author: HUGHES, Justice.

text:
    Ed H. PAGE et al., Appellants, v. CITY OF LOCKHART, Texas, Appellee.
    No. 11343.
    Court of Civil Appeals of Texas. Austin.
    Dec. 1, 1965.
    Kuykendall & Kuykendall, F. L. Kuyken-dall, Austin, for appellants.
    Blundell & Moore, O. T. Moore, Jr., Lockhart, for appellee.
   HUGHES, Justice.

Mr. Ed H. Page, Mr. Robert L. Holder and Miss Nettie Holder have appealed from a judgment denying them any relief in their suit against the City of Lockhart, Texas, whereby they sought to have declared invalid and unenforceable an ordinance of the City levying a paving assessment against their properties which abutted the streets to be paved.

Mr. Page owned a tract of land containing 12.09 acres which abutted South Medina Street for a distance of 1,722.4 lineal feet. The paving assessment levied against Mr. Page by the ordinance was $3,846.64, or about $318.00 per acre.

The Holders jointly owned a tract of land containing 31 acres which abutted Center Street for a distance of 813 lineal feet. The paving assessment levied against the Holders was $1,815.67, or about $59.00 per acre.

These assessments amounted to $2,233 per lineal foot.

Article 1105b, Vernon’s Ann.Tex.Civ.St., authorizes certain cities and towns to improve their streets and to apportion the cost thereof between the City and owners of property abutting the streets to be improved, subject to certain limitations not here involved, and to levy assessments against the abutting property and its true owners and to create liens against such property for the cost thereof apportioned to such property, Sec. 9 of such Article providing, in part, that, “ * * * no assessment shall be made against any abutting property or owners thereof in excess of the special benefits of such property, and its owners in the enhanced value thereof by means of such improvements as determined at such hearing.”

The “hearing” referred to is described in Sec. 9 and is one to be held by the governing body of the city or town and which the owners of property to he assessed may attend and may contest, among other matters, “ * * * the special benefits to the abutting property and owners thereof by means of the improvements for which assessments are to be levied * *

Appellants attended the hearing held by the governing body of the City of Lockhart and contested the amount of special benefits which the properties owned by them would be benefited by the street improvements to be made, contending that the amount of such special benefits and the enhanced values of their properties occasioned thereby was less than the amount of the assessments levied against them and their properties. From an adverse decision by the City Commission, this suit was filed as an appeal under Sec. 9, supra.

The case was tried to a jury, but the trial court withdrew the case from the jury and rendered judgment for the City. The Supreme Court has held, since the trial of this case, that an appeal taken under Sec. 9 of Art. 1105b, supra, shall be tried, insofar as the question of special benefits conferred by the improvements is concerned, under the substantial evidence rule. City of Houston v. Blackbird, 394 S.W.2d 159.

While appellants have numerous points of error, the only real question presented is whether the judgment below is reasonably supported by substantial evidence. If so, it is valid. If not, it is arbitrary. This inquiry presents a question of law.

The City is paying more than one-half the cost of the improvements. The portion of the cost which the City determined should be paid by the abutting property owners was apportioned between such owners on a front foot basis. This system is expressly authorized by Sec. 9 of Art. 1105b, except in cases where the governing body of the City or town is of the opinion that its application would result in injustice or inequality. No such opinion was formulated by the City Commission.

Appellants rely, primarily, upon evidence that the lands owned by them are used for farming purposes only and that the paving of these streets would not enhance the value of the lands for farming. This evidence is not controverted and, standing alone, it would bring about invalidation of the assessment ordinance. There is other evidence in the record, however, which, if it is of sufficient probative force to constitute substantial evidence, would require us to affirm the judgment. This evidence relates to the prospective use of the property for residential, commercial and other uses. If these lands may properly be considered to have a value for the purposes mentioned, then there is testimony that the enhanced value of the lands, attributable to the paving, would equal or exceed the amount assessed against the properties.

Mr. J. T. Dickens, Mayor of Lockhart, testified that the Page property would not be enhanced in value approximately $300.00 per acre, the amount of the assessment, considered as farm property but that considered as possible residential property its value would be increased in this amount by reason of the paving. He was asked, “When would that investment, in your opinion, ripen into something that would be profitable to him?” and he answered, “I would say in about eight or ten years. Maybe sooner than that.”

We quote some of the Mayor’s testimony regarding the Holder property:

“Q Now, Mr. Dickens, how many lots did you contemplate the Holder property could be divided into?
A That wasn’t ever platted and never given — we felt it was in that general location and could be used; maybe the school might need it at some future date or some other developer might want to come in and open it up. There was a large acreage; I don’t remember the exact acreage. But, anyway, it is larger than Page’s. So, they would have quite a bit of opportunity to develop it.
Q Of course, this development, there is no way to tell or see the development in sight right now, is there ?
A When you look back, in the last seven years, six years, and see where there has been 121 homes built in Lockhart, I don’t see why you wouldn’t think there is a development.
Q In other words, you are saying- it is possible that — how many years, would you say, in your opinion, under oath, it would be before there would be a development and there would be demand for subdivision properties that would authorize the holders to divide their property into a subdivision for residential purposes?
A Well, that depends on numerous things, Mr. Kuykendall.
Q For example?
A If we are successful in obtaining some light industry — and every effort is being made toward that —why, you will naturally — and as Austin grows and Bergstrom expands, there are, more or less, people who rather live in a smaller town than live in the city.
Q In other words, what you are saying, it depends on a number of other development situations arising.
A Well, yes, it will.
Q Did I understand you to say that in your opinion, in some eight or ten years from now, there would be a development out in that area for subdivision purposes?
A It could possibly be sooner than that.
Q That is just a guess, of course, isn’t it?
A Why, certainly, it is a guess.
Q Mr. Dickens, of course, if you consider the property as farm land, then the enhanced value resulting from these improvements would not be near as much as the amount of the assessment proposed to be levied, would it?
A But it is not farm land.
Q I understand. I assume that it is considered as farm land, then you are not saying, considering the Page property, for example, as farm land, that these proposed improvements would result in an increase in the value of his land by $3800.00, the amount of his assessment?
A Just as farm land only?
Q Yes, sir, that is what I am asking. I want you to consider it just as farm land.
A No, it wouldn’t.
Q And it wouldn’t as far as the Holder estate considering that property as farm land, it would not enhance the value of their land $1815.00.
A No, it wouldn’t. But it isn’t farm land.”

Mr. M. W. Blake, a witness for appellants, had been in the retail lumber business in Lockhart since 1938. He had also been a developer of real estate subdivisions in the City for residential purposes. He owned a tract of land directly across Center Street from a portion of the Holder property, a part of which was subdivided into residential lots. When asked, on direct examination, why he had not subdivided all of his land he answered:

“A Well, this will probably take ten years to sell out unless we have an explosion in population.
Q You have lived here a long time, is Lockhart growing fast or slow or what?
A Steady slow.
Q It is your testimony it would probably he ten years before you will be able to sell these lots here?
A Based on past experience, it will.
Q What would be your opinion with reference to the balance of it that is not subdivided now?
A As soon as they are sold, it will be.
Q You intend to lay this out then when the balance of this is sold?
A Yes, sir.
Q As a developer and being in the lumber business, knowing something about the growth of Lock-hart, how long, in your opinion, would it be before there would be a need or a demand for the balance of this that is not subdivided?
A It could be possibly a shorter time than ten years. I hope it is.
Q Would you give us your best judgment about how long it would be before both of those tracts of land will be?
A I couldn’t say that. It took nine years to sell thirty-nine lots in the other one and there will be about a hundred in this one, if it was all developed.
Q You said it would take about ten years. It would be at least ten years in your opinion before this will be subdivided and there will be a need or a demand for it ?
A Yes.
Q Mr. Blake, in your opinion, would a reasonably prudent business man under the circumstances existing here in Lockhart, would a reasonably prudent business man go in and make an investment that would be required in this property that is not laid out, do it now for lots to be divided — ■
A I don’t know if I am prudent or not, but I would not do it.”

On cross examination, Mr. Blake testified:

“Q In your opinion, Mr. Blake, paving and curbing the Holder property along Center Street enhances the value of the Holder property at least to the extent of $2,233 a ' lineal foot?
A I do.
* * * * * *
Q Mr. Blake, when you answered the question for Mr. Moore as to enhancement of the value, state whether or not you had in mind it would be used for any particular use?
A I would like to have two acres of land fronting on the street where I got sewer and water down in front of it and add eighteen hundred dollars to it and sell nine lots for seven hundred dollars.
Q You didn’t answer the question. * * * I asked him, did you consider the land being used for farm purposes or capable of being used for some other purpose?
A I think it would be foolish to use that land for farm purposes.
Q When you gave the answer though, I am asking you did you consider it as farm land?
A No, I was thinking about lots.
Q Has there been any development on the Holder property in the last few years?
A Not that I know of.
Q Taking the Holder property as a whole, thirty-one acres, in your opinion, is there a reasonable probability in the immediate future, it will be developed into residential property?
A No, sir. That two acres fronting on Center Street could be.
Q But taking all the property as a whole.
A No.”

Mr. J. D. Andrews, a member of the Lockhart City Commission testified:

“Q Just two or three final questions, Mr. Andrews. If I understand your testimony, you do not consider — in determining the benefits to this property of Ed Page, you do not give effect to the fact that it is agricultural farm land now and it has been for years.
A I did not take that into consideration now, no, sir.
Q And you did figure that his land could be developed into a subdivision ?
A I sure did.
Q But you don’t know how long it would be before it would be developed into a subdivision whereby—
A I couldn’t. That would be impossible for me to answer that because, not owning the land, that would be up to the individual.
* * * * % *
Q You also knew, of course, that the Holder property was being used for farming purposes. You knew that.
A I knew they were doing some farming out there. I don’t know how much farming they did. About that, I couldn’t tell you.
* * * * * *
Q Getting back to my question: I want to get you to answer these questions. Although it is not a subdivision and you know of no plans to develop it into a subdivision, you considered the possibility that it could be developed into a subdivision some time—
A There is a possibility it could be developed into anything. We don’t know but what somebody might want to come and build another Golden Age home. The possibilities are out there.
s|« J-Í }«i ;{i
Q In any event, you did not—
A Somebody might want to go out there and put up two or three big apartment houses or something out there. It is close to school. There are possibilities out there.
Q But you don’t know of any reasonable probability that that will be done, do you?
A No, I sure don’t.”

Mr. Andrews further testified regarding the investigation made by the Lock-hart City Manager, Mr. Richard Bean, in this matter, and we quote the following testimony of Mr. Andrews:

“Q Under your direction, did you have the City Manager of the City of Lockhart, Mr. Bean, prepare an estimate as to the enhancement of the value because of the construction of the curbing and guttering and paving the streets ?
A Yes, we did.
Q Did Mr. Bean report back to you?
A Yes, sir.
Q What was his recommendation?
******
A He came up with the figure of 2.233.
Q Did Mr. Bean make an investigation as to the enhancement of the value of the property to the City Council ?
A Yes, he did.
Q In his report to the City Council was it his opinion that the property in question would be enhanced in value at least to the extent of $2,233 per lineal foot?
******
A Yes, he gave us a figure of $2,233 per lineal foot.
******
Q Did he submit a written report to the City Council?
A Yes, he did.
Q Did the City Council have that written report in .its possession during the time that these various meetings were held?
A Yes, sir.
Q In that written report, in his opinion, he stated the property was enhanced in value at least to the extent of $2,233 per front foot?
A Yes, he did.”

We also quote the following testimony of Mr. Andrews:

“Q Mr. Andrews, you know that Mr. Page’s land has always been used for farming purposes, don’t you?
A I think that is right.
Q Are you telling this Jury that that thirteen acres of land owned by Ed Page has always been used for farm purposes and that by paving this street that it is going to enhance the value of that property by three hundred dollars an acre; is that what you are telling this Jury?
A I think so, yes, sir.
Q You are telling this Jury then merely by paving eight hundred and thirteen feet down in front of the land belonging to Mr. Holder and his sister, that just the paving itself, curbing and guttering, is going to increase the value of that property which is being used for farm purposes by sixty dollars an acre?
A Yes, sir, we certainly think so.
******
Q Mr. Andrews, you don’t mean to look this Jury in the face and tell them considering this farm land with which it has been used for all these years when there was an all-weather road in front of the Holder property, merely paving and putting in curbing and guttering, you are not going to look this Jury in the face and tell them, considering it as farm land that it would enhance the value of that land sixty dollars an acre, are you?
A Mr. Kuykendall, I am not going to try to tell this Jury anything. I have already said—
Q I want you to answer my question, please, sir.
A I’m answering it now. I’m not going to tell this Jury anything. The Jury will decide for themselves whether they think it is farm land or what it might be. If you want to put this in farm land I will directly tell you now I don’t think it will enhance it as farm land.
‡ * * * * H*
Q At the time of the assessment you did not consider the land as farm land—
A That is right.
Q —in arriving at the enhancement of the value?
A That is right.
Q What did you consider it as?
A I figured it had possibilities for many things, any kind of a development program.”

An aerial photograph of the City of Lockhart shows that the Page and Holder properties are beyond the improved sections of the City. There are improvements on blocks which adjoin the Holder property on the north and east. The Holder property is separated from the Page property by a “new” Lockhart public school. The Page property which is further out from the City than the Holder property and to the southwest has no improved property adjoining it except a few houses to the east.

In City of Dallas v. Firestone Tire and Rubber Co., Tex.Civ.App., 66 S.W.2d 729, Dallas, writ ref., the Court, in a suit to set aside a special benefit assessment levied by the City against property abutting a street which was widened and straightened held that the enhanced value of such abutting property as a result of such street improvements must be determined under the same rules by which the value or property is determined in other connections, the Court adopting this rule from Union St. Ry. Co. v. City of New Bedford, 253 Mass. 304, 149 N.E. 42. The Court defined this rule in these words:

“ ‘The benefit is found by deciding how much has been added to the fair market value of the property, where such property has a fair market value, and where it has no market value, as in the case of street railways * * * by deciding how much has been added to the fair value of its property with reference to all the uses to which it is reasonably adapted and for which it is available. In reaching such decision, reasonable probabilities for future use, either by the owner or others, if sufficiently near in time and definite in kind to be of practical importance, may be considered.’ In re Paving Streets in Floyd Park Addition, Sioux City, 197 Iowa, 915, 196 N.W. 597, 599, the Supreme Court of Iowa used the following language in point: ‘Indeed, the benefits to be derived in such cases are ordinarily not instant upon the inception or completion of the improvement, but materialize with the developments of the future. They are none the less benefits because their full fruition is postponed, or because the present use to which the property is devoted is not of a character to be materially affected by the improvement.’ ”

One other “connection” in which the value of property is ascertained is in condemnation suits. Here the rule in considering future uses of the property in determining market value is held to “exclude consideration of purely speculative uses to which the property might be adaptable but wholly unavailable but would permit consideration of all uses to which the property was reasonably adaptable and for which it was, or in reasonable probability would become, available within a reasonable time.” City of Austin v. Cannizzo, 153 Tex. 324, 267 S.W.2d 808. The Court also quoted with approval from other authorities this statement of the rule: “‘To warrant admission of testimony as to the value of land for purposes other than that to which it is being put at the time of the taking, it must first be shown: 1. That the property is adaptable to the other use. 2. That the other use is reasonably probable within the immediate future, or a reasonable time. 3. That the market value of the land has been enhanced thereby.’ * * * ‘Exceptional circumstances will modify the most carefully guarded rule; but, as a general thing, we should say that the compensation to the owner is to be estimated by reference to the uses for which the property is suitable, having regard to the existing business or wants of the community, or such as may be reasonably expected in the immediate future.’ ”

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

Appellee relies, exclusively it seems to us, upon the testimony of Mr. Blake, which we have set out above, to supply substantial evidence reasonably supporting the judgment of the Court. Considering the testimony of Mr. Blake as a whole, as well as the other testimony in the record, we are of the opinion that the record does not contain substantial evidence to reasonably sustain the finding of the City Commission of Lockhart that the Holder and Page properties would be enhanced in value by the street improvements in a sum at least equal to the cost of the improvements assessed against the owners and the implied finding of the trial court to this effect.

Our reason for this holding is that it is undisputed that such lands considered for farming only will not be enhanced in value by such street improvements and that its use for other purposes is shown to be too remote in time and too speculative to warrant its consideration in determining enhancement of values attributable to the street improvements.

Mr. Blake did flatly state that the Holder land would be enhanced in value by the street improvements to the extent of the assessment. His explanation of this opinion on examination by appellants seems to be based on wishful thinking or upon assumptions for which there is no eviden-tiary support. At least, his statement that he would like to have two acres of the Holder land fronting on the street “where I got sewer and water down in front of it and add eighteen hundred dollars to it and sell nine lots for seven hundred dollars” is meaningless to us, as we do not understand it. It is certainly without factual support.

It is quite clear, however, that Mr. Blake did not retract his testimony that there was no reasonable probability that in the immediate future the Holder property as a whole would develop into residential property; although, he did express an opinion that two acres, or %i, of it “could be” so developed. He made no similar statement regarding the Page property.

We hold that the substantial evidence in this case is to the effect that the property of the appellants will not be needed by the community in which it is located for other than farm purposes before the lapse of at least eight to ten years.

We hold, as a matter of law, that this expected utilization of such land for other than farm purposes is remote; that such use is not expected within the immediate future; and, that its expected use for such other purposes is not within the reasonable future.

While the parties make no effort to connect the improvement of these streets with the nearby new highschool which has frontage on Center Street and is reached by Medina Street, their coincidence indicates that the street improvements were for the benefit of the public generally and not for the special benefit of the abutting property owners.

It is our opinion that the ordinance in suit is arbitrary as to these appellants, and, as to them it is invalid and unenforceable.

The judgment of the trial court is reversed and judgment is here rendered holding the assessments made by the City of Lockhart against these appellants and their properties as indicated by the ordinance described in appellants’ suit to be and the same are hereby declared void and unenforceable.

Reversed and rendered.

ARCHER, C. J., not participating.

      . Involved here was Art. 1209, R..S.1925, Acts 1923, p. 4, which is similar to See. 9, 1105b in respect to the issue before us.


source: Caselaw Access Project

author: CHAPMAN, Justice.

license: Public Domain

text:
    Billie Charlene FLOWERS, Appellant, v. R. A. FLOWERS, Jr., Appellee.
    No. 7535.
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 8, 1965.
    Rehearing Denied Dec. 6, 1965.
    Gibson, Ochsner, Harlan, Kinney & Morris, Amarillo, for appellant.
    Gordon, Gordon & Buzzard, Pampa, James S. Robinson, Canadian, for appellee.
   CHAPMAN, Justice.

The subject matter of this suit involves a question of the disqualification of a juror in a child custody contest tried to a jury, the question of which side of the controversy was entitled to open and close and the refusal of the trial court to hear the mother’s proffered witnesses upon the question of divorce after agreement of the parties to leave that question for determination by the court.

This case was tried in a town and county of very small population where the record shows many members of the jury panel had heard what they referred to as gossip or rumors concerning the case. The parties to the suit are Billie Charlene Flowers, plaintiff below, the mother; and R. A. Flowers, Jr., the father. The victims of the unfortunate broken home are three little girls ranging in ages from two to ten at the time of the filing of divorce by their mother in January 1964.

The court’s ruling upon appellant, Billie Charlene Flowers’ contention of the disqualification of the juror, Mrs. E. J. Schmidt, is based upon three points, to-wit: (1) the trial court’s error in overruling her challenge for cause; (2) in overruling her motion for mistrial and refusal to hear evidence in support thereof; and (3) in refusing her motion for new trial on the same ground.

The jurors were told on voir dire examination that the evidence would show that plaintiff drank some socially and on one or two occasions had consumed alcoholic beverages to excess. They were questioned as to whether that fact standing alone would prejudice them against her as a fit and proper person to have custody of the children.

The record preserved upon examination of Mrs. Schmidt as a prospective juror shows that she first testified she was well acquainted with the Flowers family, belonged to the same Baptist church they did in the little town of Miami, and that she had no opinion formed in the case at all. Then when counsel said to her the evidence will show “that Billie does drink upon social occasions with the crowd at a dance, or something of that sort, she would have a highball or cocktail, and it will show on one occasion that she had too much, or two times had too much, what is your attitude — ,” she answered:

“A. I am against drinking in any manner, any kind.
Q. Any way or any fashion at all?
A. Any type.
Q. Mrs. Schmidt, that would definitely affect your judgment in the case wouldn’t it?
A. If the evidence was true.
Q. Could you enter the — you would take a seat as a juror with a positive feeling that any drinking whatsoever is wrong, and it is bad so far as the mother of these little girls is concerned, — ■
A. Anybody else.
Q. If the evidence shows Billie has had one drink or two — drinks at a social occasion, you would hold that against her?
A. I don’t approve.”

The court then took over the examination and asked her a number of questions, one of which was:

“Q. Well, are you saying by that, Mrs. Schmidt, that you wouldn’t grant either party to this law suit custody of their children if they drank ?
A. lam.”

The court then turned to leading questions to the juror as to her attitude about passing upon whether the mother was a fit person to have the custody of the girls, saying:

“Q. Dependent upon the testimony you hear in a trial; the mere fact that she got drunk a few times and threw a conniption fit or something, you wouldn’t hold that against her and think she wasn’t—
A. Not especially.”

The court then overruled the challenge of the juror for cause.

The record also shows by affidavit of a lady juror panelist who sat next to Mrs. Schmidt during voir dire examination that Mrs. Schmidt stated “ * * * she felt sorry for R. A. Flowers, Jr. and that you had to admire a man that would go on to Sunday School and church after what had happened to him.” Mrs. Philpot’s affidavit also affirmed that Mrs. Schmidt made a statement to one of the other prospective jurors sitting next to her before the jury was selected that Billie Flowers had run off and left R. A. Flowers, Jr. once before and that both of such statements were made before she was selected and sworn to serve as a juror.

At both the motion for mistrial and motion for new trial based partly upon the proceedings just related, the court declined to hear Mrs. Philpot’s tendered testimony as a witness in support of her affidavit. Upon the hearing of the motion for new trial Mrs. Flowers’ attorney testified there were eleven jurors, including Mrs. Schmidt, who were undesirable to the plaintiff and that if Mrs. Schmidt on voir dire had correctly stated her attitude reflected by Mrs. Philpot’s affidavit, they would have exercised a peremptory challenge as to her rather than as to some other juror. In support of such testimony and the affidavit of Mrs. Philpot the jury list upon which prospective cuts had been marked was introduced into evidence, verifying the attorney’s testimony.

Article 1, Section 15 of the Texas Constitution, Vernon’s Ann.St. guarantees the right to trial by jury, which our courts have held to be an impartial jury. Rhoades v. El Paso & S. W. Ry. Co., 248 S.W. 1064, 27 A.L.R. 1048 (Com.App. opinion adopted).

Article 2134, Vernon’s Ann.Tex.Civ.St., provides as one of the disqualifications: “Any person who has a bias or prejudice in favor of or against either of the parties.”

This disqualification for bias or prejudice extends not only to the parties personally, but also to the subject matter of the litigation. Rhoades v. El Paso & S. W. Ry. Co., supra; Compton v. Henrie, Tex., 364 S.W.2d 179.

In defining the terms “bias” and “prejudice” as used in Article 2134 our Supreme Court in the HENRIE case just cited has said:

“Bias, in its usual meaning, is an inclination toward one side of an issue rather than to the other, but to disqualify, it must appear that the state of mind of the juror leads to the natural inference that he will not or did not act with impartiality. Prejudice is more easily defined for it means pre-judgment, and consequently embraces bias; the converse is not true. The establishment of such a state of mind would disqualify Fugate from serving on this jury as a matter of law. It is only where there are grounds for disqualification other than those provided for in the statute that the discretionary powers of the trial judge may be exercised, for a disqualification under Article 2134 does not involve a matter of discretion, but a matter of law.”

Mrs. Schmidt’s statements indicate to us both bias and prejudice factually and such a prejudgment of the case as to indicate she could not have acted with impartiality. If we are correct in this factual conclusion then under the authorities just cited her disqualification is not a matter of discretion with the trial court but a matter of law. We believe the record compels such holding on our part, and that she was, as a matter of law, disqualified under Article 2134, Section 4 to serve on the jury and that the trial court should have permitted the challenge for cause. Compton v. Henrie, supra.

Even if we are in error in our pronouncements in the preceding paragraphs, it cannot be gainsaid that the record shows bias and prejudice on the part of Mrs. Schmidt toward plaintiff and toward her alcoholic consumption her attorney admitted would be shown before the examination of the jury on voir dire. From the viewpoint of this writer, such feelings on the part of Mrs. Schmidt are to her credit even if it did disqualify her as a juror. But even if under the facts of this case bias or prejudice was a fact to be determined by the trial court, those feelings having been clearly established, her answer of “Yes, sir” to a leading question to the effect that she would be able to decide the case on the evidence submitted, should be disregarded. Lumbermen’s Insurance Corporation v. Goodman, Tex.Civ.App., 304 S.W.2d 139 (N.R.E.); Kansas City Life Ins. Co. v. Elmore, Tex.Civ.App., 226 S.W. 709 (N.W.H.); Texas Cent. R. Co. v. Blanton, 36 Tex.Civ.App. 307, 81 S.W. 537 (N.W.H.). In any event we believe the court abused its discretion in refusing to hold the juror disqualified.

In Swap Shop v. Fortune, Tex., 365 S.W.2d 151, 154, our Supreme Court in speaking of the cases just cited, said:

“We have no quarrel with this statement of the law. * * * The trial court found as a fact that there was no bias or prejudice on the part of the juror. The evidence does not establish the existence of bias or prejudice as a matter of law.”

Truly, the facts of that ease do not, but we believe the facts of our case do.

“In cases involving juror disqualification the Complainant need not establish that probable injury resulted therefrom before a new trial may be granted.” Compton v. Henrie, supra. However, under this record probable injury is established by the proof that there were other jurors who, under the known facts at the time the challenges were exercised, were less desirable than Mrs. Schmidt.

Even if we should be in error in all we have heretofore said, there is another good reason we believe this case must be reversed, because the plaintiff carried the burden of the proof upon the whole case but was denied her right to open and close the argument. There were ten witnesses who testified for Mrs. Flowers and about the same number who testified for Mr. Flowers. The statement of facts constitutes 459 pages. In a case of this nature the right to open and close the argument, we believe, is a very valuable one. This right is controlled by Rules 266 and 269, Vernon’s Ann.Texas Rules of Civil Procedure. Unless one or more of the exceptions provided for in the two rules just mentioned exist, the plaintiff, with the burden of proof made by the issue or issues submitted, has the right to open and close in adducing the evidence and in the argument. Plaintiff pleaded that she was a fit and proper person to have the custody of the children. The issue asked placed that burden on her in the following form: “Do you find from a preponderance of the evidence that plaintiff, Billie Charlene Flowers, is a fit and proper person to have the care and custody of her minor daughters ?”

The court permitted her to develop her testimony first and then refused her the right through her counsel to open and close the argument, despite the fact there were no admissions made by defendant tinder Rules 266 and 269. This refusal is properly preserved in the record.

Numerous cases have held that it is reversible error to wrongfully deprive one of the valuable right to open and close the argument where the burden is placed on the person complaining of such refusal. Meade v. Logan, Tex.Civ.App., 110 S.W. 188 (writ refused); Producers’ Oil Co. v. State, Tex.Civ.App., 213 S.W. 349, 354; Rector v. Evans, Tex.Civ.App., 278 S.W. 924; 6 S.W.2d 105, 107 (Com.App.); Stolphor v. Bowen Motor Coaches, Tex.Civ.App., 190 S.W.2d 376, 380 (error refused W.M.).

The most important controversy in this case was obviously the custody of the children but the court still had the question of divorce to decide. It was agreed at the outset, with the court’s approval, that only the evidence and issues bearing upon child custody would he presented to the jury, with divorce, support and property rights left to the court. When appellee’s attorney sought to elicit testimony relating to grounds for divorce the court sustained objections thereto. Then after the jury had answered the issues on custody of the children, the court refused to hear any testimony upon the divorce question.

Having served many years as a trial judge, this writer can understand how provoking such cases can be and how the court’s patience is put to test in cases of this nature. Yet, it is still a part of the duties incident to the position and the parties are entitled to their day in court. We believe an accumulation of all the errors compels a reversal of this case.

It would be a different question if the jury’s verdict was only directory in the child custody matter, but since Article 4639a now leaves the jury verdict mandatory and gives the court no discretion except to follow the jury’s verdict, we feel the mother is entitled to a fair trial on that question. We do not believe one can study this record, without concluding that she did not receive such a trial.

Though we are not prejudging another trial in that county, this record would indicate extreme difficulty in securing a fair trial by a jury in that small populated county where so many jurors have heard rumors and gossip concerning the case.

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

      . The statement “of the law” had reference to the holdings of the Courts of Civil Appeals * * * “that where a juror is biased or prejudiced Ms affirmation ‘that he can set this aside and try the case fairly upon the law and the evidence’ should be disregarded.”


author: NORTHCUTT, Justice.

text:
    In re C. J. FRANTZ, Sr., and Sarah F. Frantz.
    No. 7527.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 25, 1965.
    Rehearing Denied Nov. 22,1965.

      Linn & Helms, Spearman, Gene E. Steed, Perryton, for appellants.
    Gordon, Gordon & Buzzard, Pampa, for appellee.
   NORTHCUTT, Justice.

In this case petitioners-appellants sued as interested parties and next friends of C. J. Frantz, Jr., and his wife, Sarah H. Frantz, both incompetent, to have Kenneth Frantz removed as guardian of the persons and estates of C. J. Frantz, Sr. and Sarah F. Frantz. The case -was tried before the judge without a jury and judgment granted in favor of the defendant-guardian thereby refusing to remove him as guardian. From that judgment the petitioners-appellants perfected this appeal.

By appellants’ first point of error it is contended the court erred in not removing Kenneth Frantz as guardian because the record was uncontroverted that the wards were residents of Texas and their principal estate was in Texas and that Kenneth Frantz at the time of the trial was a resident of the State of Oklahoma, same being ground for removal per se under Subsection (4) of Section 222(a) of Chapter 7 of the Texas Probate Code, V.A.T.S.

It is there provided the court may remove without notice any personal representative appointed under the provisions of the code who: “Absents himself from the State for a period of three months at one time without permission of the court, or removes from the State.” If the court has a right to appoint a non-resident as guardian and he is in the state at least every other week and sometimes every week, such provisions would be of no effect. Kenneth Frantz was appointed guardian in February 1964. This case came on for hearing on November 12, 1964. At the time he was appointed guardian he was a resident of the State of Oklahoma and has continued to be a resident of that state at all times since his original appointment. He lives about seven or eight miles over the Texas line.

We have not been cited to a case passing upon the point here involved and neither have we found one. It is to be noticed that the original suit was brought in the county court on July 21, 1964, to have the guardian removed without notice. However, a citation was issued on that same day commanding any sheriff or constable within the State of Texas to summon Kenneth Frantz to appear before the county court of Ochiltree County, Texas, by filing a written answer to the application to remove him as guardian and to appoint a new guardian. The sheriff’s return shows it was served upon C. J. Frantz, Sr., and Sarah Frantz in Texas County, Oklahoma. We assume this was the way the guardian learned of the application to remove him as guardian. The guardian filed his answer in reply to the application to remove him as guardian. On October 9, 1964, the county court of Ochiltree County entered its order denying the application to remove Kenneth Frantz as guardian. The county court did not act upon the application without notice but acted after the guardian had filed his answer to the application for removal.

Article 4111 was amended in 1929 by adding’ Subsection 6 as follows: “Providing no guardian shall be a non-resident of Texas.” Article 4111 was repealed by the 54th Legislature in 1955 and enacted what is known as the Probate Code. Section 110, Chapter 5 of the Probate Code provides that certain persons shall not be appointed guardian but does not provide that a non-resident of Texas cannot be appointed guardian. Consequently, we are of the opinion, and so hold, that since Article 4111 was repealed and Section 110, Chapter 5 of the Probate Code does not provide a non-resident of Texas cannot be appointed guardian with no provision therein for preserving that no guardian could be a nonresident of Texas, that- that provision terminated. The State v. Andrews, 20 Tex.Reports 230; Wiseman v. State, Tex.Civ.App., 94 S.W.2d 265 (writ refused), and the cases there cited. By appellants’ second point of error it is contended the court erred in not removing Kenneth Frantz as guardian because the record is uncontroverted that Kenneth Frantz at the time of the trial had absented himself from the State of Texas for a period of over three months without the permission o'f the county court: The appellants were relying upon Section 222 (a) (4), Chapter 7 of the Probate Code. That provision concerns removal “without notice.” Section 222(b) concerns removal “with notice” and does not contain Subsection (4) as contained in Section 222(a). The undisputed record shows that the guardian was in the State of Texas at least every other week and sometimes every week. It is also to be noticed that Sections 222(a) and 222(b) provide the court may remove and does not provide shall remove. (Emphases ours.) We overrule appellants’ first two points of error. The remaining points of error concern the action of the guardian in failing to properly care for C. J. Frantz, Sr. and Sarah J. Frantz and not looking after and caring for their ■ estate. The county judge and the district judge both have held contrary to that contention. No findings and conclusions were requested or filed by the trial court. Hence it is our duty to affirm the judgment as sustained upon any reasonable theory supported by the evidence and authorized by law. Connor v. City of University Park, Tex.Civ.App., 142 S.W.2d 706 (writ refused); E. L. Farmer & Company v. Burkett, Tex.Civ.App., 324 S.W.2d 890; Atlas Assurance Co. v. Houston Fire & Casualty Ins. Co., Tex.Civ.App., 324 S.W.2d 943 (writ dismissed). We have carefully considered all of appellants’ assignments of error and overrule the same.

Judgment of the trial court is affirmed.


author: WILSON, Justice.

text:
    W. A. JENNINGS, Jr., Appellant, v. TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellee.
    No. 4393.
    Court of Civil Appeals of Texas. Waco.
    Sept. 30, 1965.

      Bob J. Spann, McDonald & Spann, Corpus Christi, for appellant.
    James W. Wray, Jr., Lewright, Dyer & Redford, Corpus Christi, for appellee.
   WILSON, Justice.

The only question in this workmen’s compensation case is whether the jury’s finding of claimant’s average daily wage before his injury is supported by any evidence of probative force. We hold it is, and affirm.

The jury found the average daily wage was $20. The claimant says the only evidence on the issue is his testimony that he worked 251 days in the year before he was injured, during which he earned $5,685, and as a matter of arithmetic a finding of $22.65 as an average daily wage was required.

Claimant testified at one point that he “worked 251 days” in the preceding twelve months. He qualified this evidence however by stating that his method of estimation was to “just go back and just sort of calculate what an average day — what your daily wage was — and figure out how many days” from withholding tax statements showing wages received; that his computation was “a relative guess”; that he calculated the number of days “figured upon my wage statements, or withholding slips, figuring the amount of the check more or less by the wage rate. It is not figured by the days and hours of the week.” He estimated the number of days by dividing. Appellant’s obj ection to the exhibit concerning the calculation was that “it is obviously a weak calculation.” There is other evidence as to specific wages from which varying estimates are authorized, and which will support the jury finding.

If the testimonial declarations of a party, though adverse to his interests, are to bar his recovery, or be held to be conclusive admissions, they must not be merely contradictory of some other portion of his testimony; and they must be deliberate, clear, and unequivocal. Robinson v. Ashner, Tex.Sup., 364 S.W.2d 223, 226; United States Fidelity & Guaranty Co. v. Carr, Tex.Civ.App., 242 S.W.2d 224, 229, writ ref. The testimony of claimant is not within these rules. Affirmed.


author: DAVIS, Commissioner.

text:
    GREEN VALLEY COAL COMPANY, Appellant, v. Arlie CARPENTER and the Workmen's Compensation Board, Appellees.
    Court of Appeals of Kentucky.
    Dec. 17, 1965.
    Robert L. Milby, Hamm, Taylor & Milby, London, for appellant.
    Lester H. Burns, Jr., Manchester, Charles M. Tackett, Lexington, for appellees.
   DAVIS, Commissioner.

Appellee, Arlie Carpenter, obtained an “open-end” award based on a finding by the Workmen’s Compensation Board that appellee was totally disabled (at the date of the Board’s award, November 9, 1964). The Board found that it could not determine, “with any degree of medical certainty, the degree of the permanency of * * * disability,” and provided that the matter may be re-examined pursuant to KRS 342.-125. The Board’s award was affirmed in the circuit court, precipitating the present appeal, wherein appellant advances four alleged errors as warranting reversal: (1) The amount of the award was greater than authorized by statute and proof; (2) the Board erroneously determined the former occupational classification of appellee; (3) the Board erroneously failed to require an apportionment of liability as prescribed by KRS 342.120; and (4) the appellee failed to timely give notice of his injury.

The appellee testified that on January 26, 1963, while he was engaged in his employment for appellant company, shoveling debris resulting from a collapse of a drift mouth, he “ * * * felt a sharp pain in his back.” He finished the day’s work. We are not told at what hour he experienced the pain. Appellee returned to work the next day, feeling all right, and continued to work for “about a week” when he had a pain “start in my hip here,” he said. Nevertheless, he worked “about another week” at which time his discomfort impelled him, on February 11, to consult Dr. Stanley Ham-mons in Manchester. Dr. Hammons did not testify in the hearing before the Board.

Dr. Hammons referred appellee to Dr. W. K. Massie, an orthopedic surgeon at Lexington. It was on February IS, 1963, that appellee was first examined by Dr. Massie. Upon his original examination, Dr. Massie gained the impression that appellee had a prolapsed disc at L4-5 (in the space between lumbar vertebrae four and five). However, a discogram disclos'ed the suspected area to be normal, with the entire trouble at L-5, S-l space — the space between the fifth lumbar vertebra and the sacrum. Dr. Massie performed surgery upon appellee on February 21, 1963, during which operation the disc at L-5, S-l was removed. The removed disc was described by Dr. Massie as a “prolapsing disc.” A fusion was performed at L-5 to the sacrum. Appellee remained hospitalized from February 15 to March 2, 1963.

Appellee was seen by Dr. Massie as an out-patient, beginning on March 8, 1963, at intervals about one month apart. Dr. Massie observed that the fusion procedure was satisfactory, and the patient made reasonable progress in recovery. However, as late as June 29, 1964, when Dr. Massie last saw him, the appellee had not returned to any regular work. It was the opinion of Dr. Massie that appellee could return to work, but on a “temporary partial impairment basis.” As expressed by Dr. Massie: “I felt it would require considerable work reconditioning, not just rehabilitation to get this man back to normal work tolerance on an eight hour shift.”

Dr. Massie further testified that he regarded appellee as having a permanent disability, since the spinal fusion eliminated movement of one space in his back. In Dr. Massie’s opinion the percentage of impairment to the body as a whole equals 15%. However, Dr. Massie pointed out that he had seen X-ray changes in appellee’s spine which would require several years to develop; these he characterized as “degenerative changes.” It was the expressed opinion of this medical witness “ * * * that one-third, or 5 % to the body as a whole pre-existed his injury, and two-thirds, or 10%, to the body as a whole was a direct result of his injury.” It was recognized by the doctor that appellee had worked “asymptomatically” prior to the injury— that is to say, that his prior condition had been quiescent and non-disabling. It should be noted that Dr. Massie expressed the view that appellee could have worked as a truck driver as early as November, 1963, although his evidence leaves the impression that in any event the appellee would have to gradually adjust himself to work — he could not be expected to re-enter performance of full time regular heavy work duties.

Opposing this, appellee said that he had driven a truck on a few occasions since the operation, but that this caused him extreme discomfort. When asked why he could not drive a truck, he responded: “Because I have to brace myself and hold myself up. My leg is weak, and I can’t jump in and out and load one.”

Dr. Marion G. Brown testified for ap-pellee, but this witness did not examine appellee until February 18,1964 — more than a year after the injury complained of. Dr. Brown made X-rays of appellee and expressed the opinion that the fusion at L-5, S—1 appeared solid. Dr. Brown made this summary: “This patient has a K-5 disc operation and very good fusion following this and I can see no reason why he should not be able to be rehabilitated with a reasonable chance of returning to his regular work.” Dr. Brown stated that the requisite rehabilitation had not been achieved when he examined appellee. Dr. Brown estimated that appellee is permanently partially disabled to the extent of 15% to 20% to the body as a whole. Dr. Brown stated that in his judgment all of this disability was due to the injury. The doctor further said that in his judgment appellee was temporarily totally disabled at the time of the examination in February, 1964.

On the critical question whether any of appellee’s disability could have arisen from a pre-existing condition, Dr. Brown stated that he had not seen the prior X-rays of appellee and, therefore, could not evaluate the status of his spine prior to the accident. After remarking upon the fact that appellee had been able to work without discomfort before the accident, Dr. Brown continued: “However, the injury event had he had a perfectly normal back might not have caused as much disablement. It brings up the point of whether some pre-existence might be a factor in this case and if the X-rays that were made after the injury were made available to me I could probably throw a little more light on the subject.”

We turn to the first question raised by appellant—whether the award of $38.00 per week was justified. The point rests on the evidence of appellee that he earned $1.25 per hour and worked “forty sometimes forty-five” hours per week. By the terms of KRS 342.095, in force at the pertinent period, the award may not exceed 65% of the worker’s average wage, with a ceiling of $38.00 per week. Accordingly, appellant argues that in no event should ap-pellee have an award in excess of $32.50 (computed on a forty-hour week). Appel-lee concedes that he is not entitled to $38.00 per week, but asserts that he is entitled to $36.56—based on a forty-five hour week. In light of KRS 342.140, which defines “at full time” as “a full working day for five days in every week of the year regardless of whether the injured employee actually worked all or part of the time,” we concur with the view advanced by appellant and hold that the award’s maximum should have been at the rate of $32.50 per week. (Based on forty hours per week @ $1.25 per hour, to which is applied the 65% factor.)

We do not consider that the Board erred in respect to the former occupational classification of appellee. It is true that he had worked as a mine employee for only about two years just before his injury, and that he had worked as a truck driver for somewhat longer. There is other evidence indicating that he may have done farm work also. It is apparent, however, that his occupational classification was in the mining industry and his capacity to perform other kinds of work is impaired. Really, the occupational classification for appellee may be said to be “heavy labor.” That he is impaired in its performance is undisputed. This view is supported by our decisions in Clark v. Gilley, Ky., 311 S.W.2d 391; Leep v. Kentucky State Police, Ky., 366 S.W.2d 729, and E. & L. Transport Co. v. Hayes, Ky., 341 S.W.2d 240, 84 A.L.R.2d 1102.

The third challenge to the judgment presents a more difficult problem. The Board made no apportionment of liability as between the appellant employer and the Subsequent Injury Fund. KRS 342.120. Apparently, the Board concluded that the evidence of Dr. Brown was adequate to support a finding against apportionment— or else the Board considered that the question of apportionment should be postponed until the temporary total disability had terminated. It is our view that the question of apportionment must be resolved, because the testimony of Dr. Brown is not of the quality to offset the forthright testimony of Dr. Massie. It will he recalled that Dr. Brown admitted frankly that he was not in position to evaluate the question of preexisting disease condition because he had not had opportunity to examine the X-rays made just after the injury. Opposing this, Dr. Massie did examine the patient and the X-rays just after the injury and gave an unequivocal opinion that one-third of the disablement was attributable to the preexisting condition. In this state of case, the evidence of Dr. Brown will not serve to refute the evidence of Dr. Massie. Rudder v. Ohio State Life Insurance Co., Ky., 389 S.W.2d 448; Grimes v. Goodlett & Adams, Ky., 345 S.W.2d 47.

The testimony of Dr. Massie does leave question, however, whether the “degenerative process” he described' may be equated with a “disease condition” as referred to in KRS 342.120(1) (b). Many varied definitions of “disease” appear in the decided cases. Cf. Words & Phrases, “Disease”. We think our decisions warrant the conclusion that the degenerative process described by Dr. Massie is equatable with “disease condition.” It is to be noted that we have said that “industry takes a man as it finds him” — that the benefits of the Workmen’s Compensation Act are not restricted to employees in prior good health. See Inland Steel Co. v. Mullins, Ky., 367 S.W.2d 250, and authorities there cited and discussed.

Turning to the question of timely notice, we hold that the notice given in this instance was sufficient. The appellee did not know — nor could he be expected to know — the cause and source of his discomfort. As soon as he had a diagnosis of it from a competent physician he did notify his employer; this notification occurred less than a month after the injury. The rationale of Inland Steel v. Mullins, Ky., 367 S.W.2d 250, on the question of notice is dispositive of the point here.

The judgment is reversed with directions to remand the case to the Workmen’s Compensation Board for appropriate adjustment of the weekly benefits to a sum not exceeding $32.50; for appropriate procedure looking toward an apportionment of liability, and for such further procedures as may be proper respecting the duration of temporary total disability.


author: PALMORE, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Pattie J. TEATER et al., Appellees.
    Court of Appeals of Kentucky.
    Dec. 17, 1965.

      Robert Matthews, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., John E. Smith, Lexington, for appellant.
    Henry C. Cox and Eagle & Cox, Lancaster, for appellees.
   PALMORE, Judge.

This is a highway condemnation proceeding in which the state appeals from a judgment awarding the landowners $7,500 for a 4.69-acre strip extending through the middle of their 166-acre farm.

The arguments in support of the appeal are (1) that the trial court erred in refusing to strike the testimony of Hogan Teater, one of the owners, and of C. M. Hulette, another witness; (2) that the state was prejudiced when counsel for the owners in his closing argument called one of the jurors by name; and (3) that the award was excessive.

The farm adjoins the south city limits of Lancaster and fronts for some distance on the west side of Kentucky 39, a highway leading south toward Crab Orchard. U. S. Highway 27, which runs southwestwardly from Lancaster to Stanford, is located to the west. A 76-acre tract of land recently bought for industrial development separates the Teater place from U. S. 27. The strip of land taken in this case is 100 feet wide and 1800 to 2000 feet long and is part of the right-of-way for a two lane east-west bypass road connecting Kentucky 39 and U. S. 27. With respect to the Teater farm, it leaves 86}4 acres and all the improvements on the north and 75 acres of unimproved pasture land on the south. There will be several cuts and fills and five places at which the new road will be at grade level. The jury found the property to have been worth $74,700 ($450 per acre) before the taking and $67,200 (about $417 per acre) after completion of the project.

Two valuation witnesses for the state estimated that the affected property was worth $51,800 and $52,000 before the taking and $49,000 and $49,210 afterward. In round figures, the before values given by witnesses for the owners ranged from about $74,000 to $108,000 and their after values from $68,425 to $100,000.

Although the before values given by the respective sets of witnesses were materially different, it could not be reasonably maintained that the jury’s judgment of $74,700 was not supported by substantial evidence. The significant aspect of the dispute centers on the situation existing • after the taking. Here the state witnesses felt that whereas before the taking the property’s highest and best use was for farming purposes, the new road would make it suitable for subdivision. On the other hand, all of the witnesses for the owners were of the opinion that there is little or no prospect for subdivision development in the near future and that farming continues to be its highest and best use. Considering the verdict in the light of those inferences the jurors were reasonably permitted to draw from the conflicting evidence, it is apparent that they chose the latter viewpoint.

The principal complaint with respect to Mr. Teater’s testimony is that it was based to such extent on improper valuation factors and methods that the various admonitions given by the trial court were not sufficient to assuage the prejudice resulting from the jury’s having heard it. Cf. Com., Dept. of Highways v. Tyree, Ky., 365 S.W.2d 472 (1963). Specifically, it is contended that he estimated separately the value of the 4.69 acres taken and the resulting diminution in value of the remainder, a method no longer permissible since Com., Dept. of Highways v. Sherrod, Ky., 367 S.W.2d 844, 854 (1963), and that in assessing the diminution he used improper factors such as the necessity of hiring help to move livestock back and forth across the new road or else building facilities for keeping stock on the 75-acre portion which heretofore has been unimproved, the cost of fencing, and the inconvenience of operating back and forth across the road.

Mr. Teater did say that the taking would cut the value of the remainder by $50 per acre “besides the 4.69 acres that it is taking,” and the trial court promptly admonished the jury as follows:

“The jury will not consider that answer he just made. I ask you, Mr. Teater, to tell the jury what you think the farm was worth after it was known the road was going through [sic], the fair market value, not as to the acreage taken, not as to the reduction, but the sum of money you think it would bring on the fair market?”

—to which the witness replied that he thought it would bring $8,000 less. He had theretofore stated his opinion that the value of the whole farm before the taking was $655 per acre.

In view of the admonition and ensuing answer we do not believe there was a separate valuation of the land taken and damages to the remainder. If a witness says a tract was worth $108,000 before the taking and $8,000 less than that afterward, he has substantially complied with the simple “before and after” principle. Moreover, since a reduction of $50 per acre would itself total $8,050 for the 161-acre remainder tract the witness could not possibly have reached his estimate of $8,000 by adding $655 per acre for the 4.69 acres taken plus $50 per acre damage to the remainder.

All of Mr. Teater’s testimony relating to the anticipated inconvenience and difficulty of farming back and forth across the new road was competent. In fact, in some instances the trial court may have gone further than necessary in admonishing the jury. Except for the cost of new fencing, the witness made no attempt to evaluate or put price tags on these factors. Assuming that the bisected 161 acres remain more valuable as a single farm rather than two (which is fairly inferable from the evidence of Teater and his other witnesses), disadvantages and inconvenience that a prospective buyer would encounter in farming the unit efficiently have a direct bearing on what he would pay for it. As pointed out in Sherrod and in the recent case of Com., Dept. of Highways v. Burns, Ky., 394 S.W.2d 923 (1965), though not recoverable as items of damage they still may be relevant to the question of residual value.

The state’s witness Green testified that his estimate took into consideration that 230 rods of fencing would be required. When Teater stated that it would cost $1,500 the trial court admonished the jury as follows:

“That is not competent testimony as to what it costs to fence it and the jury will not consider it, and you will also not consider the use these particular owners are making of this property. The only question here is the value before and after the taking.”

The appropriate admonition in such a case should be to the effect that the jurors are to consider the evidence only to the extent, if any, that it may affect the price a willing buyer would pay and a willing seller would take for the property. This particular admonition therefore was more favorable to the state than it should have been.

Our conclusion with respect to the Teater testimony is that the court did not err in refusing to strike it.

The witness C. M. Hulette said that in his opinion the whole tract was worth $475 per acre ($78,850) before the taking and that its value thereafter was reduced by $50 per acre, based on the taking of the right-of-way, the necessity for fencing and a new $3,000 barn, and the separation of one part of the farm from the other. Counsel for the state says that he did not fully understand the witness because of traffic outside the courtroom, hence did not move at once to strike. The reference to a specific cost price for a new barn was incompetent as beyond the scope of strict necessity, but if counsel did not hear it probably the jury also did not. In any event, we cannot overlook the failure to object. With regard to the remainder of Hulette’s testimony, basically the same answers apply as we have given in connection with Teater. In substance, what Hulette said was that before the taking the Teaters had 166 acres worth $475 per acre, after the taking they had 161 acres worth $50 per acre less, and the reason for the remainder’s being worth $50 per acre less was that the farm was cut in two and would need additional fencing and a new barn in order to be conveniently farmed. We think it would not have been proper to strike his testimony.

During his summation, counsel for the Teaters addressed this remark to one of the jurors (who later turned out to be the foreman): “Now, Mr. McKenzie, you know that property around here is worth more than the state has said it is.” In speaking to the jury counsel should not indulge the familiarity of addressing any of the jurors by name. Cf. Milby v. Louisville Gas & Electric Co., Ky., 375 S.W.2d 237 (1964). Without reaching the question of whether this incident was prejudicial, we observe that there is nothing in the record to suggest that an objection was raised at the time it occurred. It was certainly too late to raise it for the first time in the motion for new trial.

The contention that the verdict was excessive cannot be sustained. As we indicated at the beginning, although the opposing witnesses held widely divergent views of the initial value of the property, their differences in spread between before and after values were attributable to disagreement as to whether the remainder tract will have enhanced value by reason of prospects for subdivision. Taking the opinions of the witnesses for the Teaters, as the jurors had the right to do, an award of $7,500 is not so excessive at first blush to shock the conscience.

The judgment is affirmed.


author: STEWART, Judge.

text:
    George EMBRY et al. (and 6 other consolidated cases), Appellants, v. CITY OF CANEYVILLE, Appellee.
    Court of Appeals of Kentucky.
    Dec. 17, 1965.
    E. F. Martin, Jr., Martin & Martin, Hartford, for appellants.
    Paul M. Lewis, Hatcher & Lewis, Eliza-bethtown, Kenneth Goff, Leitchfield, for appellee.
   STEWART, Judge.

These consolidated condemnation proceedings against seven property owners seek to acquire approximately 238 acres of land to provide the City of Caneyville with a water reservoir and a recreational area. The proceedings were begun in the Grayson County Court, pursuant to an enabling ordinance. The county court entered an order on August 1, 1964, appointing commissioners, who on the same day filed their reports as to each parcel taken. On August 24, 1964, it was adjudged the City of Caney-ville had the right to condemn the land of the seven property owners upon payment of the commissioners’ awards.

Appeals were taken to circuit court by the City of Caneyville and the seven landowners. The circuit court declared the city had the right to condemn the property sought by it. The actions were then continued on the docket for jury trials “on the assessment of damages alone.” This order was finalized by compliance with the requisites of CR 54.02. On the appeal to this Court the seven cases are consolidated since the questions raised are common to all.

Appellants’ first contention is that the City of Caneyville is not a duly incorporated municipality of the sixth class; therefore, it does not possess the legal right to condemn their lands. To refute this assertion appellee has filed as an addendum to its brief a copy of Chapter 950 of the 1880 Acts of the General Assembly of Kentucky, entitled “An Act to charter the town of Caneyville, Grayson County.” This bill was enacted by the General Assembly on April 9, 1880; it was ordered to take effect from its passage; and the Act has never been repealed. “ * * * Generally, the courts regard an act which incorporates a municipal corporation as a public act, whether declared to be so or not, and will take judicial notice of such act without proof. * * *” See 20 Am.Jur., Evidence, sec. 36, p. 60. Under KRS 422.010 (1)all courts in Kentucky shall take judicial notice of all acts and resolutions of the General Assembly. See also 81.010(6) which assigns to Caneyville sixth class status.

Appellants’ second contention is that in Kentucky a municipality of the sixth class is not empowered to condemn land outside its city limits for the purpose of constructing a municipal water reservoir thereon. Appellee claims that under KRS 96.350(1) and KRS 106.010 a sixth-class city may build a reservoir on land it purchases beyond its boundaries.

It should be pointed out that under the first statutory provision, KRS 96.350(1), a sixth-class city may “purchase, establish, erect, maintain and operate waterworks,” but there is no authority for a sixth-class city to condemn land. The power of condemnation is specifically given, however, by KRS 106.010, which reads:

“Any water district * * * or any city of the second, third, fourth, fifth or sixth class may, by purchase or by condemnation, acquire, establish, erect, maintain and operate waterworks, together with extensions and necessary appurtenances thereto, and including both real or personal property within or without the corporate limits of the said water district or city, for the purpose of supplying the water district or the city and its inhabitants thereof with water.” (Emphasis added.)

KRS 96.350(1) authorizes the acquisition and operation of a waterworks but nowhere does this subsection expressly employ the words “water reservoir.” As KRS 106.010 is also phrased in terms of a waterworks project, the question that may be raised is whether “waterworks,” as used in this statute, encompasses the establishment of a “water reservoir.” Since this statute authorizes a sixth-class city to “acquire (by purchase or condemnation), establish, erect, maintain and operate waterworks, together with extensions and necessary appurtenances thereto,” it would seem to be, and we hold it is, sufficiently broad in its meaning to embrace a water reservoir.

Appellants’ third contention is that cities of the sixth class do not possess the right to condemn land outside the city limits for recreational use. Appellee maintains that KRS 97.010(1) plainly enables it to establish this type of facility either inside or outside its city limits. This subsection reads:

“The acquisition, development, maintenance and operation of parks, playgrounds and recreation centers is a proper municipal purpose for all cities and counties. The legislative body of any city or the fiscal court of any county may dedicate for use as parks, playgrounds and recreation centers any lands or buildings owned or leased by the city or county and not devoted to an inconsistent public use and may acquire real property for such purpose by purchases, lease, condemnation or otherwise, at any place reasonably accessible to the inhabitants of the city or county and either within or without the boundaries of the city or the county.” (Emphasis added.)

Appellants admit this statutory provision purports to confer upon “all cities” the right of condemnation for the purpose of providing parks, playgrounds, and recreation centers, “either within or without the boundaries of the city.” Notwithstanding the bestowal of such a broad power by the phraseology of KRS 97.010(1), appellants assert that because KRS 97.257 and KRS 97.540 expressly give this power only to first-and third-class cities, a specific grant of like power to sixth-class cities was withheld by the Legislature. If this Court were to uphold appellants’ view it would render KRS 97.010(1) completely inapplicable to a sixth-class city. We gather no such intent from the language of this statutory provision. We agree with appellee’s reasoning on this point, namely, that when the Legislature gave first- and third-class cities a special right to condemn land for recreational use it did not intend to leave KRS 97.010(1) completely ineffective and meaningless as regards all other classes of cities.

Appellants’ fourth and final contention is that appellee has failed to show any real necessity for condemning their land. This argument is premised on the erroneous conclusion that appellee had the burden of proof and did not sustain it. It has consistently been held by this Court that “[m]unicipal corporations are agencies of the state and when they declare through their constituted authorities that the taking of private property is requisite for an authorized public use, they exercise a public function and it is assumed that, as public agencies, they have carried out with wisdom and discretion the power lodged in them by the Legislature. The burden of showing the contrary is upon any person who objects to the proceeding.” See McGee v. City of Williamstown, Ky., 308 S.W.2d 795, 797; Jefferson County v. Clausen, 297 Ky. 414, 180 S.W.2d 297.

The total acreage involved in this project undertaken by appellee is 201.51 acres taken in fee simple and 36.65 acres taken by easements. Appellants complain that the amount of this taking is not only unnecessary and unreasonable, but also that other land is available which is much closer to the city. In the McGee case, cited above, this Court held that the City of Williams-town could consider reasonable future needs in condemning land on which to construct a supplemental water reservoir. On this point the opinion said at 308 S.W.2d page 796:

“It is a general principle of law that the Legislature cannot authorize the taking of property by eminent domain in excess of the particular public need involved. However, the limitation upon the amount of property to be condemned for an acknowledged public improvement may not be based solely upon present conditions and requirements but a municipality may also procure land in contemplation of such reasonable necessity as may arise in the future. * * * ”

The report of the consulting engineers reveals that this community lies in an agriculture section consisting of approximately 200 residents, a school, five churches, one pickle factory, one hotel and twelve small businesses. The report also emphasizes that over the next thirty years the number of users of the water system will more than likely double.

The necessity for the water system has been admitted. The city has no usable water and it was shown it is required to truck it in and dump it in cisterns. It would seem that a legislative body charged with carrying out its responsibility to the City of Caneyville would be derelict in its duty should it not attempt to establish a water system. The city has no playground for its children, nor a recreational area for its adults. Certainly the city’s utilization of the land around the reservoir for park purposes is a needy project that can be accomplished at no great expense. We believe the city’s action in this respect is a laudable undertaking.

Wherefore, the judgment is affirmed.


author: MONTGOMERY, Judge.

text:
    OSBORNE MINING CORPORATION, Appellant, v. Mallie BLACKBURN et al., Appellees.
    Court of Appeals of Kentucky.
    Dec. 17, 1965.
    Baird & Hays, Pikeville, for appellant.
    Friend & Mullins, Pikeville, Stuart E. Alexander, Louisville, for appellees.
   MONTGOMERY, Judge.

Osborne Mining Corporation appeals from the judgment affirming a Workmen’s Compensation Board award in favor of Mallie Blackburn for total and permanent disability and awarding compensation in the sum of $36 per week, beginning April 27, 1962, and continuing thereafter for a period not to exceed 425 weeks, together with medical and hospital expenses incurred. Blackburn was found to be permanently and totally disabled by silicosis as a result of exposure while an employee of appellant’s. The disability was found to have existed since April 20, 1960, his last day of employment with appellant.

Blackburn’s employment ended when he was run over by some equipment while working in appellant’s mine. He sustained a broken pelvis and a mashed leg for which he was awarded lump sum compensation of $1,285.34. A few months later when he had recovered from this injury he, unsuccessfully, sought reemployment from appellant. He later worked as a concession man at a hospital. He has not returned to mine work.

It is agreed that the judgment is in error. It should have shown an award of $32 per week for 425 weeks from April 27, 1960, instead of $36 per week from April 27, 1962, because KRS 342.095, then in effect, allowed a maximum of $32 per week for 425 weeks. This apparently was a clerical error.

Appellant urges that the judgment as corrected should be credited by the amount of the lump sum compensation paid for the April 20, 1960 injury on the theory that the injured employee is not entitled to collect more than the maximum benefit, or 100%. It is also contended that Subsequent Claim Fund (now Special Fund) should have been made a party. Appellant’s motion to consolidate this proceeding with the proceeding in which the lump sum award was made was denied.

A review of the record discloses that the finding of total and permanent disability by the Board is sustained by the evidence. It should be noted that Blackburn’s disability because of occupational disease relates to his last employment with appellant ending on April 20, 1960, the day of his hip and leg injury.'

KRS 342.095 governs the amount of compensation to be awarded for total disability. The statute makes no distinction between compensation for disability for injury and occupational disease. In this respect it provides “When the injury or occupational disease causes total disability for work * * In fact, all of the statutes under KRS, Chapter 342, Workmen’s Compensation, providing for compensation benefits, except KRS 342.105, dealing with severances, treat “injury” and “occupational disease” as one and the same in so far as benefits are concerned.

The failure to distinguish between injury and disability causes confusion and may be the explanation for Blackburn’s claim that he is entitled to 100% of benefits for silicosis in addition to the lesser percentage of benefits awarded for the injury. Under the statutes the disability is evaluated, not the injury or the disease. On April 20, 1960, Blackburn had two injuries, broken pelvis and mashed leg, and an occupational disease which entitled him to compensation benefits. It is conceivable that a claimant may have a combination of injuries or an injury and occupational disease, any one of which would entitle him to maximum benefits, but no injury or occupational disease or combination thereof simultaneously causing disability will entitle him to more than the maximum benefits under KRS 342.095, because he has just the one total and permanent disability resulting. For such disability KRS 342.095 provides that the claimant shall be paid benefits over a period of time. In this case benefits are payable for the maximum period of time. Accordingly, the judgment should have allowed credit for the benefits already received since they were received for a disability which was a part of the total disability dating back to April 20, 1960.

Blackburn relies on International Harvester Company v. Poff, Ky., 331 S.W.2d 712, to sustain his right to defeat the crediting of the lump sum payment. The Poff case is distinguishable because the employee there returned to employment as a “whole man” with the same employer and then sustained a second injury over three years later. Here, Blackburn had an injury and occupational disease on the last day of employment and never returned to the employ of appellant. The Poff case illustrates separate injuries and resulting disabilities with an intervening time period, while the present case illustrates the concurrence of injuries and occupational disease resulting in one total disability with no intervening period of time.

No meritorious contention arises relative to the Subsequent Claim Fund because of the Board’s silicosis finding.

Judgment reversed with direction to correct as indicated and to allow credit for lump sum payment.

STEWART, J., dissenting.