stream. This dam will form the lower pool which will have an area of approximately 370 acres, and a substantial portion of the 240 acre tract of appellants’ land which Union Electric seeks to condemn will be flooded thereby. The upper pool with an area of about 50 acres will be constructed about a mile away on top of Prof-fit Mountain at a substantially higher level than the lower pool. A tunnel 6,300 feet in length will lead from the upper pool to a power plant adjacent to the East Fork of Black River, but which is not located at or near to the dam forming the lower pool. When the project is completed electric energy from steam generating facilities in St. Louis will be used during periods when the use of electricty is at a minimum to pump water from the lower pool to the upper pool. When peak loads occur the water will be permitted to flow through the tunnel from the upper pool to the lower pool and generate electric power at the power plant. The entire project will be operated electronically by controls in St. Louis.

Appellants first contend on this appeal that Union Electric does not possess the power or authority to condemn their land, or any part of it, pursuant to Chapter 236 (all statutory references are to RSMo 1959, V.A.M.S., unless otherwise stated) and that the limited power of eminent domain therein granted is exclusive to what they contend is a general power of eminent domain contained in Chapter 523. Both Chapters grant the power of eminent domain in certain factual situations, and each Chapter as now written sets forth the procedure to exercise that power. However, Civil Rule 86, V.A.M.R., now governs the procedure to be followed in the exercise of the power of eminent domain granted by either Chapter. See Civil Rule 86.01, V.A.M.R.

What is now Chapter 236, commonly referred to as the mill dam act, was first enacted in 1822, see Vol. I, Territorial Laws of Missouri, p. 948, but it then pertained to the construction of a dam and of water, grist, and saw mills on a watercourse. By 1835 the application of the act had been limited to a “water course not being a navigable stream.” R.S.1835, p. 406, § 1. In 1905, Laws 1905, p. 232, apparently as the result of the ruling in Southwest Missouri Light Co. v. Scheurich, 174 Mo. 235, 73 S.W. 496, the act was amended to extend the authority to construct a dam across a nonnavigable stream to “any * * corporation chartered and organized to construct, operate and maintain mills, electric power and light works, or other machinery.” We are not concerned in these proceedings with whether Union Electric has complied with the mill dam act, if applicable, and obtained authority to construct the dam. We are concerned only with the grant therein of the power of eminent domain. Section 236.010 provides that certain persons and corporations “may erect a dam” across a nonnavigable stream “if such person or corporation is the proprietor of the land through which the watercourse runs at the point where it is proposed to erect such dam, by proceeding as herein provided.” It appears from the testimony that at the time these condemnation proceedings were commenced Union Electric owned the land on both sides of the watercourse at the site of the dam. Provision is made to determine the “damages each proprietor will sustain by reason of inundation consequent upon the erection of the dam.” Whether the person or corporation building the dam is to obtain title to the land inundated or only flooding rights thereover is not clear, but the inference is that title is not to. be obtained. There is no authority to obtain any interest in land not inundated, even for generating facilities, except that when the land on only one side of the stream is owned, a maximum of one acre may be obtained on the other side to abut the dam. Provision is made that the jury selected to determine .the damages should determine whether “the mansion house of any such proprietor, or the outhouses, curtileges or gardens thereto, immediately belonging, or orchard, will be overflowed” and whether and to what exent “ordinary navigation” (on a nonnavigable stream?) and the passage of fish will be obstructed, as well as other things. It is further provided that if no objections be filed to the proceedings, and it shall appear to the court that the mansion house of any proprietor, or the outhouse, curtilages or gardens thereto belonging, or orchard will not be overflowed, and that the health of the neighborhood will not be materially affected by the stagnation of water, the court shall thereupon grant or refuse the permission prayed for to build the dam according to its judgment of what would be most reasonable and just under all circumstances.

We shall now look to Chapter 523. It apparently represents a consolidation of various grants of the power of eminent domain to companies organized for various purposes. See Laws of Missouri 1851, p. 259 § 8, pertaining to plank roads and macadamized roads; Laws of Missouri 1853, p. 128, §§ 13 and 14, pertaining to railroads; Laws of Missouri 1866, p. 47, pertaining to land taken for telegraph, road and railroad purposes; and Laws of Missouri 1919, p. 207 pertaining to oil, pipeline or gas corporations. In 1915 the power of eminent domain was granted to “any electrical corporation organized for the manufacture or transmission of electric current for light, heat or power.” Laws of Missouri 1915, p. 227. Insofar as applicable to the grant of the power of eminent domain to electric companies, Section 523.-010 now provides: “In case land, or other property is sought to be appropriated by * * * any electrical corporation organized for the manufacture or transmission of electric current for light, heat or power, including the construction (when that is the case) of necessary dams and appurtenant canals, flumes, tunnels and tailraces and including the erection (when that is the case) of necessary electric steam powerhouses, hydroelectric powerhouses and electric substations * * and the corporation and the owners cannot agree upon the proper compensation, then certain procedure is to be followed, which, however, is now subject to Civil Rule 86, V.A.M.R.

It is thus apparent that there are two statutes relating .to the power of eminent domain of electric companies. These provisions must be read in pari materia and, if possible, effect given to each clause and provision. Davenport v. Teeters, Mo.App., 273 S.W.2d 506, 510. In such situation “where one statute deals with a subject in general and comprehensive terms and another deals with the same subject in a more minute and definite way, the two should be read together and harmonized if possible, and with a view to- giving effect to a consistent legislative policy, but that to the extent of any repugnancy between them the definite prevails over the general, * * We must, if possible, reconcile any apparent conflict in these two statutes with the general legislative purpose. Layson v. Jackson County, 365 Mo. 905, 290 S.W.2d 109; Veal v. City of St. Louis, 365 Mo. 836, 289 S.W.. 2d 7. Chapter 236 relates to the construction of a dam on a nonnavigable stream,, and by reason of the time of its enactment' it is apparent .that it was intended to have-reference to the then typical or usual situation where small and locally used generating equipment was to be a part of or operated in conjunction with a dam. The power of eminent domain granted is limited to a precise factual situation which does not include this case. Subsequent to the time the mill dam act was made applicable in its limited respects to electric companies, the regulation of such companies constituting public utilities, of which Union Electric is one, was vested in the Missouri Public Service Commission, including the construction and operation of generating facilities. See Laws of Missouri 1913, p_ 556, and Chapter 393 RSMo 1959, V.A.M.S-Following this the Legislature enacted in 1915 what we consider not to be a general act, as that term is normally used, but a specific grant of the power of eminent domain to “any electrical corporation organized for the manufacture or transmission of electric current for light, heat or power” to. obtain the necessary land, including title thereto when needed, for .the construction, of dams, canals, flumes, tunnels, tailraces,. hydroelectric powerhouses and electric substations. This specific grant, while in one sense is general, is in another respect specific, and it precisely covers the factual situation here. It evidences a clear and! unambiguous intent on the part of the Legislature that in the construction of the facilities enumerated in Chapter 523, “any electrical/corporation” should have the power of eminent domain therein specifically granted. We see no actual conflict between the grants of power in the two. Chapters. Insofar as Chapter 236 goes, there is no conflict; it just does not go as far as Chapter 523, and there is absolutely nothing to indicate that when the provisions of Chapter 523 were made applicable to electric companies, the Legislature intended to carve out of that specific grant of the power of eminent domain an exception constituting the limited grant of power in Chapter 236. The contentions of appellants that Union Electric does not have the power of eminent domain in the present factual situation is without merit.

Appellants next contend that Union Electric’s “petition showed on its face that land was being taken for unauthorized purposes, to wit: land taken for ‘security purposes,’ and land taken for ‘necessary protection.’ ” The petition alleged that it was necessary that Union Electric acquire all of appellants’ land “for impounding water thereon, flooding the said real estate, and the protection of the highhead pumped storage electric generating stations, including all the major components thereof, and the necessary security measures therefor.” The evidence shows that the lower pool forms a lake roughly in the shape of a “V”, and that appellants’ land lies inside the “V” at the middle, and that approximately one half of it will actually be flooded. Appellants’ land is near the center of the entire project and lies directly between the upper and lower pools. It is completely surrounded by land previously acquired by Union Electric for the project. Over that portion of appellants’ land not actually flooded there will be constructed a 345 KV transmission line, and a communication or control cable carrying 16 to 20 circuits which will be used in the remote control operation of the facilities.

Appellants assert in their brief that they do not contend that any land is being taken in excess of that necessary for the authorized public purposes, but that this “is a case where land is taken for purposes not included in the statutes” because there is no power to condemn for “protection” of the authorized installations or for the “necessary security measures.”

The protection and security of a 50-million dollar remote controlled generating facility is just as much an essential part of the overall project as any other feature thereof. The project admittedly is for a public use, and the power of eminent domain extends to the acquisition of the necessary land for each and every essential part of the project. The power to locate the project and to determine the extent of land necessary for economical and proper construction is vested by legislative act in the sound discretion of Union Electric uncontrolled by the courts except as to the issues of fraud, bad faith, or an arbitrary and unwarranted abuse of discretion; issues which are not in this case. State ex rel. State Highway Commission v. Curtis, 359 Mo. 402, 222 S.W.2d 64; 29 C.J.S. Eminent Domain § 89. Union Electric’s evidence established that all the land of appellants was reasonably necessary for the construction and the proper operation, and maintenance of the project.

Appellants next assert that the tria./ court erred in “sustaining the objection to the admission of evidence of mining, mineral exploration and development * * * within the area in which [their] lands were located * * Mr. Charles Jones was asked whether in 1952 when he purchased the land sought to be condemned “there was any evidence of old mining activities near that property.” An objection was sustained and an offer of proof was made that “there was at that time old lead mining shafts [50 years old or older] about a quarter of a mile southeast of this property and that there was old iron mining activity [12 or 15 years old] about a mile southwest of this property, and at that time there was no evidence of any mining activity or drilling or prospecting.” Subsequently, the court rejected a second offer of proof that “there was on the date of the taking the business of extensive drilling and exploration for minerals, principally lead, that this business was a growing influence on values, that there was located or is located on the date of the taking a brand new town of Viburnum only about 20 to 25 miles northwest of the property, that there is serving this town a new railroad spur or track leading from the main rail lines to this town. The principal business activity of this town at this time is the construction of mine shafts preparatory to the development of a large lead mine.”

Where the entire tract is being taken, as in this case, the just compensation is measured by the reasonable market value of the land in its condition on the day of the appropriation. State ex rel. State Highway Commission v. Howald, Mo., 315 S.W.2d 786; State ex rel. State Highway Commission v. Schutte Investment Company, Mo., 334 S.W.2d 241. When the land contains minerals, the measure of compensation is the value of the land with the minerals in it. 29 C.J.S. Eminent Domain § 174. Here, appellants did not offer evidence that there were minerals in the land to be taken, but instead by their first offer of proof sought to show that in the neighborhood, but not the close neighborhood, there were some long abandoned shafts for lead and iron mines. There was no offer to show that lead or iron was ever obtained therefrom, or why they were abandoned. For aught that appears in the offer of proof, they were abandoned because no minerals were found. In the second offer of proof appellants sought to show that there were existing mining operations 20 to 25 miles away. This evidence apparently was offered on the theory that the jury could infer therefrom that there were minerals on the land of appellants, and that mining was one of the uses to which the land was adapted. However, it would be pure speculation and conjecture that minerals were on appellants’ land by reason of the offered evidence. If minerals were there proper proof thereof would have been readily available. The offer of proof was properly refused. See Union Electric Company of Missouri v. McNulty, Mo., 344 S.W.2d 37, 40; In re Armory Site in Kansas City, Mo., 282 S.W.2d 464; Chicago B. & Q. Rd. Co. v. City of Chicago, 166 U.S. 226, 17 S.Ct. 581, 41 L.Ed. 979; 29 C.J.S. Eminent Domain § 160, p. 1026.

Appellants next assert that the trial court erred in excluding the testimony of James Sutterfield as to the price he received for his farm about seven months prior to the condemnation of appellants’ land. Sutterfield testified out of the presence of the jury that his farm was located about 20 miles from appellants’ land and that he sold it to the American Metal Smelting Company “for mining prtrposes.” Evidence of the sale price of property similar to that involved generally is admissible to aid the triers of fact in determining the compensation to which the owner is entitled for the taking of his property. The admissibility of such evidence depends upon the nearness of the sale in point of time and the proximity of the property, of the similarity in location, and in the use to which the property is adaptable. In re Armory Site in Kansas City, supra. Here, there was no showing that appellants’ land was adaptable for mining, yet the Sutter-field land was sold for mining purposes. It is incumbent on the party offering evidence of the sale of other land to show by offer of proof, or otherwise, that it is admissible. Here, appellants’ offer of proof showed it was inadmissible. There was no error in rejecting it.

The date of the hearing on the petition was set for November 28, 1960, at the Reynolds County Courthouse at Centerville, Missouri. Appellants employed as their counsel Mr. J. Glennon McKenna of St. Louis. On November 22, counsel for Union Electric called Mr. McKenna and asked if he would be ready to proceed with the case on November 28, and he replied that either he or Mr. William H. Bruce, Jr., an attorney at Ellington, Missouri, would be there. On November 28, Mr. McKenna did not appear, but appellants and Mr. Bruce were present at the appointed time. No pleadings were filed. Mr. Bruce made an oral request for a continuance to which Union Electric did not consent, and after a conference with appellants he declined to file a written request for a continuance. The trial court directed the hearing to proceed. Mr. Bruce participated in that hearing, cross-examined Union Electric’s witnesses and presented testimony on behalf of appellants.

Appellants now contend that the trial court abused its discretion in arbitrarily proceeding with the hearing on the petition without the presence of their attorney who was absent through no fault of theirs. This contention is without merit. Civil Rule 65.03, V.A.M.R., provides that every application for a continuance shall, unless the adverse party consent that it be made orally in open court, be made by motion in writing, accompanied by the affidavit of the applicant, or of some other credible person, setting forth the facts on which the application is founded. Appellants declined for reasons of their own to make this application after consultation with Mr. Bruce who was then acting as their attorney. See Savings Finance Corporation v. Blair, Mo.App., 280 S.W.2d 675. After appellants obtained their present counsel and Mr. McKenna and Mr. Bruce withdrew as counsel, appellants filed a motion to set aside the hearing on the petition on the ground now asserted. In the hearing on that motion appellants called Mr. Bruce as a witness, and he testified unequivocally that he was acting as counsel for appellants with their knowledge and consent. The facts and circumstances reveal that this unquestionably was true. It has not been the practice in this state that litigants can subsequently disagree with the strategy employed by their counsel, employ new and different counsel, and then start all over again in their litigation. The trial court did not err in proceeding with the hearing on the petition.

At the time Mr. Bruce withdrew as counsel he filed a motion requesting that a fee for services rendered be allowed as a lien on the award received by appellants. The court did allow such a lien in a modest amount. Appellants now assert that the court erred in doing so without a hearing, and because the motion shows on its face that Mr. Bruce was employed by Mr. Mc-Kenna, and if he is entitled to a fee he must look to him.

First, as to the hearing. Appellants made no request for a hearing, and the motion was pending at the time of the hearing on appellants’ motion to set aside the proceedings which was filed after the commissioners made their report and before the jury trial on the issue of damages. At that hearing Mr. Bruce and appellants testified concerning the arrangements for his employment and the services he rendered. In addition, the transcript of the testimony at the hearing was introduced in evidence. Appellants now point out not one item of evidence on the issue raised by Mr. Bruce’s motion which they claim they were unable to present to the court. Second, as to the allegations of the motion. We think that the motion did allege that Mr. Bruce was employed to act for appellants, and the evidence, in our opinion, conclusively shows he rendered legal service to appellants at their request. In that event, a promise to pay the reasonable value of the services is implied in the absence of an express contract. McCleary v. Bratton, Mo.App., 307 S.W.2d 722. The principal argument of appellants is that “if [Mr. Bruce] is entitled to a lien for attorney’s fee, he must be employed by the principal attorney with the knowledge and consent of the clients.” The evidence establishes that he was so-employed.

The judgment is affirmed.

BOHLING and BARRETT, CC., concur.

PER CURIAM.

The foregoing opinion by STOCKARD, C., is adopted as the opinion of the Court.

All of the Judges concur.

On Motion.

Appellants point out that in the comparison of the provisions of Chapter 236 and Chapter 523 we incorrectly stated that Section 236.160 provides that if the circuit court found that the mansion house and other named properties “are to be flooded” it was authorized to take certain action, whereas in fact Section 236.160 uses the words “will not he overflowed.” The opinion as originally handed down is modified and that portion thereof has been reworded to recite correctly the provisions of Section 236.160. However, appellants’ contention that because of this we erred in concluding that Chapter 523 was applicable is without merit.

Appellants next assert that we erred in stating that the evidence of abandoned mines and of mining activity was offered on the theory that the jury could infer therefrom that there were minerals on their land. They contend that the evidence was offered for a different purpose, and that “mining activity, drilling and prospecting, in an area, are simply business activities affecting the demand for real estate, (principally underground rights) and any increase in the demand would be a fact from which the jury might infer a market value on the day of the taking.” They argue that “regardless of whether there are any minerals under the particular land, they [the above activities] increase the market value of the mineral interest.” Appellants admit that “The market value is, of course in this case, based upon pure speculation.” They then assert that this speculative market value “is a definite and positive fact and can be determined with reasonable certainty on any day even though based upon speculation.” We do not agree with this last assertion.

The case upon which appellants principally rely, Union Electric Company of Missouri v. McNulty, Mo., 344 S.W.2d 37, states that “ ‘In determining the uses of which the property is capable, it is necessary to have regard to the existing business or wants of the community or such as may reasonably be expected in the immediate future. This * * * means only that the fact of the property’s capability or adaptability to the use may be considered as an element of its present value. Mere speculative uses cannot be considered.’ ” (Italics added). Assuming that the evidence was offered for the asserted purpose, it was properly excluded.

The opinion is modified as above stated, and appellants’ motion for rehearing or to transfer to the court en banc is overruled.