author: DIXON, Chief Justice.

text:
    SOUTHWESTERN STATES OIL AND GAS COMPANY, Appellant, v. SOVEREIGN RESOURCES, INC., et al., Appellees.
    No. 16112.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 15, 1963.
    Rehearing Denied March 15, 1963.

      Strasburger, Price, Kelton, Miller & Martin, and Royal H. Brin, Jr., Dallas, for appellant.
    Kilgore &'Kilgore and Carl Mays, Dallas, and Henry Gossett, Longview, for ap-pellees.
   DIXON, Chief Justice.

This is an appeal from a summary judgment.

Appellant Southwestern States Oil and Gas Company, hereinafter called Southwestern, sued appellee Sovereign Resources, Inc., hereinafter called Sovereign, for damages, actual and punitive. The ac-tioñ is for the breach of an alleged written contract known as Exhibit No. 1, dated September 11, 1959; and in the alternative for breach of an alleged written contract known as Exhibit No. 2, dated sometime in November 1959. The two instruments are concerned with the same subject matter, the alleged sale of oil and gas properties by Southwestern to Sovereign.

C. M. Wood and W. C. Curry, officer and director, respectively, of Sovereign, were sued individually on the grounds of wrongful interference with the contract between the two companies.

Part of the consideration for the alleged sale was the transfer to Southwestern of 200,000 shares of stock in Sovereign. Southwestern pled that the stock was valued at $3.00 per share at the date of the contract, $6.00 per share at the time suit was filed, and would be $50.00 per share at the time of trial. Judgment was sought for $9,400,000.00 actual and $1,000,000 punitive damages.

As to Exhibit No. 1 Sovereign defended on the grounds that (1) the instrument shows on its face that it was a mere “letter of intent”, not intended by the parties to be a binding contract, and that the parties contemplated drawing a formal contract at a later date; (2) Exhibit No. 1 is-insufficient under the Statute of Frauds, Art. 3995 Vernon’s Ann.Civ.St., because the oil and gas leases, which were the subject matter of the alleged contract, are not sufficiently described; and (3) even if Ex-’ hibit No. 1 be considered sufficient as a contract, the undisputed evidence shows that it was later abandoned by the parties.

As to Exhibit No. 2 Sovereign defended on the grounds that (1) the instrument was never signed and the consideration clause is blank; (2) the instrument was never accepted as a contract by Sovereign; and (3) it is insufficient under the Statute of Frauds.

Wood and Curry, the individual defendants, assert the above defenses and in addition claim that they are not' liable because they were acting in behalf of Sovereign as officer and director of the corporation.

All defendants filed motions for summary judgments. The motions were sustained. Judgment was accordingly entered that Southwestern take nothing by its suit.

In its first and second points on appeal appellant Southwestern contends that the court erred in sustaining appellee’s motions for summary judgment because (1) Exhibit No. 1 shows on its face to be a binding contract; and (2) the pleadings, affidavits and depositions show that there is at least a material disputed fact issue as to whether Exhibit No. 1 was intended as a contract or merely as “letter of intent.”

Exhibit No. 1 is in the form of a letter from Sovereign to Southwestern. It is true, as Southwestern points out,.this letter is signed by C. M. Wood as President of Resources, and hears a written acceptance and approval dated September 11, 1959 signed by George Myer as President of Southwestern. It is true also that in several places in the instrument paragraphs begin with the words “We agree to * * * ” and “You agree to * * Nevertheless we are unable to agree with appellant that the instrument on its face shows to be a binding contract, or even that a fact question in that regard is presented by the record.

In one place the instrument expressly refers to “whatever clouds or liabilities are reflected in the final contract.” (Emphasis ours). Appellant says that this reference to a later final contract is not conclusive of the question before us, citing Corbin on Contracts, Sec. 30 Vol, 1, page 83, and 13 Tex.Jur.2d 154. But we cannot ignore a material paragraph in the instrument which we here quote:

“Sovereign is presently in the process of preparing a Registration Statement to be filed with the S.E.C. It is agreed that this Statement shall be filed within forty-five days from date, and approved within ninety days from date of filing. :We agre'e that this Contract shall not he binding and shall have no force and effect until and unless same is approved by the S.E.C. and the stock hereinafter named is fully registered and freely transferable. Stock to be sold without restriction of any kind and approved by the S.E.C. * * *” (Emphasis ours).

The above quoted paragraph of itself, containing as it does a condition precedent, seems to us to negative Southwestern’s contention that Exhibit No. 1 shows on its face to have been intended by the parties as a binding contract. Couch v. Stewart, Tex.Civ.App., 200 S.W.2d 642. Any doubt as to the meaning of the instrument is resolved against Southwestern when we consider the quoted paragraph along with other provisions, especially the reference to a later final contract.

Is there a fact question as to whether Exhibit No. 1 was intended as a binding contract? In our opinion the correct answer is no. Whether correspondence constitutes a contract or a preliminary negotiation must be determined by the language used and the attending circumstances. And when, as is the case here, the circumstances are undisputed, the question becomes one of law, not of fact. Hegar v. Tucker, Tex.Civ.App., 274 S.W.2d 752, (Syl. 3).

The fact that the parties contemplated a later “final contract” is in' itself some evidence that the párties did not intend Exhibit No. 1 to be their final closing contract. Gilbert v. Texas Co., Tex.Civ.App., 218 S.W.2d 906, 941, (Syl. 4). And such fact coupled with the further fact that all of the essential terms of the contract had not been agreed upon, concludes the question against appellant’s contention. Liquids Dispatch Line v. Texas Power & Light Co., Tex.Civ.App., 6 S.W.2d 169; Cranfill, et al. v. Swann Petroleum Co., Tex.Civ.App., 254 S.W. 582; Diamond Mill Co. v. Adams-Childers Co., Tex.Civ.App., 217 S.W. 176; Prince v. Blisard, Tex.Civ.App., 210 S.W. 301; Brillhart v. Beever, Tex.Civ.App., 198 S.W. 973. In our discussion of the next point on appeal we shall develop more fully some of the circumstances to which we refer. Appellant’s first and second points are overruled.

In their third point appellant Southwestern asserts that the pleadings, affidavits and depositions show there is a material fact issue as to whether the parties abandoned Exhibit No. 1 as a contract.

We see no merit in the third point. In our opinion the evidence of later negotiations conclusively shows that the parties had ceased to look to Exhibit No. 1 as a basis for their pending business deal. The provision for registration with and approval of the stock by S.E.C. was abandoned on the basis of an opinion by an attorney for Resources that sush registration and approval were not necessary; a provision that Southwestern would try to obtain a loan of $80,000 to $120,000 from Republic National Bank proved unsuccessful because the Bank apparently preferred to deal with Sovereign as to any loan on the properties involved; Southwestern proposed a plan whereby Resources would issue 2000 shares of stock as part of a fee to Joe Spradling, a broker, who was trying to negotiate the deal between the parties; Southwestern wanted Resources to assume its notes owing to Mercantile National Bank at Dallas; also to agree that if within 12 months from the closing, Resources filed a registration statement with S.E.C. covering an offering of capital stock, shares issued to Southwestern’s stockholders under this proposal would be included; and it was tentatively agreed that Southwestern would be dissolved and the shares in Resources would be issued directly to Southwestern’s shareholders, instead of to Southwestern.

All the above and other material changes were included in a proposed form of a formal contract prepared by appellant Southwestern’s. attorney and forwarded to ap-pellee Resources November 24, 1959. This document is known as Exhibit No. 2. Some, but not all, of these changes had been tentatively agreed to by Resources. Exhibit No. 2 was never signed or accepted by Resources, as we shall later point out. Appellant’s third point is overruled.

Appellant’s fourth point in substance is that there is a material disputed fact issue as to whether Exhibit No. 2 was accepted by appellee. Again we must disagree with appellant.

The only purported evidence in the record that Resources ever signed Exhibit No. 2 is an unsworn letter from Ross Bohannon, a Dallas attorney and a stockholder in Resources. Exhibit No. 2 had been sent to him to be forwarded to the New York Office of Resources. The letter is as follows:

“December 4, 1959
“Mr. George M. Meyer “Mercantile Securities Building “Dallas, Texas
“Dear Mr. Meyer:
“I gave you a letter on November 24th relative to the closing of the deal between Sovereign Resources, and Southwestern States Oil and Gas Company,
“As usual, these matters don’t come off as quickly as they are scheduled. Mr. Wood and the New York Attorneys have both assured me that the papers have been executed and the matter should be ready for closing. The papers should be received here, tomorrow; if not, they will certainly be here by Monday so that we may be able to consummate the deal at that time.
“Very truly yours, “Ross Bohannon”

We ascribe no probative effect whatever to the above quoted letter. It is merely an unsworn statement wherein one person said that other persons had assured him “that the papers have been executed.” What papers ? Such a letter will not be accepted as a substitute for the requirement of Art. 3995, V.A.C.S. that documents of a certain class shall not be enforceable unless signed by the party to be charged.

This conclusion seems to us to be bolstered, if it needs any bolstering, by other parts of the record. In a Request for Admissions Southwestern was called on to admit that no writings signed by Sovereign had amended, supplemented, or in any way affected Exhibit No. 1. In its sworn reply Southwestern denied the request. Then Resources filed a motion under Rule 167 Texas Rules of Civil Procedure, requesting that Southwestern be required to produce any such documents claimed to be signed by Sovereign. In response to this motion Southwestern admitted that unless additional documents were in possession of Resources only certain listed signed documents could be considered to supplement, amend, or in any way affect Exhibit No. 1.

Among the documents so listed was a telegram to Bohannon from New York Attorney Leon Greenapple representing Sovereign. This telegram, dated December 7, 1959 which was sent after an unsigned draft of Exhibit No. 2 had been forwarded to New York, is as follows:

“AFTER CONFERENCE WITH WOOD HE PROPOSES FOLLOWING CHANGES IN SOUTHWESTERN OIL AND GAS AGREEMENT. ALL ASSETS TRANSFERRED SUBJECT TO REVIEW AND APPROVAL OF CURRY; NO MORE THAN 200,000 SHARES TO BE ISSUED; NO SHARES TO BE ISSUED TO SPRADLING; CERTAIN TECHNICAL MODIFICATION TO FOLLOW BY LETTERS TO COMPLY WITH RULE 133 SECURITIES ACT OF 1933. DO, NOT UNDERSTAND REASON FOR LEAVING AGREEMENT SUBJECT TO CANCELLATION UNTIL DECEMBER 17, 1959. TELEPHONE ME UPON RECEIPT
“L GREEAPPLE.”

By written stipulation it was thereafter agreed that the documents listed complied with Resources’ motion under Rule 167 T.R.C.P.

In his deposition George Myer, President of Southwestern, states that after the above telegram was received, Marvin Wise, Attorney for Southwestern called Attorney Greenapple in New York by long distance telephone. Certain changes were to be made in Exhibit No. 2, the draft of the contract as proposed by Southwestern. Green-apple was to redraft the document with changes and submit it to Southwestern for approval.

In the light of the foregoing .undisputed facts we hold that there is no disputed fact issue, as to whether Exhibit No. 2 was ever accepted as a contract by Sovereign. The undisputed testimony shows that the document was never signed or accepted. Appellant’s fourth point is overruled.

Appellant’s fifth point is to the effect that the court erred in sustaining ap-pellee’s motion for summary judgment since the oil and gas properties to he sold and transferred were adequately described in writing. We have held that both Exhibit No. 1 and Exhibit No. 2, for other reasons, do not constitute binding contracts, therefore we see no need to pass on the sufficiency of the property descriptions.

In its sixth and last point appellant claims that the record raises a fact issue as to whether the individual appellees, Wood and Curry, wrongfully caused Sovereign to breach its contract. We must hold against Southwestern on this point for two reasons:

(1) As we view the matter no binding contract was entered into between Southwestern and Sovereign, so there could be no wrongful breach of contract.

(2) Wood was President and Curry was a director of Sovereign. They were not mere interlopers. They are not to be considered third parties who had no legal interest in the alleged contract. It is not shown that in any way they went beyond their powers or authority as officer and director of their corporation. It was their duty to protect the interests of their corporation. There is no evidence of fraud on their part. Under the circumstances disclosed by this record there is no individual liability imposed on them if they caused their corporation to refuse to consummate the deal with Sovereign. Terry v. Zachry, Tex.Civ.App., 272 S.W.2d 157; Greyhound Corporation v. Commercial Casualty Insurance Company, 259 App.Div. 317, 19 N.Y.S.2d 239; Schuster v. Largman, 318 Pa. 26, 178 A. 45; 3 Fletcher Corporations, Sec. 1001. Appellant’s sixth point is overruled.

The judgment of the trial court is affirmed.

       It is' interesting to note that Bohannon later completely repudiated his letter. We quote from his affidavit attached to appellee’s motion for summary judgment:
      “George Meyer came to my office and advised me that he was trying to arrange for a credit at the bank that it would be helpful to him if he could have a letter from me stating that the deal with Sovereign Resources, Inc. would be closed. At that time the contacts which I had with G. M. Wood indicated to me that he was anxious to try to work out a deal, if possible, and I felt that some deal would be worked out between the parties either on the basis represented by. the form of agreement delivered to me by George Meyer on November 24, 1959, or on. some other basis acceptable to both parties. Accordingly at his request I wrote to George Meyer a letter, copy of which is attached hereto as an exhibit. At the time I wrote the letter I had not heard from G. M. Wood since forwarding the forms of agreement to him on November 24th. Neither G. M. Wood nor anyone else advised me that the forms of agreement which I forwarded to O. M. Wood on November tlfth had been signed. The letter was written as an accommodation to Mr. Meyer and on the basis of my own understanding and opinion, as heretofore set out.” (Emphasis ours.).


source: Caselaw Access Project

author: WILLIAMS, Justice.

license: Public Domain

text:
    Ray JUNEAU et al., Appellants, v. Harry W. MILAM et ux., Appellees.
    No. 16106.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 15, 1963.
    Rehearing Denied March 15, 1963.

      Wells & Power, Charles C. Wells, Dallas, for appellants.
    Prescott & Prescott, Dallas, for appel-lees.
   WILLIAMS, Justice.

Appellants appeal from the order of the district judge granting a summary judgment against them in their action against appel-lees to recover real estate agent’s commission. Ray Juneau and Charles Rains brought this suit against Harry W. Milam and wife Loretta P. Milam alleging that plaintiffs were licensed real estate brokers and had entered into a written contract whereby the defendants granted to the plaintiffs the exclusive right to sell certain property located in the City of Irving, Texas, said exclusive agreement extending from February 22, 1961 to April 22, 1961. Plaintiffs alleged that during this period plaintiffs had secured a prospective purchaser for said property, same being a Mr. and Mrs. John Murray; that plaintiffs took the Murrays to the property on several occasions and showed the house to them; that while the sale was not consummated during the term of the agreement the defendants entered into a separate contract with said Murrays during the term of the exclusive contract with plaintiffs, and then sold said property to the Murrays by a consummated sale following the termination of tlie exclusive agreement. Plaintiffs allege that they were the procuring cause of the sale and sought judgment for their commission.

Defendants answered with a general denial. Defendants filed their motion for summary judgment (Rule 166-A Texas Rules of Civil Procedure) alleging no issue of fact existed and, in support of said motion, attached purported affidavits of appel-lees and also affidavit of Mr. and Mrs. Murray. Appellants filed a controverting affidavit which denied all of the matters set forth by appellees. The trial court, considering the pleadings, affidavits, and argument of counsel, sustained the motion for summary judgment.

Appellants appeal contending in their sole point that the trial court erred in granting appellees motion for summary judgment because the pleadings and the affidavits on file conclusively demonstrate a disputed fact issue.

As we pointed out in Little v. Employees Security Life Insurance Company, Tex.Civ.App., 343 S.W.2d 517, and. later in Seale v. Muse, Tex.Civ.App., 352 S.W.2d 534, our Supreme Court, in the case of Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (following this court in 243 S.W.2d 220), illustrates with crystal clarity the duty on the part of the trial court and appellate judges in weighing the questions presented by summary judgment motions under Rule 166-A, T.R.C.P. There, our Supreme Court pointed out that it is the duty of the court hearing the motion to determine if any issues of fact are presented 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 doubt 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.

Before proceeding further with the consideration of the basic question we observe that appellees’ affidavits in support of their motion for summary judgment, as well as appellants affidavit controverting said motion, are, in our opinion, defective, in that they do not comply with the plain and express directions set forth in Rule 166-A(e) T.R.C.P., by alleging that said affidavits were made on the personal knowledge of the affiant, nor do they affirmatively show that the affiant is competent to testify as to the matter stated in said affidavits. These matters are essential to comply with Rule 166-A, T.R.C.P. Crofford v. Armstrong, Tex.Civ.App., 342 S.W.2d 607; Quarles v. State Bar of Texas, Tex.Civ.App., 316 S.W.2d 797; Anderson v. Hake, 300 S.W.2d 663. However, this record demonstrates that no complaint concerning the sufficiency of the •affidavits was urged in the trial court, nor do we find any complaint made here. Lobit v. Crouch, Tex.Civ.App., 293 S.W.2d 110; Farmers & Merchants Compress & Warehouse Company v. City of Dallas, Tex.Civ.App., 335 S.W.2d 854.

Assuming, without deciding, that ’the affidavits of both appellants and appel-lees are sufficient, we have carefully re,.viewed the same and reached the conclusion that, when examined in the light of the rule ¡established by the Supreme Court as recited above, issues of fact are presented which should have been submitted to a trier of fact. Such being true the trial court fell in-do error and the judgment sustaining the summary judgment must be reversed.

The purported affidavit of Harry W. Milam and wife Loretta P. Milam merely states that they admit the exclusive sales contract with Rains and Juneau but contend that appellants “Did not procure a buyer for said property during the time of the contract.” They then state that on April 23, 1961, following the expiration of the exclusive contract, they placed an advertisement in the newspaper offering said property for sale and that after said ad appeared ■they were' approached by Mr. and Mrs. Murray who, on April 28, 1961, purchased the property. The affidavit further states: “We entered into no contract for the sale of the house and lot, oral or wirtten, prior to April 28, 1961, with John C. Murray and Betty Murray.”

The affidavit of John C. Murray and wife Betty Murray states: “We entered into an agreement to purchase the property from Harry W. Milam and Lorretta P. Milam on April 28, 1961.” And: “We did not enter into any agreement to purchase the property either written or oral, prior to April 28, 1961.”

The controverting affidavit of Ray Juneau states that all of the statements made by Milam and his wife in their motion for summary judgment are untrue, except the dates of the contract of sale. The affidavit then continues: “In particular, this Plaintiff would state that the allegation that the Contract was not in force or effect at the time of the sale is untrue; on the contrary, the Plaintiff had secured a Purchaser during the time said Contract was in effect, and had shown the property on three (3) occasions, and said Purchasers were ready, willing and able to buy the subject property. On the last occasion, when Plaintiff showed the property to the Purchasers MURRAY, the Defendant Mrs. HARRY W. MILAM stated openly before all the Parties that the Contract was about to expire and that she preferred to hold the property until it did expire and then make the sale. Plaintiff would particularly show the Court in this Affidavit that he and his company were the procuring cause of the sale that was consummated, although it was fraudulently consummated after the expiration of the exclusive Contract between the Parties to this suit.”

It is interesting to note that in the affidavit of the purchasers Mr. and Mrs. Murray they do not deny that appellants had shown them the property on three occasions nor is there any allegation by them that they were not ready, willing and able tO' purchase the property during the period of the exclusive sales contract.

Both parties rely upon the case of Cass v. Hurst, Tex.Civ.App., 329 S.W.2d 450, as correctly announcing the law governing this matter. In that case the San Antonio Court of Civil Appeals, in considering a similar question said:

“It is the settled law of this State that where a broker secures a purchaser during the existence of his exclusive agency, he is entitled to his commission, provided the purchaser is procured by his efforts while his contract is still in force, although the sale is actually made by the owner upon terms satisfactory to himself, though different from those provided in the contract with the broker. Goodwin v. Gunter, 109 Tex. 56, 185 S.W. 295, 195 S.W. 848; Air Conditioning, Inc. v. Harrison-Wilson-Pearson, 151 Tex. 635, 253 S.W.2d 422. On the other hand, if the broker has been unsuccessful in his efforts to induce the buyer to purchase the property, without fault on the part of the owner, and has ceased his efforts to induce the buyer to purchase the property, then the sale is made by the owner as the result of independent negotiations directly between the owner and the buyer, or through the medium of some other broker, and the original broker is not entitled to a commission on such sale. Air Conditioning, Inc. v. Harrison-Wilson-Pearson, supra; 7 Tex.Jur. 479, § 82.
“Thus it is evident that a genuine issue of fact is presented by the record and the court erred in granting summary judgment in favor of appellee.” (Emphasis supplied).

In 9 Tex.Jur.2d pages 750-751, Sec. 60, the rule is reiterated that the failure or refusal of the principal to consummate a deal does not prevent the broker from recovering a commission earned by procuring a ready, able and willing purchaser on terms agreeable to the owner, or by procuring a purchaser with whom the principal enters into a contract of sale. In the light of the record made, and the law applicable thereto, we find that the trial court was not justified in impliedly finding that no issue of fact was presented by the motion and affidavits. On the contrary, such record clearly demonstrates obvious issues of fact which must be determined upon a trial.

The judgment of the trial court is reversed and remanded.


author: COLLINGS, Justice.

text:
    John Neeley BARRON, Appellant, v. Clara BARRON, Appellee.
    No. 3778.
    Court of Civil Appeals of Texas. Eastland.
    Dec. 14, 1962.

      Rountree, Renner & Snell, Lamesa, for appellant.
    Huffaker & Green, Tahoka, for appellee.
   COLLINGS, Justice.

Appellant, John Neeley Barron, has filed a motion for extension of time in which to file a Transcript and Statement of Facts. Appellee, Clara Barron, has filed a motion to affirm on certificate.

It is shown that judgment was entered on August 7, 1962, granting appellee a divorce, adjudication of property rights, granting plaintiff custody of minor children and directing the sale of certain community property by a receiver. On September 12, 1962, appellant’s motion for a new trial was overruled and he immediately gave notice of appeal. Thereafter, on October 13, 1962, appellant filed his cost and super-sedeas bond which was on the same date approved by the clerk of the District Court and thereby perfected his appeal. Rule 356, Vernon’s Annotated Texas Rules of Civil Procedure and Article 4591, Vernon’s Ann.Tex.Civ.St. Appellant has not filed a Transcript or Statement of Facts in this court but on November 9, 1962, did file a motion for an extension of time in which to file his Transcript and Statement of Facts.

Rule 386, V.A.T.R.C.P. provides as follows :

“Time to File Transcript and Statement of Facts. In appeal or writ of error the appellant shall file the transcript and statement of facts with the clerk of the Court of Civil Appeals within sixty days from the rendition of the final judgment or order overruling motion for new trial, or perfection of writ of error; provided, by motion filed before, at, or within a reasonable time, not exceeding fifteen days after the expiration of such sixty-day period, showing good cause to have existed within such sixty-day period why said transcript and statement of facts could not be so filed, the Court of Civil Appeals may permit the same to be thereafter filed upon such terms as it shall prescribe.”

Appellant’s motion for an extension of time in which to file his Transcript and Statement of Facts was timely filed under the provisions of Rule 386, supra. The motion did not, however, show good cause why said Transcript and Statement of-Facts could not be filed within the required sixty day period and should, therefore, be overruled. The allegations set out in the motion for extension show that appellant saw his counsel several times after the overruling of his motion for a new trial and that on each occasion his attorney emphasized the importance of diligence in requesting the proper officials to prepare the Transcript and Statement of Facts but that appellant never informed his counsel that he wanted to go ahead with the appeal or authorized him to order the preparation of the Transcript and Statement of Facts until November 8, 1962. Then on November 9, 1962, counsel filed appellant’s motion for an extension of time in which to file said Transcript and Statement of Facts because it was then impossible for same to be prepared and filed within the sixty day period. No diligence by appellant is shown. The only excuse or reason urged by appellant as a ground for good cause was his difficulty in realizing the necessity of complying with the provisions of Rule 386, supra. This is not good cause for the failure to timely file a Transcript and Statement of Facts. Appellant’s motion for an extension of time to file same is overruled. Matlock v. Matlock, 151 Tex. 308, 249 S.W.2d 587.

Rule 387, V.A.T.R.C.P. provides that if an appellant fails to file a Transcript in proper time that the appellee may, upon motion, have the case affirmed on certificate by filing in the appellate court a certified copy of the judgment and a certificate of the clerk of the trial court stating the time, when and how the appeal was perfected. The rule also provides that if a copy of the bond accompanies such certificate the judgment shall be affirmed against the sureties thereon. Appellee has filed a motion to affirm on certificate and has also filed in this court a certified copy of the judgment and a certificate of the clerk of the trial court stating when and how the appeal was perfected. A copy of the bond accompanies the certificate. Ten days notice by mail of the hearing of appellee’s motion has been given by the clerk of this court to appellant as required by the rule. Since appellant has failed to file a Transcript and Statement of Facts as required in such cases and we have overruled his motion for an extension of time to file same, we sustain appellee’s motion, and the judgment of the trial court is affirmed on certificate, including judgment against E. E. Barron and S. R. Barron, as sureties on appellant’s cost and supersedeas bond. Matlock v. Matlock, supra; Gibson v. McCullough, Tex.Civ.App., 294 S.W.2d 759; Taylor v. Humble Oil & Refining Company, Tex.Civ.App., 293 S.W.2d 834.

Judgment affirmed on certificate.


author: RENFRO, Justice.

text:
    Welton Devon MADDEN, Appellant, v. Virginia Grace MADDEN, Appellee.
    No. 16383.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 15, 1963.
    Rehearing Denied March 15, 1963.

      John H. Holloway, Houston, for appellant.
    Carnes & Martin, and Lamar Carnes, Houston, for appellee.
   RENFRO, Justice.

Welton Madden appealed from an order denying child support and visitation modifications.

Appellant and Virginia Madden were divorced July 20, 1961. Custody of the two children, girls, ages six and eight, was awarded to Mrs. Madden. Appellant was allowed possession of the children once weekly from 2:00 P.M. to 6:00 P.M. on Saturdays and two weeks during the summer. He was ordered to pay $220 per month child support for twelve months, whereupon the payments were automatically reduced to $150 per month.

Thereafter, appellant filed a motion in which he prayed for decreased support payments and increased visitation privileges. Both requests were denied on April 23, 1962.

Since, under the original divorce judgment, the support payments were reduced from $220 to $150 per month in July of 1962, we are here concerned only with the latter amount in determining whether the court erred in refusing to reduce such payments.

At the time of the divorce appellant’s salary was $500 per month. At the time of the modification hearing his salary was $525 per month. At the time of the divorce appellant and appellee had combined salaries of $855. As of the time of the hearing appellant and his present wife had combined salaries of $860 per month. Appellants present wife also receives support from her former husband for her two children and receives income from rental property.

Appellee testified in detail as to the necessary expenses incurred in rearing and taking care of the two little girls.

Appellant has made all payments as required by the original order, but finds himself in constant financial strain.

The duty of a father to support his children, after divorce, corresponds to his financial ability. Each case must stand on its own facts, and trial courts of necessity have wide discretion in regard thereto. 21 Tex.Jur.2d 10, § 387; Scott v. Fort Worth National Bank, Tex.Civ.App., 170 S.W.2d 576; Brito v. Brito, Tex.Civ.App., 346 S.W.2d 133.

No findings of fact were requested or filed. We must, therefore, affirm the judgment if it had support in the evidence. Cockrell v. Cockrell, Tex.Civ.App., 298 S.W.2d 178.

From the entire record in this case we cannot say the court abused its discretion in refusing to reduce the support payments.

We also overrule appellant’s contention that the court abused its discretion in refusing to enlarge the visitation periods.

Of course appellant is entitled to reasonable visitation with his daughters. What is reasonable depends on the ages, health, surrounding conditions and circumstances. 20 Tex.Jur.2d 663, § 333. The trial judge, who heard both the original divorce suit and the modification suit, determined that the visitation periods as fixed were reasonable. We are unable to say from the record that he abused his discretion in so holding.

Should it appear, as the little girls grow older, that their best interest will be served by longer or more frequent visitation pe-nods with their father, appellant may again seek visitation changes.

All points of error are overruled and the judgment of the trial court is affirmed.

Affirmed.


author: WALTER, Justice.

text:
    W. E. MARTIN et al., Appellants, v. Virginia JOHNSON, Appellee.
    No. 3761.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 8, 1963.
    Rehearing Denied March 8, 1963.

      Thomas M. Reid, Yates & Yates, Abilene, for appellants.
    Smith & Erwin, Scárborough, Black & Tarpley, Abilene, for appellee. - .
   WALTER, Justice.

The Chief of Police of Abilene, Texas, filed an interpleader suit against W. E. Martin, Ronnie Reid and Frank R. O’Donnell to determine the ownership of $4,720.00 in currency. Mrs. Virginia Johnson intervened and alleged that it was found on her property and that she was entitled to possession of the money until the true owner was found. The City of Abilene intervened and alleged judgment liens against Martin.

The jury answered that neither W. E. Martin nor his wife were the owners of the money; that Frank O’Donnell did not find the money in a doghouse on Martin’s property; that Ronnie Reid found the money on Mrs. Johnson’s property and that it was mislaid property. Judgment was rendered for Mrs. Johnson for possession of the money as bailee and trustee of the true owner.

Martin and his wife have appealed. They present no evidence and great weight and preponderance of the evidence points, as well as points relating to the court’s refusal to permit them to introduce certain testimony.

Mrs. Johnson had taken an old rug out of a duplex which she owned and placed it in the garage. Ronnie Reid discovered the money on or about August 1, 1961, while attempting to move the rug. He and his playmates took the money to his sister. The money was delivered to the police and they were unable to locate the owner.

O’Donnell testified that in the winter of 1961, he was living on Popular Street in Mrs. Johnson’s duplex. On or about that date he “cut through” Mrs. Martin’s lot and found the money in a fruit jar in a little doghouse on Martin’s property. He put the money in a cigar box and put it in a wooden trunk in the attic of his garage; he left it there a couple of months and then put it under the rug in the attic of the garage.

Mrs. Martin testified that she permanent-, ly resided in Abilene but was temporarily living in Houston. She left about $5,000.00 in paper money in their Abilene home when they moved to Houston in 1956. This was money that her husband had given her over a period of twenty or twenty-five years. She left the money “in the breakfast nook up high on top of furniture and boxes that were piled up in the breakfast nook.” She looked for the money in 1957 but could not find it. She would not be able to recognize any of the money.

Mr. Martin testified that he had given his wife money periodically and very often over a period of forty years. He testified that every cent of the money involved in this law suit was given to his wife by him; that Mrs. Martin kept her money in their house. He and his wife came back to Abilene in ’57 and looked for the money. They made a diligent search for the money for about a week. They couldn’t find it and reported the loss to the District Attorney. In August, 1961, the District Attorney telephoned him in Houston about the money involved in this law suit being found.

Mrs. Johnson testified that the property where the money was found by Reid belonged to her.

We have considered all of the evidence and find that the jury’s answers were not against the great weight and preponderance of the evidence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

The appellants’ point that there was no evidence to support the jury’s finding that the money was mislaid property is without merit. The court submitted correct definitions of the terms “lost property” and “mislaid property.” Schley v. Couch, 155 Tex. 195, 284 S.W.2d 333 (Sup.Ct.). In Muro v. Houston Fire & Casualty Insurance Company, Tex.Civ.App., 329 S.W.2d 326, at page 331 (Writ Ref. N.R.E.), the Court said: “What may jurors do with conflicting evidence before them? They may disbelieve a witness though he is neither impeached nor contradicted. Cheatham v. Riddle, 12 Tex. 112. They may believe one witness and disbelieve others. Ford v. Panhandle & Santa Fe Ry. Co., 151 Tex. 538, 252 S.W.2d 561. They may resolve conflicts and inconsistencies in the testimony of any one witness as well as the testimony of different witnesses. Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792. They are not required to depend upon the evidence from a single source. Texas & N. O. Ry. Co. v. New, Tex.Civ.App., 95 S.W.2d 170, 174.” The jury was justified in concluding that the money was mislaid property. In Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194 (Sup.Ct.), the court said: “‘[I]t was the jury’s province to weigh all of the evidence, to decide what credence should be given to the whole or to any part of the testimony of each witness. “The jury were the judges not only of the facts proved, but of the inferences to be drawn therefrom, provided such inferences were not unreasonable.” ’ ”

Appellants contend the court erred in refusing to permit their daughter to testify (1) that she knew of her own knowledge that Mrs. Martin had kept large sums of money in cash in her home ever since she was a small child; (2) that she had seen her mother take money out oí and put money back into a fruit jar of the type in which O’Donnell said he found the money, and of a type in which Mrs. Martin said she kept the money on the premises and (3) that at various times she had seen her mother in possession of large quantities of cash. This testimony was objected to because it was irrelevant, indefinite, hearsay and a conclusion of the witness.

“As a general rule, any evidence is relevant and material if it tends to prove, or disprove, any material fact involved in the issue or the question being tried.” Lone Star Gas Company v. State, 137 Tex. 279, 153 S.W.2d 681 (Sup.Ct.).

“Evidence of a statement made out of court when such evidence is offered for the purpose of proving the truth of such previous statement, is inadmissible as hearsay.” Texas Law of Evidence, McCormick & Ray page 559.

In Dallas Railway & Terminal Company v. Gossett, 156 Tex. 252, 294 S.W.2d 377 (Sup.Ct.), the court said, “[I]t is well settled that the naked and unsupported opinion or conclusion of a witness does not constitute evidence of probative force and will not support a jury finding even when admitted without objection.”

We have concluded that the testimony offered by the appellants was not subject to the objections made.

The appellee says that, even if the trial court erred in not admitting the testimony, the error was harmless.

The city introduced three judgments against Martin. Photographs of Martin’s premises were introduced which tended to show a rundown condition of the property. Appellants contend that this evidence was calculated to show a condition of poverty and thereby cast a doubt in the minds of the jurors as to whether Martin and his wife had any such sum of money. They say the exclusion of their daughter’s testimony was harmful because her testimony would rebut the jury’s impression of poverty.

The Martins introduced evidence that their property had been broken into on numerous occasions and that the windows had been broken out and the doors damaged. The daughter’s testimony would have corroborated to some extent their testimony concerning the money. When we consider appellee’s contention that the rejection of such testimony was harmless error, we must consider such contention in the light of the facts as reflected by the entire record. We have concluded that appellants have not shown that the rejection of such testimony was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment. Rule 434, Texas Rules of Civil Procedure.

The judgment is affirmed.


author: CULLEN, Commissioner.

text:
    James McMICHAEL, Appellant, v. Gerald D. SHIRCLIFFE et al., Appellees.
    Court of Appeals of Kentucky.
    April 20, 1962.
    As Modified on Denial of Rehearing March 15, 1963.
    Frank E. Haddad, Jr., Hector E. Rose, Robert Hubbard, Louisville, for appellant.
    J. Walter Clements, Louisville, for ap-pellees.
   CULLEN, Commissioner.

James McMichael brought action against Gerald and Donald Shircliffe for personal injuries and property damage sustained in a collision between the McMichael and Shir-cliffe automobiles at the intersection of First Street and College Street in Louisville. At the close of the plaintiff’s evidence the court directed a verdict for the defendants, on the theory that the evidence showed the plaintiff to have been contribu-torily negligent as a matter of law. Mc-Michael has appealed from the judgment entered upon the verdict, contending that the evidence presented jury issues as to contributory negligence and last clear chance.

First Street is a one-wáy southbound boulevard with four traffic lanes. For convenience we shall designate these lanes, beginning from the east, as Nos. 1, 2, 3 and 4. College Street, a two-way east and west street with two traffic lanes, crosses First Street at right angles. There are arterial stop signs on College Street at the intersection. The Shircliffe car was going south on First Street, and the McMichael car was going west on College Street. The Mc-Michael car stopped at the stop sign and then proceeded into the intersection. It was struck by the Shircliffe car in lane No. 2. The Shircliffe car remained standing practically at the point of collision but the Mc-Michael car was knocked towards the southwest corner of the intersection and tipped over on its left side.

McMichael’s testimony was that when he stopped at the stop sign he saw a city bus stopped in lane No. 4, at the northwest corner of the intersection, picking up passengers. He saw the Shircliffe car some 100 feet north of the intersection, in lane No. 4. He assumed that the car would stop behind the bus and he proceeded into the intersection. When he had gone but a few feet the Shircliffe car swung around the bus at high speed, crossed clear over to the. east side of the street, and ran into his car, he having come to a stop with the front of his car just entering lane No. 2.

The testimony of the driver of the Shir-cliffe car (taken as on cross-examination) was that at all times he was driving in lane No. 2; when he was 100 feet from the intersection he saw the McMichael car stop; when he reached a point 60 feet from the intersection the McMichael car started into the intersection; as quickly as he could react to this situation he applied his brakes but was unable to stop before hitting the McMichael car, although he skidded about one car length before the collision; with the McMichael car crossing in front of him it would have been impossible to avoid a collision by turning his car.

Excepting his estimate of the extremely high rate of speed the Shircliffe car was traveling when it swung around the bus (70 m. p. h.) there is nothing in the circumstances of the accident to render Mc-Michael’s testimony unbelievable.

Under KRS 189.330(4) it was McMi-chael’s duty to yield the right of way to the Shircliffe car if it was approaching so closely as to constitute an immediate hazard. A finding of contributory negligence on his part requires a finding that he violated this duty. In order to find such a violation as a matter of law the evidence must be such that reasonable minds could reach no conclusion other than that the Shircliffe car was approaching so closely as to constitute an immediate hazard.

We have an unusual factor in this case in that the superior street is a four-lane, one-way thoroughfare. It appears to us that in determining the question of closeness of an approaching vehicle on such a street as it relates to creation of a hazard, consideration must be given to the lane in which the vehicle is traveling. If the driver of the crossing vehicle may reasonably assume that the approaching vehicle will remain within the confines of the lane in which it is traveling, his hazard depends upon how close the approaching vehicle may be expected to be when he enters its lane. Obviously, if at the moment the crossing vehicle enters into the intersection the approaching vehicle is close to the intersection in the farthermost lane, there will be no hazard because the approaching vehicle will pass through the intersection before the crossing vehicle reaches that lane. On the other hand, if the approaching vehicle is some distance from the intersection in the farthermost lane, the driver of the crossing vehicle must recognize the danger of its reaching the intersection at the same time he enters its lane.

From a practical standpoint it would seem that in the case of a multiple-lane, one-way street each lane should be considered a street in the sense that the driver of the crossing vehicle, before he enters the intersection, is entitled to gauge the hazard according to what lane the approaching vehicle is in. It does not mean that after he enters the intersection he shall make a separate gauging of the hazard as he approaches each individual lane. This view of course assumes there is a reasonable basis for the driver of the crossing vehicle to depend upon the approaching vehicle’s staying in its lane.

It is our opinion that reasonable minds might conclude that in the light of common experience in city traffic an assumption reasonably might be made that an approaching vehicle on a multiple-lane, one-way street will stay in its lane in nearing an intersection, in the absence of some condition of traffic that would indicate a reason for a movement into another lane. Here the presence of the stopped bus in lane No. 4 might have indicated a reason for the Shircliffe car to move into lane No. 3 but certainly not to move clear over into lane No. 2, which McMichael said the car did.

In KRS 189.340(6) (a) it is provided that on a multiple-lane roadway a vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from that lane until the driver has first ascertained that the movement can be made with safety. It appears that this statute, in speaking of making the movement with safety, has reference to the safety of other traffic moving in the same direction. It does not seem to be applicable to the question of whether a vehicle on a superior street, in moving from one lane to .another, may lose its right of way over •cross traffic on an intersecting street. However, we think the statute, in stating the -policy that a vehicle on a multiple-lane street shall as nearly as may be practicable stay in one lane, furnishes a basis upon which a jury could find that a reasonable man, in undertaking to drive across an in-tersection, might assume that an approaching vehicle would stay in its lane.

It is our opinion that a jury would have been entitled to believe McMichael’s testimony, and if so, to find that he was not negligent in entering the intersection because the Shircliffe car was not in such proximity, had it remained in lane No. 4 or in lane No. 3, as to constitute an immediate hazard.

On the other hand, if the jury should believe Shircliffe’s testimony, it would be required to find McMichael contributorily negligent, because if, as Shircliffe testified, his car was only 100 feet away, in lane No. 2, when McMichael stopped at the stop sign, he was bound to be so close, when Mc-Michael reached lane No. 2, as to constitute an immediate hazard as a matter of law.

In Frozen Food Marketers v. Feisstreit-zer, Ky., 335 S.W.2d 896, where a car headed east attempted to cross a two-lane, one-way street when a car was approaching from the south 100 feet away in the west lane, this Court held that the approaching car could not be said as a matter of law to be so close as to constitute an immediate hazard. We pointed out that cross-traffic at city intersections normally moves with relatively small margins of time and distance. But in that case the approaching car was in the nearest lane, while here the car, according to Shircliffe’s testimony, was in the second lane. The time required to move from a stopped position across one lane is such that we think a car 100 feet away in the second lane must be considered hazardously close as a matter of law.

The appellant maintains that even if he be held contributorily negligent upon an acceptance of Shircliffe’s version of the accident he would be entitled to a jury finding in his favor under a last clear chance instruction. However, the cases he relies upon predate recent decisions of this Court in which the application of the last clear chance doctrine has been restricted. In Desgrosiellier v. Vaughn, Ky., 320 S.W.2d 304, it was held that the doctrine should not be applied in the ordinary intersection accident case. This view was adhered to in Smith v. Crenshaw, Ky., 344 S.W.2d 393, and in Seamon v. Bolton, Ky., 351 S.W.2d 51.

According to Shircliffe’s testimony he was only 60 feet from the intersection, traveling 30 miles per hour, when the Mc-Michael car commenced to move into the intersection. At that speed his normal stopping distance would have been 80 feet. His chance of avoiding a collision by swerving to the right or left was not clear because he could not determine with any certainty whether the McMichael car would stop or would continue across his path. McMichael had a chance to avoid a collision by stopping his car before he entered into the second lane. Under these circumstances Shircliffe cannot be said to have had a last clear chance.

The judgment is reversed with directions to grant a new trial at which, if the evidence be substantially the same, the case shall be submitted to the jury under instructions in conformity with this opinion.


author: STEWART, Chief Justice.

text:
    Virgil McGILL, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    March 1, 1963.
    W. R. Gentry, Jr., E. E. Hubbard, John S. Kelley, J. Smith Barlow, Jr., Bardstown, for appellant.
    John B. Breckinridge, Atty. Gen., Ray Corns, Asst. Atty. Gen., Frankfort, for ap-pellee.
   STEWART, Chief Justice.

Virgil McGill was convicted of voluntary manslaughter under an indictment charging wilful murder and, in addition, as he was at the same time indicted and it was established he was convicted twice before of a felony, the jury returned a verdict that his punishment be fixed at life imprisonment under the Habitual Criminal Act, KRS 431.190.

It is claimed the trial court erred to the prejudice of appellant when: (1) It admitted testimony of the commission by him of another homicide; (2) it permitted evidence to be introduced of the perpetration by him of three previous felonies; and (3) it refused to allow him to present proof of three felony convictions of the decedent. These will be considered in the order given.

The facts, briefly stated, are that appellant and the deceased were father and son. Both had been drinking heavily but had had no previous difficulty and, on the day of the killing, they got into a brawl which culminated in the father shooting his son. Appellant contended his son attacked him in a drunken rage and that the gunshot wounds he inflicted, from which the son died, were produced in his necessary self-defense.

The first ground urged for reversal grew out of facts testified to by his daughter. She stated she was at the home of her father on the occasion of the shooting. Both were sitting on the front porch with her brother who was killed and two others. She said her father told her that he had “an urge to kill,” that certain people had made him mad, and that he was going to kill someone before the sun went down that day. When asked if her father made any further statement relative to his urge to kill, the daughter replied:

“Well, when he had made this statement to me, I told him, I said: ‘Daddy, you don’t know what you are saying; you shouldn’t say things like that. You know you killed once and you don’t want to do it again.’ He said: ‘Yes, I have killed one man. It doesn’t bother me and it won’t hurt me one bit if I kill another.’ ”

This conversation took place an hour to an hour and a half before his son was slain. At the time this testimony was introduced, appellant had not yet taken the witness stand, so that what was stated by the daughter must be considered substantive evidence. An objection, which was overruled, was duly made to the introduction of this testimony on the theory that it constituted proof of another crime unconnected with the offense for which appellant was being prosecuted. It is maintained here the trial court committed a reversible error in permitting this type of evidence to be presented to the jury. The cases relied upon by appellant to uphold this argument are Manning v. Commonwealth, Ky., 328 S.W.2d 421; Powell v. Commonwealth, 308 Ky. 467, 214 S.W.2d 1002.

We conclude the evidence complained of was competent for the reason that it showed an evil motive, namely, an intent to commit the homicide. In 1 Wharton’s Evidence, sec. 289, pp. 662-663, the principle of law which would make such testimony competent under the facts given is thus stated: “ * * * the declarations of the defendant indicating that he was in an ugly frame of mind, and disposed to commit some crime, though not the particular crime for which he is on trial, are admissible to show his state of mind.” See also Commonwealth v. Jackson, Ky., 281 S.W.2d 891, and Jackson v. Commonwealth, Ky., 296 S.W.2d 472.

Appellant asserts that since the Habitual Criminal Act, ICRS 431.190, under which he was indicted, requires only a showing of either one or two prior felony convictions, evidence as to the third felony conviction, which was included in the indictment, was not only unnecessary but was inadmissible, because it violated the well-settled general rule that evidence that appellant had committed other crimes unrelated to the offense for which he was being tried could not properly be received.

Appellant was indicted and tried as an habitual criminal pursuant to the terms and conditions of KRS 431.190. This statute provides, in essence, that if a defendant has been convicted of two prior felonies and is convicted of a third felony, and the jury so finds, he shall be confined in the penitentiary for life. This statute is to the effect that the Commonwealth prove only two felony convictions of appellant prior to the one of which he now stands convicted. Although this is the minimum which must be shown for the imposition of the extreme penalty authorized by KRS 431.190, there is no maximum limit placed on the number of prior felony convictions which may be established. Consequently, as was done in this case, evidence of more than two previous felony convictions may be introduced.

Also, if the Commonwealth had only charged appellant with two prior felony convictions, when he had three or more such previous convictions of record, and the Commonwealth had failed to prove one of the two charged, then the maximum penalty authorized by KRS 431.190 could not be imposed. For this reason, therefore, the Commonwealth’s latitude should not be limited to the introduction of evidence relating to only two prior felony convictions, if appellant has been convicted of felonies three or more times previously and if such are included in the indictment.

As to the next point raised, it was shown by avowal that the deceased had been convicted of grand larceny, of taking a motor vehicle without the consent of the owner, and of storehouse breaking. Appellant claims that evidence of the commission of these crimes was wrongfully excluded because it would have given the jury an insight into the reputation of the deceased for peace and quietude and would have been revealing on the question of who was the. aggressor.

In Roberson’s New Kentucky Criminal Law and Procedure, sec. 489, p. 657, this statement appears: “Proof of the violent and dangerous character of the deceased can only be made by evidence of his general reputation in the community for such character, and not by evidence of specific acts or general bad conduct, or of isolated facts, which are not connected with the homicide.” See Stegall v. Commonwealth, 237 Ky. 694, 36 S.W.2d 338; Ray v. Commonwealth, 184 Ky. 800, 212 S.W. 908; Lucas v. Commonwealth, 141 Ky. 281, 132 S.W. 416. Following these established rules, the trial court properly rejected evidence of the deceased’s criminal record.

Wherefore, the judgment is affirmed.


text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Ailene TYREE et al., Appellees.
    Court of Appeals of Kentucky.
    March 1, 1963.

      John B. Breckinridge, Atty. Gen., H. D. Reed, Asst. Atty. Gen., Paul E. Hunley, Patrick J. Dixon, Dept, of Highways, Frankfort, for appellant.
    H. R. Wilhoit, Grayson, W. H. Counts, Olive Hill, for appellees.
   CULLEN, Commissioner.

The appellees owned a plot 60 feet deep fronting 242 feet on the main highway near the center of the City of Olive Hill. On it were a 40-year-old hotel building, a modern bus depot, and a dilapidated brick building the ground floor of which had at one time been used for store purposes and the upper floor of which had been rented as an apartment. For the purpose of widening the highway the Commonwealth condemned a strip 25 feet deep along the entire frontage of the plot. This necessitated the demolition of all three buildings. The jury in circuit court awarded $75,000 damages and judgment was entered accordingly, from which the Commonwealth appeals.

The main contention of the appellant is that the testimony of the witnesses for the landowners had no probative value and therefore the verdict is not supported by the evidence. The Commonwealth’s witnesses had estimated the damages at $49,-632. The estimates of the witnesses for the landowners ranged from $95,000 to $195,000. If the testimony of the latter witnesses were eliminated as having no probative value there would of course be no evidence to sustain the $75,000 verdict.

The problem of determining the probative worth of opinion evidence of property values is a most difficult one. Property values ordinarily are not susceptible of exact measurement, so opinions must be resorted to. It is almost inevitable that opinions of different witnesses will vary and the range between the high and the low may be substantial. If the high and low estimates both have full probative value the jury necessarily must have the discretion to choose either of them or any amount between them. On the other hand, if one of the estimates has no probative value it can be given no evidentiary weight. The difficult question is whether an estimate can have limited probative value, not sufficient to sustain an award for the full amount of the estimate, but sufficient to sustain an award for some lesser, reasonable amount.

Evidence of probative value is evidence having the fitness to induce conviction in the minds of reasonable men. Wadkins’ Adm’x v. Chesapeake & Ohio Railway Co., Ky., 298 S.W.2d 7. It appears to us that evidence of property values may in some circumstances have fitness to induce conviction up to a certain point but not beyond. One situation in which this could be true is where the elements, factors or computations employed by the witness do not reasonably, rationally or logically produce the value estimated by the witness, but could support a lower value. Another situation is where the estimate of value by the witness is so extravagant as to be contrary to common knowledge. In the latter situation the evidence may be considered to have the quality of conviction up to the point where it passes the bounds of credibility to reasonable men.

(There is a clear distinction between opinion evidence of property values and testimony as to a specific determinable fact. In the latter case the testimony of a witness concerning the fact must either be accepted in toto or rejected in toto, because the fact either existed or did not exist.)

It seems that some of the difficulty in the instant case, and in a number of the other condemnation cases that have reached this court, lies in a failure to distinguish clearly between competency or relevancy of evidence and its probative value. Such a distinction is essential in relation to the necessity to make objections during the trial and the availability of grounds of review in the appellate court.

As concerns competency, one requirement is that the witness have a knowledge of property values generally and a knowledge of the particular property involved. Kentucky Utilities Co. v. Barnett, Ky., 252 S.W.2d 12. This requirement is loosened somewhat as to the owner of the property involved, in that mere ownership ordinarily is held to be a sufficient qualification. See Barron v. Phelps, Ky., 238 S.W.2d 1016. In very few instances is there any issue of lack of qualification, but where there is one we think it is incumbent on the opposing counsel to object to the testimony on the ground that the witness is incompetent. If no objection is made the testimony is entitled to be considered by the jury to the extent that it has probative value, and the appellate court cannot reverse on the ground that the verdict was based on the testimony of an incompetent witness.

We think that a question of relevancy is presented in connection with the testimony of a witness who in making his estimate of values relies upon an irrelevant measure of value or an element of value that legally is noncompensable. The question here is a tricky one, because it may involve testimony’s becoming irrelevant after it first was relevant. This is so because a witness may give his estimates of before and after values without stating what factors he considered. (This will be discussed more fully at a later point in this opinion.) Such estimates are acceptable evidence. But if on cross-examination the factors he considered are elicited from him, and one or more of those factors is invalid in that it involves an irrelevant measure of value or a legally noncom-pensable element of value, it would seem that his testimony should be subject to a motion to strike because it is based upon irrelevant factors. (Examples of irrelevant measures of value might be the price paid by the state in condemning another piece of property, or the sale price of a non-comparable other piece of property; examples of noncompensable elements might be loss of profits or diversion of traffic.) In this situation it must be considered that the initial estimates of value were prima facie valid on the assumption that the witness considered only relevant factors, but when it is shown that actually he used irrelevant factors his estimates become invalid. It might be, however, that in some instances where the witness has attributed a specific value to the irrelevant factor, that value could be eliminated from his estimate by a requested admonition, in-which event the remaining estimate would be acceptable evidence.

Of course if the witness initially states irrelevant factors as the basis for his estimate of values (without waiting for cross-examination) his testimony is subject to immediate objection or motion to strike.

As concerns the efficacy of objections as distinguished from motions to strike, it would seem that if a witness has stated his estimate of values and then (or later on cross-examination) states the factors he considered, one of which is an irrelevant factor (such as the price paid for a non-comparable other piece of property), nothing is accomplished by merely objecting to his being permitted to testify to that factor, because his estimate of value still stands before the jury and they will have no satisfactory basis on which to discount his estimate by reason of the improper factor. (Perhaps, however, the appellate court could eliminate this factor in determining the maximum probative value of the estimate.) On the other hand, if the witness shows that he used an improper factor, and a motion to strike his entire testimony is made and sustained on the ground that his estimate was based on the improper factor, his estimate is excluded completely from the jury’s right of consideration.

Since the use of irrelevant measures of value or legally noncompensable elements in reaching an estimate of value is a matter of relevancy of the evidence it seems clear that it is necessary to make an objection or a motion to strike at the trial in order to preserve grounds of error for appellate review. If no such objection or motion is made the appellate court cannot reverse on the ground that the verdict was based on irrelevant evidence.

The basic reason why objections must be made upon the trial to incompetent or irrelevant evidence is that the jury is not qualified to determine questions of competency or relevancy, and in the absence of objection the jury is entitled to give full value to the evidence.

Coming now to the matter of probative value, we consider the questions of the necessity to make objections at the trial, and the extent of the powers of appellate review, where the testimony of a witness lacks sufficient probative value to fully sustain his estimates of damage. Herein-before we have mentioned two different kinds of such testimony, one involving the use of elements, factors or computations that do not reasonably, rationally or logically produce the value estimated by the witness (we distinguish here from the use of a legally noncompensable element — one example could be a duplication of factors), and the other involving estimates so extravagant as to be contrary to common knowledge. Both of these kinds of testimony have some probative value, and therefore are not subject to objection on the trial. The reason why objections are not necessary or proper is that the jury is deemed capable of exercising reason and logic, and of having common knowledge, and therefore is capable of according such evidence its proper weight and value. If, however, the jury gives the evidence more weight and value than the maximum it is entitled to, the appellate court has power to set aside the verdict either on the ground of palpable excessiveness or on the ground that it is not sufficiently supported by the evidence.

We believe that much of the confusion that seems to exist in regard to the eviden-tiary treatment to be accorded testimony of a witness as to the factors he considered in reaching an estimate of property value arises from misconceptions of the proper purpose and function of such testimony. This court has said that the opinion of a witness that property is worth a stated amount is “worthless” unless the witness gives “facts as a reasonable basis to support his opinion.” Commonwealth, Department of Highways v. Rankin, Ky., 346 S.W.2d 714. This would give the impression that a statement of supporting facts is necessary to give any probative force to an estimate of values. We think this is an incorrect view, as we shall show.

The proper measure of damages, where part of a tract of land is taken by condemnation, is the difference in the fair market value of the tract before and after the taking. Commonwealth, Department of Highways v. Stamper, Ky., 345 S.W.2d 640. A properly qualified witness may testify as to before and after values, without stating any factors that he took into consideration, and his testimony will have some probative value. But such bare testimony lacks fullness of probative value to the extent that the other evidence in the record concerning the property falls short of lending credibility to the testimony. For example, a witness might testify that the taking of a small strip of land across the front of a farm reduced its value $10,000. On the basis of the other evidence in the record, showing nothing more than an ordinary farm and a taking of a strip of the same topography as the rest of the farm, the testimony would be palpably extravagant and would not sustain a verdict in the amount of the estimate. But if the witness pointed out special facts and conditions that reasonably could be considered to reduce the value of the farm in the amount of his estimate, his testimony might achieve full credibility. The purpose, then, of “supporting facts,” is to give the estimate of value more weight, more credibility, more probative value (greater quality of conviction).

Our conclusion, therefore, is that it is not necessary for a witness to give “supporting facts” in order to make his estimate of values admissible; the lack of supporting facts affects only the extent to which the probative value of the estimate will go.

A further conclusion is that in the trial of condemnation cases it should be kept in mind at all times that the various elements and factors of damage that may be involved are not items of damage to be priced and totalled for the purpose of reaching a verdict, but are only reasons to be given in support of opinion testimony of before and after values — the tract of land would bring a stated price before the taking because of certain features it possessed, and would bring a stated (lower) price after the taking because of certain conditions resulting from the taking. We think there has been a trend, which must be stopped, in condemnation cases to isolate and separately price various claimed items of damage, with the result that the true measure of damages has been ignored and verdicts have been returned in excess of the real difference -in market value attributable to the condemnation.

Applying the foregoing principles to the testimony in this case, it is our opinion that our power of review is limited under this record to determining whether the testimony of . the landowners’ witnesses had sufficient probative value to support the verdict rendered. All of the witnesses qualified by a showing of a basis for knowledge of land values and a knowledge of the property in question, and each stated factors he considered that would lend some degree of support to his estimate of values. It is true that none of the landowners’ witnesses had knowledge of any comparable sales, but there is no rule making such knowledge the sole acceptable basis for an estimate of land value. Cf. Commonwealth, Department of Highways v. Citizens Ice & Duel Company, Ky., 365 S.W.2d 113.

There is no ground upon which to hold that the trial court erred in admitting (or refusing to strike) testimony involving irrelevant measures of value or legally non-compensable elements of damage because as to some of such testimony no objection or motion to strike was made and in the instances where objection was made the witness purported to make an exclusion of the improper factor from his consideration. For example, several of the witnesses mentioned. the replacement cost, new, of the hotel building (this may be classified as involving an irrelevant measure of value), but upon objections being made they proceeded to say that their estimates were based solely on market values. Also, one of the witnesses indicated that his ideas of value were based on the market conditions which prevailed after it became known in the community that the new highway was to be built (which again might be classified as involving an irrelevant measure of value), but no objections were made to his testimony.

Since the testimony of the landowners’ witnesses must be treated as having some probative value, we can set aside the verdict only if it strikes us as being patently in excess of any amount the evidence reasonably could sustain. It does not so strike us. If the land alone were valued at $24,000 ($100 a front foot), the hotel building at $30,000 (half of its replacement cost new), the bus depot at $20,-000, and the old brick building at $1,000, the total would equal the amount of the verdict. We cannot say that such values would be contrary to common knowledge or that the factors employed by the witnesses could not reasonably, rationally and logically produce such values.

A second contention ' of the Commonwealth is that the valu.e at which the property owners listed their entire property of taxation, $3,860, of itself shows that the verdict is excessive". This contention is based on language in Commonwealth, Department of Highways v. Rankin, Ky., 346 S.W.2d 714, to the effect that a tax assessment value fixed by the landowner should be given “considerable weight” in a condemnation proceeding, and that the landowner “will not be heard to say that he.-has not fixed the -value of his property.” We do not interpret the Rankin case as holding.that the landowner is absolutely estopped by his- assessment. Nor do we think the Rankin case requires that the assessed value be given “considerable weight” unless the assessed value bears some reasonable relation at least to the minimum market value indicated by other evidence in the case. Here the assessed value, even assuming that the ratio of assessed values to full values in Carter County was as low as 10 percent, would indicate a market value far below that fixed by the Commonwealth’s witnesses. In these circumstances we think that whatever weight the assessed value had, it was overcome by the Commonwealth’s evidence showing that the assessment was unreliable. See Wig-more, Evidence, sec. 614, p. 552.

A third contention is that the trial court committed prejudicial error in admonishing counsel for the Commonwealth with reference to making motions to exclude the testimony of witnesses. As each of the first few witnesses for the landowners completed his testimony the Commonwealth moved to strike the testimony. These motions were overruled. When the fourth witness for the landowners completed his testimony a motion to strike again was made. The court overruled the motion and then stated that such motions should not be made, that the proper procedure was to object to specific questions and answers, and that the court did not like to have blanket objections and thus be put to the necessity to ‘‘separate the sheep from the goats”. The Commonwealth maintains that this admonition discredited counsel’s abilities in the eyes of the jury.

We are of the opinion that the court erred in announcing that he would not consider any motions to strike the entire testimony of a witness. As hereinbefore indicated in this opinion, we think a motion to strike is proper (and perhaps even necessary) where it develops on cross-examination that a witness relied upon legally non-compensable elements of value or damages. However, we think the admonition here was not prejudicial. The testimony of the witnesses introduced after the admonition was given was not such as should have been stricken had a motion been made, and we do not consider the words of the admonition as casting any serious reflection on counsel’s abilities.

The contention is made that ex-cessiveness of the verdict is shown by evidence that 12 years before the condemnation was instituted the appellees had bought the hotel property for only $12,000. However, in the absence of any evidence of the circumstances of that purchase, and of any evidence that economic conditions in Olive Hill had remained static since the time of the purchase, we think the purchase price had no great evidentiary weight.

A final contention is that the verdict is excessive because the highway improvement will benefit the remaining property. There is no merit in this because it appears that'the remaining property will be so shallow in depth as to have only limited value. The Commonwealth’s witness valued the remaining property at only $3,-014. Furthermore, the principal damages here are for the property taken (although the jury seems to have treated the loss of the buildings as remainder damage rather than taking damage), and the established rule is that benefits cannot be offset against taking damage. See Commonwealth, Department of Highways v. Evans, Ky., 361 S.W.2d 766.

The judgment is affirmed.

STEWART, C. J., dissents, being of the opinion that the verdict is excessive.


author: HOLMAN, Commissioner.

text:
    STATE of Missouri, Respondent, v. Charles Elliott SANDERS, Appellant.
    No. 49555.
    Supreme Court of Missouri, Division No. 1.
    March 11, 1963.
    Thomas' F. Eagleton, Atty. Gen., Paul.N. Chitwood, Asst. Atty. Gen., Jefferson City, for respondent.
   HOLMAN, Commissioner.

Defendant was charged with and found guilty of the offense of burglary in the second degree and his punishment fixed by the jury, at imprisonment in the penitentiary for a period of two years. See Sections 560.070 and 560.095(2), RSMo 1959, V.A.M.S. He has appealed from the judgment entered upon said verdict.

The building here involved was located at 1316 East 10th Street, Kansas City, Missouri, and was occupied by the Salvation Army in the operation of a mercantile business. • Robert Simmerson testified ■ that he was manager of the store; that'on November 13, 1961, he “locked-up” at 4:30 in the afternoon and at that time saw that all the windows'were closed and locked; that when he' opened the store the'next'morning he discovered that 'a rear window had b'éen broken’ out, and that the cash register -was open and the change drawer had been removed therefrom and placed on the counter. He identified a shirt and cap found near the coke machine, and also certain photographs of the interior of the building which will be hereinafter referred to. This witness further testified that a box of small tools which he kept under the counter were found near' the coke machine. Upon cross-examination he stated that as far as he knew nothing had been taken from the building.

Carl H. Schwarz testified that he was .a night watchman employed by the Salvation Army for a group of buildings occupied by it. He stated that on. the date in question he checked the doors and windows of the store building at 5:30 p. m. and again at 10:30 p. m. and found everything in order; that he went back about 12:45 a. m. on November 14, after learning that the police had been called to the store building, and found that a pane had been broken out of a window on the east side of the building, and that there was an open window on the west side thereof; that the police were then inside the building and had the defendant in custody.

Mary F. Gooch testified that she lived next door to the store building in question, except that there was a parking lot between the two buildings; that on the early morning of November 14, she was watching the “late show” on television when she heard a noise outside which sounded like someone hammering; that she looked out the kitchen window and saw a Irian beating on a car with what appeared to be a crowbar; that this person then went over and broke out a window in the Salvation Army building and crawled into the building; that she then awakened her husband and had him call the police who arrived almost immediately; that a nearby street light enabled her to get a good look at this man and she identified him as the defendant; that she had seen him on three or four previous occasions in the building in which she lived.

Another witness, Corporal Calvin Kid-well, testified that he was with the canine unit of the Kansas City Police Department; that he arrived at the building in question, with his dog “Silver War,” shortly after the police were called; that he found a broken window on the east side and then called inside, “If anyone is in there, come out, or I’ll turn the dog loose”; that in about two minutes the defendant was seen coming out of the alley and was apprehended by the officers present.

Marcus Boger, another member of the police force, testified that he answered a call to investigate the alleged burglary at the Salvation Army store; that he checked the building and found that a window had been broken on the east side of the building, and that a short time later he arrested the defendant as he came out of the alley; that they then went into the building and he saw that the change drawer had been removed from the cash register. Another policeman testified that defendant admitted that the cap found in the building belonged to him but explained that it must have fallen off of his head after the police had taken him into the building.

After defendant was arrested and taken to the police station he was interrogated by detective William Austin and his statement, so obtained, was reduced to writing and signed by him. That statement was admitted in evidence as State’s exhibit 4 and contained, in part, the following: “Question: Charles, in your own words, tell me how you committed this burglary. Answer: * * ⅜ As I was walking by the Salvation Army As-Is Store, 1316 East 10th Street, next to the apartment building where Jinks lives, at about 12:20 a. m. on 11-14, 1961, I decided to break in and see if I could find some money. I picked up a rock that I found in the parking area by the northeast corner of the store and tapped the window, which was interwoven with chicken wire, until I had a place broken in it where I could shove my foot through and kicked the rest of the window out and crawled through into the building. After I got inside I walked over to a coke machine which was in the same room where I broke in, and as I started to break into the coke machine I heard a car pull up at the front of the alley by the window where I broke in. I ran to the window and looked out and saw it was a police car. I then ran to the front of the building to see if I could find another way out, and I saw another police car. I then ran to the window on the west rear side of the building and raised the window and crawled out into the alley, and walked through the alley to 10th Street, and west on 10th Street to where I was arrested approximately SO feet west of the building I had broken into.” No evidence was offered by defendant in the trial.

The defendant has not filed a brief in this court and it therefore becomes our duty to examine the assignments in his motion for new trial.

We will first consider the assignment that “the court erred in denying defense counsel’s motion for judgment of acquittal at the close of the State’s evidence because as a matter of law the State’s evidence created a reasonable doubt to the defendant’s guilt.” This contention is clearly without merit. The foregoing detailed statement of the facts contains ample evidence from which a jury could reasonably have found, beyond a reasonable doubt, that defendant broke into and entered the building in question, in which goods and merchandise were kept, with intent to steal. Those findings include the essential elements of the offense of burglary in the second degree and would be sufficient to support the submission herein. This assignment is accordingly ruled adversely to defendant.

The assignment “that the verdict is against the weight of the evidence” has been repeatedly held to be too general and therefore insufficient to preserve anything for our review. State v. Herron, Mo.Sup., 349 S.W.2d 936.

The final assignment in the motion relates to alleged errors in the admission of evidence offered by the State. It is first said that the court erred in admitting photographs that were not properly identified. The two photographs admitted in evidence were evidently taken by the police. One showed the interior of the store, and particularly the cash register with the change drawer removed therefrom and placed on the counter. In regard to that photograph the manager of the store testified as follows: “Q. And does this photograph fairly and truly and accurately portray the scene as you remember it on the morning of November 14, 1961?. A. Yes, sir.” The other photograph was of the window that had been broken on the night of the burglary. Mr. Simmerson also testified that it fairly and accurately portrayed that window. Although this witness did not take the photographs, and was not present when they were taken, he was very familiar with the premises and his testimony that they fairly and accurately portrayed the objects shown therein was a sufficient identification and they were properly admitted in evidence. State v. Duncan, Mo.Sup., 316 S.W.2d 613 [14].

Defendant also assigns error in that “a copy of a signed confession was introduced, over defendant’s objection, rather than the original.” The objection at the time the exhibit was offered was that it was “a carbon copy and not the best evidence.” The exhibit has been copied in the transcript but defendant has not seen fit to cause the exhibit itself to be deposited here. However, it plainly appears from the transcript that the so-called carbon copy which was admitted had been signed by the defendant. Therefore, while the typing in the exhibit may have been a carbon copy (there is no proof of that fact), it became a duplicate original upon being signed by defendant and was properly admitted in evidence. In the case of State v. Trice, 338 Mo. 744, 92 S.W.2d 135, 136, this court ruled a similar contention adversely to the defendant, as follows: “The evidence, however, disclosed that the statements, alleged to have been made by appellant, were written with a typewriter, in the form of questions and answers, at the time the statements were made; that a number of carbon copies were made at the same time; that appellant signed the carbon copy which was introduced in evidence. Reference is usually made to such writings as carbon copies, when in fact they are duplicates, and, when signed by the parties, are admissible in evidence.” This assignment is without merit and is ruled against defendant.

An examination of the record as required by S.C. Rule 28.02, V.A.M.R., discloses no error.

The judgment is affirmed.

■COIL, C., not participating.

HOUSER, C., concurs.

PER CURIAM.

The foregoing opinion by HOLMAN, C., is adopted as the opinion of the court.

All of the Judges of the Division concur, and HUNTER, Special Judge, concurs.