author: DIXON, Chief Justice.

text:
    Harry MUMMERT, Appellant, v. STEKOLL DRILLING COMPANY et al., Appellees.
    No. 15929.
    Court of Civil Appeals of Texas. Dallas.
    Nov. 10, 1961.
    Rehearing Denied Dec. 15, 1961.

      - Martin, Moore &' Tackett, Arthur Lee Moore, Fort Worth, for appellant.
    Turner, White, Atwood, Meer & Francis, and Dean Carlton, Dallas, for appellees.
   DIXON, Chief Justice.

Appellant, Harry Mummert, brought suit against Stekoll Drilling Company and others praying for judgment fully vesting in him a 2%' overriding royalty in four described oil and gas leases acquired by one of appellees. The suit is based on a written contract.

Appellees by way of defense assert that the contract is merely an agreement to pay appellant commissions as a real estate broker and dealer, and that appellant is not entitled to recover judgment because at all times material hereto he had neither a valid Texas securities license nor a valid real estate dealer’s or broker’s license. Art. 600a, §§ 12-20, Vernon’s Ann.Civ.St., and Art. 6573a, § 3, V.A.C.S.

In reply to the above asserted defense appellant alleges in his petition and his first three points on appeal that under the terms of the contract his status was that of'a joint adventurer with appellees, therefore he is not barred from recovery because he did not have a license as a real estate or a securities broker.

Appellant has appealed from a summary judgment in favor of appellees that appellant take nothing.

It is well settled that neither the real estate brokers’ licensing Act nor the securities brokers’ licensing Act applies to joint adventurers and transactions between joint adventurers. Brown v. Cole, 155 Tex. 624, 291 S.W.2d 704, 709, 79 A.L.R.2d 1011; Gill v. Smith, Tex.Civ.App., 233 S.W.2d 223, 227. The question then is this: Did the written contract constitute appellant and appellees joint- adventurers, as claimed by appellant.

The written contract consists of a letter signed by Marion H. Stekoll and accepted and agreed to in writing by appellant Mummert. In his amended petition appellant alleges that Marion H. Stekoll was acting for himself and for the use and benefit of all other appellees.

Material portions of the written contract are as follows :

“You represent to Stekoll Drilling Company that you are an experienced land man in the oil and gas industry familiar with the practices of the oil and gas industry and the acquisition of oil, gas and mineral leases.
“Your services are engaged by Ste-koll Drilling Company for the purpose herein set forth, and you are acting in an independent capacity in performing these services and not as an agent and employe of Stekoll Drilling Company. You agree to attempt to negotiate for the purchase of oil and/or gas leases upon lands located in the United States and elsewhere which are either producing oil and gas or which are considered proven or semi-proven properties. You shall particularly attempt to locate leases which if producing are capable of being developed by additional drilling thereon. You shall submit all prospective deals to the Company and shall furnish the Company with current reports with respect to your activities, the names of the persons with whom you have been negotiating and all such other information which shall come into your possession which will enable the Company to arrive at sound decisions with respect to the material submitted.
"You shall not have authority, until such time as ever at which specific authority may be conferred upon you by writing, to bind Stekoll Drilling Company to purchase any lease or to expend any monies whatsoever for any purpose, or shall you have any authority to make any contracts or undertakings on its behalf without prior apr proval of the Company. .. ..."
“You shall not be required to devote all of your kime to the services mentioned, but it is expected that you will devote approximately 85 to 90 per cent of your time thereto. You shall not purchase for your account any lease without first having submitted same to the Company, and given to the Company the first right of purchase and receive permission from it to purchase same.
“You shall receive a fee of $1,000 per month in the nature of a retainer, effective as of July 1, 1958, for a period of one year from July 1, 1958, ending June 30, 1959; provided, however, that you may at any time within said one-year period at your option terminate this contract upon thirty days written notice to Stekoll Drilling Company. It is further understood that if you do not perform your services diligently in attempting to find leases satisfactory for purchase by Stekoll Drilling Company, then and in such event Stekoll Drilling Company shall have the right to terminate this contract upon thirty days written notice to you.
“In addition to the monthly retainer hereinabove provided you shall also' be entitled to receive as an overriding royalty 2 per cent of the interest acquired by Stekoll Drilling Company under any leases purchased by it as a result of your negotiations, which overriding royalty interest will be assigned to you at such time Stekoll Drilling Company acquires its interest in such lease or leases. The overriding royalty interest herein referred to is specifically applicable only to the interest acquired by the Company, and shall be subject to its proportionate part of the same conditions or encumbrances to which the interest of the Company may be subject. Your right to receive the overriding royalty interest herein referred to shall cease at the time your employment terminates, and shall not be applicable to leases which are purchased after your employment terminates, even though negotions (sic) for their purchase may have occurred prior to or may be pending at the time your employment ceases.
“You shall he entitled to reimbursement for expenses reasonably and necessarily incurred in performing your services hereunder. You shall furnish your own car and shall receive 10 cents per mile while it is used in the performance of the services herein referred to. You shall at all times at your own expense maintain public liability insurance and property damage upon your automobile in limits prescribed by the Company and in which policies Stekoll Drilling Company shall be named as a party protected and insured by such policies.” (Emphasis ours).

After studying the terms of the written contract together with legal authorities bearing on the subject, we have concluded that the contract did not make appellant and appellees joint adventurers.

Among the authorities which must control our decision is the case of Brown v. Cole, 155 Tex. 624, 291 S.W.2d 704, 709, 59 A.L.R.2d 1011. We quote from the opinion of our Supreme Court in that case:

“To constitute a joint adventure there must be a community of interest and participation in the profits. It is in the nature of a partnership engaged in the joint prosecution of a particular transaction for mutual profit. Holcombe v. Lorino, 124 Tex. 446, 79 S.W.2d 307.
“For a joint adventure to exist there must be a community of interest both as to the profits and losses, if any. It is said in Luling Oil & Gas Co. v. Humble Oil & Refining Co., 144 Tex. 475, 191 S.W.2d 716, that whether or not such relationship exists generally depends upon the intention of the parties. In that case the relationship was held not to be a joint adventure or partnership. The contract did not authorial either party to create any liability to third parties which would have been binding on the other. The relationship being in the nature of a partnership, losses must be shared as well as profits.
“In our case, if there was a community interest it could be said to exist only in that the petitioner as well as the respondents alike invested their funds. Each was to be repaid the amount of his loan. But, in addition thereto, and as a consideration for making the loan, each was to receive his pro rata amount of the stock in Industrial Ores de Mexico. Each was at liberty to sell, dispose of, or hold that stock, as he saw fit. * * * In our case it would have been possible, through the sale of the stock in Industrial Ores de Mexico, for the several investors to realize a profit in varying amounts, depending upon the time of sale of the stock. * * * We conclude, therefore, that the elements of joint adventure are not present in this case.”

See also Harris v. Cleveland, Tex.Civ.App., 294 S.W.2d 235; 25 Tex.Jur. 161; 48 C.J.S. 809; and 30 Am.Jur. 949, 957.

Analysis of the contract in the instant case discloses that the following necessary elements of a joint adventure are missing:

(1) There is no mutual right of control. In fact appellant by the express terms of the contract was precluded from binding appellees “to purchase any lease or to expend any monies whatsoever for any purpose, or shall you have any authority to make any contracts or undertakings on its behalf without prior approval of the Company.”

(2) There is no community of interest such as is required of joint adventurers. There is nothing in the contract to prohibit appellant, once he acquired the 2%' overriding interest, from selling it, disposing of it, or holding it as he saw fit independently of appellees.

(3) There is no duty to share losses. Appellant was to be compensated for his time and expenses regardless of how much loss appellees may eventually have suffered. The overriding royalty interest was a bonus commission.

(4) There is no right to share profits as principals. It would have been possible for appellant or appellees to realize profits in varying amounts, depending upon the time appellant sold his interest or appellees sold their interest.

Appellant’s first three points on appeal are overruled.

In his fourth point on appeal appellant says that the contract on which he sues makes him an employee of appellees, therefore the licensing acts do not apply.

We do not agree with appellant. The contract gives appellees no right of control over the details of appellant’s work. The contract expressly provides that appellant is to act “in an independent capacity.” It provides also that he need not devote all his time to the services mentioned, and that he shall not have authority to bind the Company. Such an arrange^ ment does not create an employer-employee relationship. Great Western Drilling Co. v. Ray Simmons, 157 Tex. 268, 302 S.W.2d 400. Appellant’s fourth point is overruled.

Appellant’s fifth point is to the effect that he is entitled to recover the 2%' overriding interest under a constructive trust created by the unlawful and wrongful repudiation of appellant’s rights under the contract. In support of this contention appellant cites us to the case of Omohundro v. Matthews, Tex., 341 S.W.2d 401. In the cited case our Supreme Court held that a constructive trust is used to adjust rights between partners and between joint adventurers. Obviously the holding has no application here. Appellant and appellees were not partners. Neither were they joint adventurers, as we held in overruling appellant’s first three points. Appellant’s fifth point is overruled.

We agree with appellees that the contract sued on provides for the payment of a real estate dealer’s commission to appellant and since he did not have a real estate dealer’s license, he is barred from recovering the commission.

The judgment of the trial court is affirmed.

WILLIAMS, J., not sitting.


source: Caselaw Access Project

author: BOYD, Justice.

license: Public Domain

text:
    D. E. McALISTER TRUCKING COMPANY et al., Appellants, v. Wilburn J. SHAW et ux., Appellees.
    No. 16262.
    Court of Civil Appeals of Texas. Fort Worth.
    Nov. 17, 1961.

      Fulgham & Grogan, Weatherford, Can-tey, Hanger, Johnson, Scarborough & Gooch, Howard Barker and R. Daniel Settle, Fort Worth, for appellants.
    Borden & Hand, and I. B. Hand, Weath-erford, for appellees.
   BOYD, Justice.

This is a venue action. Wilburn J. Shaw and his wife, Vivian L. Shaw, sued D. E. McAlister Trucking Company and Willis Edward Laney for damages for personal injuries sustained by them when an automobile occupied by the Shaws was struck by a truck belonging to the Trucking Company and driven by Laney, the Company’s employee, while in the course of his employment. The collision occurred in Parker County. Each defendant is a resident of Taylor County, and each filed a plea of privilege to be sued in that county. The pleas were overruled and the defendants appeal.

The appellees sought to hold venue in Parker County under the provisions of section 9 and 9a of Article 1995, Vernon’s Ann.Civ.Tex.St., and alleged that appellants proximately caused appellees’ injuries by committing a crime or trespass against them in Parker County, and that Laney was guilty of negligent acts and omissions in Parker County, which acts and omissions were proximate causes of their injuries.

By several points of error appellants contend that there was no evidence, and insufficient evidence, of the existence of facts essential to maintain venue in Parker County; that appellees failed to establish by a preponderance of the evidence the existence of facts essential to so hold venue; and that the judgment overruling the pleas of privilege is so against the great weight and preponderance of the credible evidence as to be manifestly wrong.

We are unable to agree with either of these contentions. We think the evidence ' presented triable issues in respect of all matters necessary to be established to maintain venue in the county of suit, and that the presumed findings of the trial court are binding on us.

Appellees alleged that the driver of the truck was negligent in the following particulars: (a) in driving the truck at a greater rate of speed than would have been maintained by a person in the exercise of ordinary prudence; (b) in failing to keep a proper lookout; (c) in failing to apply his brakes; (d) in driving in the left lane and in failing to drive in the right lane of the east bound traffic area; (e) in failing to pass appellees’ car by going to its right when the way was clear and open for him to do so; and (f) in driving the truck at an unlawful rate of speed. It is alleged that each of said acts and omissions was negligence and a proximate cause of the collision.

According to Mr. Shaw’s testimony, he and Mrs. Shaw ate their evening meal at Howard’s Cafe near the intersection of Highways 51 and 199, the cafe being situated about 125 feet east of Highway 51 and about 30 feet south of Highway 199. There were parking areas on the north or front side and on the west side of the cafe. He parked his car on the north side, about a car width from the front entrance of the cafe. They left the cafe about 8:30 P.M. tie backed the car by turning its rear end west and south, and then started toward Highway 199 at an angle, going northeast; he stopped before entering the highway to allow an east bound truck to pass. No. 199 is a divided, four lane highway with a concrete esplanade about 7 feet wide between the inside lanes. There is an opening in the esplanade about 30 feet long, to allow vehicles to cross and change directions. This opening is about even with the east side of the cafe.

After the east bound truck had pass.ed, he saw the lights of a vehicle coming over a hill approximately one-half mile west of the highway intersection. He “angled” out on to the highway and into the opening in the esplanade, intending to turn left in the west bound traffic lane. He stopped for the passage of a west bound car which he saw coming over a hill about 500 feet away. At that time the front of his car extended across the opening in the esplanade and 4 or 5 feet into the inside west bound lane, and its rear extended 4 or 5 feet into the inside east bound lane. He had traveled about 95 feet after entering No. 199 until he reached the opening in the esplanade. This took a very few seconds. He waited approximately 30 seconds for the west hound car to pass. Just as the west bound car went by, the truck driven by Laney and traveling east struck the left rear of his car. Both Mr. and Mrs. Shaw were seriously injured. The head lights, tail lights, and directional lights on Shaw’s car were all burning.

Laney, the truck driver, testified that after he saw appellees’ car he did not have time to do anything. Laney was driving in the inside lane. He “⅜ * * cut hard to the right * * * ” and applied the brakes ; he “ * * * ⅛⅛ him right in the back lender behind where he was sitting.” The left side of the truck’s front bumper hit the car. He was driving 35 to 40 miles per hour at the time of the impact. He had been going faster. He had thought he would stop at Howard’s Cafe and have his evening meal, and had looked to see if there was a place where he could “pull” off the highway; the way was clear where he could have pulled off and parked. There was no other east bound traffic. He decided, however, to go on to Dallas. He did not see appellees’ car until it was on the highway. He said that when Shaw “ * * * come out of there * * * ” he was already going and never did stop. He did not notice whether the tail lights and directional lights on Shaw’s car were burning. He said the Shaw car came from the east side of the cafe.

The burden was on appellees to establish by a preponderance of the evidence that a negligent act or omission occurred in the county of suit; that such act or omission was that of the defendant in person, or that of his agent acting in the scope of his employment; and that such negligence was a proximate cause of the injuries.

We are of the opinion that the trial court was warranted in finding from a preponderance of the evidence that the truck driver committed some or all of the negligent acts and omissions alleged by appellees and that such acts or omissions proximately caused the injuries complained of.

The judgment is affirmed.


author: GRISSOM, Chief Justice.

text:
    Olive R. SHIPP, Appellant, v. John E. LYONS, Appellee.
    No. 3672.
    Court of Civil Appeals of Texas. Eastland.
    Nov. 24, 1961.
    Rehearing Denied Jan. 5, 1962.
    Heflin, Kirk, Van Keuren & Baggett, Houston, for appellant.
    Kennerly & Lesher, A. C. Lesher, Jr., Houston, for appellee.
   GRISSOM, Chief Justice.

This is an appeal from a judgment for the defendant, John E. Lyons, in a suit by Olive R. Shipp to collect a realtor’s commission for the sale of real estate. Shipp alleged Lyons was the owner of certain real estate and that, on October 8, 1958, he executed a contract giving her an exclusive listing of the property which provided that she should receive a commission on any sale, regardless of who made it. She specifically alleged that, after execution of her contract, Lyons sold the property to De-Mouche. Plaintiff also specifically alleged that because Lyons made a “second and later” contract with the realtor who sold the property to DeMouche, she had been deprived of an opportunity to sell it. She prayed for recovery of five percent of the amount of the sale made by the other agent.

The record shows the property was sold on October 7, 1958, the day prior to the listing with Shipp, to-wit, October 8th; that about eleven a. m. on October 8th, Lyons, not having been informed of the sale on the 7th by the other agent, at the request of Shipp’s agent, signed a contract listing the property with Shipp; that said contract was delivered to Shipp about noon; that on the afternoon of October 8th, Lyons was notified by his other realtor of the sale on the 7th and he immediately, on October 8th, notified Shipp of such sale.

Lyons alleged that when Shipp obtained the listing she knew the property was listed for sale by the realtor who had on the preceding day sold it to DeMouche. It is admitted that Shipp had no part in the actual sale.

A jury found (1) that Lyons extended the time limit in his contract with De-Mouche to midnight October 7th, (2) that said extension was made before the listing with Shipp and (3) that the property was sold to DeMouche on October 7th, before the listing with Shipp. The jury did not answer issues inquiring whether (4) Shipp was ready, willing and able to perform her part of the contract and whether (5) she partly performed it. Appellee says the issues submitted were requested by appellant. There are no objections shown by the transcript. Appellant admits in her brief that the property was sold by another agent before Lyons executed her contract.

Appellant’s brief presents two points, to-wit, that the court erred in overruling plaintiff’s motionfe for (1) judgment and (2) a new trial. Her brief is devoted to a contention that the question involved on appeal is whether it was impossible to perform her contract because it was “frustrated” by the prior sale. She contends that under said doctrine judgment could not be rendered for Lyons because he listed the property with her knowing that it could have been sold on the previous day.

It is evident that appellant is attempting to obtain a reversal of the judgment Upon a theory different than that upon which she tried the case. She álleged that Lyons was liable for a commission because he sold the property after it was listed with her and because he entered into a “second and later contract” with the agent who actually sold the property after execution of her contract. The case was submitted to the jury upon that theory and it found that another realtor sold the property to DeMouche on October 7th. Such finding and the admitted facts establish that her said allegations are not correct; that the property was not sold after it was listed with Shipp, but before, and that Lyons did not enter into a listing contract with the agent who made the sale after, but before, he listed it for sale with Shipp.

Appellant has not filed a Statement of Facts. Without a Statement of Facts it must be presumed that the evidence was sufficient, and that every fact necessary to support the findings and judgment, within the scope of the pleadings, was-established at the trial. 3 Tex.Jur.2d 703. Plaintiff had the burden of proving the facts which she alleged as a basis for recovery of a commission. This she apparently failed to do. At least, in the absence-of a Statement of Facts we are bound ot presume that she failed. The jury’s finding-is against her. Appellant has no point complaining because the court received the verdict with two. issues unanswered. However, if issues 4 and 5 had been answered, in her favor that would not have compelled a different judgment. There being no-Statement of Facts, said finding, upon which appellant had the burden of proof, is-conclusive against her. In the absence of a. Statement of Facts, we must presume that .the court did not err in accepting the verdict and in rendering judgment for the defendant. Houston Fire & Casualty Insurance Company v. Walker, (Sup.Ct.), 152 Tex. 503, 260 S.W.2d 600, and Safety Casualty Company v. Wright, (Sup.Ct.), 138 Tex. 492, 160 S.W.2d 238; 3 Tex.Jur.2d. 696, 702. The judgment is affirmed.


author: WILLIAMS, Justice.

text:
    Gwendolyn Gage SEALE, a Feme Sole, Appellant, v. James C. MUSE, III, Ind. Executor, Estate Robert C. Newcomb, Dec’d et al., Appellees.
    No. 15933.
    Court of Civil Appeals of Texas. Dallas.
    Dec. 1, 1961.
    Rehearing Denied Dec. 29, 1961.

      Passman, Jones & Whitener, and Bill C. Hunter, Dallas, for appellant.
    J. C. Muse, Jr., Ralph W. Currie, Currie, Kohen & Freeman, Dallas, for appellees.
   WILLIAMS, Justice.

Summary judgment proceedings. Rule 166-A, Texas Rules of Civil Procedure. Since this appeal involves the propriety of the action of the trial court on motions for summary judgment it becomes necessary to review the pleadings, motions and supporting affidavits which were before the court at the time of the rendition of final judgment.

Plaintiff, Gwendolyn Gage Seale (hereinafter referred to as Seale) filed her original petition containing the following pertinent allegations: That prior to May 26th, 1954 Robert C. Newcomb was engaged in a contest concerning the will of his deceased brother in the State of Florida, that on or about May 26th, 1954, Carlton Gage, plaintiff’s father, entered into a contract and agreement with Robert C. Newcomb, by the terms of which he agreed to lend such sums of mpney as were needed to finance the contest of the will, and further agreed' to furnish his services in the prosecution of such will contest; that in exchange for the agreements on the part of Carlton Gage, Robert C. Newcomb agreed and bound himself to bequeath and devise such property as he might own at his death to Carlton Gage’s daughter, plaintiff herein, and to' one Joe Fleming, Jr. That in pursuance of such contract Carlton Gage did advance sums of money and perform services in connection with the will contest which was settled and compromised in 1955. That pursuant to and consistent with the contract and agreement, the said Robert C. Newcomb, on January 7th, 1955, executed his last will and testament, same being copied in haec verba and attached to such petition; that without the knowledge of plaintiff, on or about April 19th, 1957, Robert C. Newcomb executed another instrument as his last will and testament, a copy of such instrument being copied haec verba and also attached to such original petition, by the terms of which all of Newcomb’s property was left to Cornell University, with James C. Muse, III, being named a» independent executor. Robert C. Newcomb died February 22nd, 1960. His will of 1957 was admitted to probate and James C. Muse, III, was confirmed as independent executor of such estate. Plaintiff charges that the will of 1957 was contrary to and amounts to a breach of the contract between Carlton Gage and Robert C. New-comb, deceased, and by virtue of such breach the plaintiff sought to impose a trust upon all the property of Robert C. New-comb, deceased, and asked the court to enforce the terms and conditions of the contract between Gage and Newcomb as evidenced by Newcomb’s will of 1955. In the alternative, plaintiff sought to have executor Muse estopped from delivering of disposing of the property of Newcomb in any manner inconsistent with the terms and conditions of the contract and agreement between Gage and Newcomb.

Defendant Cornell University (hereinafter called Cornell) filed its first amended ■original answer wherein special pleas and ■defenses of the statute of frauds and the •statute of limitations were asserted. Defendant James C. Muse, III, (hereinafter ■called Muse) filed his first amended original answer in which he first addressed a ■special exception to plaintiff’s petition on the grounds that same did not demonstrate whether the contract between Gage and Newcomb was oral or in writing. This ■exception was followed by special defenses, •especially that of the statutes of frauds ■and limitations.

Plaintiff filed her motion for summary judgment, and attached to such motion the affidavit of Carlton Gage, recited to have been made on personal knowledge of Gage and that he is competent to testify to the •matters contained in said affidavit. In this ■affidavit Gage recites his transactions with Newcomb having to do with the will contest and further states that, in consideration of advancement of monies and services in connection with this will contest, that Newcomb agreed with him on May 26, 1954 to devise and bequeath such properties as he might own at his death to his •daughter, Gwendolyn Gage Seale and Joe Fleming, Jr. He further recites the money that he advanced Newcomb and the services he performed in connection with the will contest and also sets forth the execution by Newcomb of the will of 1955 which, according to Gage, was consistent with and ■expressed the agreement theretofore made in 1954 between Newcomb and Gage.

Defendant Cornell filed its opposition to plaintiff’s motion for summary judgment, attaching thereto the affidavit of J. C. Muse, Jr. Muse’s affidavit is not shown to have been made with the personal knowledge of Muse nor that Muse is qualified to testify to the contents of such affidavit. In view of our disposition of this case we will not attempt to review in detail the contents of Muse’s affidavit. Cornell thereafter filed its motion for summary judgment, based upon the pleadings and affidavits on file. The trial court overruled plaintiff’s motion for summary judgment and, after having further considered Cornell’s motion, sustained same and rendered a “take nothing” judgment against plaintiff.

Seale’s appeal is predicated upon nine points of error which may be considered in two general classifications. By points one through six she complains of the action of the trial court in granting Cornell’s motion for summary judgment, and in points seven through nine she complains of the action of the trial court in not sustaining her motion for summary judgment.

We have concluded, after careful consideration of the entire record before us, that the trial court was in error in sustaining Cornell’s motion for summary judgment and therefore Seale’s points one through six must be sustained.

Our Supreme Court, in the case of Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929, affirming this Court in 243 S.W.2d 220, illustrates with crystal clarity the duty on the part of the trial judges and appellate judges in weighing the questions presented by a summary judgment motion under Rule 166-A, T.R.C.P. Therein our Supreme Court pointed out that it is the duty of the court hearing the motion to determine if there are any issues of fact to be tried but not to weigh the evidence and determine its credibility, and thereby try the case on affidavits. The court also laid down the rule that any doubts existing concerning the propriety of such motion must be resolved against the moving party. The movant has the burden to conclusively negative the existence of any genuine issue in regard to controlling facts. A defendant moving for a summary judgment must assume the negative burden of showing, as a matter of law, that the plaintiff has no cause of action against him. Neigut v. McFadden, Civ.App., 257 S.W.2d 864; Statham v. City of Tyler, Civ.App., 257 S.W.2d 742; and Achterberg v. Gillett, Civ.App., 322 S.W.2d 306.

However, when both parties move for a summary judgment, the burden is upon each to prove clearly his right thereto, and neither party can prevail because of the failure of the other to discharge his burden. Tigner v. First Nat’l. Bank of Angleton, 153 Tex. 69, 264 S.W.2d 85.

Applying these well-established principles of law to Cornell’s motion it becomes evident that a two-fold burden existed, namely, to establish affirmatively that no material fact or facts entitling plaintiff to recover remains an issue; or, that plaintiff’s pleadings are inadequate as a matter of law, to state a cause of action. We do not believe that Cornell sustained this burden and that whenever the reasonable doubt presented by this record is resolved against Cornell its motion should have been overruled.

It is obvious from this record that the trial court disposed of Cornell’s motion favorably on the proposition that the two legal defenses presented by Cornell and Muse, namely, the statute of frauds and statute of limitations, were valid as a matter of law. Plaintiff’s suit was not barred by limitations. It is well settled that limitations on a contract to bequeath or devise property begins to run at the date of the death of the person who agrees and contracts to bequeath or devise property. Dyess v. Rowe, Civ.App., 177 S.W. 1001, err. ref. See also Richardson v. Lingo, Civ.App., 274 S.W.2d 883. The record here demonstrates that plaintiff or her father may have known about the 1957 will prior to the death of Newcomb, yet they did file this suit within a few months after the death of Newcomb. Under these facts it is quite apparent that the statute of limitations as pled by Cornell and Muse was not a valid defense to Seale’s .cause of action.

Neither was the defense of the statute of frauds applicable to the facts of this case. Cornell and Muse contend that since Newcomb’s will of 1955 was not contractual in nature, and does not refer specifically to any antecedent agreement, that such prior agreement, if any, must be in writing in order to avoid the statute of frauds. A contract to bequeath or devise property is valid and enforceable and the right to sue to enforce such contract has been established in Texas. Jordan v. Abney, 97 Tex. 296, 78 S.W. 486; Dyess v. Rowe, supra; and Cate v. Cate, Civ.App., 235 S.W.2d 456, err. ref. However, Cornell- and Muse are correct in their assertion that the law is well settled in this State that a parol contract, involving both real and personal property, which is indivisible, is-void as to both and cannot be enforced as to either. Mueller v. Banks, Civ.App., 300 S.W.2d 762; Upson v. Fitzgerald, 129 Tex. 211, 103 S.W.2d 147; Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114, 15 A.L.R. 216; Art. 3995, subd. 4, Vernon’s-Ann.Civ.St. Thus, had Cornell and Muse established affirmatively, and without question, that the contract between Newcomb- and Gage of 1954 was verbal then there would be no doubt concerning the validity of the action of the trial court in this case. But this fact was not established beyond á doubt by Cornell and Muse.

Seale’s original petition does not state whether the agreement between New-comb and Gage in 1954 was oral or in writing. A careful review of Gage’s affidavit, attached to Seale’s motion for summary judgment, fails to reveal whether the agreement was verbal or in writing. Cornell, in its brief and oral argument before the court, as well as Muse in his-brief and oral argument, assumed that the agreement between Newcomb and Gage was oral. With this assumption we cannot concur. Muse’s affidavit even though it could be considered, is negative in dealing with the agreement with Gage and New-comb. The pleadings are silent as to whether the agreement was oral or in writing. Gage’s affidavit is silent as to whether the agreement was oral or in writing. Muse filed a special exception seeking to ferret out this information but, alas, such exception was never acted upon by the court prior to the hearing on the motion for summary judgment. Parenthetically we may point out that this case illustrates the need for a closer observance of pretrial procedure as contemplated by the salutary rules available to trial courts. In this instance, had the trial court required an observance of the rules by ruling upon the special exception contained in Muse’s answer, such would have revealed the true status of the agreement between Gage and Newcomb, and would, in all probability, have obviated many questions both in the trial court and here. Moreover, a simple request for admissions of fact would have revealed the contract in its real form. Rule 169, T.R.C.P. It should be observed that the summary judgment procedure is a part and parcel of the pretrial rules. Same should be considered together and in aid of each other in order to obtain the beneficial results contemplated by our Supreme Court.

Since Cornell and Muse have failed to establish that the agreement between Gage and Newcomb was verbal, rather than in writing, we must assume that the pleadings stated a cause of action and that the agreement was in writing and therefore not repugnant to the statute of frauds. Gonzales v. Chartier, (sup) 63 Tex. 36; Gause v. Roden, Civ.App., 66 S.W.2d 400. In Nichols v. Anderson, Civ.App., 164 S.W.2d 268, 270; err. W/O/M, Justice Folley, later a member of the Supreme Court said:

“Other than that which may be presumed or implied from the above recitations from appellant’s petition, there are no express allegations as to whether the agreement sued upon was written or oral. We think it is settled, however, that although the contract comes within the statute of frauds the pleading need not allege the agreement to have been in writing, this being a matter of proof and not of pleading; and it is the further rule that when such a contract is declared upon generally, without stating whether it is in writing or not, it will be presumed to be in writing. Lewis v. Alexander et al., 51 Tex. 578, 585; Gonzales et al. v. Chartier, 63 Tex. 36, 37; Cross v. Ev-erts, 28 Tex. 523, 524; Goen et al. v. Hamilton, Tex.Civ.App., 159 S.W.2d 231. Under such rules we must therefore presume that the contract herein declared upon was in writing. The court having dismissed the suit by reason of the alleged insufficiency of the pleadings, we must also assume the truth of the facts alleged and resolve every reasonable intendment in favor of the sufficiency of the appellant’s petition. Sanderson v. Sanderson, 130 Tex. 264, 109 S.W.2d 744. Of course, our conclusions hereinafter expressed are governed by this rule and are not to be construed as findings of fact upon the merits of the case.” (Emphasis ours.)

Having clearly failed to support the burden imposed upon it by demonstrating that Seale had no cause of action, as a matter of law, Cornell’s motion should have been overruled. When tested by the record as it stands Seale’s pleadings are sufficient to constitute a cause of action and is not defeated, as a matter of law, by legal defenses of limitations and statute of frauds.

Turning now to a consideration of Seale’s points seven through nine, to the effect that the trial court should have sustained her motion for summary judgment, we are of the opinion that such points must be overruled. Seale’s contention is to the effect that Muse’s affidavit is insufficient, as a matter of law, and that without such affidavit no issue of fact was presented by the pleadings, supported by the affidavit of Gage. We are of the opinion that probably Muse’s affidavit was not sufficient to meet the requirements of Rule 166-A(e), T.R.C.P. which provides that the affidavit must show affirmatively that same is made upon the personal knowledge of the affiant and that he is competent to testify to the matters stated therein. Sparkman v. McWhirter, Civ.App., 263 S.W.2d 832; Fonville v. Southern Materials Co., Civ.App., 239 S.W.2d 885; Page v. Pan American Petroleum Corp., Civ.App., 327 S.W.2d 469. However, even assuming Muse’s affidavit to be incompetent it must be observed that Gage’s affidavit may not be taken to be conclusive of the matters contained therein. Gage is an interested witness and as such his testimony must be submitted to a trier of fact. True, there is an exception to the general rule concerning the testimony of interested witnesses to the effect that while the testimony of an interested witness is not contradicted by any other witnesses, or attendant circumstances, and the same is clear, direct and positive, free from contradiction, and circumstances tending to cast suspicion thereon, it is taken as true. Fowler v. Texas Employers Ins. Ass’n, Civ.App., 237 S.W.2d 373, err. ref.; Schepps v. American District Telegraph Co. of Texas, Civ.App., 286 S.W.2d 684, 41-B Tex.Jur. 229, § 193; Singleton v. Southwestern Settlement & Development Corp., Civ.App., 322 S.W.2d 677. But the record here is not such that we can say that the exception to the general rule applies. Grave doubt is cast upon the statements made in the affidavit of Gage by the expression of New-comb himself in statements made in his 1957 will, pleaded by Seale as a part of her original petition. In this will Newcomb states inter alia that: “I have not promised to give or will to anyone my heirlooms or other items of personal property * *.” Again, he says: “I have no relatives and no responsibilities or duty towards anyone * * * Consideration of the same principles of law, having to do with the burden of proof and the resolution of any doubts, heretofore considered by us in connection with the ruling on Cornell’s motion for summary judgment, impels us to a similar conclusion here. Certainly, the testimony of Gage is not without doubt and suspicion and therefore becomes such evidence as must be submitted to a trier of facts. Accordingly, the trial court was eminently correct in overruling Seale’s motion for summary judgment.

The judgment of the trial court is reversed and remanded for a new trial.


text:
    J. W. AMOS et ux., Appellants, v. J. Dorsey ADAMS, Appellee.
    No. 15932.
    Court of Civil Appeals of Texas. Dallas.
    Nov. 17, 1961.
    Rehearing Denied Dec. 15, 1961.

      W. B. Pope, Fort Worth, for appellants.
    Ernest May, Fort Worth, for appellee.
   DIXON, Chief Justice.

Appellee J. Dorsey Adams filed a statutory trespass to try title suit against appellants J. W. Amos and wife Anna C. Amos.

Appellants, in addition to their answer, filed a cross-action against appellee and also an action against J. Roy Williams as a third party defendant. In the cross-action they allege on information and belief that appellee Adams and J. Roy Williams entered into a conspiracy in regard to two vendor’s liens against the property in question, which vendor’s liens appellee claimed to have bought. In their cross-action appellants pray (1) that a first vendor’s lien of $7,800 be declared of no force or effect as a lien; (2) in the alternative that the part of the first vendor’s lien represented by a $3,000 loan against the property be declared of no force or effect; and (3) for $370 actual damages and $20,000 exemplary damages.

Appellee filed a motion for summary judgment. The court severed appellants’ cross-action against appellee Adams and his action against J. Roy Williams from ap-pellee’s trespass to try title suit, and decreed that the said actions should be docketed as separate suits for separate trials. The court then sustained appellee’s motion for summary judgment.

Judgment was accordingly entered for appellee Adams awarding him title and possession of the property in controversy. No complaint is made on this appeal of the severance of appellants’ cross-action and their action against Williams from appellee’s suit. The only matter before us is the propriety of the summary judgment in favor of appellee in his trespass to try title suit.

In his motion for summary judgment appellee asserts in substance that he bought vendor’s titles superior to appellants’ title, the latter title being burdened with an obligation to pay installment payments on the balance of the purchase price; that the purchase money was past due; and that appellee Adams, as assignee of the vendor’s superior title, elected to rescind the sale to appellants and reclaim the land.

The affidavits in support of appellee’s motion are in conformity to Rule 166-A(e) Texas Rules of Civil Procedure. Attached to one of the affidavits are copies of instruments filed for record in Van Zandt County, as follows:

(1) On August 14, 1954 Addie Lois Spivey and husband conveyed the land to J. Roy Williams, Trustee. As part of the purchase price Williams and wife Rubie Lee Williams delivered to the order of the First National Bank of Grand Saline, Texas, their note in the amount of $6,000 principal. It was expressly provided that the Bank, which had advanced the $6,000 on the purchase price for the Williams, and the Bank’s successors and assigns were subrogated to all the rights, privileges and equity of the vendor’s lien as if they were the original vendors, and the superior title reserved in the deed by the vendors was transferred to the Bank.

(2) On December 8, 1956 the Williams conveyed the land to Woodrow Joslin. In connection with this conveyance Rubie Lee Williams, wife of J. Roy Williams, represented that on January 31, 1956, she abandoned the farm as her homestead; that her home was then in Fort Worth, Texas; and that she was conveying the land to Woodrow Joslin for the purpose of a division of her community property with' J. Roy Williams,from whom she was then permanently separated, and from whom the District Court of Van Zandt County, Texas had granted her a divorce.

(3) On December 8, 1956 Woodrow Joslin conveyed the land to J. Roy Williams for $3,000 paid by the First National Bank of Grand Saline, Texas for Williams and the latter’s assumption “of the indebted-ness against this property.” On the same date Williams delivered his vendor’s lien note for $3,000 to the Bank. In connection with these transactions the Bank again became the assignee of the superior title reserved in the deed.

(4) On December 8, 1956 Williams made and delivered to the order of the First National Bank of Grand Saline, Texas his installment note for $7,800 in renewal and extension of the $4,800 balance on the original $6,000 first vendor’s lien and the $3,000 on the second vendor’s lien. Again the Bank as assignee retained the superior title reserved in the two deeds of conveyance.

(5) On February 15, 1958 J. Roy Williams and Rubie Lee Williams conveyed the property to appellants J. W. Amos and wife Anna C. Amos. The deed recites their assumption of “the unpaid balance due” on the $7,800 note referred to in paragraph (4) above. As additional consideration appellants executed a note for $5,550 payable in installments to the order of J. Roy Williams. Again a vendor’s lien was reserved by the grantors.

(6) On January 30, 1960 appellee by endorsement of the First National Bank in Grand Saline, Texas and J. Roy Williams, respectively, became the holder and owner for value of the notes described in paragraphs (4) and (5) hereof. The transfer from the Bank expressly recites that “all liens and title held by it in and to. said land” are included in the conveyance of liens.

In other affidavits it is disclosed that appellee Adams paid to the First National Bank of Grand Saline, Texas the sum of $6,001.76 for the Bank’s first vendor’s lien note and its liens and title to the land, of which sum $5,500 was paid by a bank cashier’s check and the balance in cash. A copy of the cashier’s check is attached to the affidavit.

In response to requests for admissions appellants admitted that in their deed from J. Roy Williams and Rubie Lee Williams they had assumed payment of the $7,800 note heretofore described, that the balance they assumed and agreed to pay amounted to more than $6,000, and that all sums after-wards credited on the note were paid by J. Roy Williams. Appellants also admitted that in connection with their purchase of the land they made and delivered to J. Roy Williams the $5,500 note heretofore described.

In answer to appellee’s motion for summary judgment appellants filed an affidavit by their attorney which did not meet the requirements of Rule 166-A(e) T.R.C.P. In a later affidavit appellants stated that they were aware of all the facts and matters stated in their attorney’s affidavit and that such facts and matters were true and correct. Appellants then adopted and by reference incorporated in their affidavits all the facts and matters stated in the attorney’s affidavit. However, appellants’ affidavit does not state that it is made on personal knowledge, and it does not affirmatively show that they are competent to testify to 'the matters stated therein.

The attorney’s affidavit made statements in substance as follows:

(1) Appellee is not the holder and owner of the notes sued on “for the reason that the plaintiff purchased said notes after maturity and when the same were in default.”

(2) Appellee did not pay a full or adequate consideration for said notes.

(3) The execution and delivery of said notes were based on a special consideration and subject to a special agreement between appellants and J. Roy Williams as shown of record in Van Zandt County, of which agreement appellee had actual notice. The essence of this agreement (the instrument is copied in the record) was that J. Roy Williams would make the payments on the note held by the Bank and forego payments on the note held by him until January 18, 1958, or until appellants could secure a loan sufficient to renew both the first and second liens.

(4) J. Roy Williams adopted and pursued a course of conduct interfering with and prejudicing appellants every time they undertook to obtain a loan, and that appel-lee knew of and is charged with these defenses against said note.

Opinion.

In three points on appeal appellants assert that (1) the record raises a fact issue as to whether appellee had actual notice that the notes in question were not to become in default through nonpayment by appellants in view of the agreement of J. Roy Williams to keep said notes in current condition until appellants obtained a new loan refinancing the existing loans; (2) the record raises a fact issue as to whether appellee is the actual owner of the notes upon which he relies for title and possession of the real estate involved; and (3) the record raises a fact issue as to whether the first vendor’s lien note was valid depending on the fact whether the property securing the loan was a homestead at the time the loan was made.

We have concluded that appellants’ points on appeal are without merit and that the court properly sustained appellee’s motion for summary judgment.

It is important to remember that appellee did not sue for debt and foreclosure based on the notes and liens securing the notes. He filed a statutory trespass to try title suit based on his superior title reserved in the various deeds heretofore described. It is well established that a vendee, until he pays all the purchase price, cannot dispute the vendor’s superior title, and when default occurs in payment of the purchase price, the vendor or his assignee may have his action in trespass to try title. White v. Cole, 87 Tex. 500, 29 S.W. 759; Hamblen v. Folts, 70 Tex. 132, 7 S.W. 834; Young v. Fitts, 138 Tex. 136, 157 S.W.2d 873.

In such case the vendee in the purchase deed, or his successors who hold the inferior title, in order to defeat the plaintiff’s right to recover in a trespass to try title suit must make payment, or tender payment of the balance of the purchase money. Yett v. Houston Farms Development Co., Tex.Civ.App., 41 S.W.2d 305; Rutherford v. Mothershed, 42 Tex.Civ.App. 360, 92 S.W. 1021. In the case now before us appellants have not tendered payment of the unpaid balance of the $7,800 note, nor even the installment payments which were in default.

The fact that appellee acquired the notes, liens and superior title after maturity does not mean that he is not the holder and owner of the notes and the superior title; nor does the fact defeat the right of the holder of the superior title to recover in his trespass to try title suit. Young v. Harbin Citrus Groves, Tex.Civ.App., 130 S.W.2d 896; Woodward v. Ross, Tex.Civ.App., 153 S.W. 158; Rutherford v. Mothershed, 42 Tex.Civ.App. 360, 92 S.W. 1021; White v. Cole, 87 Tex. 500, 29 S.W. 759.

Appellants attack only part of the unpaid balance on the ground that it is invalid because it was a loan on a homestead. This part is the $3,000 advanced by the Bank in 1956 when Woodrow Joslin conveyed the property to J. Roy Williams as part of a divorce property settlement. The balance of the vendor’s lien then in existence, the unpaid portion of the purchase price in the conveyance in 1954 from the Spiveys to J. Roy Williams, is not effected.

In any event appellants, having assumed payment of the whole unpaid balance of the purchase price, are not in position to raise the homestead question. Warren v. Higginbotham-Bartlett Company, Tex.Civ.App., 75 S.W.2d 487.

The Bank, as holder of the $7,800 vendor’s lien and superior title, could not have been affected by the special agreement later entered into between J. Roy Williams and appellants. The $7,800 vendor’s lien of 1956 was a renewal and extension of earlier vendor’s liens, one of which was the balance of $4,800 on the vendor’s lien fixed against the property in 1954 in the conveyance from Spivey to Williams. The special agreement between appellants and Williams was not executed until 1958 when Williams sold his interest in the property to appellants. Appellee Adams, as assignee of the Bank’s earlier superior title, stood in the shoes of the Bank, not in the shoes of Williams.

Appellants’ three points on appeal are overruled.

The judgment of the trial court is affirmed.

      . Elsewhere in the record it is shown that Williams subsequently appealed from the judgment granting his wife a divorce. ■ Pending the appeal the parties were reconciled. Later they obtained a consent reversal and remand by a Court of Civil Appeals.


author: CULLEN, Commissioner.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. A. F. BLANTON, Appellee.
    Court of Appeals of Kentucky.
    Jan. 27, 1961.
    Rehearing Denied Jan. 26, 1962.
    John B. Breckinridge, Atty. Gen., H. D. Reed, Jr., Chief Asst. Atty. Gen., Lawrence L. Pedley, Attorney for Highway, Frankfort, for appellant.
    J. G. M. Robinson, Ashland, George Gallup, Catlettsburg, for appellee.
   CULLEN, Commissioner.

The Commonwealth of Kentucky, Department of Highways, appeals from a judgment awarding A. F. Blanton $16,200 for property taken and damages to the remainder of his property in the condemnation of a strip of land for the purpose of widening a highway in the City of Ashland. The jury made a segregation of the damages in its verdict, awarding $9,000 for the land taken and $7,200 as damages to the remaining property. The appellant contends that the damages are excessive in that they embody an allowance of double damages for the same item, and that certain evidence was improperly admitted.

Blanton’s property consisted of a large lot with a frontage of some 100 feet, occupied by a six-unit apartment house. Between the front porch and the original street was an area around 35 feet in depth, used primarily as a parking area for the cars of the tenants of the apartment house. The condemnation would take for permanent use a strip between 16 and 20 feet in depth, extending across the entire front of the lot and adjoining the original street. This would leave Blanton with an area some 15 to 19 feet in depth between the new street and his front povch. (The condemnation also would take two triangular pieces on one side of Blanton’s lot, one temporarily and the other permanently, and a strip across the front of his lot for a temporary easement for construction purposes, but none of the witnesses placed any specific value on these items.)

There was room on one side of the apartment house to construct a new parking area, but this would require a substantial amount of filling and the construction of drains, retaining walls and steps.

The witnesses for the Commonwealth estimated the value of the land taken at around $1,000, and the damages to the remainder of the property at around $6,500. The witnesses for Blanton (including Blan-ton himself) all testified that the difference between the valué of the apartment property before the taking and its value after the taking was around $18,000. The main controversy on this appeal relates to the factors given by these witnesses as having been taken into consideration by them in arriving at their estimates of the difference in value. The Commonwealth contends that the witnesses used the same factor twice, with the result that their estimates included a duplication of one item of damage. We think the point is well taken.

The item of damage in question is the loss of the parking area. It appears that Blanton’s witnesses based their estimate of the value of the land taken on its use as a parking area, and then based their estimate of the damages to the remainder of the property on the fact that the parking area was taken.

Blanton testified that in reaching his estimate of $18,000 as the difference in value he took into consideration the loss of rental value that would result from “taking the parking place away” and that he also considered the fact that it would be necessary for him to construct a new parking area.

Henry Collingsworth estimated the difference in value at $17,800. He said that he was allowing $9,800 for the land taken and $7,778 for damage to the remainder. He stated that the estimate of $9,800 for the land taken was based on the fact that it was used for a parking area and “it would take $9,800 to replace that.” At the same time he testified that his estimate of $7,778 as damages to the remainder was based upon “damage to the building from the accessibility to and from another parking area,” and that he took into consideration that other parking facilities would have to be established.

Oscar Rupert fixed the difference in value at $17,500, consisting of $8,500 for the land taken and $9,000 as damages to the remainder. He stated that in reaching the figure of $8,500 for the land taken he considered its usefulness for parking, and that “when you cut all that off and throw the building closer to the street — and being as handy to park as it now is — just drive right in and park — you would have to have another parking lot, and I feel, everything all told, about $8,500 for taking this front off. and the damage to the building.” When asked what he would allow for damages to the remainder he said: “Well, you have to have a parking space. You can’t rent without a place to park, so the estimate I have on fixing a parking lot is $9,000.”

Clem Brumfield estimated the difference in value at $17,761, which included $9,800 for the land taken and $7,200 for damages to the remainder. He stated that the $9,800 was “for the taking of that parking space in front of the building,” and that his estimate was based upon its value for a parking area. He gave no basis for his estimate of $7,200 for damages to the remainder of the property.

E. G. McGuire made an estimate of $18,-000 as the difference in value, and stated that in arriving at that figure he considered that “It would be doing away with the front parking lot and making other arrangements for parking, which you’d have to do.”

In evaluating the testimony of these witnesses, their estimates as to the difference in the value of the property before and after the taking must be considered in the light of the facts given to support the estimates, and the elements of value that were included. Tennessee Gas & Transmission Co. v. Jackman, 311 Ky. 507, 224 S.W.2d 660; Commonwealth Department of Highways v. Rankin, Ky., 346 S.W.2d 714. So if the witnesses included one element of value twice, then overall estimates must be discredited to that extent.

It is true that when a portion of a tract of land is taken in condemnation the value of the portion taken is to be measured with reference to the entire tract, West Virginia, P. & T. R. Co. v. Gibson, 94 Ky. 234, 21 S.W. 1055, or, stated another way, considering its relation to the entire tract. Tennessee Gas Transmission Co. v. Huddleston, 312 Ky. 833, 229 S.W.2d 983. Therefore, the fact that the land taken here was used as a parking lot for the apartment house could in ordinary circumstances be considered in determining its value, and it is plain that the witnesses for the landowner did give primary consideration to such use.

It also is true that the landowner is entitled to’ damages to the remainder of his tract in addition to the. value of the land actually taken. KRS 177.083.

It must be obvious, however, that if in valuing the land taken its use as a specific facility is considered, and the damages for the taking are thus computed on the basis that the owner is being deprived of that facility, the loss of the facility taken cannot be again considered as part of the damages to the remainder of the tract. It seems to us that the situation here is no different from that in Smick v. Commonwealth, Ky., 268 S.W.2d 424, where the landowner’s garage was taken and paid for, and he sought to recover in addition the expense of building a new garage.

A similar situation also was presented in. Commonwealth v. Conatser, Ky., 329 S.W.2d 48, where there was located upon the land taken a septic line and tank that-served a dwelling house on the remaining tract. This Court recognized that it would not be proper to include this item twice, once in valuing the land taken and again in assessing damages to the remainder, but found that no such dhplication had in fact occurred because the trial judge had admonished the jury to consider the septic line and tank only as they related to the damage to the remaining property and because it was clear that the witnesses had not included the item twice in their estimates of damages.

In the instant case, in estimating around $9,000 as the value of the land taken from the appellee, his witnesses expressly stated that they were basing their estimates on the use of the land for a parking lot, and in doing so they necessarily were allowing damages on the basis of the reduced value of the apartment building that would result from not having a parking lot. So when they estimated the damages to the remainder of the property on the basis of the necessity to have a new parking lot they were duplicating the same item of damages. See Smick v. Commonwealth, Ky., 268 S.W.2d 424; Greenup County v. Redmond, Ky., 335 S.W.2d 335; Commonwealth Department of Highways v. Rankin, Ky., 346 S.W.2d 714.

With the improper duplication eliminated the evidence is not sufficient to support the amount of damages awarded by the jury. Accordingly, the judgment must be reversed for excessiveness of damages.

The appellant maintains that evidence as to the cost of building a new parking lot should not have been admitted, either as bearing on the value of the land taken or as bearing on the damages to the remainder. Under the decisions in Smick v. Commonwealth, Ky., 268 S.W.2d 424, and Greenup County v. Redmond, Ky., 335 S.W.2d 335, such evidence was not admissible as bearing on the question of damages to the remainder, because a necessity for a parking lot was not created by the condemnation. It is true that in Commonwealth v. Conatser, Ky., 329 S.W.2d 48, it was held that evidence as to the cost of constructing a new septic line and tank was admissible as bearing on the reduction in market value of the remainder, but this was because the septic facilities were essential to the extent that the dwelling on the remaining property could not be used and occupied without them. Here the parking lot is not in the category of an absolute necessity but is merely a desirable convenience, the same as was the garage in the Smick case and underpass in the Greenup County case. This conclusion is supported by the testimony of Blanton that the apartments are still rent-able (but at a reduced rate) without the parking lot.

Nor was the evidence admissible as bearing on the value of the land actually taken, not only because the general rule prohibits admission for such purpose, Commonwealth, by State Highway Commission v. Begley, 261 Ky. 812, 88 S.W.2d 920, but because in the instant case the evidence given as to the cost of constructing a new parking lot would not properly reflect the value of the lot taken, in that the construction of a new lot would require a substantial amount of filling and the erection of retaining walls, drains, etc.

We do not mean to say that the loss of the parking facilities is not entitled to any consideration at all. It is entitled to consideration in the overall question of reduction of market value, but not twice, and not by proof of the cost of replacement. Nor do we mean to suggest that the loss of the parking facility is the only element of damage in the case — the trouble is that it is the only element that was given any significant value by the witnesses, and they included it twice.

Under the peculiar circumstances of this case we think that the true damages can best be ascertained by requiring the witnesses to estimate the market value of the land taken without regard to its particular use as a parking lot (obviously it does have some value apart from such use). Their estimates of the reduction in market value of the remaining property then properly may take the matter of parking facilities into consideration as an element of incidental loss that will result from the taking. If the evidence is so limited the standard instructions that were given will be adequate.

The judgment is reversed with directions for a new trial.


author: CLAY, Commissioner.

text:
    Cecie LYONS et al., Appellants, v. Rora BROWN et al., Appellees.
    Court of Appeals of Kentucky.
    April 29, 1960.
    Rehearing Denied Jan. 26, 1962.
    Richard L. Garnett, Glasgow, for appellants.
    J. W. Vance, Jr., Paul Greer, Glasgow, for appellees.
   CLAY, Commissioner.

When Arthur Brown died he was survived by his widow, a brother, a sister, and nine children of a deceased sister. By will he devised and bequeathed his estate to his wife for life (she has since died) with remainder to be “divided equally among my living heirs at law.”

In a suit for construction of this clause of the will, the Chancellor determined that the interests of the parties were the same as under the statutes of descent and distribution. KRS 391.010 and 391.040. That is, the brother took one-third, the sister one third, and the nine children of the deceased sister took the remaining third. This, of course, was a per stirpes distribution.

The nine children of the deceased sister contend that the remainder must be divided equally among all eleven heirs on a per capita basis. No other language in the will throws light on the problem.

In the briefs, as in our cases, reference is made to the intention of the testator. Even though the deceased sister had died prior to the execution of the will, we simply do not know what the testator subjectively intended with respect to division between his near and more remote relatives. The test is what he meant by what he said. Reno’s Executor v. Luckett, Ky., 298 S.W.2d 674.

What did the testator say? He said he wanted his estate divided equally among his living heirs at law. His living heirs at law at the time of his death were a brother, a sister, and nine nieces and nephews. To divide the estate equally among them is to allot each an 'eleventh share of the estate. This follows precisely the literal language of the will.

There is a subtle temptation to depart from this construction on the assumption a testator would normally wish his nearer relatives to be preferred over those more remote, and by using the term “heirs-at-law” he may have anticipated the statutory method of distribution. In Porterfield v. Lenover, 310 Ill.App. 37, 33 N.E.2d 718, the Illinois appellate court construed somewhat similar language as requiring per stirpes distribution on the ground the law favors such method. This reasoning overlooks the fact that while the law may lean toward such manner of distribution, the testator by will quite properly may favor some other plan.

It is true that if a will uses language showing the testator intended his property to pass as in intestate succession, that expressed intention will be given effect and the property will go as the statute provides. A will was so construed in Hafner’s Ex’r v. Hafner, 306 Ky. 93, 206 S.W.2d 196. There the testator directed that his property “be divided equal between my heirs.” The court interpreted “heirs” as meaning those classes of heirs designated by the statutory law of descent and distribution. However, the opinion failed utterly to attach any significance to the word “equal”, which is the key to the proper construction of such a testamentary disposition.

Prior to the Hafner decision, the settled rule in this state was thus stated in Rogers v. Burress, 199 Ky. 766, 769, 251 S.W. 980, 981:

“We have held in an unbroken line of cases that, unless a contrary intention should be discoverable from the will, a provision for a division ‘equally,’ or ‘share and share alike,’ between or among two or more persons or groups, means a per capita and not a per stirpes distribution.”

A number of cases are cited in that opinion which demonstrate the soundness of the rule. In addition, see Yarrington v. Freeman, 201 Ky. 135, 255 S.W. 1034; Wooten’s Trustee v. Hardy, 221 Ky. 338, 298 S.W. 963; and Dennis v. Shirley, 212 Ky. 114, 278 S.W. 591. It was pointed out in the latter case that if the problem involves simply the construction of the word “heirs”, the general rule is that a per stirpes distribution was intended, but when the testator directs equal distribution among heirs, he thereby manifests the intention to direct a per capita distribution.

The Hafner case (306 Ky. 93, 206 S.W.2d 196) stands alone in Kentucky law. To the extent it is inconsistent with the settled rule of construction accepted in our numerous other cases involving the same question, it must be and is overruled.

In the present case another word used by the testator indicates an intention to direct a per capita distribution. The testator referred to “living” heirs. A per stirpes interest arises only by derivation through a deceased heir. The testator in this case clearly forestalled a construction that any beneficiary should take as the representative of a deceased heir. As a “living” heir, he must take directly and equally under the will and not indirectly and unequally by descent in a per stirpes capacity.

We return to our original position. We must accept the unequivocal expressed intent of the testator. Regardless of whether we deem it fair or wise, he directed that his estate be divided equally among his living heirs at law. We know of no other way to do it except by doing it.

The judgment is reversed with directions to enter a judgment consistent with this opinion.


text:
    H. H. PERKINS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 20, 1961.
    Rehearing Denied Jan. 26, 1962.
    Joe S. Feather, R.L. Brown, Williams-burg, for appellant.
    John B. Breckinridge, Atty. Gen., Pleas E. Jones, Commonwealth Atty., Williams-burg, for appellee.
   CLAY, Commissioner.

This appeal was allowed on motion and it involves the liability of a surety on an appeal bond executed after the conviction of one Durham for grand larceny.

The penal sum of the bond was $2,000. In form it was a bail bond as designated in section 82 of the Criminal Code of Practice, which is normally executed by a defendant, charged with a crime, before trial. However, there is an interlineation of “the Court of Appeals”, indicating the bond was executed for appeal purposes.

Appellant’s first contention is that the bond is so irregular as to create no as-certamabfe obligation on the surety. The Commonwealth urges that section 85 of the Criminal Code of Practice is controlling. It provides in substance that no “bail bond or bail recognizance” shall be deemed invalid for irregularity provided certain conditions are met. It is questionable that this Code provision applies to bonds after conviction executed under section 75 thereof. However, the policy codified by section 85 would apply equally to a bond of this nature. The consideration of the bond is the release of the prisoner. When the Commonwealth in reliance on the obligation of the bond does release the prisoner, the obligor should not be permitted to rescind his undertaking on the ground that the form of the bond is defective.

It is next contended that since the court clerk advised appellant that the amount of the bond would be $500, after it was signed in blank the amount could not be raised to $2,000, which was the penal sum fixed by the court. In view of the fact that appellant, a professional bondsman, customarily executed bonds of this nature in blank, with presumed knowledge that under section 75 of the Criminal Code of Practice only the trial judge could fix the amount thereof, we are of the opinion he impliedly authorized the clerk to fill in the correct amount. See 8 Am.Jur., Bonds, Section 12 (page 711); Gary v. State, 11 Tex.App. 527.

It is finally urged the circuit court could not properly forfeit the bond for failure of the convicted defendant to take an appeal because no judgment of conviction and sentence had been entered prior to the hearing on the bond forfeiture. (At the time the circuit court entered a nunc pro tunc order).

The judgment of sentence should have been entered on November 7, 1958. Thereafter the defendant took steps to appeal as if a judgment had been entered on that date. This appeal was abandoned, not because no judgment had been entered, but for some other reason. The appeal bond was executed on November 14, 1958, and he remained free of custody until the bond was forfeited on January 14, 1961.

The purpose of the execution of the bond by appellant was to obtain defendant’s freedom pending an appeal. Since the appeal was abandoned for reasons other than for the failure to enter judgment, it was incumbent on the defendant to surrender himself to the court after the purpose for which the bond was executed had been fulfilled. In the absence of a showing that the defendant intended to take an appeal after the entry of the nunc pro tunc order, we believe the court properly forfeited the bond.

The judgment is affirmed.


author: MONTGOMERY, Judge.

text:
    Paul E. ABBOTT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Nov. 22, 1961.
    Rehearing Denied. Jan. 26, 1962.

      Rodney J. Thompson, Winchester, H. M. Shumate, Shumate & Shumate, Irvine, for appellant.
    John B. Breckinridge, Atty. Gen., William A. Watson, Asst. Atty. Gen., for ap-pellee.
   MONTGOMERY, Judge.

A “shootin’ scrape” took place at the Big Oaks, a drive-in restaurant in Powell County, on Sunday night, February 15, 1959, between two groups referred to as the Clark County boys and the Powell County boys. George Sales was killed by a .38 caliber bullet. Paul E. Abbott and five others were indicted for murder. The indictment charged that one of the defendants did the shooting and the others named aided and abetted. One of them, Clarence Oldfield, Sr., has been convicted of voluntary manslaughter as an aider and abettor. Oldfield v. Commonwealth, Ky., 334 S.W.2d 346.

Abbott, tried alone, was convicted of voluntary manslaughter. He was sentenced to three years’ confinement. He urges on appeal that the evidence is insufficient to sustain a conviction and that the judge coerced the jury into making a verdict. ;

Much of the same evidence introduced in the Oldfield trial was heard on this trial, with some inconsistencies and contradictions. There are contradictions in the testimony given in the Abbott trial, but certain facts stand out as admitted or uncontradict-ed.

It is unquestioned that George Sales died from the wound inflicted by a .38 caliber bullet fired during the battle at Big Oaks between the two groups mentioned. Paul E. Abbott, known as “Hammer,” admits that he participated in the fracas with others of the Clark County group and that he fired a pistol.

“Hammer” admits that George Sales “whipped” him and ran him to a neighbor’s house on Wednesday night before the killing on Sunday night, and that Sales hit him in the false teeth with a beer bottle on Saturday night. Despite such inhospitable treatment, he returned to Powell County for more recreation on Sunday night, armed with a pistol for self-protection and accompanied by a group of associates, some of whom were also armed. There was testimony for the prosecution that Abbott, with some of his associates at Powell’s store before the shooting, referred to the previous trouble with Sales, and announced that he was going back that night (Sunday) to settle it and that if the sheriff didn’t get them the undertakers would have a job. Abbott denied this statement.

The evidence is in conflict as to which group started the trouble on Sunday night. It was conflicting on the point of whether the Powell County boys were armed. There was evidence for the defense that Sales had a pistol and that two unfired .38 caliber cartridges were taken from his clothing at the hospital after the shooting. There is no satisfactory explanation as to when or how they got there.

The appellant argues that the evidence is insufficient because it does not establish that he shot Salés or that he aided' and abetted the person who actually did the 1 shooting. Despite the evidence that Sales had a pistol and that unfired .38 caliber car- , tridges were found in his clothing, no contention is made and no inference is warranted that Sales shot himself. It is true that no one identified Abbott as having fired the fatal shot, but even Abbott admits that he was present and fired a pistol into the air to scare the opposition forces, thus furnishing evidence from which the jury could have inferred that he was aiding and abetting, if he was not the principal. Especially is this true if the jury believed the evidence of Abbott’s statement made at Powell’s store shortly before the shooting. No objections are presented to the instruction which permitted the jury to find Abbo.tt guilty as a principal or as an aider and abettor. The evidence is sufficient to show that Abbott was not “an innocent onlooker,” and it was sufficient to sustain the verdict. For a discussion of the rules relating to principal and aider and abettor in this case, see Oldfield v. Commonwealth, Ky., 334 S.W.2d 346.

After the jury had considered the case, for a while (the time consumed is not shown), they reported to the court that they were unable to agree on a verdict. Appellant contends that the conduct of the. trial judge thereafter amounts to preju-' dicial coercion.

The record shows that the court inquired as to how they were divided numerically, without regard to guilt or innocence. One juror reported that they stood 10 to 2, and another reported 9 to 3. The court sent the jury back for further deliberation. The jury again reported hung, but three ways this time. To quote the record: “ * * * the court stated that a jury had to try the case and that while he didn’t want to destroy the free will of the jury they should get together and make a verdict and before the jury retired the last time the court gave the illustration of two goats fighting on a precipice and if they continued to fight both of them would fall over and get killed. In other words taking an antagonistic view toward ■ each other without getting, together and winding up without any results.” It is not clear whether the last expression was made to the jury or is by way of explanation of the illustration. After the jury .retired the last time, counsel for appellant objected and took an exception to the statement and the procedure.

When a jury reports that it is hung, the trial judge may retire the jurors for further consideration of the case and instruct them that they should try to reach a verdict. Taylor v. Commonwealth, 240 Ky. 450, 42 S.W.2d 689; Wiley v. Commonwealth, 246 Ky. 425, 55 S.W.2d 41. The judge may further instruct the jurors not to be obstinate. Miller v. Commonwealth, 240 Ky. 355, 42 S.W.2d 523; 85 A.L.R. 1434. However, the trial judge must refrain from any conduct- or language which tends, to coerce the jury. Sandefur v. Commonwealth, 143 Ky. 655, 137 S.W. 504; Burnam v. Commonwealth, 283 Ky. 361, 141 S.W.2d 282. The ultimate test of coercion is 'whether the instruction actually forces an agreement on a verdict or whether it merely forces deliberation which results in an agreement.

There is no indication as to the amount of time consumed by the jury in its deliberation or how long it deliberated between reports. The language used by the trial judge does nothing more than impress the jury with the importance of continuing their deliberation in order to reach an agreement. The judge, by his statement, did not indicate his opinion. The action taken did not amount to an abuse of discretion. Criminal Code of Practice, Section 251; McMillan v. Commonwealth, 258 Ky. 354, 80 S.W.2d 24.

In Smith v. Commonwealth, Ky., 321 S.W.2d 786, relied on by appellant, it was said by way of dictum that a trial judge should never inquire of a jury how it stands and that if the jury voluntarily states its numerical division, the judge should say no more than that the jury should retire and continue its deliberation. However, in the Smith case, the principal objection was directed to the intrusion of the trial judge and counsel into the jury room, which is sufficient in itself to distinguish that case from the present one.

Judgment affirmed.


text:
    Veachel Ray ANTLE, Administrator of Gregory Ray Antle, deceased, Appellant, v. Myrtle SMITH, Appellee.
    Court of Appeals of Kentucky.
    Nov. 17, 1961.
    Rehearing Denied Jan. 26, 1962.
    Shuffett & Butler, Greensburg, Faulkner & Bertram, Campbellsville, for appellant.
    Robert M. Spragens, Lebandon, Abel Harding, Campbellsville, for appellee.
   CLAY, Commissioner.

Appellee had the misfortune to kill a six year old boy when her automobile struck him on a highway near Campbellsville. The jury returned a verdict finding both appellee and appellant (the child’s parent and administrator) guilty of negligence and therefore allowed no recovery.

The administrator on this appeal assigns 17 errors allegedly committed by the trial court.

Appellee passed a school bus, which was slowing down for the purpose of stopping, just before the accident. The deceased child was to board this bus and his mother was directing his movements from their home near the highway. She had stopped the child when he reached a “ditch” beside the road, and after observing the approach of the bus but failing to see appellee’s automobile, she directed the child to go across. He started running and was struck by the automobile.

The case was submitted to the jury on standard instructions defining appellee’s duties, interposing the defenses of contributory negligence on the part of the parent and sudden appearance on the part of the child, and also including a last clear chance instruction for the benefit of the plaintiff.

We have carefully examined all of the contentions of appellant, which involve admissibility and weight of the evidence, the instructions, the formal insufficiency of the verdict, and the alleged misconduct of two jurors. On the whole record we find appellant had a fair trial and there were no errors prejudicial to his substantial rights which would require reversal of the judgment.

The judgment is affirmed.


text:
    Catherine F. ZIPPERLE and Dorothy Zipperle, Appellants, v. Marie WELSH, Appellee.
    Court of Appeals of Kentucky.
    Dec. 8, 1961.
    Rehearing Denied Jan. 26, 1962.
    Fred J. Karem, Karem 8¿ Karem, Louisville, for appellants.
    J. L. Richardson, Jr., Richardson & Richardson, Louisville, for appellee.
   CULLEN, Commissioner.

Appellants Catherine and Dorothy Zipperle were riding as guests of their sister, Marie Welsh, in the latter’s automobile when it was involved in a collision with an automobile operated by Helen Fisher. Catherine and Dorothy were injured and they brought an action for damages against Mrs. Welsh and Mrs. Fisher. The jury returned a verdict awarding damages against Mrs. Welsh only. Judgment was entered dismissing the action as to Mrs. Fisher, and no appeal has been taken from that judgment. Mrs. Welsh moved for judgment in her favor notwithstanding the verdict. The court sustained the motion and entered judgment dismissing the action as to Mrs. Welsh. The appeal here is from that judgment.

The judgment n.o.v. was entered on the ground that the two plaintiffs in their testimony had made a judicial admission that Mrs. Welsh was not negligent. The only question before us is the correctness of that ruling.

The accident occurred at the intersection of Eastern Parkway and Norris Place, in Louisville. Traffic at the intersection is controlled by a stop-and-go light. Catherine and Dorothy both testified that the green light was in favor of the Welsh car as it entered the intersection. Their testimony with reference to the position of the Welsh car, its speed and its manner of operation showed an absence of negligence on the part of Mrs. Welsh in regard to those factors. Dorothy, who was sitting in the front seat, said that she did not see the Fisher car, approaching from the right, until the Welsh car was almost to the middle of the intersection. Both Dorothy and Catherine, when asked whether they had any specific complaint with respect to any action by Mrs. Welsh in the operation of her car that might have caused the accident, said they had none.

Mrs. Fisher testified that the green light was in her favor when she entered the intersection. She was corroborated in this by the driver of another car who had approach the intersection from the opposite direction from that in which the Welch car was traveling and who had stopped at the intersection because, he said, the traffic light was red.

In our opinion this is a clear case of judicial admission under the principles set forth in Bell v. Harmon, Ky., 284 S.W.2d 812.

The appellants contend that the jury would have been entitled to find that Mrs. Fisher ran the red light but that Mrs. Welsh was negligent in regard to lookout and should have seen Mrs. Fisher’s car in the intersection, and since Catherine and Dorothy did not specifically exonerate Mrs. Welsh of negligence respecting the lookout duty the doctrine of judicial admission should not apply. This contention is not sustainable. Under the evidence the only issue presented was which driver ran the red light. Both Catherine and Dorothy testified that Mrs. Welsh’s car was about half way through the intersection when it was struck in the right rear end by the Fisher car. There was no evidence that would justify a jury’s finding that the accident was attributable to a failure of Mrs. Welsh to observe Mrs. Fisher’s car in or entering the intersection against the red light.

A further contention of the appellants is based upon certain language in Halbert v. Lange, 313 Ky. 648, 233 S.W.2d 278, 280, to the effect that the conclusiveness of an admission by a plaintiff is destroyed if he corrects his statements, explains them, “or introduces other testimony showing that he could have been mistaken as to the facts.” The contention is that the testimony of Mrs. Fisher and the other motorist, introduced by the plaintiffs, that Mrs. Welsh ran the red light, showed that the plaintiffs “could have been mistaken as to the facts.” This argument distorts the meaning of the phrase used in the Halbert case. The testimony here did not tend to show that the plaintiffs had made a mistake — it simply tended to show that the plaintiffs’ story was not true. If other evidence in a case contradicting a plaintiff’s admissions should be treated as showing that the plaintiff could have been mistaken, the doctrine of judicial admission would be destroyed. What the Halbert case has reference to is other evidence explaining a mistake on the part of the plaintiff.

The judgment is affirmed.


text:
    Kelly MOSS, Appellant, v. William L. JONES, Warden, Kentucky State Penitentiary, Appellee.
    Court of Appeals of Kentucky.
    Oct. 27, 1961.
    Rehearing Denied Jan. 26, 1962.

      Kelly Moss, pro se.
    John B. Breckinridge, Atty. Gen., Troy D. Savage, Asst. Atty. Gen., for appellee.
   MONTGOMERY, Judge.

This is an appeal from an order dismissing the petition of Kelly Moss for a writ of habeas corpus. A previous petition has been denied. Moss v. Jones, Ky., 342 S.W.2d 522. The judgment sentencing Moss to death has been affirmed, and a petition for rehearing has been denied. Moss v. Commonwealth, Ky., 332 S.W.2d 650, certiorari denied 364 U.S. 846, 81 S.Ct. 88, 5 L.Ed.2d 70.

Moss now complains that he was severely ■burned when penitentiary officials and guards shot gas into his cell. He contends that his life has been placed in jeopardy twice in violation of United States Constitution, Amendment V and Kentucky Constitution, § 13, and that he has been subjected to cruel and unusual punishment in violation of United States Constitution, Amendment VIII and Kentucky Constitution, § 17. He argues that his exposure to the gas while in the death cell awaiting execution by electrocution constituted double jeopardy and cruel punishment.

The doctrine of double jeopardy is to the effect that a person shall not twice be put in jeopardy of life and liberty for the same offense. The word “jeopardy” is used to designate the danger of conviction and punishment which an accused may incur in a criminal action. In plain language, the doctrine is that a person may not be tried or prosecuted the second time for the same offense. 22 C.J.S., Criminal Law, § 238, page 614. Likewise, the constitutional prohibitions, both federal and state, against cruel and unusual punishment are addressed to the exercise of criminal jurisdiction in the courts. 24 C.J.S., Criminal Law, §• 1978a, page 1186.

The exposure to gas did not constitute such jeopardy as is embraced by the constitutional protections. The record does, not indicate that it was used as a punishment, but in any event, it does not fall within the constitutional prohibitions. Obviously, the jeopardy and punishment objections of appellant’s are not and cannot now be raised as to the death sentence.

For the reasons stated in the previous habeas corpus proceeding, appellant has. again shown no right to such relief.

Judgment affirmed.

PALMORE, J., not sitting.