text:
    Dr. Walter T. EDWARDS, Appellant, v. WARD ASSOCIATES, INC., Appellee.
    No. 16162.
    Court of Civil Appeals of Texas. Dallas.
    April 19, 1963.
    Rehearing Denied May 17, 1963.

      Wade, Davis, Callaway & Marshall, Fort Worth, for appellant.

      J. Manuel Hoppenstein and Jerome L. Prager, Dallas, for appellee.
   BATEMAN, Justice.

Suit was filed by appellee for rents and a reasonable attorney’s fee alleged to be due under a written lease. Appellant alleged in his answer that at the time of execution of the lease the premises covered thereby consisted only of a floor, four walls and ceiling, in which appellee agreed to make certain improvements and install heating and cooling equipment; that from the time appellant went into possession (in August 1959) pools of water accumulated near the front doorway, both inside and out, every time it rained, making it impossible for appellant to use the premises as a medical clinic, and that appellee’s refusal to correct this situation resulted in the constructive eviction of appellant, by reason of which he surrendered the premises to appellee m December 1960. Appellant also alleged that appellee failed to keep the areas in the rear of the demised premises clean and free from garbage and other refuse, rendering the premises untenantable as a medical clinic, that to induce appellant to enter into the lease contract appellee promised to have a street adjacent to the premises paved and also to refer all persons coming to ap-pellee’s nearby drug store, who inquired for medical attention or services, to appellant, both of which promises appellee failed to perform; also that appellee breached its contract to install suitable cooling and heating in the premises; all of which derelictions on the part of appellee resulted in damages of $25,000 to appellant, for which he made counterclaim.

The jury found in response to special issues that (1) appellee expressly waived written notice of defects in the premises; (2) a material defect existed in the leased premises causing flooding by rain water which prevented appellant from maintaining his doctor’s office therein, (3) of which appellant advised appellee prior to moving out of the premises; (4) that appellee failed and refused to correct such material defect prior to appellant’s moving out; (5) that a material defect existed in the air conditioning system which prevented appellant from maintaining his doctor’s office therein, (6) of which appellant advised appellee prior to moving out of the premises, (7) that appellee failed and refused to correct such material defect prior to appellant’s moving out; (8) that appellant suffered damages by reason of the matters inquired about, (9) in the sum of $500.

Appellee filed motions to disregard all of said jury findings and for judgment non obstante veredicto for the amount of rents admittedly unpaid for the remainder of the term of the lease and for a reasonable attorney’s fee. Appellant filed a motion for judgment on the verdict, that the ap-pellee take nothing and that appellant recover $500 on his counterclaim.

The court sustained appellee’s motion to disregard the jury findings, and rendered judgment non obstante veredicto awarding to appellee the rents and attorney’s fee sued for and decreeing that appellant take nothing by his counterclaim. In the body of the judgment the court assigned various reasons for his actions which are denominated “findings of fact and conclusions of law” but which we did not consider in determining whether the judgment non obstante veredicto should stand or be reversed. 33 Tex.Jur.2d 531.

We sustain the action of the trial court in rendering judgment notwithstanding the verdict in favor of appellee for the rents and attorney’s fee. In making this determination we have considered the testimony in the light most favorable to appellant and have indulged every intendment reasonably deducible from the evidence in favor of appellant and against the judgment. 3-B Tex.Jur. 382.

In his first three points of error the appellant contends that the court erred in overruling his motion for judgment on the verdict, and in holding that neither the findings nor the evidence are sufficient to establish a defense. We find no merit in any of these assignments.

It is apparent from the record and the briefs that appellant abandoned his defensive theory of constructive eviction. The judgment states that his counsel abandoned it in open court, and in appellee’s brief the same statement is made. The recital in the judgment imports verity. 49 C.J.S. Judgments § 437, p. 869; Bass v. Hoagland, 5 Cir., 172 F.2d 205, 208. In appellant’s reply brief he not only does not deny the statement, but in criticizing the pertinence of certain authorities cited by appellee states that they “deal with constructive eviction and these cases have no application to our case. Our case is based upon the landlord’s failure to furnish a premises suitable for use as a doctor’s office in which he failed in two very material respects as shown by the evidence and the findings of the jury.”

Moreover, since no issues were submitted or requested on the essential elements of constructive eviction, we hold that this defensive theory was waived. Stillman v. Youmans, Tex.Civ.App., 266 S.W.2d 913, no wr. hist.; Nabors v. Johnson, Tex.Civ.App., 51 S.W.2d 1081, no wr. hist.; Richker v. Georgandis, Tex.Civ.App., 323 S.W.2d 90, err. ref. n. r. e.; Hoover v. Wukasch, Tex.Civ.App., 274 S.W.2d 458, err. ref. n. r. e.; Rule 279, Vernon’s Texas Rules of Civil Procedure.

Furthermore, with respect to appellant’s claim that puddles of water gathered on the sidewalk immediately inside and outside the front door each time it rained, making the premises untenantable and thus excusing him from liability for the rents reserved in the lease, it is our holding that if the facts show any obligation on the part of appellee to remedy this situation, such obligation would be independent of appellant’s obligation to pay the rents provided for and reserved in the lease. As stated in Mitchell v. Weiss, Tex.Civ.App., 26 S.W.2d 699, 700:

“The covenant of the landlord to repair and the tenant’s covenant to pay rent are regarded as independent covenants unless the contract between the parties evidences the contrary. Accordingly, the breach by the landlord of his covenant does not justify the refusal of the tenant to perform his covenant to pay rent. Certainly this is true when the tenant remains in possession, occupancy, and use of the premises as the undisputed evidence in this case shows was done. The tenant is remitted to the right to recoup himself in the damages resulting from the landlord’s breach of his covenant to repair.”

See also 32 Am.Jur. 408, § 499; Ammons v. Beaudry, Tex.Civ.App., 337 S.W.2d 323, err. ref.

Appellant’s complaints of the failure of the appellee to remove the garbage and other refuse from the areas to the rear of the premises, and its failure to have the street adjacent to the premises paved, and its failure to refer persons to appellant for medical services were all abandoned and waived by appellant’s failure to request submission of any issues to the jury thereon. Rule 279, Vernon’s Texas R.C.P. Furthermore, the evidence, viewed in a light most favorable to appellant, fails to establish that any of these things caused the premises to be untenantable or resulted in any damage to appellant.

This brings us then to appellant’s claim that he should be relieved of liability for further rents under the lease because of the alleged breach of the lease by appel-lee in failing to provide adequate heating and cooling. We find no merit in this contention. Nowhere in the lease or in the testimony do we find evidence of any agreement, express or implied, on the part of the appellee to keep the heating and air conditioning equipment in repair or to maintain the temperature of the air in the offices within any given range in summer or in winter. On the contrary we note that in the section numbered “4th” in the lease contract it is provided:

“That the Lessee shall at his expense keep the interior of the building, including the plumbing, closets, pipes and fixtures belonging thereto, in good repair; and shall take good care of the property and its fixtures and suffer no waste; and keep the water pipes and connections free from ice and other obstructions, to the satisfaction of the municipal or governmental authorities, during the term of this lease.”

Appellant obviously recognized his obligation in this respect because he testified that he called the air conditioning people several times to come out and make adjustments. It is interesting to note that in the beginning he specified by name the certain brand of air conditioning equipment which was installed. Accordingly, we hold that appellee owed no duty to appellant with respect to the heating or air conditioning, from which it follows that appellee’s alleged breach in this respect did not legally excuse appellant from his obligation to pay the rents provided for and reserved in the lease.

It will be seen from what we have said above that no defense was shown to appellee’s claims for rents and attorney’s fee; and that portion of the judgment must therefore be affirmed. This makes it unnecessary for us to pass upon appellant’s fourth point of error wherein he asserts that the trial court erred in holding that the answers of the jury in response to Special Issues'numbered 1 through 9 have no support in the evidence. Regardless of whether support may or may not be found in the evidence for these issues, we hold that they are insufficient in law to establish a defense and therefore immaterial.

Appellant’s fifth point of error on appeal asserts that the trial court erred in finding the facts set out in the judgment as findings of fact and conclusions of law. As stated earlier in this opinion we take these so- called “findings” as a sort of explanation or statement of the reasons of the trial court justifying his action in disregarding the jury findings and rendering judgment for appellee non obstante veredicto. They do not enter into our determination of the propriety vel non of the judgment actually rendered. Accordingly this point is overruled.

By his sixth point appellant asserts error on the part of the trial court in holding that as a matter of law there was no constructive eviction of appellant and that appellant in open court abandoned the theory of constructive eviction. We have heretofore given our reasons for holding that the record does show abandonment of the theory as well as waiver thereof by appellant. The essential elements of constructive eviction are set forth in Stillman v. Youmans, Tex.Civ.App., 266 S.W.2d 913, no wr. hist.; viz., an intentional act or omission of the landlord that permanently deprives the tenant without his consent of the use and beneficial enjoyment of the demised premises, or a substantial part thereof, in consequence of which he abandoned the premises within a reasonable time after the act or omission. Not only were no issues requested on these indispensable elements, but there was no evidence offered to prove them. Accordingly the sixth point is also overruled.

In his seventh point of error on appeal, appellant asserts that the trial court erroneously held that he had failed to prove by competent evidence any damages sustained as a direct result of appellee’s acts or omissions. As hereinbefore shown, the jury found that there were two material defects in the leased premises which prevented appellant from maintaining his doctor’s office therein; viz., one causing flooding by rain water and the other in the air conditioning system. The jury further found that appellee was advised of these defects but failed and refused to correct the same, in consequence of which appellant suffered damages in the sum of $500. The finding with respect to the air conditioning was properly disregarded because, as herein-before shown, appellee owed no duty to appellant with respect to keeping the air conditioning equipment in repair.

We also hold that the findings with respect to the flooding by rain water were properly disregarded because there is no evidence in the record to establish that appellant sustained any pecuniary loss on account of such flooding. He offered evidence as to certain charges he made for certain medical services; that his overhead at this place amounted to about $1300 per month, and that his gross receipts amounted to only about $600 per month; that an average of only five or six patients a day came to him during the fifteen months he occupied the premises, whereas at his main office, which he had maintained several years, he saw thirty to forty a day; that his annual income dropped about $6,000 at his main office because of the time he spent at the new branch office; that his patients who called at his office shortly after or during a rain storm had to wade through the puddle of water in front of his front door, where the water was deep enough to come up over the soles of their shoes, and that these patients complained, but nowhere in the record is there any evidence definitely pointing to the loss of a single patient or of any income because of this admittedly annoying situation.

Generally speaking, the measure of damages for a landlord’s breach of covenant to repair or keep in repair the demised premises is the difference between the contract rental of the premises and the rental value of the premises in their unre-paired condition. Mitchell v. Weiss, Tex.Civ.App., 26 S.W.2d 699, no wr. hist. We are also aware of the rule announced in such cases as Gray v. Tate, Tex.Civ.App., 251 S.W. 820, no wr. hist., that where the landlord expressly agreed to make certain repairs and either fails to do so or does so ineffectively, the actual loss of or damage to goods of the tenant resulting from such failure may be recovered. But here the appellant offered no proof of the difference in the rental values or of damage to particular property, contenting himself with an effort to establish loss of profits. As indicated above, a careful study of the entire record fails to establish any such loss. It will be borne in mind that here the leased premises was located in a new shopping center in a suburban residential section of Fort Worth. Appellant testified that he had never had any previous experience of operating a branch office; that this was his first such venture and it was new; that he didn’t know and wouldn’t be able to estimate, what his income would be and that he was taking a risk. It is well settled that anticipated profits from a business which had not been established at the time of the alleged breach are necessarily so speculative and remote that recovery thereof will not be allowed. Southwest Battery Corp. v. Owen, 131 Tex. 423, 115 S.W.2d 1097; Silberstein v. Laibovitz, Tex.Civ.App., 200 S.W.2d 647, 650, no wr. hist.; 13 Tex.Jur. (Rev) 207, § 103. Therefore, the seventh point is overruled.

Finding no reversible error in the record, and being of the opinion the trial court eventually reached the right result, we affirm the judgment in its entirety.

Affirmed.


source: Caselaw Access Project

author: ARCHER, Chiei Justice.

license: Public Domain

text:
    GLOBE INDEMNITY COMPANY, NEW YORK, N. Y., Appellant, v. Paul N. JETT, Jr., Appellee.
    No. 11083.
    Court of Civil Appeals of Texas. Austin.
    April 24, 1963.
    Rehearing Denied May 8, 1963.
    House, Mercer, House & Brock, Franklin D. Houser, San Antonio, for appellant.
    Cofer, Cofer & Hearne, Austin, Drought & Kaufman, San Antonio, for appellee.
   ARCHER, Chiei Justice.

This is an action for declaratory judgment wherein appellee brought said suit to determine his rights under a certain policy written by the appellant in this case and specifically seeking to determine a question of coverage under said policy, which was a standard automobile liability policy.

On December 23, 1959, appellee Jett purchased a policy of automobile liability insurance from the appellant, Globe Indemnity Company. During the time that the policy was in force; namely, September 9, 1960, while appellee Jett was engaged in driving a “non-owned” modified racing car for contingent compensation on a race track in Austin, Texas, an accident occurred. The race car which appellee Jett was driving went out of control, crashed through a retaining wall or fence and inflicted bodily injuries on a bystander. A suit for personal injuries is now pending in Travis County against appellee by the injured bystander. By this suit for declaratory judgment appel-lee Jett seeks to obtain personal liability coverage under the policy in question. Appellant has refused to recognize any such coverage or defend the suit pending against appellee. Appellant’s position is that there is no coverage under the policy because of Exclusion “H” which is as follows:

“(h) to a non-owned automobile while used (1) in the automobile business by the insured or (2) in any other business or occupation of the insured except a private passenger automobile operated or occupied by the named insured or by his private chauffeur or domestic servant, or a trailer used therewith or with an owned automobile.”

Both appellee and appellant filed Motions for Summary Judgment; the trial court granted appellee’s Motion for Summary Judgment and .refused appellant’s Motion for Summary Judgment. After granting ap-pellee’s Motion for Summary Judgment the court thereupon entered a judgment which ordered and decreed that the appellee was covered by appellant’s policy No. GDH 246225, and that the appellant is obligated to defend the appellee in the suit which is now pending in Travis County, styled Fred H. Mayer vs. A. B. Wusterhausen, et al., in the 53rd Judicial District Court of Travis County, Texas. The court went on further to hold that the appellant is obligated to pay all sums which the appellee may by such suit become legally obligated to pay as damages to the limits provided by the policy in question.

The appeal is founded on one point assigned as error and it reads:

“The trial court erred in granting appellee’s Motion for Summary Judgment and refusing appellant’s Motion for Summary Judgment because, as a matter of law, appellee was engaged in a business or occupation at the time of the collision and was therefore not covered by the policy in question.”

The question to be decided in this appeal is whether the appellee was engaged in a business or occupation at the time of the collision, within the meaning of “Exclusion H.”

Appellant’s position is that appellee was engaged in a business or occupation, and that of appellee is that he was not so engaged but merely participating in a hobby or sport.

The facts in this case are:

“1. Appellee works full time as a shop foreman for the Smith Motor Imports in San Antonio, Texas, earning $487.00 a month. His racing does not interfere with his regular business.
“2. Appellee has driven racing cars on weekends as a sport or hobby on a regular basis for thirteen years. But for the money he has taken in, he would not be racing. It is un-controverted that he considers racing a hobby, and he has never taken in more money than his expenses. He has never included his winnings in his income tax return.”

The issue in this case for determination is of first impression with the Courts of this State. The Courts of other States have construed similar policy provisions.

We have no difficulty in determining the meaning of “business or occupation” in its usual sense by reference to dictionaries such as Webster’s New International Dictionary, Second Edition, and we omit such definition and synonym.

Appellant cites Allstate Insurance Company v. Hoffman, 21 Ill.App.2d 314, 158 N.E.2d 428, Appellate Court of Illinois and Voelker v. Travelers Indemnity Co., 172 F.Supp. 306, D.C.N.D.Ill., and Seaford v. Nationwide Mutual Insurance Company, 253 N.C. 719, 117 S.E.2d 733, 85 A.L.R.2d 496.

Appellee cites Bowen v. Merchants Mutual Casualty Co., 99 N.H. 107, 107 A.2d 379 (1954), by the Supreme Court of New Hampshire in which the Court had for determination whether a temporary line of work not directly connected with the principal line of endeavor of the insured was a business or occupation, under a policy provision substantially the same as is involved here, and the Court held that it was not a business or occupation.

The insured, an iceman, was not able to continue his regular work because of an injury so he exchanged jobs with his brother, a truck driver, and -was involved in a collision while driving the truck. The New Hampshire Supreme Court held he was not engaged in a business or occupation while driving the truck, the Court stating, in part as follows:

“The test for interpreting a contract of insurance is the meaning a reasonable person in the position of the insured would give to its terms. * * * The words ‘business’ and ‘occupation’ may have various meanings under particular circumstances but in general they are each commonly used in reference to the work in which one is regularly or usually engaged. * * * ‘One’s business * * * is the activity upon which he spends the major portion of his time and out of which he makes his living.’ ”

The Court cited other cases.

The general rule in Texas as stated m 32 Tex.Jur.2d, p. 558, Insurance, Sec. 361 is “The words 'occupation’ and 'business’ mean principal business, pursuit, or calling as distinguished from acts incidentally connected with the lives of men in any and all occupations.”

In Federal Income Tax cases, our Federal Courts have recognized exception for hobbies. Doggett v. Burnett, 62 App.D.C. 103, 65 F.2d 191.

In Deering v. Blair, 57 App.D.C. 367, 23 F.2d 975, business was defined as “that which occupies the time, attention, and labor of men for the purpose of livelihood or profit.”

In Cherot v. United States Fidelity and Guaranty Company, 264 F.2d 767, 71 A.L.R.2d 959, the Circuit Court of Appeals for the 10th Circuit held an insurance company could not deny coverage under the policy provision excluding coverage of a “non-owned automobile while used (1) in the automobile business by the insured” if the insured was operating the automobile in the course of repairing the automobile as a hobby and not for profit or gain.

The Court in the course of its decision stated that what constitutes doing business is a question of law, and whether one is engaged in business under the definition is a question of fact, and gave definitions of business, citing other cases.

In Connor v. City of University Park, Tex.Civ.App., 142 S.W.2d 706, error ref., the Court in a zoning case held that “The term 'business’ is applicable to any particular employment, occupation, or profession followed as a means of livelihood; in this sense, the word has been defined in general as meaning calling, employment, trade or avocation.”

We believe that the Trial Court was justified in granting the Summary Judgment, and the judgment is affirmed.

Affirmed.


author: MASSEY, Chief Justice.

text:
    WESTERN AUTO SUPPLY COMPANY, Appellant, v. J. E. CAMPBELL, Appellee.
    No. 16419.
    Court of Civil Appeals of Texas. Fort Worth.
    April 19, 1963.
    Rehearing Denied May 17, 1963.

      Cantey, Hanger, Johnson, Scarborough & Gooch, David O. Belew, Jr., and Sloan B. Blair, Fort Worth, for appellant.
    Crumley & Hooper, R. E. Rouer and Frank E. Crumley, Fort Worth, for appel-lee.
   MASSEY, Chief Justice.

The appeal is by the defendant from a judgment in favor of plaintiff for damages growing out of personal injuries sustained as the result of his having slipped on a floor of a retail store at a time when there was water or other foreign substance thereon. J. E. Campbell was the plaintiff. Western Auto Supply Company was the defendant. We will so term the parties in this opinion.

We affirm the judgment of the trial court.

The most material question posed on the appeal is defendant’s contention of the applicability of the doctrine volmti non fit injuria — voluntary encountering of risk— as result of which injury was sustained. The defendant plead that the condition of the floor of its premises on and by reason whereof plaintiff slipped and fell was open and obvious (to him). The jury found to the contrary, and that the condition was not open and obvious. We have examined the whole record and have concluded that if the issue was in fact raised, propriety of the answer thereto was clearly within the discretion of the jury. Its negative answer was therefore conclusive.

The defendant also plead as follows: “ * * * this defendant would show that plaintiff by walking on said floors after he had been warned, assumed the risk of possibly falling and the defendant here and now invokes the doctrine of volenti non fit injuria, which in law means, he who consents can receive no injury.” In respect to the matter of “warning”, defendant had also plead that plaintiff was guilty of negligence amounting to a proximate cause or contributing cause of his injuries in that he failed to heed the warning of the store salesman about the condition of the floor on which he slipped.

In consequence of defendant’s dual form of pleading, i. e., that plaintiff was con-tributorily negligent, and also that he had voluntarily encountered the risk as result of which his injuries were sustained, defendant afforded itself the opportunity of defeating plaintiff’s claim under the doctrine of volmti non fit injuria even in the event it failed to persuade the jury to convict plaintiff of contributory negligence. Restatement of the Law, Torts, p. 499, “Justification or Excuse”, § 893, “Voluntary Exposure to Risk as a Defense”, comment (d), “Consequences of distinction between voluntary assumption of risk and contributory negligence”. In order to be entitled to take advantage of said defense so plead, however, the defendant was obliged to raise the requisite issues thereon for the jury’s determination, or to make a record which would entitle it to a judgment as a matter of law because said requisite issues would be properly resolved against the plaintiff as a matter of law. Such was held in the case of McKee, General Contractor v. Patterson, 1954, 153 Tex. 517, 271 S.W.2d 391.

There were four special issues submitted to the jury upon the matter of defendant’s alternative defenses so pleaded. Special Issue 5 inquired whether defendant’s salesman warned plaintiff of the condition of the floors. The jury’s answer thereto was “Yes”, that the salesman had warned the plaintiff. Special Issue 6 inquired whether plaintiff failed to heed said warning. The jury’s answer thereto was “Yes”, that plaintiff had so failed. Special Issue 7 inquired whether said failure on the part of plaintiff was negligence. The jury’s answer thereto was “No”, thus refusing to find that the failure of plaintiff amounted to “negligence” as defined by the court’s charge. Special Issue 8 was an inquiry about whether any negligence found in answer to Special Issue 7 was a proximate cause of plaintiff’s injury and was not answered since the condition did not arise requiring the jury to make any finding. From the aforesaid questions and answers it is apparent that the jury acquitted the plaintiff of contributory negligence in the respect charged.

It is the contention of the defendant that in view of the record as a whole, coupled with the affirmative answers, the jury did find in response to Special Issues 5 and 6 that a complete defense to plaintiff’s cause of action was established as a matter of law, whereby judgment should have been entered for the defendant. We do not agree. The state of the record and the evidence therein did not raise the doctrine of volenti non fit injuria as a defense. Defendant was not even entitled to have issues submitted to the jury, favorable answers to which would have established its defense under the doctrine. An essential element of such defense lies in proof that the plaintiff against whom it is invoked “appreciated”, or should have, the dangers inherent in the hazard “voluntarily encountered”. Such must be established as a matter of law or at least raised as a question of fact. There is no proof whatever in the record which bears upon any “appreciation of danger” on the part of plaintiff. True, testimony from the salesman of the defendant who warned the plaintiff of the slippery condition of the floor established that he “appreciated” the danger of a floor in such condition, but that is not evidence that the plaintiff did likewise, or should have. See McKee, General Contractor v. Patterson, supra, and authorities cited in the opinion. See also the whole of the previously cited section (893) of the Restatement of the Law, Torts; and Personal Injury Litigation in Texas (State Bar of Texas), Ch. 10, pp. 517-522, §§ 10.7-10.11, inclusive, dealing with the volenti doctrine.

In plaintiff’s pleadings his contention of negligence on the part of the defendant was asserted on the ground that the latter knowingly and negligently permitted a “foreign substance” or “wet slippery substance” to be and remain on its floor; and that as the result thereof plaintiff’s injuries proximately resulted. During the course of the trial the defendant’s evidence was to the effect that it was a film of undiluted water that was on the floor. The plaintiff did not know what it was, but testified that it “felt like” liquid soap, obviously referring to the sensation experienced when his foot slipped. Shortly after the event and before the plaintiff had arrived at his home after visiting the place of the event, the manager of plaintiff’s store (in full charge of all operations thereat) returned to the store where he was informed of the occurrence hy employees, and telephoned plaintiff’s home and talked with his wife. He told plaintiff’s wife that the employees at the store had informed him that plaintiff had slipped on some wax. The fact that he had made such statement to plaintiff’s wife was denied by the store manager.

In the submission of plaintiff’s case to the jury the court submitted as Special Issue 1A, the following: “Do you find from a preponderance of the evidence that the defendant, Western Auto Supply Company, permitted a portion of the floor in question to he wet, or covered with a foreign substance at the time and on the occasion in question?” The jury answered in the affirmative, or “Yes”, and likewise to the conditionally submitted issues accompanying, the result of which was that said act or omission on the part of the defendant was negligence and a proximate cause of personal injuries sustained by plaintiff.

To the submission of each of said issues the defendant filed objections, a portion of which raised the contention that the issue was duplicitous “in that the Court asks if the floor was ‘wet’, or if there was a ‘foreign substance’.” The objection went further and contended that there was no evidence that there was a “foreign substance” on defendant’s floor, and that the evidence was insufficient to support the issue.

The complaint is brought forward hy a point of error, reading in part, “because Special Issue No. 1-A, * * * is duplicitous in that it inquired whether the floor was wet or covered with a foreign substance, thereby requiring the jury to answer ‘Yes’ or ‘No’ to alternative inquiries submitted disjunctively.” There is no doubt of the meaning and intent of the point and the error asserted is apparent and will be treated as properly raised and preserved.

Nevertheless we overrule the point of error. In the first place we believe that the alleged statement made hy the store manager of defendant over the telephone to the plaintiff’s wife constituted an admission against the defendant’s interest and evidence which would entitle the jury to find that it was wax on which plaintiff slipped. Likewise, we believe that common usage and custom in mopping tile floors, coupled with plaintiff’s testimony that it “felt like” liquid soap on which he slipped, would entitle the jury to conclude that some soap was used in the mopping of the floor despite the direct testimony that only clear water was used. In the second place we are of the opinion that under the circumstances of the case the inquiry should be treated and considered as one inquiring about a single act (or omission) of negligence, not of duplicitous or multifarious acts (or omissions), at least in so far as the defendant was concerned, to-wit: whether it permitted the portion of its floor to be in such condition that a person walking thereon might find his footing so insecure that a fall might be occasioned thereby. Thirdly, the departure from the provisions of Texas Rules Civil Procedure 277, “Special Issues”, if the manner of submission was a departure therefrom, was harmless error not requiring reversal in view of T.R.C.P. 434, “If Judgment Reversed”, in that it would be the plaintiff and not the defendant who would have cause for complaint because the issue and its companion issues were not among those on which the defendant relied and the only possible injury from the manner of submission would have been to prejudice the plaintiff in depriving him of all the theories under which he sought to impose liability upon the defendant. Speer, Law of Special Issues, p. 241, “Form and Construction of Issues”, § 184, “Grouping issues”. Finally, since the defendant has conceded that the floor was wet (with clear water), while denying the presence of any foreign substance, one or the other of the conditions or facts inquired about necessarily existed, having been conceded, and the court was authorized by T.R.C.P. 277, “Special Issues”, to submit the same in a single issue in the disjunctive form adopted.

The defendant has presented two points of error complaining of the $23,000.-00 in damages awarded plaintiff, for and ■on account of his personal injuries, on the ground that there was no evidence or in the alternative insufficient evidence to support the jury’s finding of the same, and the judgment entered thereon, and furthermore because the finding of the jury was excessive and so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. We have reviewed the evidence in light of the contentions and have concluded that there was evidence which was sufficient to support the amount of damages found, that the findings were not against the greater weight of the evidence, and that the judgment for damages entered was not excessive.

Judgment is affirmed.


author: HUGHES, Justice.

text:
    Fancher ARCHER, Appellant, v. Nova Dean BLAKEMORE et vir, Appellees.
    No. 11066.
    Court of Civil Appeals of Texas. Austin.
    April 17, 1963.
    Rehearing Denied May 8, 1963.
    John E. Allen, L. Hamilton Lowe, Austin, for appellant.
    Kuykendall & Kuykendall, Austin, for appellees.
   HUGHES, Justice.

This is a suit involving the amount of attorney’s fee appellant Fancher Archer, an attorney, is entitled to receive from his former client, Nova Dean Blakemore, for representing her in divorce proceedings against her former husband, Hurley Griffith.

On September 20, 1960, the parties entered into the following agreement:

“THE STATE OF TEXAS
“COUNTY OF TRAVIS
“September 20, 1960
“I, Nova Dean Griffith, having heretofore and do hereby employ Fancher Archer of Archer & Archer, Attorneys, 206 Littlefield Building, Austin, Texas, to represent me in preserving, keeping and managing my separate property and my community property of the community of Nova Dean Griffith and Hurley Griffith, my present husband, and having employed him to file suit and take such other action and steps by suit or otherwise to preserve and protect my property.
“AND for and in consideration of the services rendered and to be rendered to me by the said Fancher Archer, I agree and obligate myself to pay him one-fourth (¼) of whatever property either personal, real, or money which shall be determined to be mine either through settlement or suit and I agree to pay costs of court.
“This I make as a power of attorney to Fancher Archer, to represent me and in my name to do all things necessary to manage, control and protect my interests and property.
“,/s/ Nova Dean Griffith”

On the same day appellant filed an amended petition for divorce on behalf of appellee in which attorney's fees in the sum of $1000.00 was sought.

By an instrument dated October 17, 1960, Hurley Griffith submitted a list of property owned by him.

On November 21, 1960, the parties to the divorce suit entered into a property settlement in anticipation of a divorce by the terms of which appellee received some forty-three shares of stock in various insurance companies, household furniture and effects, one-half interest in all bank accounts and a one-half interest in the East 26' of Lot 2 and the West 20' of Lot 2 and all of Lot 1, Block 157, original City of Austin, Travis County, such realty being subject to certain debts. Such agreement also provided that, “Attorneys’ fees in the sum of $500.00 shall be paid by Hurley Griffith to Archer and Archer, Attorneys; and all other attorney fees shall be paid by the respective parties to his or her attorney.”

On November 22, 1960, judgment of divorce was awarded appellee and the property settlement between her and her husband was explained by the Court, and because of which the Court found that there “is no necessity for adjudicating any property rights of the parties.”

On the same day, and before leaving the Courthouse and while the relationship of attorney and client between the parties hereto was in effect, appellee executed and delivered to appellant a general warranty deed to an undivided ¼ interest in and to the realty above described in consideration of the “legal services rendered pursuant to contract of employment,” $10.00 and other good and valuable considerations.

It is this deed which appellee filed this suit to cancel. Her grounds for cancellation were that it was executed while the fiduciary relationship of client and attorney existed between her and appellant when it was executed; that she did not understand its nature and effect; that appellant had been paid a fee of $600.00 for his services in representing her in the divorce suit, which was a reasonable fee; that the value of the property conveyed by such deed was $7000.00, and that unless set aside it would result in appellant receiving an unreasonable and exorbitant fee for his services. She further alleged that if appellant is “entitled to any additional fee, she stands ready to pay said additional fee.”

Appellant’s answer consisted of a general denial and affirmative allegations to the effect that the deed sought to be cancelled was executed in consummation of the contract of employment as attorney for appel-lee the obligations of which appellant had fully performed.

Trial was to the Court without a jury. Judgment was rendered cancelling the deed in question, decreeing the sum of $1000.00 as reasonable attorney’s fees for appellant for legal services rendered by him for ap-pellee in the divorce suit filed against Hurley Griffith, and, $600.00 of such fee having been paid, rendering judgment for appellant against appellee for the sum of $400.00.

Appellant only has perfected an appeal. Appellee did not perfect an appeal from the judgment insofar as it was adverse to her. It follows that we have no authority to consider appellee’s cross assignments complaining of the $400.00 judgment against her. Cline v. Cline, 323 S.W.2d 276, Houston Civil Appeals, writ ref., n. r. e.

It is our opinion that the judgment of the Trial Court should be affirmed.

The evidence shows, and there is no contention to the contrary, that appellant fully, faithfully and satisfactorily performed all of his obligations to appellee under his contract of employment with her. The only question to be considered is the reasonableness of the contracted compensation to be paid him.

Appellant, of course, knew that appellee was a married woman when he contracted with her for attorney’s fees. He was charged with knowledge of the law which restricts the authority of a married woman to contract. In this instance the right of a feme covert to contract is based solely upon the ground that the employment of an attorney to represent her in a divorce suit against her husband is a contract for “necessaries” under Arts. 4614, 4621, 4623, which are “reasonable and proper” under Art. 4624, Vernon’s Ann.Civ.St. 30 Tex.Jur.2d, Husband and Wife, Secs. 12, 13, pp. 26-30, Brook v. Morriss, Morriss and Boatwright, 212 S.W.2d 257, Austin Civil Appeals, Couch v. Couch, 315 S.W.2d 64, Waco Civ.App., writ dism.

The least value which the property conveyed by appellee to appellant by the deed in suit could have, under this record, is $2,770.74. This amount added to the $600.-00 paid appellant would represent a fee of $3370.74. There is evidence in the record that a reasonable fee for the services performed by appellant would be between $500.-00 and $750.00.

The record here fully discloses the nature and extent of legal services performed by appellant. The Trial Court under these circumstances, the trial being non-jury, was authorized to find the amount of reasonable attorney’s fees. Ferrous Products Co. v. Gulf States Trading Co., 323 S.W.2d 292 Houston Civil Appeals, aff. 160 Tex. 399, 332 S.W.2d 310.

All of appellant’s points, except the last one, relate to the insufficiency or complete lack of evidence or pleadings of fraud. We agree that there is neither pleading nor proof of actual fraud in this case. It is not a case of fraud. It is simply a case of the right of an attorney to collect attorney’s fees under a contract with a married woman.

Appellant’s last point, 10th, was that the Court erred in not sustaining his exception to the following allegation in appellees’ pleading on the ground of immateriality and irrelevancy:

“ ‘This plaintiff alleges that she did not understand that the instrument executed by her to Fancher Archer, which instrument is dated November 22, 1960, and recorded in Volume 2249, page 252 of the Deed Records of Travis County, Texas, was a conveyance of a community interest in the property described therein.’ ”

This pleading was probably made in anticipation of a defense based on ratification or affirmance of the contract by the execution of the deed. We do not find pleading or proof by appellant raising such defense, but, if so, there is evidence to sustain an implied finding by the Trial Court that such ratification or affirmance was not established.

It is our opinion that the contract of employment having been found invalid and beyond the authority of appellee to execute, that the deed made in consummation of such contract was properly cancelled by the Trial Court.

Appellee in accordance with sound principles of equity has expressed her willingness to pay appellant just compensation for his services. This amount has been fixed by the Trial Court and no attack is made upon its adequacy by appellant. We, therefore, affirm the judgment rendered below.

Affirmed.

ARCHER, C. J., not sitting.

      . Appellant has waived Ms interest in all property set aside to appellee in the divorce settlement except as to the property described in the executed deed to Mm. This waiver was in consideration of the $500.00 fee paid him by Hurley Griffith.


author: McDONALD, Chief Justice.

text:
    UNITED STATES CASUALTY COMPANY, Appellant, v. Winston L. HENRY, Appellee.

    No. 4104.
    Court of Civil Appeals of Texas. Waco.
    April 18, 1963.
    Rehearing Denied May 9, 1963.
    Fulbright, Crooker, Freeman, Bates & Jaworski, Kelly D. Williams, Houston, for appellant.
    Combs & Mitchell, Thomas J. Mitchell, Houston, for appellee.
   McDONALD, Chief Justice.

This is a compensation case. Plaintiff was injured as the result of a fight on the employer’s premises. Trial was to a jury which found that plaintiff was injured in the course and scope of his employment. Judgment was entered for plaintiff, on the verdict, for $3315.87. Defendant did not file a motion for a new trial, but appeals directly from the overruling of its motion for judgment non obstante veredicto. The sole issue, therefore, is whether there is my evidence to support the jury’s finding that plaintiff was injured in the course and scope of his employment.

Plaintiff was a carpenter working on a job for Harbison Norris. Prior to March 1, 1961, plaintiff’s father also worked on the job as a carpenter, but quit on March 1, as a result of a dispute with the foreman Leroy Stoerkel, over ownership of a nail bar. At the time of quitting, plaintiff’s father was owed 2 days’ pay. The foreman, Leroy Stoerkel, refused delivery of the check unless he received the nail bar. Plaintiff’s father thereafter asked plaintiff to get his check for him from Harbison Norris. On. March 15, 1961, Harbison Norris, the employer, gave plaintiff the father’s check, for delivery to the father.

On that same morning the father came on the job to get his check, not knowing it had been given to his son earlier in the day. With plaintiff’s father was a Mr. Wilson. Plaintiff’s father asked Leroy Stoerkel for his check, and Stoerkel replied by asking for the nail bar. A fight ensued between plaintiff’s father and Stoerkel. Mr. Wilson then asked Stoerkel to get the check, so he and plaintiff’s father could leave the premises. Stoerkel went to the office to get the check; learned that plaintiff had it; hunted up plaintiff where he was working; told plaintiff his father was on the premises; and demanded the check of plaintiff. Plaintiff did not give Stoerkel the check,, but walked over to deliver the check to his father himself. At this time plaintiff did not know of the fight that had occurred between Stoerkel and his father. Plaintiff and Stoerkel arrived where plaintiff’s father and Mr. Wilson were; and instantly another fight broke out between plaintiff’s father and Stoerkel. Plaintiff and Mr. Wilson attempted to separate the two in order to stop the fight. At this point plaintiff was struck and knocked down by John Stoerkel, a brother of Leroy Stoerkel, and a worker on the job. It was this blow and fall which caused plaintiff’s injury and disability.

One week before plaintiff and John Stoer-kel were working together setting forms and a dispute arose between them over the manner of setting the forms, and grew so heated that they drew their hammers on each other. As a result of this John Stoer-kel laid off work the rest of that day, and refused to work with plaintiff any more. John Stoerkel testified that he had not forgotten this argument, and that he was a man who did not “forget or forgive.” He further testified however, that the reason he hit plaintiff was because plaintiff was fighting with his brother.

As noted, the sole issue is whether there is any evidence to support the jury finding that plaintiff was injured in the course and scope of his employment, as defendant appeals directly from the trial court’s overruling of its motion for judgment non obstante veredicto.

There are a number of cases in which injuries have been received in personal encounters or fights between employees. In some of them recovery of compensation has been allowed, and in others it has been denied. The mere fact that two employees of the same employer, or one of them and a third person not employed by the same employer, engage in a fight, is not controlling of the question of whether or not one of the employees who receives an injury while engaged in it is entitled to-compensation. Texas Indem. Ins. Co. v. Cheely, CCA, W/E Ref., 232 S.W.2d 124. For an injury to be incurred in the course and scope of employment, it must originate-in or grow out of the work being done for the employer. Lumberman’s Reciprocal Ass’n v. Behnken, 112 Tex. 103, 246 S.W. 72, 28 A.L.R. 1402.

Article 8309, Sec. 1, Vernon’s Ann.Tex. St. provides that the term “ ‘injury sustained in the course of employment,’ * * shall not include: * * * (2) An injury caused by an act of a third party intended to injure the employee because of reasons personal to him and not directed against him as an employee, or because of his employment. * * *

“(4) An injury caused by the employee’s wilful intention to injure himself, or to unlawfully injure some other person, but shall include all other injuries of every kind and character having to do with and originating in the work * * * of the employer received by the employee while engaged in or about the furtherance of the .affairs or business of his employer *

We think there is evidence that the •plaintiff’s injuries arose out of the employment. Plaintiff was given his father’s check, by the employer, to deliver to his father. But for having the check, and refusing to give it to Leroy Stoerkel, he would not have been involved in the fight. See Texas Indem. Ins. Co. v. Cheely, CCA, W/E Ref., 232 S.W.2d 124.

Moreover, plaintiff testified, and we think the jury had a right to believe, that plaintiff was injured while he was attempting to stop the fight between his father and 'Leroy Stoerkel. An injury received while attempting to stop a fight is within the scope of employment and is compensable under the Act. Consol. Underwriters v. Free, CCA, W/E Ref., 253 S.W. 941; United States Cas. v. Hampton, CCA (n. w. h.) 293 S.W. 260; McClure v. Georgia Cas. Co., Comm.Appls., 251 S.W. 800. Defendant concedes in its brief that there was some evidence that plaintiff was attempting to separate the participants of a fight already in progress, but argues “that the preponderance of the testimony indicates plaintiff was actually an aggressor.” As noted, our task is to determine if there is any evidence -to sustain the finding, and “preponderance of the evidence” is not present for review -.in this case.

Finally, the jury had a right to believe that John Stoerkel hit plaintiff as an outgrowth of the dispute over the setting of the forms, or that such dispute was a contributing factor. If a fight occurs over the manner in which work is to be done, it is compensable if injury results. Davis v. Maryland Cas. Co., 5th Circuit, 243 F.2d 463; Aetna Casualty & Surety Co. v. England, CCA (n. w. h.), 212 S.W.2d 964; Travelers Ins. Co. v. Culpepper, CCA, W/E Dis., 82 S.W.2d 1054; Commercial Standard Ins. Co. v. Austin, CCA, W/E Dis., Jdgmt.Cor., 128 S.W.2d 836.

We think there is evidence to support the jury’s finding that plaintiff’s injury occurred in the course and scope of his employment.

The judgment of the Trial Court is affirmed.


author: MURRAY, Chief Justice.

text:
    MARYLAND CASUALTY COMPANY, Appellant, v. Jack THOMAS, Appellee.
    No. 14079.
    Court of Civil Appeals of Texas. San Antonio.
    April 10, 1963.
    Rehearing Denied May 15, 1963.

      House, Mercer, House & Brock, San Antonio, for appellant.
    Petry & Phair, Carrizo Springs, for appellee.
   MURRAY, Chief Justice.

This is a workmen’s compensation case. Appellant, Maryland Casualty Company, is the workmen’s compensation carrier, Tex-Star Petroleum Corporation, the employer, and Jack Thomas, the claimant.

Appellant’s position here is that the evidence is undisputed and clearly shows that appellee, Jack Thomas, was not within the scope of his employment at the time of his injury.

The evidence shows that appellee was injured in an automobile accident on the 18th day of March, 1961, at about 11:00 p. m.; he was driving his personal auto at the time of the collision; the collision occurred on U. S. Highway 83, three-fourths of a mile from his place of employment; he was on his way to work; he was not paid while traveling to and from work; the transportation was not furnished or paid for by his employer; the transportation was not under the control of his employer, nor was he under such control. Appellee had been instructed by his immediate supervisor at the company office, to go home, get some sleep and return to the plant at 11:00 p. m., ready to take out a truck loaded with “Oil-Gas”. At the time of the collision appellee was not being paid by his employer; he was a truck driver, whose only duties were loading, unloading, driving and servicing his employer’s trucks; he only did work for his employer on his employer’s premises in Carrizo Springs, or in one of his employer’s trucks while hauling.

The only question to be decided is whether, as a matter of law, appellee was within the scope of his employment at the time of his injury.

The general rule is that an injury occurring in the use of a public highway in going to and returning from a place of employment is not a compensable injury within the Workmen’s Compensation Act. Art. 8306 et seq., Vernon’s Ann.Civ.Stats.; American General Ins. Co. v. Coleman, 157 Tex. 377, 303 S.W.2d 370; United States Fidelity & Guaranty Co. v. Flanagan, 134 Tex. 374, 136 S.W.2d 210; Smith v. Texas Employers’ Ins. Ass’n., 129 Tex. 573, 105 S.W.2d 192; American Indemnity Co. v. Dinkins, Tex.Civ.App., 211 S.W. 949.

In 1957, the Legislature enacted Art. 8309, Sec. lb, Vernon’s Ann.Civ.Stats., providing, inter alia, that transportation resulting in injuries to employees would not be within the scope of employment, “Unless transportation is furnished as a part of the contract of employment or is paid for by the employer, or unless the means of such transportation are under control of the employer, or unless the employee is directed in his employment to proceed from one place to another place, * *

It is appellee’s contention that he came within the provisions of the last provision set forth above, in that he had been ordered by his superior to go home, get some sleep and return at 11:00 p. m., ready to take out a company truck loaded with “Oil-Gas.” It is important to take out a load of “Oil-Gas” just as soon as it is loaded because if it stands still for some time it will congeal and become very difficult to unload. This will not happen if it is kept moving.

We feel that the question here raised has been settled by two recent cases: Whisenant v. Fidelity & Casualty Co. of New York, Tex.Civ.App., 354 S.W.2d 683, wr. ref., N.R.E., and Texas General Indemnity Co. v. Bottom, Tex., 365 S.W.2d 350.

In the Whisenant case the Court held that H. L. Whisenant was a cattle buyer in the employ of Columbia Packing Company. He was injured upon the streets of Dallas while •traveling in his own aütomobile (using gasoline provided by his employer), from his home to the Packing Company plant, to pick up his assistant and his orders as to what kind of cattle to buy; then he would proceed to the stockyards in Fort Worth where he did the buying. It was necessary for him to go by his employer’s plant before proceeding to Fort Worth. The Court held that Whisenant was not acting within the course and scope of his employment at the time he received his injuries and therefore could not recover.

In the Bottom case, Wilbur F. Bottom was injured on the highway between his home in Hillsboro and the plant of his employer, Safety Convoy Company, in Dallas. He was a truck driver and was going to Dallas to see when he would be called upon to take a load out. The Company would post a list of the loads to go out, and the •drivers present would select their loads according to seniority. There was to be a posting about 1:00 p. m. and Bottom wanted to be present to select a load. The Company expected all drivers who had not signed out, to be present for these postings. Bottom was driving his own truck but it was leased to his employer. He had full control of the truck, and it was his duty to keep it in repair and serviced. He had taken it to Hills-boro to have some work done on the truck and to have it serviced. There was testimony that he also went there to visit his wife. The repairs had been made, the truck was serviced, and he was returning to Dallas when he sustained the injuries from which he afterwards died. His widow brought suit to recover death benefits under the Workmen’s Compensation Act. The jury found, in effect, that he sustained his injuries in the course of his employment and judgment was entered in favor of his widow. On appeal the Court of Civil Appeals upheld this judgment. Texas General Indemnity Company v. Bottom, Tex.Civ.App., 358 S.W.2d 765. The Supreme Court granted a writ, and after construing Sec. lb of Art. 8309, supra, reversed the judgment of the Court of Civil Appeals and that of the trial court, and rendered judgment for the Indemnity Company. Speaking for the Supreme Court, Associate Justice Walker said: “It is still necessary, therefore, for the claimant to show that the injury is of a kind and character that had to do with and originated in the work, business, trade or profession of his employer and was received while he was engaged in or about the furtherance of the affairs or business of the employer.”

We consider it settled that, notwithstanding the provisions of Sec. lb of Art. 8309, supra, an employee injured on the street or highway while going to or coming from work is not injured in the course of his employment.

The judgment of the trial court is reversed and judgment here rendered that appellee take nothing.


author: PER CURIAM. MASSEY, Chief Justice.

text:
    The MORRIS PLAN LIFE INSURANCE COMPANY, Appellant, v. Joe E. WELLS, Appellee.
    No. 16407.
    Court of Civil Appeals of Texas. Fort Worth.
    March 22, 1963.
    Rehearing Denied April 19, 1963.
    Kelly, .Morris & Walker, and Jearl Walker, Fort Worth, for appellant.
    Jimmy Castledine, Wichita Falls, for appellee.
   PER CURIAM.

This is an appeal from an order overruling a plea of privilege. Dr. Joe Wells,, plaintiff, sued The Morris Plan Life Insurance Company, a corporation, in Wichitai County, Texas.

Allegation was that plaintiff had purchased a certain bond from Old Line Life Insurance Company, now defunct, under ■provisions of which periodical payments were due to be paid to plaintiff upon tender -and presentation of coupons; that as to •said defunct corporation the assets were taken and liabilities assumed by The Morris Plan Life Insurance Company; that plaintiff presented some coupons to said company after the dates they became due and payable, but payment was refused; that the total of the coupons which had become due and payable amounted to $227.50 and that the company had breached its obligation to pay the same; that as applied to obligations not yet accrued plaintiff is entitled to have the court declare the validity of the bond, .and his damages because of the breach of obligations thereunder accruing up until the ■time of suit.

The company filed a plea of privilege. It was controverted by plaintiff. Since this is not a suit upon an insurance policy, the inescapable conclusion to be drawn from the pleadings is that plaintiff based his contention that venue lies in Wichita County under Exception 23, “Corporations and Associations”, to Vernon’s Ann.Tex.St. Art. 1995, “Venue, general rule”. Material portions of the exception provide: “Suits against a private corporation * * * may be brought * * * in the county in which the cause of action or a part thereof arose; ■or in the county in which the plaintiff resided at the time the cause of action or part thereof arose, provided such corporation * * * has an agency or representative in such county; or, if * * * no agency ■or representative in the county in which the plaintiff resided at the time the cause of action or part thereof arose, then suit may be brought in the county nearest that in which plaintiff resided at said time in which the corporation * * * then had an agency or representative.”

Examination of the pleadings and evidence discloses that the county in which ■the obligations under the bond were contracted was Dallas County, residence of the now defunct corporation. The county in which the alleged breach of obligations occurred was Tarrant County, the residence of The Morris Plan Life Insurance Company. Plaintiff, though a former resident of Wichita County, where the suit was filed, was shown to have moved his residence into adjoining Archer County. No attempt was made at proof and there is no evidence whatever as to whether the company now has or ever had an agent or representative in Archer County. Plaintiff obviously decided that it would be well to rely upon proof that Wichita County was the closest county to that of plaintiff’s residence in which the company had an agency or representative. It is observable, however, that there is no right over an objection to maintain suit in such an adjoining county when the company has an agent or representative in the county of plaintiff’s residence. Furthermore, we are of the opinion that the proof plaintiff did introduce failed to establish that the person plaintiff desired to prove was the company’s agent or representative in Wichita County was in fact such an agent or representative. Only testimony from the plaintiff was received on the hearing. His statements that one A. W. Owens was the company’s agent in Wichita County, and that Owens had talked to him about buying a policy that said company was “putting out”, were insufficient to establish, over timely and proper objection, the fact of agency in the case. Such objection was made. We therefore believe that the judgment is not supported by the evidence, and that plaintiff did not show that he was entitled to maintain venue in the county of the suit under the exception. See generally, Clark, Venue In Civil Actions, Ch. 23, p. 132, “Corporations and Associations”, § 10, “Proof Necessary Where the Suit Is Brought in the County in Which Plaintiff Resided at the T:me of the Cause of Action or a Part Thereof Arose”, and § 11, “Proof Necessary Where Defendant Has No Agency or Representative in the County.”

Judgment is reversed. The case is ordered to be transferred to an appropriate district court of Tarrant County, Texas, the county where The Morris Plan Life Insurance Company has its residence.

ON MOTION FOR REHEARING

MASSEY, Chief Justice.

The appellee has pointed out that he raised the question of the sufficiency of the plea of privilege. No question thereof was raised in the trial court by exception or otherwise. It is true that the same was not verified, and the question was raised on appeal.

We believe that when appellee filed his controverting affidavit and thereafter entered upon the trial of the issue of venue before the trial court that the failure of appellant to have verified its plea became wholly immaterial. The fact that the plea of privilege was unsworn was a defect which could be waived, and it was waived. Indeed, the “issue” on a venue hearing is raised by the controverting affidavit, not by the plea of privilege instrument. There is no issue on the matter of venue unless and until a controverting affidavit is filed. Therefore it was the appellee who raised the issue to be tried, despite the fact that the appellant, as the defendant in the case, had filed a fatally defective plea which could not have, in and of itself, authorized a change of venue or even entitled it to any hearing on venue. See Clark, Venue in Civil Actions, Ch. 34, p. 221, “The Plea of Privilege”, § 7, “Verification”; West v. Citizens State Bank of Wheeler, 1940 (Tex.Civ.App., Amarillo), 140 S.W.2d 868, writ dism., judgment correct.

Furthermore, even were it proper to treat the plea of privilege rather than the controverting affidavit of a plaintiff as the instrument raising the venue “issue”, it would in the present instance be proper to treat it as sufficient, the issue having been tried by the implied consent of the parties. Where such is the case issues are to be treated in all respects as if they had been raised by the pleadings. Texas Rules of Civil Procedure, rule 67, “Amendments to Conform to Issues Tried Without Objection” ; McDonald, Texas Civil Practice, p. 447, “Venue”, § 4.49, “(Reply to Plea of Privilege) — (III) Contents”, amended text in pocket part following note 13.

Motion for rehearing is overruled.


author: BARROW, Justice.

text:
    Yrene WOODWORTH, Appellant, v. Carlos G. ROGERS et al., Appellees.
    No. 14088.
    Court of Civil Appeals of Texas. San Antonio.
    April 17, 1963.
    Rehearing Denied May 15, 1963.

      Perkins, Floyd, Davis & Oden, Sam H. Burris, Alice, for appellant.
    Turpin, Kerr, Smith & Dyer, Midland, Lloyd, Lloyd & Dean, Alice, for appellees.
   BARROW, Justice.

This is an appeal from an order sustaining a plea of privilege and transferring the cause from Jim Wells County, where the suit was filed, to Duval County, where the land involved is situated. The question presented is whether the primary cause of action alleged by plaintiff is for specific performance of a contract to require defendants to execute a mineral lease, or is one involving land within the provisions of Subd. 14 of Art. 1995, Vernon’s Ann.Civ. Stats. This mandatory exception provides that:

“Lands. — Suits for the recovery of lands or damages thereto, or to .remove incumbrances upon the title to land, or to quiet the title to land, or to prevent or stay waste on lands, must be brought in the county in which the land, or a part thereof, may lie.”

Appellant, a resident of Jim Wells County, filed this suit against Carlos G. Rogers and wife, Elvira G. Rogers, William J. Lesko, E. G. Lloyd, Jr., residents of Jim Wells County, Haynes & V. T. Drilling Company, a partnership with one partner a resident of Midland County, Texas, and the other an Indiana resident, and the Corpus Christi State National Bank, a Texas Corporation. All defendants except the Bank filed pleas of privilege asserting that Subd. 14, supra, controlled the venue of the case and that the case should be transferred to Duval County. These pleas were duly controverted by appellant, who contended that this is a suit in personam and can be brought in the county of the residence of four of the defendants, under Subds. 4 and 29a of Art. 1995, Vernon’s Ann.Civ.Stats.

The venue facts necessary to be proved under Subd. 14 are: (1) that the suit is one for title to real estate or damages thereto, or to remove incumbrances upon the title to land; and (2) that the land involved is situated in Duval County. Cowden v. Cowden, 143 Tex. 446, 186 S.W.2d 69. It was stipulated that the land is in Duval County, so the sole question here is the purpose of the suit. This question is determined by the allegations of the petition. Calvert v. Greene, Tex.Civ.App., 326 S.W.2d 592; Galindo v. Garcia, Tex.Civ.App., 222 S.W.2d 477.

This suit grows out of a transaction on January 11, 1958, between appellant and appellees Carlos and Elvira Rogers. On that date appellant purchased from these appellees an undivided one-fourth royalty interest in the easternmost 128 acres out of the J. Poitevent Survey No. 273, which consists of a total of 640 acres. On that date the east 502 acres of the survey was leased to persons not parties to this suit. As part of the royalty conveyance, Rogers and wife executed an agreement to appellant, which agreement was to remain in force during the term of the royalty conveyance, and provided substantially as follows: As part of the consideration for the royalty conveyance, Rogers and wife agreed that they would not renew the existing mineral lease on the 502 acres, and upon its expiration would lease same to appellant for a primary term of five years at $1.00 per acre, upon the terms of a lease form which was signed by Rogers and wife for identification purposes and attached to the agreement. The concluding paragraph of the agreement provides that:

“It is understood and agreed that this agreement shall constitute a covenant running with the land so long as your royalty conveyance above mentioned remains in force and effect and that this agreement is binding upon the undersigned, their heirs and assigns and shall enure to your benefit and to the benefit of your heirs and assigns.”

This agreement was duly acknowledged and recorded in the Oil Lease Records of the County Clerk of Duval County on January 14, 1958.

Appellant alleged that on February 23, 1962, Rogers and wife secured a release of the mineral lease referred to in the agreement of January 11, 1958, insofar as 200 acres of land out of Survey No. 273 are concerned. In breach of their agreement with appellant, Rogers and wife on March 5, 1962, executed a mineral lease to Lloyd, Trustee, who subsequently assigned it to Haynes, with a ¾6⅛ reservation. Lloyd subsequently assigned half of his ¾6& reservation to Lesko, who then assigned his Va2d to the Bank. Appellant alleged that at all times she was willing to carry out her part of the agreement but that Rogers and wife had not offered the lease to her. Appellant further alleged that all appellees had notice of her recorded rights under the agreement and asked that appellees be required to perform the agreement. Appellant alleged that the other lease and assignments thereof created a cloud on her title and asked that they be cancelled and held for naught.

Appellant asserts that the piimary cause of action alleged by her is for specific performance of a contract to convey an interest- in land, and therefore is a suit in personam and is not controlled by Subd. 14 of Art. 1995. Smith v. Hall, 147 Tex. 634, 219 S.W.2d 441; Milburn v. Minette, Tex.Civ.App., 278 S.W.2d 269; Allison v. Yarborough, Tex.Civ.App., 228 S.W.2d 930. Rogers and wife have never executed a min•eral lease, as provided for in their agreement of January 11, 1958. It is our opinion, however, that the allegations in appellant’s petition established an equitable title in the lands, to bring this suit within the provisions of Subd. 14, supra.

In Stone v. Tigner, Tex.Civ.App., 165 S.W.2d 124, writ refused, suit was filed to enforce an option to purchase land, which option was given in connection with a grazing lease on the premises. The court held that the option of lessee ran with the land itself and thus it was not a collateral or personal contract between the parties. It is therefore significant in our case that the agreement was designated by Rogers and wife as a covenant running with the land and binding on all heirs and assigns.

Mecom v. Gallagher, Tex.Civ.App., 192 S.W.2d 804, writ refused, n. r. e., is a venue case involving an analgous question to that presented here. Mecom entered into a grazing lease with the Gutierrez heirs and a part of the lease contract gave Mecom the right to meet the terms of any offer of purchase which might be satisfactory to lessors. In violation of this agreement, the Gutierrez heirs sold the land to Gallagher without notice to Mecom. Mecom filed suit to en-fore his contract agreement and the question presented was whether the suit was one for specific performance or came within Subd. 14 of the venue statute. The Court held that the option was not merely a collateral or personal contract between the parties thereto, but it evidenced a duly recorded right on the part of Mecom which ran with the land. “Consequently, if he exercised his option in accordance with the terms of the contract and tendered into the registry of the court the amount of the purchase price which appellees had paid to the owners, then it is quite clear to us that he thereby acquired an absolute, vested, equitable interest in and to the lands described in his petition and such interest so acquired was and is prior in right and superior in equity to any right, title or interest acquired or held by appellees.” The Court then held that the petition evidenced a suit for the recovery of lands and to quiet title thereto and as such came strictly within the mandatory provisions of Subd. 14, Art. 1995.

The same rule was applied by this Court in Rudman v. Chandler, Tex.Civ.App., 255 S.W.2d 592, no writ history, where the pleadings asserted a suit for relief by way of specific performance or one for the determination of equitable title. It was there held that Subd. 14 controlled the venue, as the primary purpose of the suit was to establish plaintiff’s equitable title. See also, Calvert v. Greene, Tex.Civ.App., 326 S.W.2d 592, no writ history; Galindo v. Garcia, Tex.Civ.App., 222 S.W.2d 477, no writ history.

On applying the above rules to the petition filed here by appellant, it is seen that the primary purpose of appellant’s suit is to establish her equitable title as evidenced by the covenant running with the land as the superior title and to remove any cloud upon same. Such a petition is within the mandatory provisions of Subd. 14 of the venue statute and the suit was properly transferred to Duval County, where the land is located, regardless of the residence of the defendants. Galindo v. Garcia, supra.

The judgment is affirmed.


author: DIXON, Chief Justice.

text:
    William P. MACKAY et al., Appellants, v. James R. CASH, Appellee.
    No. 16164.
    Court of Civil Appeals of Texas. Dallas.
    April 19, 1963.
    Rehearing Denied May 17, 1963.
    Harold C. Abramson and Palmer & Palmer, Dallas, for appellants.
    Marcus & Lewis, Strasburger, Price, Kel-ton, Miller & Martin, and Royal H. Brin, Jr., Dallas, for appellee.
   DIXON, Chief Justice.

This suit involves the interpretation of a written instrument which is the basis of a suit for damages for breach of a contract.

The trial court, holding the contract to be-ambiguous, allowed extrinsic evidence to be received to explain the meaning of the document. Appropriate issues were submitted to a jury. The answers of the jury were favorable to appellee Cash. Based on the jury verdict judgment was rendered in favor of Cash that appellants take nothing. We have concluded that the judgment should be affirmed.

The contract is in the form of a letter as follows:

“March 5th., 1960
“M. & S. Company
c/o Mackay and Company
524 Washington Street
Reading, Penn.
“Gentlemen:
“Pursuant to our telephone conversation this letter will serve to confirm our agreement.
“This letter will serve as instruction to Registrar and Transfer Company, Transfer agents of Casco Chemical Corporation common stock, to deliver to M. & S. Company 25,000 shares of James R. Cash stock after the time of escrow which is October 12, 1960.
“This stock is for investment purposes only and is conveyed at a cost of .40{⅝ per share or a total of $10,000.00.
“It is also understood that from date of payment of said $10,000.00, I will re-purchase this option for ,45⅞⅛ a share or $11,250.00 in 60 days from M. & S. Company.
“Thank you,
“JAMES R. CASH”

Pursuant to the terms of the contract Cash placed the 25,000 shares of stock in escrow and was paid $10,000.00. Thereafter he declined to repurchase the stock, claiming that the contract did not unconditionally bind him to repurchase, but was merely an option to repurchase.

Appellants have briefed five points on appeal, but none of them can be sustained if the fourth paragraph of the written contract is ambiguous. We believe that it is. Therefore it was proper to receive extrinsic evidence to ascertain the true meaning of the contract. Smith et al. v. Allison et al., 157 Tex. 220, 301 S.W.2d 608; Mathews v. Ryan, Tex.Civ.App., 320 S.W.2d 44. McCormick and Ray Texas Law of Evidence, Vol. 2, page 527. The peculiar language “ * * * I will repurchase this option * * * ” needs clarification if it is to be understood and the intention of the parties made certain.

Appellants’ view is that the use of the word “repurchase” is unconditional; that the stock would continue to be held in escrow for a matter of months in accordance with S.E.C. regulations; that appellants had no present right to the stock, but only a right to it after the S.E.C. regulations were complied with; and that while the stock was in escrow appellants could only resell and Cash could only repurchase appellants’ right, or “option” to the stock. Appellants also - say that the contract was intended merely as a loan agreement. The jury did not accept appellants’ view.

It will be observed that most of the above facts upon which appellants rely to support their position are not apparent from the written contract itself. It was necessary for appellants to introduce and they did introduce extrinsic evidence in their effort to show that the contract is properly to be construed as they claim. In introducing such evidence appellants took a position wholly inconsistent with their present position that the contract is unambiguous. Since they themselves introduced evidence to explain the true meaning of the contract they are not in position to complain because appellee did so.

Appellants’ points on appeal are overruled.

The judgment of the trial court is affirmed.


author: CULLEN, Commissioner.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. ELIZABETHTOWN AMUSEMENTS INCORPORATED, a Kentucky Corporation, Appellee.
    Court of Appeals of Kentucky.
    May 3, 1963.

      John B. Breckinridge, Atty. Gen., H. D. Reed, Jr., Asst. Atty. Gen., Frankfort, for appellant.
    Hatcher & Lewis, Elizabethtown, for appellee.
   CULLEN, Commissioner.

The Star-Lite Drive-in Theatre is situated on the east side of U. S. Highway 31-W a short distance north of Elizabeth-town. In order to convert the highway from one of two lanes to one of four lanes the Department of Highways condemned a strip of land 66 feet wide along the front of the theatre property. A jury in circuit court awarded $26,000 for the property taken and $10,000 for resulting damages to the remainder, and judgment was entered accordingly. The department has appealed from the judgment, maintaining that the award is excessive and that the trial court erred in not excluding testimony of some of the witnesses for the property owner and in refusing to admit certain testimony for the Commonwealth.

On the strip of land taken, which amounted to about nine-tenths of an acre, there were located various improvements. There is no substantial dispute about the amount of damage resulting from the taking of these improvements since the Commonwealth’s witnesses testified that the amount was $14,300 and the estimates of the landowner’s witnesses were lower. The other items involved in the taking are the land itself and a temporary easement over one-half acre at the southwest corner of the the-atre tract. Since the total award for the property taken was $26,000 and since the damage attributable to the improvements is $14,300, it is clear that the jury awarded $11,700 for the two items last mentioned.

One of the two appraisal witnesses for the Commonwealth valued the strip taken at $2,700 and the other valued it at $6,400; both put a $500 value on the easement. The landowner and a local real estate dealer put on by the landowner as a witness both gave approximately $20,000 as the value of the strip taken and $12,000 as the value of the easement.

The Commonwealth maintains that the testimony of the landowner and of the real estate dealer was worthless and should have been excluded because it consisted only of opinions without a supporting basis of fact and because the values given by the witnesses were obviously fantastic.

Both of these witnesses testified that they were acquainted with land values in the area and had knowledge of sales of comparable land. It is true that each mentioned only one specific comparable sale and that there was some question whether the sale mentioned by the landowner had been finally consummated. It is also true that the sale referred to by the real estate dealer appeared to have brought only 30 cents a square foot whereas he placed a value of 50 cents a square foot on the theatre land. However, there is no rule making knowledge of comparable sales the sole acceptable basis for an estimate of land value. Commonwealth Department of Highways v. Citizens Ice & Fuel Company, Ky., 365 S.W.2d 113.

Opinions of value are not absolutely worthless merely because the supporting facts are weak or because they do not fully support the opinion given. Commonwealth Dept. of Highways v. Tyree, Ky., 365 S.W.2d 472. An opinion is worthless only where it is totally lacking of any reasonable factual basis. Commonwealth Dept. of Highways v. Rankin, Ky., 346 S.W.2d 714.

If the facts upon which a witness bases his opinion of value will not support the actual value given by the witness but will support a lower value, the jury is entitled to receive the testimony as acceptable evidence of the lower value. Of course if the jury returned a verdict substantially above the lower value the court would be compelled to hold that the verdict was unsupported by probative evidence. Commonwealth Dept. of Highways v. Tyree, Ky., 365 S.W.2d 472.

In the instant case the jury did not accept the estimates of $32,000 for the strip and the easement but awarded only $11,700. In our opinion the factual bases given by the landowner and the real estate dealer for their estimates would support a value of the amount awarded. The award does not strike us as being patently in excess of any amount the evidence reasonably could sustain. Commonwealth Dept. of Highways v. Tyree, Ky., 365 S.W.2d 472. It is true that the estimates by these witnesses as to the value of the easement were wholly unsupported, except by generalizations as to the loss that would result to the theatre operation from interruption of business. However, the Commonwealth did not make any specific objection to the testimony concerning the easement value nor move that such testimony alone be excluded. The Commonwealth moved to exclude the testimony of the two witnesses in its entirety. Since the testimony relating to the value of the strip taken in fee was sufficient to support the award given by the jury for that strip plus the easement, the Commonwealth is in no position to complain that the easement valuations by the witnesses were of no probative value.

Two men who owned drive-in theatres, had bought and sold them, and were familiar with their operation testified for the landowner as to “before and after” values of the theatre property. One said the “before” value was $175,000 to $185,000 and the “after” value was $65,000 to $75,000, a difference of $110,000. The other said the “before” value was $185,000 to $200,-000; he did not fix a specific “after” value but said the condemnation would reduce the value at least 25 percent. Both of the men admitted that they had no knowledge of local land values and neither undertook to place a specific value on the taking (as distinguished from resulting damages). It is clear that each of these men estimated the difference in value solely on the basis that the bringing of the highway surface 66 feet closer to the theatre installations would cause discomforting and disturbing vehicle noise and lights to the patrons of the theatre, thus reducing the suitability of the premises for theatre operations. The Commonwealth maintains that the court erred in overruling a motion to strike the testimony of these witnesses, made on the ground that their opinions of value had no proper factual basis and were predicated upon improper elements of value.

The testimony of the two witnesses in question cannot be considered to have had any value as evidence of damages for the taking because the witnesses did not claim to have any knowledge of value of the property taken, did not undertake to place a value on the property taken, and did not assign any damages for the taking as a basis of their estimates of the difference in “before and after” values. However, the witnesses did assign acceptable factors of resulting damages as the basis for their opinions of difference in value and in our opinion their testimony was competent as evidence of resulting damages. In effect these witnesses simply did not undertake to express any opinion as to taking damages, but confined their estimates to the resulting damages.

The Commonwealth contends that the testimony of the two witnesses was incompetent because their estimates of values were based on profits to be derived from the business, and that prospective profits have been held too speculative, remote and uncertain to constitute acceptable evidence of market value. See City of Newport Municipal Housing Commission v. Turner Advertising, Inc., Ky., 334 S.W.2d 767. However, as we read their testimony these witnesses did not base their estimates of values on any considerations of past or future profits of the particular theatre here involved, but upon the effect a close location to a highway has upon the business of drive-in theatres generally. Necessarily, in attempting to estimate, in terms of market value, resulting damages to a business property such as a theatre, consideration must be given to various factors that will affect the business income. In effect the witnesses here testified that noise and lights resulting from close proximity to a highway will cause a loss of income to a drive-in theatre, thus depreciating its market value. We think the testimony was competent.

In our opinion there was sufficient competent evidence to sustain the jury award for resulting damages, so the verdict cannot be held excessive.

We believe that a diminution in value of the remaining land of a con-demnee resulting from proximity of a highway may be considered as an element of condemnation damages the same as a diminution in value resulting from proximity of a railroad, Louisville & N. R. Co. v. Burnam, 214 Ky. 736, 284 S.W. 391, or a gas pipe line, Tennessee Gas & Transmission Co. v. Jackman, 311 Ky. 507, 224 S.W.2d 660, or an electric transmission line, Kentucky Hydro Electric Co. v. Woodard, 216 Ky. 618, 287 S.W. 985. In any situation the use to which the condemned property will be put necessarily will have some bearing on the existence and extent of damage to the remaining land of the condemnee. A common example would be a reduction in value of residential property resulting from the highway’s being brought in close proximity to the dwelling.

The Commonwealth contends that the trial court erred in excluding the offered testimony of two state policemen to the effect that extending the highway to four lanes would improve safety conditions on the highway in front of the theatre and reduce the possibility of accidents, so that more people would travel the highway and thus there would be more potential patrons for the theatre. The purpose of the testimony was to show that there would be benefits to the theatre operation offsetting any possible resulting damages from additional noise. A sufficient answer to this contention is that under the law in force at the time this case was tried, benefits could not be set off against resulting damages. See Commonwealth v. Sherrod, Ky., 367 S.W.2d 844.

The judgment is affirmed.


author: PALMORE, Judge.

text:
    EVANS OIL & GAS COMPANY, Appellant, v. Delmar DRAUGHN, Tax Commissioner of Knott County, Kentucky, et al., Appellees.
    Court of Appeals of Kentucky.
    May 3, 1963.
    Clark Pratt, Hindman, for appellant.
    Dan T. Martin, County Atty., Hindman, Paul Ross, Frankfort, for appellees.
   PALMORE, Judge.

For purposes of 1958 ad valorem taxes Evans Oil and Gas Company listed with the tax commissioner of Knott County 10,-079 acres of oil and gas rights at $1 per acre and 5,251 acres of coal rights at $3.50 per acre, totalling $28,458. The tax commissioner increased the assessment to $4 per acre on the oil and gas rights and $5 per acre on the coal rights, totalling $76,570. On appeal to the county board of supervisors the over-all assessment was reduced to $63,771, which was sustained on subsequent appeals to the Kentucky Tax Commission and the Knott Circuit Court.

It is conceded that the burden was on the taxpayer to prove the assessment incorrect. Since it appeals from an adverse factual determination in that respect, the question here is whether, under all the evidence, the taxpayer’s claim was so strongly proved that a reasonable and fair-minded trier of the facts, adhering to proper legal principles with respect to the weight and competence of the evidence, was compelled to find in the taxpayer’s favor.

In regard to the weight and effect of the “presumption” that the taxing authority’s valuations are not excessive, we concur with the following statement from People ex rel. Wallington Apartments v. Miller, 1942, 288 N.Y. 31, 41 N.E.2d 445, 141 A.L.R. 1036:

“Such a presumption is not evidence but serves in place of evidence until the opposing party comes forward with his proof, whereat it disappears. It has no weight as evidence and is never to be considered in weighing evidence. In other words, it merely obviates any necessity, on the part off the assessors, of going forward with proof of the correctness of their valuation. So understood, ‘the presumption of correctness’ is merely another way of saying that the burden of proof in a proceeding to review an assessment is on the relator-taxpayer. On him that burden has always rested. * * *
“So when we say that the burden of proof in such cases is on the relator and that there is a presumption that the assessment is correct, we are not saying two things, but saying the same thing twice. Once such a proceeding goes to trial and the relator goes forward with evidence, the presumption has no further place or effect of any sort in the proceedings.”

Without detailing the proof put on by the taxpayer, it was certainly ample to require a favorable conclusion in the. absence of something to counter it. The testimony of one competent valuation witness in support of the assessment would have constituted conflicting evidence sufficient to support the finding adverse to the taxpayer. However, we do not find it in this record. It is significant that the tax commissioner (the only witness presented in behalf of the appellees) made no attempt on the witness stand to state or estimate the fair cash value of the property in question. He based his assessment entirely on the fact that other taxpayers owning what he considered to be comparable properties uniformly listed oil and gas rights at $4 per acre and coal rights at $5 per acre. This evidence was competent insofar as it tended to disprove the taxpayer’s allegation of discrimination. But on the issue of the fair cash value of one taxpayer’s property, the value at which another taxpayer lists his property is irrelevant. If admitted, it would raise the collateral issue of whether the other taxpayer’s valuation is correct.

The tax commissioner’s objective in assessing mineral rights at the same figures for all taxpayers ($4 per acre for oil and gas and $5 per acre for coal) is laudable and proper provided (1) they actually have the same fair cash value and (2) the assessed value is correct. But is taxpayer A to be defeated on the question of what is the fair value by the mere fact that taxpayers B, C, D, E and F have accepted valuations which, if their properties are indeed comparable in value with his, he can prove incorrect? Surely not.

The discussion thus far assumes there was competent proof that the property listed by other mineral owners was comparable in value. Actually, the evidence in this respect was most unsatisfactory and unconvincing. To cite but one example, the tax commissioner admitted he did not know whether oil and gas rights on Troublesome and Carr’s Fork were more valuable than those in Quicksand, yet he sought to assess them the same. At least one of the allegedly comparable properties was 12 miles away (by road). Although Mr. Evans, president of the taxpayer company, admitted he had listed other coal rights at $5 per acre and had tried to purchase a parcel some 3 or 4 miles from the land in question for $20 per acre, he denied that the properties were comparable.

To deny relief to a taxpayer with proof as conclusive as it was in this case would amount simply to the vesting of arbitrary power in the taxing authority.

The findings of the Kentucky Tax Commission and the circuit court were clearly erroneous within the meaning of CR 52.01.

The judgment is reversed with directions to render one fixing the valuation for 1958 at $28,458.


text:
    UNITED STATES FIDELITY & GUARANTY COMPANY, Appellant, v. MARYLAND CASUALTY COMPANY, Appellee.
    Court of Appeals of Kentucky.
    May 3, 1963.
    J. K. Wells, Paintsville, for appellant.
    C. Kilmer Combs, Ashland, Paul E. Hayes, Prestonsburg, for appellee.
   CULLEN, Commissioner.

Big Sandy Realty Company sued Stan-sifer Motor Company and obtained an attachment. United States Fidelity & Guaranty Company was surety on the attachment bond. The motor company executed a forthcoming bond and retained possession of the attached property. Maryland Casualty Company was surety on the forthcoming bond. Judgment on the merits of the principal action went for the defendant and the judgment specifically discharged the attachment and the forthcoming bond. The realty company appealed but did not supersede the judgment. This Court affirmed the judgment, after the appeal had pended for two years.

On the theory that the forthcoming bond had been kept in force by virtue of the appeal notwithstanding the lack of a super-sedeas, Maryland Casualty Company sued U. S. F. & G. to recover the premiums claimed to have accrued on the forthcoming bond during the two years the appeal was pending. Judgment for these premiums, in the amount of some $1200, was entered, and the present appeal is by U. S. F. & G. from that judgment.

Under the statute, KRS 425.475, the entry of judgment for the defendant in the principal action operated to discharge the attachment. The taking of an appeal from the judgment, without supersedeas, did not suspend the operation of the judgment as a discharge of the attachment. Stephens v. Willis, 21 K.L.R. 170, 51 S.W. 9; Hey v. Harding, 25 K.L.R. 1454, 78 S.W. 136; Annotation, 115 A.L.R. 598. Upon the attachment’s being discharged the attached property ceased to be under control of the court and the defendant no longer was under any obligation to produce the property. Therefore, and necessarily, the forthcoming bond was dissolved when the attachment was discharged, and since the taking of the appeal did not suspend the discharge of the attachment it could not suspend the dissolution of the forthcoming bond.

The judgment is reversed with directions to enter judgment for the defendant.