text:
    C. F. REPLOGLE COMPANY, Appellant, v. Dewey McGUIRE et al., Appellees.
    Court of Appeals of Kentucky.
    June 17, 1966.

      Michael A. Rowady, Winchester, for appellant.
    J. Douglas Graham, Campton, for appel-lees.
    Paul Rehm, Versailles, for Workmen’s Compensation Bd.
   DAVIS, Commissioner.

In this Workmen’s Compensation proceeding appellee Dewey McGuire obtained an “open-end” award for total disability, 40% of which was ordered paid by the appellant Replogle Company, his employer, and 60% of which was directed paid by the Special Fund. The appellant employer asks reversal of the circuit court’s order affirming the award, and presents two basic claims of error: (1) The Workmen’s Compensation Board exceeded its authority by requiring a second medical examination of appellant when no exception had been filed to the report of the first medical examination prescribed by KRS 342.121; (2) the medical evidence does not support the award in any event.

McGuire was injured by electrical shock on September 29, 1962, when the boom of a truck crane came in contact with a high tension wire. A fellow employee, driver of the truck, was electrocuted in the accident. McGuire sustained some burns, one of which resulted in the partial loss of a toe. There is no controversy respecting the award of compensation for the period when he was physically disabled as the result of the burns. As of April 16, 1963, Dr. Robert Davis, a general practitioner who had treated McGuire’s physical injuries, pronounced him fit to return to work. But McGuire did not return to work, and had never resumed work (except for sporadic “trial runs”) at the time of the award.

During the course of the proceedings before the Board evidence was adduced reflecting that McGuire had had some psychiatric aberration at the close of World War II. He had been placed in a naval hospital dealing with such cases at that time. In light of this, the Special Fund was made party to the proceeding, on motion of the appellant employer. KRS 342.120.

Pursuant to KRS 342.121, the Board ordered that McGuire be examined by Dr. Ludwig H. Segerberg. The Board’s order enumerated six specific questions to be answered by the doctor. Dr. Segerberg did examine McGuire, but his report did not undertake to answer the specific questions propounded by the Board. Dr. Segerberg is a specialist in the field of neurology, but does not specialize in psychiatric medicine. The concluding paragraph of Dr. Seger-berg’s report relates:

“CLINICAL IMPRESSIONS: Historically this patient did seem to have sustained an electrical burn and certainly he has scar of such a burn. At the present time he does not have any evidence of organic neurologic pathology and is completely clear in this respect. There is certainly every evidence to indicate, however, that this man is quite sick psychiatrically. I do not feel confident (sic), however, to make a diagnosis of his psychiatric problem, but certainly feel that such a situation exists. From an organic neurologic standpoint he had no evidence of abnormalities.”

Appellee McGuire did not file any exception to the report of Dr. Segerberg as provided by KRS 342.121(4). Despite this the Board ordered a re-examination of McGuire by Dr. Warren M. Cox, a psychiatrist. In the Board’s opinion filed incident to ordering the re-examination it was erroneously stated that exceptions had been filed to Dr. Segerberg’s report. The same opinion pointed out that Dr. Segerberg’s report “ * * * is not of any value to the Board * * * ” because it was based on a neurological examination. The opinion candidly recited that the Board “ * * * erred in appointing a neurosurgeon to examine the plaintiff, but instead should have appointed a psychiatrist, KRS 342.120.”

It is the appellant’s contention that since McGuire filed no exception to the report of Dr. Segerberg he is bound “ * * * to Dr. Segerberg’s report which gives him no disability rating.” Appellant relies on Alford v. J. A. Jones Construction Company, Ky., 313 S.W.2d 867; Roaring Fork Coal Company v. Wilder, Ky., 380 S.W.2d 271; Kerns Bakery v. Hodges, Ky., 377 S.W.2d 88, and Deby Coal Company v. Caldwell, Ky., 383 S.W.2d 905. We think it is apparent that the cited decisions teach that when no exception is filed to complete and conclusive medical reports furnished by the Board-appointed doctor, it is presumed that the parties accept the report and it is final and conclusive of medical questions. But the same decisions stand for the proposition that when the medical report is not complete and conclusive, the Board has the right (in fact, “no alternative”) to fall back on the other evidence in the case. See Deby Coal Company v. Caldwell, Ky., 383 S.W.2d 905, 907. We think it is apparent that Dr. Seger-berg’s report was neither complete nor con- . elusive of the medical questions posed to him. Hence the Board was not “bound” by Dr. Segerberg’s report.

The question remains whether the Board had the right to appoint another doctor pursuant to KRS 342.121 after it had already appointed Dr. Segerberg. We hold that the Board did have such right. We think it would require strained reasoning to construe KRS 342.121 as inexorably shackling the Board’s power to appoint a doctor specially trained in the field of medicine at issue, merely because it had inadvertently appointed a doctor for the purpose whose particular specialty did not encompass the medical problem to be resolved. It is conceivable, though unlikely, that the Board could inadvertently name a dentist, a veterinarian, or a chiropodist upon the mistaken belief that the doctor was a trained internist. We suppose it would not be argued that the parties and the Board should be “bound” by the report of such individual, even though no exception was filed. After all, one vital purpose to be served by the appointment of the doctor is to afford the Board an opportunity to have the benefit of the evidence from a skilled professional. When the report received is inconclusive or unresponsive, the Board is not “bound” by it, and no logical reason appears why the Board’s power to seek such assistance is forever lost because of an erroneous designation of a doctor not trained in the field under consideration.

It is argued that in any event the medical evidence does not support the Board’s finding that McGuire is totally disabled. We cannot accept that contention in face of the medical evidence that McGuire does suffer from a psychiatric condition which renders him unstable and unfit for employment in his present condition. The report of Dr. Segerberg, while not undertaking to explore in depth the psychiatric problem, specifically recognizes that McGuire “is quite sick psychiatrically.” Dr. Segerberg’s general training as a physician qualified him to make that observation. That same view was substantially affirmed by two doctors trained in psychiatry. Appellant filed exceptions to the report of Dr. Cox, so it was not conclusive, but it did contain evidence sustaining the Board’s finding. It is true that other evidence by doctors could have persuaded the Board to an opposite view, but the Board was not so persuaded. The rationale of Lee v. International Harvester Co., Ky., 373 S.W.2d 418, is applicable here.

Appellant lists “other errors” in the record, which are characterized as “mere knickknacks.” We so regard them and accord them no significance.

The judgment is affirmed.


source: Caselaw Access Project

author: SELLERS, Justice.

license: Public Domain

text:
    R. V. ELLIS et al., Appellants, v. Billy Jim POLLARD et al., In their Capacity as Board of Trustees of the Chandler Independent School District et al., Appellees.
    No. 226.
    Court of Civil Appeals of Texas. Tyler.
    July 7, 1966.
    Martin Z. Sammons, Jr., Tyler, for appellants.
    Alex Beall, Clapp & Beall, Tyler, for appellees.
   SELLERS, Justice.

R. V. Ellis, J. H. Davis, A. D. Boyd, W. C. Ellis, Steve Terrell, Vernon Haile, Clyde Cade, W. H. McKinney, Jr. and Earl High, plaintiffs, filed this suit complaining of Billy Jim Pollard, J. M. Boyd, Robert D. Dewbre, Ivan T. Berry, W. J. Perry, Joe Paul Rains and John Wooten, as Board of Trustees of the Chandler Independent School District, Joe E. Eakin, as Superintendent of Schools of Chandler Independent School District, and Mrs. Jack Cade, as Tax Assessor-Collector of Chandler Independent School District, defendants.

The suit was brought by appellants to enjoin the collection of taxes by appellees based upon on alleged void and unlawful assessment for the year 1965. The appeal is from an order of the trial court refusing a temporary injunction enjoining the collection of such taxes pending a hearing on the application for a permanent injunction. It is without dispute in the record that this suit was filed after the alleged invalid assessments had been put into effect. Nine separate violations in regard to the assessment of appellants’ properties are set out in the petition which the appellants claim denied them due process of law and their day in court.

It seems to be the settled rule of law now that a tax payer who brings his suit for relief from void and unlawful assessments of his taxes after the plan has been put into effect has the additional burden of showing substantial injury to himself, and since no effort was made on this hearing to show substantial injury to appellants, the trial court was correct in denying the temporary injunction. In the recent case of McPhaul et al. v. City of Lubbock et al., Tex.Civ.App., 401 S.W.2d 705, where the relief sought and the facts are almost identical with the case here, the Amarillo Court held:

“Under this record we are of the opinion that since the plan of taxation had been put into effect prior to the filing of the petition herein the trial court was correct in refusing to grant the temporary injunction and appellants on a final hearing must show they were substantially injured. * * * ”

Judgment of the trial court is affirmed.


author: WALTER, Justice.

text:
    Carroll TRANTHAM, Appellant, v. Jess SLAUGHTER, Appellee.
    No. 4100.
    Court of Civil Appeals of Texas. Eastland.
    June 17, 1966.
    Guilford L. Jones, Big Spring, for appellant.
    Wayne Burns, Big Spring, for appellee.
   WALTER, Justice.

Carroll Trantham was charged by complaint in a Justice of the Peace Court in Howard County with a felony. After hearing evidence at the examining trial, the Justice came to the conclusion that there was sufficient evidence to bind the defendant over to await the action of the Grand Jury. Trantham had subpoenaed some witnesses and the Justice refused to permit him to interrogate them at the examining trial. Trantham filed an application for a writ of mandamus to require the Justice to permit him to interrogate the witnesses at the examining trial and to exercise judgment and discretion in determining whether to bind the defendant over to await the action of the Grand Jury. The court refused to issue the writ and Trant-ham has appealed.

He contends the court erred in denying his application for mandamus because the Justice abused his discretion in denying him the right to call witnesses and in refusing to exercise discretion in ruling on the evidence.

In Wheeler v. Oxford, 321 S.W.2d 188, (1959, Tex.Civ.App., no writ history), this court said:

“A. writ of mandamus will not lie to control judicial or discretionary actions. First National Bank of Rule v. Chapman, Tex.Civ.App., 255 S.W. 807; Houston Fire & Casualty Ins. Co. v. Gerhardt, Tex.Civ.App., 281 S.W.2d 176.”

The writ of mandamus will not issue because the matters complained about involved judicial and discretionary actions.

The judgment is affirmed.


author: PARKER, Justice.

text:
    Lee Anna JONES et vir, Appellants, v. COMMERCIAL UNION ASSURANCE COMPANY, Ltd., Appellee.
    No. 6742.
    Court of Civil Appeals of Texas. Beaumont.
    Oct. 14, 1965.
    Waldman & Smallwood, Beaumont, for appellants.
    Orgain, Bell & Tucker, Beaumont, for ap-pellee.
   PARKER, Justice.

This was a suit to recover workmen’s compensation for injuries sustained by appellant, Lee Anna Jones, in the course of her employment with an assured of appellee, Commercial Union Assurance Company, Ltd. Appellant alleged that she was totally and permanently disabled by reason of injuries sustained on or about September 24, 1960, in the course of her employment with Cafeterias, Inc., d/b/a Luby’s Cafeterias. Upon the jury finding the duration of appellant’s temporary total disability was 16 weeks, judgment was entered awarding the plaintiff compensation in the amount of $322.56.

On the finding of 16 weeks temporary total disability appellant assigns “no evidence” and “insufficient evidence” points of error. Portions of testimony as to appellant’s disability whether viewed from “no evidence” test or “insufficient evidence” test are set forth hereinafter. In the “no evidence” point, that part of the record most favorable to appellee supporting the jury’s finding is controlling. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 23 A.L.R.2d 1114 (1950). All the evidence is reviewed in considering the “insufficient evidence” points. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

For the entire year of 1960 prior to the accident Lee Anna Jones only earned $120.81, working for one employer except for some vague reference to doing some beauty shop work. Her occupation with the cafeteria was that of bus girl. Lee Anna Jones testified that the work of a bus girl was hard work. After her injury she was treated first by Dr. Bourgeois, then Dr. Rogers Pierson until he died in June 1962, then by Dr. Skarke and finally by Dr. Williams on April 5, 1963. To the latter, she complained of having pain in the lower back and weakness in the lower legs, which complaints she repeated to him on October 10, 1963, and on December 27, 1963. He testified in his opinion he didn’t think she could work as a bus girl at the time of any of his examinations of her. Appellant and her husband testified to the same effect.

In the 39 months after the accident and before the trial, she had two normal children and one miscarriage; had gone fishing, dancing on week-ends in high heels, visited relatives in Louisiana, gone to night clubs, taken care of her house and five children, although at times with assistance. From 1956 down through 1963 she had had seven pregnancies or more.

Lee Anna, on cross examination, testified:

“Q. If you had a lot of lifting and walking to do. To be absolutely fair about it, Lee Anna, there is a lot of work you could do, isn’t there, light work ?
“A. Yes, I can do some heavy work, too, but I may hurt afterwards. I can do it, yeah, I can pick up, but I could hurt from it after that, too.
“Q. And it depends on how much of it you do, and you can gauge that yourself ? It depends on how much of it you do as to how much you hurt afterwards?
“A. Well, I don’t know. I’ve never tried that way.”

Dr. Martin Haig, witness for appellee, testified that he had examined Lee Anna Jones on January 9,1961; January 16,1961; February 16, 1962; May 21, 1962; and on January 9, 1964. After detailing his examination, tests, x-rays and findings he stated that on each examination it was his opinion that she was able to go to work. Some of his examinations were made at a time when she was pregnant, which prevented a full examination. However, she was not pregnant on January 9, 1961, or on January 9, 1964. Without qualification, Dr. Haig stated that he could see no reason why appellant could not obtain employment as a bus girl in a cafeteria; that she had no permanent disability in her lower back with no objective findings upon examination or x-ray indicating she had any disability. Appellant’s “no evidence” point on disability is overruled. Appellant’s “insufficient evidence” points on appellant’s disability are overruled because the jury verdict thereon is not so against the great weight and preponderance of the evidence as to be manifestly unjust.

Appellant’s first two points of error are directed at the trial court’s action in granting appellee’s request for a medical examination of appellant during the trial, resulting in the examination of appellant on January 9, 1964, by Dr. Haig who testified during the trial prior to and after such examination. Haig had testified that upon his first examination some 16 weeks subsequent to appellant’s injury that she was able to go to work, having no disability; that he was of the same opinion from each of his examinations through May 21, 1962. Since he had not examined appellant since May 21, 1962, appellee moved the court to have appellant submit to examination by Haig during the trial, which the trial court allowed after twice refusing such request.

The record shows this case had been set for trial nine times. On call of the docket on December 27, 1963, appellee announced ready, subject to medical. It was so stipulated. Trial started at 4:20 p. m., January 6, 1964. Thereafter, appellee made its first request during the trial for physical examination January 7, 1964. The jury returned its verdict January 10, 1964. On January 7, 1964, appellee asked appellant’s counsel for the examination, and upon refusal, made its motion to the court which was denied. On January 8, 1964, appellee’s attorney called as a witness his secretary on the motion and out of the hearing of the jury. She stated that on December 31,1963, she had set up an appointment for a medical examination of Lee Anna. Jones on January 7,1964, and relayed the request for such to appellant’s attorneys’ office. Such request apparently was not relayed to the appellant or her attorneys. Once again, the court denied appellee’s motion. At that point, appellee moved for leave to withdraw its announcement of ready, or alternatively, for mistrial as follows:

“MR. COBB: Comes now the defendant, Commercial Union Assurance Company, Ltd., and in view of the entire record developed on its Bill of Exception, that is to say, its announcement of ready subject to a medical, the subsequent setting of an appointment for a medical, the communication thereafter with plaintiff’s office and the various matters that were developed in the bill, the two requests for medical, the fact that he has now shown to the Court that counsel requested a medical appointment and such was given at the earliest possible opportunity, that the doctor could make the appointment, and it was subsequently communicated to plaintiff’s office, and that the plaintiff’s attorney has constantly harped on that subject on his cross examination as shown by the entire record, and his candid remark to the Court that this was ‘the strongest point of his case’, moves for leave to withdraw its announcement of ready and be allowed— for the Court to declare a mistrial and the [the] Court to re-set this case at its earliest possible opportunity. Respectfully submitted.
“MR. WALDMAN: I oppose.
(Off-the-record discussion between Court and counsel.)”

On this third motion, the statement of facts does not reflect the “(off the record discussion between Court and counsel)”. In their briefs both sides agree the court ordered Lee Anna Jones to submit to a medical examination by Dr. Haig, but no order appears in the record. Such examination was made, and Dr. Haig thereafter testified to her then condition. When Dr. Haig first testified, he had not examined Lee Anna Jones for 18 months. Counsel for appellant asked him many questions indicating that Lee Anna Jones had developed symptoms in the 18 months preceding the trial corroborating her claim of total permanent disability to work. Without examination during the trial, an effective argument could have been made to the jury by counsel for appellant that without recent medical examination of Lee Anna Jones by Dr. Haig, the latter’s opinion of Lee Anna Jones’ physical condition was not the best. As of January 9, 1964, Dr. Haig found her physical condition to be the same as upon his examination of her 16 weeks after her accidental injury. It is apparent that the jury believed Dr. Haig was correct in his diagnosis and opinion formed upon his first examination of appellant. This court, not knowing the contents of the “off the record” discussion, cannot hold the trial court abused its discretion in ordering the medical examination of Lee Anna Jones by the physician selected by appellee, particularly when the same physician found no disability 16 weeks after the accidental injury or at any subsequent examination, including that had during the trial. The trial court did not abuse its discretion in ordering the examination during the trial, although such last minute examinations during trial are not to be encouraged. Appellant’s points of error complaining of the medical examination of Lee Anna Jones during the trial are each and all overruled.

Lee Anna Jones was a bus girl employed by Luby’s Cafeteria requiring her to pick up trays, some light, some heavy; she would have to bend, stoop and lift things and stay on her feet over long periods of time and at times carry objects fairly heavy. Dr. Williams testified several times that he didn’t think that she was qualified to do those tasks. Counsel for appellant also asked these questions and answers, which were excluded from jury consideration but there is no bill of exception to the exclusion:

“Q. All right, then, Doctor, if this girl were sent to you to do a pre-employment physical in order for you to determine whether or not to express an opinion as to her ability or capacity to perform her usual work, would you pass her for this type of employment?
⅝ ⅜ ⅜ ⅜ ⅝ ‡
“A. Well, if they required very strict physical examination, I would say you would probably turn her down.”
* * * * * *
“Q. All right, Doctor, I’ll ask you, then, considering that her employment for Luby’s Cafeteria was as a bus girl with the duties of picking up trays of food and carrying them back to certain portions of the premises at Luby’s Cafeteria, on occasion bending and stooping and standing for long periods of time, would you pass her on a pre-employment physical to do work of that nature ?
“A. I don’t think so.”

Appellant has a point of error directed at the refusal of the trial court to allow Dr. Ford G. Williams to testify as to whether or not he would have passed Lee Anna Jones for a pre-employment physical examination. The answer of Dr. Williams, which was excluded from jury consideration, was equivocal and would not have bolstered Lee Anna Jones’ case. Certainly, these questions and answers excluded from jury consideration were repetitious and cumulative of Dr. Williams’ other testimony. For the above reasons, the exclusion of such questions and answers from jury consideration did not cause the rendition of an improper judgment. The point of error is overruled as being harmless under the provisions of Rule 434, Texas Rules of Civil Procedure.

In view of a stipulation the parties entered into, the appellants are entitled to recover from appellee medical expenses amounting to $313.50.

The judgment of the trial court is affirmed in part and reformed and rendered in part as follows: That part of the judgment in which the appellants recover of and from the appellee $322.56, with the law firm of Waldman and Smallwood being entitled to 30% thereof as their attorneys’ fees for representing the appellants in said action, is affirmed. The judgment of the trial court is reformed so that appellants, Lee Anna Jones and husband, Joseph Jones, shall have and recover of and from Commercial Union Assurance Company, Ltd., the additional sum of $313.50 by reason of the medical bills set forth in the above stipulation, and as so reformed, is affirmed.


author: WILSON, Justice.

text:
    O. A. ROBERTS et al., Appellants, v. A. T. ROBERTS et al., Appellees.
    No. 4486.
    Court of Civil Appeals of Texas. Waco.
    June 23, 1966.
    Rehearing Denied July 14, 1966.

      Enoch G. Fletcher, Grand Saline, for appellants.
    Gordon R. Wynne, Wills Point, for ap-pellees.
   OPINION

WILSON, Justice.

Four of testator’s children who would have taken under a will which was denied probate by the district court judgment appeal from that court’s order which admitted to probate an alleged lost will under which they would take less.

Appellants complain initially of the manner in which the cause reached the district court from the probate court. On application of one of the children, Estelle Miller, a holographic will dated July, 1962 was admitted to probate by the county court, and she was appointed administratrix. Appellants thereafter filed in the probate court a petition to set aside the order probating the July will, alleging it was revoked by another holographic instrument dated November, 1962, under the provisions of which all testator’s six children would share equally the entire estate. It was alleged the latter will could not be produced, and was last seen in the possession of one of testator’s sons, A. T. Roberts. Estelle Miller and A T. Roberts were joined as defendants, and filed answers. The probate court vacated the previous order probating the July will, and ordered the November will, which could not be produced, admitted to probate.

Estelle Miller in her capacity as adminis-tratrix gave notice of appeal from the latter order, but filed no appeal bond. By order complying with Rule 336, Texas Rules of Civil Procedure the original papers were filed in the district court. Appellants thereupon filed a motion to dismiss the appeal of Estelle Miller as admin-istratrix on the ground that under Sec. 27, Texas Probate Code, V.A.T.S., the appeal personally concerned Estelle Miller and she was not authorized to appeal as administratrix under that section without filing a bond. While this motion was pending, A. T. Roberts filed in the district court an application and bond for a writ of certiorari under Rules 344 — 350, Texas Rules of Civil Procedure, as provided by Sec. 30 of the Probate Code. Appellants herein were named as adverse parties. Estelle Miller was not joined individually or as administratrix. Upon issuance of the writ the district court ordered the cer-tiorari proceedings consolidated with the appeal by Estelle Miller as administratrix.

Appellants herein then filed another motion in the district court to dismiss the consolidated proceedings on the ground now presented, that since the appeal of the administratrix should have been dismissed, the writ of certiorari was improperly granted. The district court then overruled the motion to dismiss. After a non-jury trial judgment was rendered vacating the probate court order (which had probated the lost November instrument) and admitting to probate the July will.

The attempted appeal by Estelle Miller as administratrix was ineffective. She was a beneficiary under both the July and the alleged November wills. Her appointment as administratrix has never been questioned or attacked. Even if it could be said that the administratrix was a person “aggrieved” under Sec. 28, Probate Code, an appeal without bond was not authorized because Sec. 29 of that Code qualifies the exemption of personal representatives from the requirement of an appeal bond by the words: “unless such appeal personally concerns” the representative, as this attempted appeal clearly did. Since the attempted appeal was abortive, the district court thereby obtained no jurisdiction of the probate proceedings; and likewise acquired no jurisdiction over Estelle Miller, as adminis-tratrix or individually. Callahan v. Stover, Tex.Civ.App., 263 S.W.2d 630, writ ref. It had no power, consequently, to consolidate an action over which it had no jurisdiction with another. This narrows the question to whether the case properly reached the district court by certiorari without all parties at interest having been named in the petition for the writ.

Estelle Miller was not joined as a party in the certiorari proceedings. Rule 344 requires that the application name “each party adversely interested.” It does not require the naming of parties whose interests are aligned with or identical to those of applicant. A party “adversely interested” is “one who has an interest in opposing the object sought to be accomplished”. Highsmith v. Tyler State Bank & Trust Co., Tex.Civ.App., 194 S.W.2d 142, 145, writ refused; Ponca Wholesale Mercantile Company v. Alley, Tex.Civ.App., 378 S.W.2d 129, 131, writ ref. n. r. e. This question was not before the Court, and was therefore not passed on in McDonald v. Edwards, 137 Tex. 423, 153 S.W.2d 567, 570.

The district court judgment in this case recites, however, that Estelle Miller “and all other parties interested in the estate of A. M. Roberts, deceased” appeared in person and by counsel at the trial. This recital is presumed to be true. Yturri v. McLeod, 26 Tex. 84; Houston v. Dunn, 13 Tex. 476; Southwest Nat. Bank of Dallas v. Cates, Tex.Civ.App., 262 S.W. 569; English v. Southwest Broadcasting Co., Tex.Civ.App., 81 S.W.2d 296; King v. Howell, Tex.Civ.App., 120 S.W.2d 298; Murphy v. Moseley, Tex.Civ.App., 11 S.W.2d 234, 236. Since the record thus shows that all interested parties appeared, appellants’ complaints as to the method of removal to the district court are overruled.

Exclusion of evidence on which the disposition of the case turned, however, in our opinion requires reversal. The testimony of three of testator’s children was excluded on appellees’ objection that it contravened Art. 3716, Vernon’s Ann.Tex.Civ. St., which prohibits testimony by heirs or legal representatives of the testator as to any statement by or transaction with him. The testimony excluded was to the effect that they saw the alleged lost November will, that it was wholly in testator’s handwriting, and that his estate was devised thereby to his six children.

In Martin v. McAdams, 87 Tex. 225, 27 S.W. 255, (1894) Justice Gaines w* 'te for the Supreme Court that testimony of testator’s child that a holographic will offered for probate was wholly in testator’s handwriting was admissible, and the witness was not incompetent under the statute because the testimony was “not as to any statement by him, nor do we think that it is testimony as to any transaction with him. The making of a will is a transaction, but it is not a transaction of the testator with the devisees or legatees.” See Harper v. Johnson, 162 Tex. 117, 122, 345 S.W.2d 277, 280. Cf. Ruel C. Walker, The Dead Man’s Statute, 27 Tex.Bar.Journal, (1964) 315, 372, and cases cited n. 51, 52. To apply the rule to wills produced in court, but to deny its application to those which cannot be so produced is, in our opinion, to ignore the reason for the holding. The testimony as to the handwriting, in our opinion, should have been admitted.

The question of whether The Dead Man’s Statute is applicable to testimony as to the contents of a lost will which the witness observed after testator’s death has not been decided in Texas. The rule appears to be that evidence as to the contents of lost instruments executed by deceased is admissible under the statute if the testimony as to the contents is not based on a transaction with deceased. Howard v. Galbraith, Tex.Civ.App., 30 S.W. 689, 690; 97 C.J.S. Witnesses, § 227(6) g., p. 706; id., § 227(5), p. 699 ; 58 Am.Jur., Witnesses, Sec. 258, p. 167. The proffered testimony as to the contents of the alleged lost will was not based on such a transaction, and in our opinion was admissible under Art. 3716. The judgment is reversed and the cause remanded.

      . Rule 360, Texas Rules of Civil Procedure requires a petition for writ of error, also, to name the “parties adversely interested”. It is held that the voluntary appearance of parties omitted cures the omission. Ellerd v. Burkhalter, Tex.Civ. App., 266 S.W. 582; Ferguson v. Beaumont Land & Bldg. Co., Tex.Civ.App., 154 S.W. 303; Dunnagan v. East Texas Colonization & Development Co., Tex. Civ.App., 198 S.W. 357; Cox v. Rio Grande Valley Telephone Co., Tex.Civ. App., 13 S.W.2d 918, writ dism.

      . Ia Re Struther’s Estate, Tex.Civ.App., 103 S.W.2d 798, no rehearing, no writ, is grounded on the holding that the witness gained knowledge from a definite transaction with testator. The suggestion as to wills not produced in court, preceded by “It occurs to us,” appears not to have been intended as a holding, and has never been followed. Stewart v. Long, Tex. Civ.App., 394 S.W.2d 25 relied on by appellees, clearly involved a transaction with testator: a will placed by her on the bed “to show me what was going on.”


author: HUGHES, Justice.

text:
    Jimmy Guss THOMAS, Appellant, v. CACTUS DRILLING CORPORATION OF TEXAS, Appellee.
    No. 11413.
    Court of Civil Appeals of Texas. Austin.
    June 29, 1966.

      John J. Watts and James D. Cunningham, Odessa, for appellant.
    Hardeman, Smith & Kever, Lee Arnett and Kenneth P. Courtright, San Angelo, for appellee.
   HUGHES, Justice.

This appeal is from a summary judgment rendered in favor of Cactus Drilling Corporation of Texas, appellee, on the ground that the suit brought against it by Jimmy Guss Thomas, appellant, for damages for personal injuries allegedly sustained by him as a result of negligence of appellee was barred by the two year statute of limitations. Art. 5526, Vernon’s Ann. Tex.Civ.St.

Appellant has three points of error but they are all controlled by the major premise that in bringing his suit he, by inadvertence, misnamed the party he intended to sue as the “Cactus Drilling Company, a Corporation,” rather than naming the true defendant, “Cactus Drilling Corporation of Texas.” This mistake was not discovered until more than two years had passed after the cause of action accrued.

We must determine whether, under the undisputed facts, a mere misnomer has occurred or the wrong party sued. If the right party has been sued and served by the wrong name, there is a pure misnomer which may be corrected, but if not corrected the validity of a judgment against the true defendant is not thereby affected. Adams v. Consolidated Underwriters, 133 Tex. 26, 124 S.W.2d 840. If it is made to appear that the wrong party has been sued and served, then no judgment can rightfully be rendered against him.

The facts in this case are:

Appellant’s cause of action accrued December 19, 1960. Appellant filed suit on April 27,1961 in the District Court of Dawson County against Cactus Drilling Company, a Corporation, alleging its registered agent for service to be F. M. Late. Citation issued the same day and was served May 1, 1961, by serving F. M. Late, its agent. Cactus Drilling Company filed a plea of privilege asserting its right to he sued in Tom Green County, and an answer, in general terms, subject to such plea. This plea was sustained December 18, 1961.

After the case reached Tom Green County, Cactus Drilling Company filed, June 16, 1964, an amended answer but, other than by general denial, did not suggest that appellant had sued the wrong party. In fact it alleged affirmative defenses of unavoidable accident, contributory negligence and assumption of risk.

On August 18, 1965, appellant filed an amended petition. On September 15, 1965, Cactus Drilling Company filed its motion for summary judgment in which it stated:

“The affidavit of Bruce Bacon which is attached hereto and made a part hereof for all purposes shows, and it is a fact, that CACTUS DRILLING COMPANY could not in anywise be responsible for any alleged injuries suffered by the said Jimmy Guss Thomas for the reason that the said CACTUS DRILLING COMPANY had nothing to do with the work being done at the time and place set out in Plaintiff’s Petition, where he is alleged to have received his injuries. The employees whom he charges with negligence were employed solely by CACTUS DRILLING CORPORATION OF TEXAS, a separate and distinct legal entity. None of such employees were-employed by CACTUS DRILLING COMPANY and CACTUS DRILLING COMPANY, therefore, could not in anywise be responsible to Plaintiff herein.”

These statements were not controverted.

On September 23, 1965, appellant filed an amended petition in which he alleged a cause of action against Cactus Drilling Corporation of Texas and procured service of process on F. M. Late, alleged in such petition to be its registered agent for service. Cactus Drilling Company was also named a defendant in this pleading.

After filing answer, appellee, on October 19, 1965, filed its motion for summary judgment on the ground that appellant’s cause of action was barred by the two year statute of limitations.

Appellant replied to this motion for summary judgment and took depositions which reflect that F. M. Late was the majority stockholder and president of both corporations sued and that both corporations had the same insurance carrier. The two corporations had separate offices. The process served on Mr. Late in 1961 was delivered to the insurance carrier and within two weeks thereafter it and the manager of ap-pellee knew that the workmen involved in the incident giving rise to the suit were employees of appellee and were not employees of the Cactus Drilling Company.

It is clear to us from the above facts that this is not a mere misnomer situation, but a case of mistaken identity. There were two distinct corporations, both correctly named in the record.

There is a similarity in the names of the two corporations and this coupled with the fact that both corporations had the same registered agent for service compounds the confusion and, no doubt, accounts for the mistake made by appellant.

We are not advised of any illegality in this arrangement, and we find none.

It is our opinion that this case is controlled by our decision in Krenek v. Epps Super Market No. 2, Inc., Tex.Civ.App., 377 S.W.2d 753, n. w. h., and authorities there cited.

The principle of these cases is simple. If a person thought to be named A is sued and served under that name the judgment against him is valid even though his name is B. But if one has a cause of action against a person whose name is A and there is another person with the same or similar name, service on the person against whom one has no cause of action will not support a judgment against the one amenable to the cause of action asserted.

These rules are not unreasonable. Our statutes of limitation afford ample time for investigation prior to the institution of suit. After the institution of suit, and even before, our rules of practice afford many means of investigating the circumstances of the case and of ascertaining the proper identity of the parties sued.

We are not unsympathetic with appellant but we are unable to find any legal excuse for his having sued the wrong corporation or for his delay in ascertaining this fact.

Appellee relied upon the case of Flowers v. Steelcraft Corporation, 398 S.W.2d 796, Amarillo, writ granted. We will not anticipate the decision of the Supreme Court in this case and will not discuss it except to point out that the Supreme Court in granting the writ did so on the point that the evidence was not conclusive that there were two separate corporations of the same name. It is conclusive in our case that there are two separate corporations of similar name, and this fact is not disputed.

Appellant’s contention that it was incumbent on the first corporation sued to file a plea in abatement pointing out the discrepancy between Cactus Drilling Company and Cactus Drilling Corporation of Texas thus enabling him to timely correct his mistake is answered by the case of Gillette Motor Transport Co. v. Whitfield, Tex.Civ.App., 160 S.W.2d 290, Fort Worth, n. w. h., cited with approval in Nail v. Wichita Falls & Southern Railroad Company, Tex.Civ.App., 294 S.W.2d 431, Fort Worth, n. w. h., the Court saying:

“A conclusion on the part of the railway company that it was not liable, or knowledge that it was not the plaintiff’s employer and was not the owner or operator of the railroad, would not impose upon it any duty to apprise plaintiff and the truck company in advance of the trial that they had sued the wrong company. Nor would mere knowledge by the railroad company of such facts be enough to substitute it for the railway company as a party to the suit.”

We affirm the judgment of the trial court.

Affirmed.

      . Motion of Cactus Drilling Company for summary judgment was granted and no appeal was taken from this action.


text:
    Callie Walker ALEXANDER, Appellant, v. Hugh C. MURRAY, Appellee.
    No. 4487.
    Court of Civil Appeals of Texas. Waco.
    June 30, 1966.
    Rehearing Denied July 21, 1966.

      Hassell & Riley, J. W. Hassell, Jr., Dallas, for appellant.
    Jones, Barnes, Watkins & Gay, W. Newton Barnes, Dallas, for appellee.
   OPINION

WILSON, Justice.

This action, instituted by the vendor in a contract for sale of realty as one in trespass to try title, was tried before a jury as a suit for specific performance on purchaser’s cross-action. Judgment was rendered as prayed for by the latter. We affirm.

The contract of sale is on a printed form supplied by a title insurance company, and its vague provisions give rise to the controversy. It provided that appellant sold and agreed to convey to appellee-purchaser a described city lot, a portion of the purchase price being deposited with the title company in escrow, and the balance being payable “on closing.” It recited that appellant-vendor “agrees to furnish a policy of title insurance” on said property. The contract is silent as to the terms of the policy. It provided the property should “be conveyed by general warranty deed by seller, free and clear of any and all encumbrances, except those herein named,” (none being named).

“In the event of the unwillingness of said company to issue its policy of title insurance after 15 days from date hereof,” it was agreed, “the purchase money hereby receipted for shall be returned to the purchaser,” whereupon the contract should “be cancelled and declared null and void.” It was also agreed: “In the event of the failure or refusal of the purchaser to complete this contract within five days after said company has indicated its willingness to issue said policy, then the seller shall have the right to pursue his remedy, either for damages or specific performance as he may elect. In the event of the failure of purchaser to complete this contract, the seller shall have the right to retain said cash deposit as a part of his damages for the breach of his contract.”

A further section stated that the willingness of the title company “to issue a policy of title insurance shall be conclusive evidence of the marketability of title.” The contract was signed by the parties December 13, 1963.

In December, between the 20th and 30th, the purchaser was notified by the title company it was “ready to issue its title policy”. He asked that closing be deferred, however, until a survey was obtained, and upon being informed the contract did not require vendor to provide for it, he agreed to furnish it himself. This, and three other surveys revealed that a lawn sprinkler system on one side, and a wooden fence and a brick wall on the other encroached upon the tract described in the contract. Attempts ensued by appellee-purchaser to have these encroachments removed by the adjoining owners. He obtained agreement for removal of the sprinkler system, but the owner of the fence and wall did not readily consent to clear the tract.

The final survey was completed April 3. On April 9 the real estate broker representing appellant-vendor notified appellee he would have “to either get on or off”. Appellee protested he was attempting to clear the encroachments as fast as possible, but the broker replied, “You will have to close it now, or I intend to sell it.” The broker testified appellee then answered, “Go ahead and sell it.” Appellee testified he had then answered, “If you have to sell it, go ahead, but I am not through and I want this lot.” There is evidence that the agent thereupon obtained another buyer, but the title company as escrow agent would not release the earnest money deposit or proceed with a new contract without a release from appellee. On Monday, April 13 a release and the earnest money were tendered to appellee. He refused to execute the release or accept the money. He testified the broker then told him he must “go by the title company and close the deal before five o’clock or he would sell it to someone else;” and that he offered to close the transaction within that time, but appellant refused to convey.

The jury returned negative answers to issues inquiring whether the parties mutually agreed to rescind the contract on April 9, and whether appellee-purchaser “failed and refused to perform the contract in question withiti a reasonable time.”

The evidence shows that any policy which the title company proposed, or was willing to issue would have provided that its title guaranty was “subject to any discrepancies, conflicts, or shortages in area or boundary lines, or any encroachments or any overlapping of improvements which a correct survey would show”.

Appellant contends her motion for instructed verdict should have been sustained on the grounds, (1) the title insurance company was “unwilling to issue its policy”, and the contract then “was at an end”; (2) that since the contract provided that refusal of the purchaser to complete the contract within five days after the title company indicated its willingness to issue the policy “would authorize seller to retain the cash deposit”, purchaser’s rights had ended, seller had the right of unilateral rescission, and seller was not bound to extend time for performance; (3) that since seller had no duty to obtain removal of encroachments, and purchaser had no duty “to accept the property with such encroachments,” the contract terminated; (4) there was no legal basis for applying a “reasonable time” standard.

Appellant’s antagonistic premises that the title company was both willing, and unwilling to issue a policy are reconciled by the undisputed evidence and appellant’s admission in brief and argument that the company was willing to issue a title policy in December. The policy it was willing to issue, however, was not such as the contract of sale required. It was a qualified and restricted policy not within the contemplation of the parties under the terms of their agreement. Suiter v. Gregory, Tex.Civ.App., 279 S.W.2d 909, 912. Points predicated on the willingness or unwillingness of the title company to issue a policy are therefore untenable.

The contract of sale required appellant to convey free and clear of all encumbrances. We are not required to decide whether the encroachments constituted encumbrances, (see Uszenski v. McNabb, Tex.Civ.App., 225 S.W.2d 210, 212, writ ref.; 47 A.L.R.2d 331) — although appellant’s points and argument impliedly admit they are such — for appellee-purchaser had the right to ignore or waive this requirement, which was for his benefit. Lieber v. Nicholson, Tex.Com.App., 206 S.W. 512, 513; Leonard v. King, Tex.Civ.App., 164 S.W. 1110; 58 Tex.Jur.2d, Vendor and Purchaser, Sec. 155, p. 366; Sec. 173, p. 388. Appellant may not rescind because of her own default.

The time limit for purchaser’s performance under the terms of the contract never did arrive. Time is not generally of the essence of a contract for sale and purchase of real estate, as distinguished from option contracts. Johnson v. Portwood, 89 Tex. 235, 34 S.W. 596, 598; Gala Homes, Inc. v. Fritz, Tex.Civ.App., 393 S.W.2d 409, 411, writ ref., n. r. e., and cases cited, 412.

In such a case as this, the purchaser had a reasonable time within which to perform. Copeland v. Bennett, Tex.Civ.App., 243 S.W.2d 264; Longinotti v. McShane, Tex.Civ.App., 184 S.W. 598, writ ref.; Clark v. Wilson, Tex.Civ.App., 91 S.W. 627; Cunyus v. Hooks Lumber Co., 20 Tex.Civ.App. 290, 48 S.W. 1106; Bush v. Merrill, Tex.Civ.App., 206 S.W. 834. See Creson v. Christie, Tex.Civ.App., 328 S.W.2d 772, writ ref., n. r. e. The jury finding on this issue is not attacked.

The second contention enumerated rests upon a misinterpretation of the contract language; the condition upon which seller was authorized to retain the cash deposit was that purchaser “fail to consummate this contract.”

Appellant’s final point complaining of refusal of two requested issues is covered by our holding above, and the fact that the inquiry in one of the requested issues was adequately submitted. All points are overruled.

Affirmed.


text:
    Joe TILLEY et al., Appellants, v. Ben J. ROGERS et al., Appellees.
    No. 6835.
    Court of Civil Appeals of Texas. Beaumont.
    June 2, 1966.
    Rehearing Denied July 7, 1966.

      Moore, Moore & Pate, R. G. Papich, Beaumont, for appellants.
    Keith, Mehaffy & Weber, Pat T. Pey-ton, Jr., George E. Murphy, City Atty., Beaumont, for appellees.
   PARKER, Justice.

Joe Tilley and others sued Ben J. Rogers and others to set aside and declare invalid an amendatory zoning ordinance adopted by the City Council of the City of Beaumont on June 16, 1964. A comprehensive zoning ordinance was passed by the City Council of the City of Beaumont on June 7, 1955, which classified a strip 200' in width of a 34.5 acre tract as C-l which permits neighborhood commercial use. Subsequently, 60' of the 200' was taken and used in the improvement of Highway 69, leaving a 140' strip for such commercial use. The remainder of such 34.5 acre tract by the ordinance of June 7, 1955, was classified as R-l only permitting single family dwelling use. The amendatory ordinance of June 16, 1964, classified the entire 34.5 acre tract as C-l. As changed, the defendants would be permitted to construct and operate a regional retail shopping center on the 34.5 acre tract of land. Trial being to the court, judgment was entered in favor of the defendants and against the plaintiffs upholding the validity of the amendatory ordinance above referred to. Plaintiffs in the trial court are appellants here. Defendants in the trial court are ap-pellees here.

Appellants attack the validity of the 1964 amendment to the Zoning Ordinance of the City of Beaumont. Such appeal is governed by the substantial evidence rule. The rules controlling this court’s consideration of this appeal are clearly announced in City of Waxahachie v. Watkins, 154 Tex. 206, 275 S.W.2d 477, 480-481 (1955). Paraphrasing such decision, the enactment of any zoning ordinance is an exercise of the legislative power of the city’s council, presumably valid. This presumption of validity accorded the original comprehensive zoning ordinance of the City of Beaumont applies as well to an amenda-tory ordinance. Courts have no authority to interfere unless the change is clearly illegal, unreasonable and arbitrary. If the fact issues are fairly debatable, courts will not interfere.

After hearing the evidence, the trial court found that substantial evidence was introduced in the trial court which reasonably supported the action of the City Council with the conclusion of law that the enactment of such amendatory ordinance was not illegal, unreasonable or arbitrary. This was the basis for the judgment of the trial court. Gulf Land Co. v. Atlantic Refining Co., 134 Tex. 59, 74, 131 S.W.2d 73, 82 (1939). Having reached such conclusion under the substantial evidence rule, the trial court was not required to file findings of fact and conclusions of law as it would be required to do in an ordinary civil suit where parties requested findings of fact and conclusions under Texas Rules of Civil Procedure, Rules 296, 297 and 298. Appellants’ points of error 1 through 3 asserting error on the part of the trial court in not filing findings of fact and conclusions of law as it would be required to do in the ordinary civil suit are each and all overruled.

The scope of review in this substantial evidence case is as stated in Thomas v. Stanolind Oil & Gas Co., 145 Tex. 270, 198 S.W.2d 420, 421 (1946) :

“A proceeding of this nature is not comparable to a proceeding in an ordinary civil suit in which the fact findings of a jury are attacked on the ground of the insufficiency of the evidence to sustain them. In that proceeding trial courts and courts of civil appeals are clothed with the authority, not possessed by this court, to set aside such findings if they are thought to be against the great weight and overwhelming preponderance of the evidence. But those courts are not clothed with authority to set aside fact findings of an administrative agency made within the scope of its statutory powers on that ground. The Legislature has clothed administrative agencies with special powers to perform special functions and in reviewing fact findings of such agencies no question of the preponderance of the evidence is involved. The question is whether or not there is any substantial evidence affording reasonable support for such findings and the orders entered thereunder. That is a question of law of which this court, along with the lower courts, has jurisdiction and in the exercise of that jurisdiction we consider the record before us.”

Appellants’ points of error 5 through 11, both inclusive, contend:

“It is the contention of Plaintiffs that no evidence was introduced on the trial of this case which was material or sufficient to support the action of the City Council in making the zoning change requested by the Defendants.”

A summary of the evidence introduced on the trial which was material and in support of the action of the City Council in making the zoning change requested by the appellees will be considered, limited to substantial probative evidence existing at the time of the public hearing on June 1st and 2nd, 1964, or on June 16, 1964, when such amendatory ordinance was enacted. This property adjoins Highway 69 on the west. A 200' strip adjoining the highway on the west was originally classified as commercial or C — 1. Thereafter, 60' off the front of the property was taken for the purpose of widening the highway, thus cutting the commercial area from 200' to 140'. Qualified real estate developers and appraisers testified:

“The tract is level, but it’s heavily wooded in native trees and underbrush. It is bisected by a thirty-foot drainage ditch easement, which runs east and west * * * [and] by two streets known as Arthur Drive and East Drive. I found there were several shelled roads in the place each leading to four producing oil wells or were producing at the time of my inspection. Each of these wells had pipe lines, gathering lines, tanks, sump pits and a culdesac — or a turnaround for the trucks operating within that area.”
The witness, Hollín, testified:
“This tract, being small in size, irregular in shape would be very difficult to plan under any conditions, for residential use. And not considering giving any consideration to the drainage problems this has or other physical factors.”

Witness Hall testified should the 140' strip adjoining the highway be used commercially, a traffic hazard would be created for each separate business would have its own separate entrance and exit to the highway. This would result in a menace to the safety of the public travelling on the highway, as well as those going to and from such places of business. Such a strip development would create a health menace because of the existence of the trash problem with trash stacked up behind the buildings. With the development of the land under consideration as a shopping center, more safety would be afforded to traffic, which had increased on Highway 69.

This 34.5 acre tract of land is known as the “Edwards Tract”. The proposed community center, to be known as “North-land”, showed that the planned use would have the result of limiting the number of entrances to the highway and decreasing traffic hazards. It would improve drainage, rid the area of rodents. The C-l classification would be the highest and best use of the property, both for the developers and the neighborhood. The plan would prevent overcrowding of the land and would not adversely affect the resale value of homes in that area. The amended ordinance would be of service to the community in conserving, and not depreciating or decreasing the values of this property and the property in the immediate area.

Since the adoption of the original zoning ordinance changes in the area were: (a) 31 square miles of new territory had been added to the City of Beaumont; (b) a tremendous new development and building program just beyond the city limits of Beaumont in south Hardin County had occurred and was continuing, with those residents of Hardin County in going to the City of Beaumont passing by the property involved in this suit; (c) the removal of the railroad across Highway 69 to the east had led to the opening of streets with the greater flow of traffic.

It was the opinion of expert witnesses that the 140' strip area zoned commercially is inadequate for commercial purposes as the 60' strip taken by the highway program resulted in “strip zoning”. The 140' remaining was inadequate for commercial purposes and not proper zoning. Further, in the opinion of such witnesses the best use of this particular tract would be for commercial use serving automobile driven customers.

Efforts to develop the property residen-tially had been unsuccessful because of the production of oil from such land with tanks, wells, flow lines, and the usual equipment for producing and caring for such production. Lack of adequate drainage and the increased flow of vehicular traffic, together with commercial development in nearby areas, made the area unattractive to home builders. Financing the building of homes under such conditions was virtually impossible. The proposed shopping center would not adversely affect surrounding property for residential purposes but would help the general appearance of the neighborhood, surrounding property, residential and otherwise.

Appellants produced some evidence contradicting some of the above matters. Reasonable minds could differ in considering such conflicting evidence adduced upon the trial, but clearly no abuse of discretion was shown and the amendatory ordinance was a valid exercise of the City police power. Appellants’ points of error 5 through 11, both inclusive, are overruled.

Appellants’ point of error No. 4 is as follows:

“The Trial Court erred in refusing to set aside and declare invalid the Amenda-tory Ordinance adopted by the Beaumont City Council on June 16, 1964, for the reason that a quorum of the City Council was not present at the alleged joint ‘public hearing’ of the City Council and the Zoning Commission, held on June 1-2, 1964, and therefore, no valid ‘public hearing’ was had.”

To amend the original zoning ordinance the City Council must hold a public hearing with at least three members present and participating. It is undisputed that at the joint hearing held on June 1-2,1964, Mayor Moore and Councilman Leach were not present and did not participate, leaving Councilmen Patton, Christopher and Hy-barger present. Appellants contend that Hybarger on those dates was holding two civil offices of emolument in violation of Article 16, § 40 of the Constitution of the State of Texas, Vernon’s Ann.St. In September of 1958 Hybarger was appointed Associate Professor of Education at Lamar State College of Technology, a state supported college. In May, 1962, Hybarger qualified as City Councilman. The office of City Councilman is a civil office of emolument. Hybarger is an employee of a state supported school and is paid with funds derived from taxation; however, a professorship is not an office. A teacher or college professor is not an officer within the meaning of the constitutional provision of Article 16, § 40 of the Constitution of the State of Texas. He is an employee and the prohibition of the constitutional provision of Article 16, § 40 is inapplicable. The distinction between officer and an employee is discussed in Aldine Independent School District v. Standley, 154 Tex. 547, 280 S.W.2d 578, 583 (1955) and Kimbrough v. Barnett, 93 Tex. 301, 55 S.W. 120 (1900). We see no difference in the meaning of public office and civil office. In 75 A.L.R., p. 1352, the rule is announced as follows:

“The courts are almost unanimous in holding that the position of a teacher is that of employee, rested on the contract of employment, and not that of public officer.”

Appellants’ point of error No. 4 is overruled.

The judgment of the trial court is affirmed.


author: BARROW, Justice.

text:
    BEL-AIRE HOUSING CORPORATION et al., Appellants, v. The STATE of Texas, Appellee.
    No. 14463.
    Court of Civil Appeals of Texas. San Antonio.
    June 1, 1966.
    Rehearing Denied July 27, 1966.
    F. N. Welmaker, Clemens, Knight, Weiss & Spencer, San Antonio, for appellants.
    Waggoner Carr, Hawthorne Phillips, T. B. Wright, Carroll R. Graham, Robert D. McGee, James D. Frasier, Austin, for ap-pellee.
   BARROW, Justice.

This is a condemnation proceeding wherein the sole question involved is the reasonable cash market value of the 2.23 acres taken by the State for highway purposes. The jury found that the market value of the tract when it was condemned on June 5, 1962, was $26,460.00. Judgment was entered whereby appellee, State of Texas, recovered from appellants, Bel-Aire Housing Corporation and lienholders, Ed Kraft et ux., the sum of $56,040.00, being the difference between the sum of $82,500.00 awarded by the special commissioners in this cause, which sum was withdrawn by appellants, and the value found by the jury.

On June 5, 1962, appellants owned a tract of land containing 21.351 acres, on the far east side of the City of San Antonio, which fronted on U.S. Highway 90. The State condemned a strip containing 2.23 acres off the north end of appellants’ land as a right-of-way for I.H. 10. The portion taken is irregularly shaped, with 607.62' located on the south side of U.S. Highway 90. It is 65' wide on the east, 260' wide on the west, and closed by 700.58', so as to contain approximately 98,000 square feet.

The land was condemned for use as a part of the National System of Interstate and Defense Highways in the State of Texas. I.H. 10 is a controlled access highway, and frontage roads are to be built as a part of said highway whereby the right of ingress and egress to and from the remaining property of appellants is not to be denied. Prior to the trial, appellants stipulated that there were no recoverable damages to the remainder, and made a motion in limine to instruct the witnesses not to testify as to the remainder of appellants’ land, and to limit their testimony to the part taken. The trial court granted the motion in part, in that it instructed appellee not to introduce evidence showing enhancement of the remainder, but refused to otherwise limit testimony concerning appellants’ remaining land or the tract as a whole.

In accordance with this ruling, the State was permitted to demonstrate in numerous ways, over the objections of appellants, that the strip taken was but a part of the 21.351-acre tract owned by appellants, and that appellants would still own land contiguous to I.H. 10, with right of access by a frontage road. Therefore, the appellants were not permitted to recover for the part taken on the basis of market value of the part taken, considered as severed land.

In State v. Meyer, 403 S.W.2d 366 (1966), the Supreme Court recently considered this proposition and held that where the landowner waived damages to the remainder, the issue of access rights is irrelevant to a determination of the issue of the fair market value of the fee title to the tract of land actually condemned. The circumstances of retained access cannot be considered in reaching an opinion as to the value of the land taken. It was there held that the trial court correctly restricted the witnesses to an appraisal of the property condemned without regard to the remainder.

Mr. Lloyd A. Denton, president of appellant corporation, was the first witness at the trial. At the outset of his cross-examination, State’s counsel had him identify a sketch demonstrating in very distinctive colors, the present highway frontage, the strip condemned, the remaining land of appellants, and the increased frontage after the taking by the State. Appellants objected to this exhibit as no damages were sought for the remainder, and the court inquired of appellee as to its purpose in offering the exhibit. State’s counsel stated, “I was just trying to show the surroundings and the size of the entire tract. I don’t intend to prove anything.” The objection was then overruled and the exhibit admitted. This exhibit was used repeatedly throughout the trial and it clearly demonstrated that the strip taken is but a part of appellants’ land and that appellants will have more frontage on I.H. 10 than they did on U.S. 90.

During voir dire examination of appellants’ value witnesses, appellee inquired of each in essence as to whether the alleged comparable sale inquired about was part of a larger tract. Appellee specifically examined appellants’ witness Joiner concerning the access to the remainder. Further, Joiner was asked if the street was not just being widened and appellants’ frontage still remained. Appellee developed by its witness Gaston that appellants owned over 21 acres before the taking, and he testified as to the highest and best use of the entire tract. Appellee’s witness Stebbins also testified relative to appellants’ owning 21 acres prior to the taking by appellee.

The trial court erred in permitting the jury to receive this evidence of the appellants’ tract considered as a whole, rather than limiting the jury to consideration of the condemned land as a severed tract. State v. Meyer, supra. It is our opinion, after review of the entire record, that the erroneous admission of this evidence was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case. Rule 434, Texas Rules of Civil Procedure.

Eight witnesses testified at the trial and all were value witnesses. The valuation of appellants’ witness Berry was excluded by the trial court. It is seen that there is a wide difference of opinion between the testimony of appellants’ four other witnesses and State’s three witnesses. Their testimony is summarized as follows, with the testimony of appellants’ witnesses set out first:

Lloyd A. Denton Per Sq. Ft. $1.50 to 2.00 Per Acre $65,000. to 87,000 Value $145,000 to 194,000
Alfred Rhode $1.05 $45,700 $100,000
Burt L. Joiner $1.00 $43,560 $98,000
R. N. White, Jr. $1.20 $52,272 $117,600
V. E. “Red” Berry (By Bill of Exception) $1.50 $65,000 $145,000
John C. Gaston .218 $9,500 $21,185
Joe Olivares .23 $10,000 $22,300
H. Grady Stebbins, Jr. .23 $10,000 $22,300

The jury verdict of $26,460.00 amounts to $11,865.00 per acre and approximately 27 cents per sq. ft. The jury’s valuation is very close to that of appellee’s witnesses. It can not be seriously questioned that there is a substantial difference in viewing the strip taken as a severed tract on a busy United States highway with two-way traffic, and considering it as a part of a larger tract on which appellants will have more frontage after the improvements are constructed. Despite the State’s disavowal of the intention to prove anything by showing that the strip being taken was only a part of the land owned by appellants, there can be no doubt that the State was successful, whether by accident or by design, in impressing upon the jury the fact that the remainder of appellants’ land would be benefitted by the construction of the highway. Further the State advocated the theory that the construction of the new highway would leave the appellants with remaining land which would have more frontage on a highway than before the strip was taken. In our opinion, the prejudicial effect of this erroneous evidence is reflected in the jury’s verdict.

This prejudicial error requires a reversal of the judgment and remand of this case. Appellants other points complain of procedural errors which are not likely to recur, at least not in the same posture, and therefore little would be gained by a discussion of same.

The judgment of the trial court is reversed and the cause remanded.


author: McDonald, Chief Judge.

text:
    Vance BRYAN, Appellant, v. CENTRAL BANK & TRUST COMPANY, Appellee.
    No. 4512.
    Court of Civil Appeals of Texas. Waco.
    June 30, 1966.
    Rehearing Denied July 21, 1966.
    Palmer, Green & Palmer, Dallas, for appellant.
    Bradford & Pritchard, Dallas, for ap-pellee.
   OPINION

McDonald, Chief Judge.

This is an appeal by defendant Bryan from a summary judgment for plaintiff bank, in a suit on a note.

Plaintiff bank sued defendant Bryan and Guy Gardner for unpaid balance (plus interest and attorneys’ fees) on a note secured by chattel mortgage on cattle, executed by Bryan to Gardner, and assigned by Gardner to plaintiff Bank. Defendant filed answer and cross-action seeking damages against plaintiff, alleging fraudulent representations by plaintiff concerning the cattle of which the note represented purchase price.

Plaintiff moved for summary judgment supported by affidavit of Shelby Richardson, President of plaintiff bank. Richardson stated that defendant’s note to Gardner had been assigned to the bank; that the bank was the owner of such note; that the unpaid balance on same was $6562.09 (plus interest and 10% attorneys’ fees); that the affiant had not made any of the representations concerning the cattle which defendant Bryan alleged.

Defendant Bryan opposed plaintiff’s motion for summary judgment and supported same with his affidavit admitting execution of the note payable to Gardner; admitting transfer and assignment of the note by Gardner to plaintiff; and then stated that “Plaintiff made the following representations * * * ”, (enumerating representations concerning the cattle purchased by the note); “I believed and relied on the representations of plaintiff which were false * *

The trial court entered summary judgment that plaintiff recover $6562.09 (plus interest and attorneys’ fees) from defendant; and further ordered that all relief requested by any party not expressly granted be denied.

Defendant appeals, contending the trial court erred in granting summary judgment for plaintiff and denying defendant’s cross-action because there existed fact issues as to defendant’s defense of fraud; and that plaintiff failed to prove it was the holder of the note sued on.

Plaintiff bank sued on a note alleging defendant executed a note to Gardner for cattle, and that Gardner assigned it to plaintiff bank. Defendant answered that “plaintiff” (which is a corporation) made fraudulent representations concerning the cattle defendant gave the note for.

Plaintiff bank filed motion for summary judgment supported by affidavit of the President, Richardson, stating the execution by defendant of the note to Gardner, and assignment by Gardner to plaintiff; and denying that he, Richardson, had made any of the representations defendant alleged. Defendant opposed motion for summary judgment supported by his own affidavit admitting execution and assignment to plaintiff bank of the note sued on, but asserting: “Plaintiff represented * * * ”, (concerning the cattle).

Defendant’s affidavit that the “Bank”, which is a corporation, made fraudulent representations is not an affidavit “made on personal knowledge”; “setting forth facts which would be admissible in evidence,” as is required by Rule 166-A, Texas Rules of Civil Procedure. Obviously a corporation could not itself speak or make a fraudulent representation. See: Langehennig v. Hohmann, Tex.Civ.App., (n. r. e.) 365 S.W.2d 203; Youngstown Sheet & Tube Co. v. Penn, Tex., 363 S.W. 2d 230.

The affidavit of Shelby Richardson, president of plaintiff bank, expressly states that plaintiff bank is the owner of the note executed by defendant; a copy of the note (and assignment) is attached to plaintiff’s petition and is a part of the record on summary judgment; and defendant’s affidavit admits execution and transfer of the note to plaintiff. We think plaintiff established that it was the holder and owner of the note. Alexander v. Houston Oil Field Material Co., Tex.Civ.App., (n. r. e.) 386 S.W.2d 540.

The judgment is correct. Defendant’s points and contentions are overruled.

Affirmed.


author: COLLINGS, Justice.

text:
    Raymond W. JONES, Appellant, v. EL CHORRO DRILLING COMPANY, Appellee.
    No. 4045.
    Court of Civil Appeals of Texas. Eastland.
    June 17, 1966.

      Gordon Asbury, Jr., Abilene, for appellant.
    Wagstaff, Alvis, Pope, Doscher & Charl-ton, Wm. C. Charlton, Abilene, for appellee.
   COLLINGS, Justice.

A motion to dismiss the appeal because of appellant’s failure-to timely file a brief is the matter here under consideration. El Chorro Drilling Company, a corporation, brought suit against Raymond W. Jones to recover under the provisions of a written drilling contract which plaintiff alleged it had performed. The cas.e was tried before a jury and, based upon the verdict, judgment was entered on August 5, 1965, for the plaintiff for $3,051.59. Raymond Jones has appealed.

The transcript was filed on October 29, 1965. The statement of facts was filed on December 28, 1965. Rule 414, Texas Rules of Civil Procedure, provides that an appellant’s brief shall be filed within thirty days after the filing of the transcript and statement of facts. Appellant did not file his brief on January 28, 1966, but did timely file a motion for extension to file his brief which was granted on February 4,1966. On March 11, 1966, appellant’s second motion for extension of time was granted and appellant was given until March 28, 1966, to file his brief. Appellant did not file his brief on or before March 28, 1966, but on that date filed appellant’s third motion for an extension of time to file a brief, which motion was on April 8, 1966, overruled.

On April 27, 1966, appellee filed its motion to dismiss the appeal, asserting that appellant had failed to file his brief on or before March 28, 1966, as this court had granted him permission to do, and had failed to show good cause for such failure. Ap-pellee asserted that under the record there has been a want of prosecution and that nothing is presented for review. Appellee prays that the appeal, therefore, be dismissed.

Rule 415, T.R.C.P., provides:

“When the appellant has failed to file his brief in the time prescribed, the appellate court may dismiss the appeal for want of prosecution, unless good cause is shown for such failure and that appellee has not suffered material injury thereby. The court, may, however, decline to dismiss the appeal, whereupon it shall give such direction to the cause as it may deem proper.”

We are not required, as a matter of law, to dismiss the appeal for want of prosecution because appellant has not complied with Rule 414, requiring the timely filing of his brief. Hoke v. Poser, 384 S.W.2d 335, (Sup.Ct., 1964). Rule 415 does, however, authorize a Court of Civil Appeals to- dismiss an appeal when an apT pellant has failed to timely file his brief unless (1) good cause is shown for such failure and (2) that the appellee has not suffered material injury thereby. The good cause in all of appellant’s motions for extension relate to his alleged difficulty in securing and retaining an attorney. Appellant was, based upon such allegation of good cause, granted two extensions of time for the filing of his brief. We heretofore overruled his third motion for extension of time, finding that no good cause was shown for his continued failure to file a brief and no showing of a lack of injury to appellee. Appellant’s fourth motion for an extension of time in which to file his brief is likewise overruled. In our opinion appellee’s motion to dismiss the appeal is well taken.

The appeal is dismissed.


author: McDONALD, Chief Justice.

text:
    UNITED STEEL INDUSTRIES, INC., et al., Appellants, v. McAndrew MANHART et al., Appellees.
    No. 4516.
    Court of Civil Appeals of Texas. Waco.
    June 30, 1966.
    Rehearing Denied July 21, 1966.
    W. R. Griffitts, Harvey L. Davis, Dallas, for appellants.
    Sanders & Nolen, William Andress, Jr., Dallas, for appellees.
   OPINION

McDONALD, Chief Justice.

This is an appeal by defendants, United Steel Industries, Inc., J. R. Hurt and W. B. Griffitts, from a judgment declaring void and cancelling 5000 shares of stock in United Steel Industries, Inc. issued to Hurt, and 4000 shares of stock in such corporation issued to Griffitts.

Plaintiffs Manhart filed this suit individually and as major stockholders against defendants United Steel Industries, Inc., Hurt, and Griffitts, alleging the corporation had issued Hurt 5000 shares of its stock in consideration of Hurt agreeing to perform CPA and bookkeeping services for the corporation for one year in the future; and had issued Griffitts 4000 shares of its stock in consideration for the promised conveyance of a 5 acre tract of land to the Corporation, which land was never conveyed to the Corporation. Plaintiffs assert the 9000 shares of stock were issued in violation of Article 2.16 Business Corporation Act, V.A.T.S. and prayed that such stock be declared void and cancelled.

Trial was before the Court without a jury which, after hearing, entered judgment declaring the 5000 shares of stock issued to Hurt, and the 4000 shares issued to Griffitts, issued without valid consideration, void, and decreeing such stock can-celled.

Defendants appeal on 11 points, contending :

1) The trial court erred in holding the 5000 shares of stock issued to Hurt; and the 4000 shares issued to Griffitts invalid because the uncontradicted evidence shows each contributed valid consideration in the form of work done for the Corporation prior to the time the stock was issued to him, and the judgment of the directors of the Corporation to this effect is conclusive in the absence of fraud.
2) There is no evidence, or insufficient evidence, that the 5000 shares issued Hurt, and the 4000 shares issued Grif-fitts were issued without valid consideration.

The trial court found (on ample evidence) that the incorporators of the Corporation made an agreement with Hurt to issue him 5000 shares in consideration of Hurt’s agreement to perform bookkeeping and accounting services for the Corporation for the first year of its operation. The Corporation minutes reflect the 5000 shares issued to Hurt “in consideration of labor done, services in the incorporation and organization of the Corporation.” The trial court found (on ample evidence) that such minutes do not reflect the true consideration agreed upon, and that Hurt performed no services for the Corporation prior to February 1, 1965. The Articles of Incorporation were filed on January 28, 1965, and the 5000 shares were issued to Hurt on May 29, 1965. There is evidence that Hurt performed some services for the Corporation between January and May 29, 1965; but Hurt himself testified the “5000 (shares) were issued to me for services rendered or to be rendered for the first year in keeping the books * *

The situation is thus one where the stock was issued to Hurt both for services already performed and for services to be rendered in the future.

The trial court concluded the promise of future services was not a valid consideration for the issuance of stock under Article 2.16 Business Corporation Act; that the issuance was void; and that since there was no apportionment of the value of future services from the value of services already rendered, the entire 5000 shares were illegally issued and void.

Article 12, Section 6, Texas Constitution, Vernon’s Ann.St. provides: “No corporation shall issue stock * * * except for. money paid, labor done, or property actually received * * And Article 2.16 Texas Business Corporation Act provides: “Payment for Shares.

“A. The consideration paid for the issuance of shares shall consist of money paid, labor done, or property actually received. Shares may not be issued until the full amount of the consideration, fixed as provided by law, has been paid. * * *

“B. Neither promissory notes nor the promise of future services shall constitute payment or part payment for shares of a corporation.

“C. In the absence of fraud in the transaction, the judgment of the board of directors * * * as to the value of the consideration received for shares shall be conclusive.”

The Fifth Circuit in Champion v. CIR, 303 F.2d 887 construing the foregoing constitutional provision and Article 2.16 of the Business Corporation Act, held:

“Where it is provided that stock can be issued for labor done, as in Texas * *, the requirement is not met where the consideration for the stock is work or services to be performed in the future. * * The situation is not changed by reason of the provision that the stock was to be given * * * for services rendered as well as to be rendered since there was no allocation or apportionment of stock between services performed and services to be performed.”

The 5000 shares were issued before the future services were rendered. Such stock was illegally issued and void.

Griffitts was issued 10,000 shares partly in consideration for legal services to the Corporation and partly in exchange for the 5 acres of land. The stock was valued at $1 per share and the land had an agreed value of $4000. The trial court found (upon ample evidence) that the 4000 shares of stock issued to Griffitts was in consideration of his promise to convey the land to the Corporation; that Griffitts never conveyed the land; and the issuance of the stock was illegal and void.

The judgment of the board of directors “as to the value of consideration received for shares” is conclusive, but such does not authorize the board to issue shares contrary to the Constitution, for services to be performed in the future (as in the case of Hurt), or for property not received (as in the case of Griffitts).

The judgment is correct. Defendants’ points and contentions are overruled.

Affirmed.


text:
    NEUHOFF BROTHERS PACKERS, INC., Appellant, v. Rudolf T. JANEK et ux., Appellees.
    No. 4494.
    Court of Civil Appeals of Texas. Waco.
    July 7, 1966.
    Rehearing Denied July 28, 1966.

      Turner, Rodgers, Winn, Scurlock & Terry, Frank J. Scurlock, Dallas, for appellant.
    John B. McNamara, Jr., Vernon L. Smith, Waco, for appellees.
   OPINION

McDONALD, Chief Justice.

This is an appeal by defendant Neuhoff from a judgment against it in a nuisance case.

Plaintiffs Janek sued defendant Neuhoff for damages incurred as a result of defendant’s operation of a feed lot of 150 acres containing 25,000 cattle. Plaintiffs allegéd their farm of 195 acres is located 2½ miles' south of defendant’s feed lot; and downstream on Whiterock Creek from such feed; lot; that by reason of manure, soured grain and other noxious agencies on defendant’s property, unpleasant odors came onto plaintiffs’ property when the wind was from á northerly direction; that noxious odors were emitted from Whiterock Creek at plaintiffs’ property; and that such creek was contaminated at plaintiffs’ property. Plaintiffs alleged the foregoing a private temporary nuisance, and prayed for $15,000 damages.

Trial was to a jury which found:
1) The operation and maintenance of the feed lot by defendant is a nuisance to plaintiffs.
2) $2,000 will reasonably compensate plaintiffs for' their personal discomfort, annoyance, inconvenience and loss of enjoyment of their property, resulting from such nuisance between October 4, 1963 and October 4, 1965.
The trial court entered judgment on the verdict.

Defendant appeals, contending the trial court erred in not permitting it to rebut, by the testimony of its expert witness Dr. Levin, the evidence of plaintiffs concerning the condition of the water in Whiterock Creek at Highway 22.

Defendant’s feed lot is located 2½ miles north of plaintiffs’ farmhouse. Neuhoff Creek runs through defendant’s property and into Whiterock Creek, which in turn runs through plaintiffs’ property. White-rock Creek passes under Highway 77 above defendant’s feed lot, and passes under Highway 22 a mile south of plaintiffs’ property. Defendant has a series of catch basins below its feed lot which holds the manure runoff unless there is more than 2 inches of rain in 24 hours, in which event the runoff goes into Neuhoff Creek and on into-Whiterock Creek.

The witnesses Janek, McCauley, Toon, Patterson, Flores, Brooks, Mrs. H. Mc-Cauley, Mrs. Janek, and Townsend all testified that they smelled offensive fresh manure odor at plaintiffs’ property; some of these witnesses testified it was when the wind was out of the north; that it was 'worse in damp weather; and Mrs. Janek . testified the odor came into the house, got into the clothes, and that she could not hang out a washing.

The witnesses Janek, Toon, Patterson, Townsend and Flores testified that White-.rock Creek at plaintiffs’ property was dirty and had an offensive odor on occasions.

The witness Clark (defendant’s Manager) testified the feed lot had an odor but could not be smelled over 100 feet; that Whiterock Creek was examined by him from Highway 77 to Highway 22 and that it had no odor at any place, and the water was no different at any point.

The witness Townsend, a chemist, testified he examined Whiterock Creek at Highway 77 (above defendant’s feed lot), and at Highway22 (below plaintiffs’ property), and that at Highway 22 the water was less clear, and there was a prolific growth of algae; that he examined the water at Highway 22, and that the water was highly contaminated.

Defendant’s witness Dr. Levin, a chemist, took samples of Whiterock Creek water at Highway 77 and at Highway 22. The trial court sustained objection to his testifying to his findings from the sample taken at Highway 22. On voir dire Dr. Levin stated generally that the sample taken at Highway 22 was not highly contaminated, and was no more contaminated than the sample taken upstream at Highway 77. He further testified these samples were taken on July 7, 1965; that at such time it was very dry; that Whiterock Creek did not have very much water in it; that there was “no water coming out of Neuhoff Creek”; there was no runoff from Neuhoff property into Whiterock Creek at this time; and that Neuhoff Creek was “bone dry”.

The record reflects Whiterock Creek became contaminated from runoff from defendant’s feed lot and catch basins; and this occurred when there was rain of 2 inches or more in 24 hours. Since the weather was dry and Neuhoff Creek was “bone dry” when witness Levin took the samples of water, there could have been no runoff from the feed lot, and the trial court’s refusal to permit his testimony that there was no contamination on July 7, 1965 could not constitute reversible error. Moreover, plaintiffs’ suit is for odor coming directly from defendant’s feed lot; for odor from Whiterock Creek; as well as for contamination of Whiterock Creek. The evidence is abundant that plaintiffs were damaged by odor directly from the feed lot, and by odor from the creek. Defendant has not complained that the judgment is excessive, asserting only that “had Dr. Levin’s testimony been heard by the jury it is very possible a verdict would have been rendered for appellant.”

Rule 434 Texas Rules of Civil Procedure provides that no judgment shall be reversed on the ground that the trial court has committed an error in the course of the trial “unless the appellate court shall be of the opinion that the error complained of amounted to such a denial of the rights of appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case * * * ”

Under the record as a whole, we cannot say the asserted error probably caused the rendition of an improper judgment.

Defendant’s point is overruled.

Affirmed.


text:
    LANPAR COMPANY, Appellant, v. Charles H. STULL, Appellee.
    No. 4500.
    Court of Civil Appeals of Texas. Waco.
    June 16, 1966.
    Rehearing Denied July 7, 1966.

      Palmer, Green, Palmer & Gilmore, David J. Beck, Dallas, for appellant.
    Carrington, Johnson & Stephens, James E. Coleman, Jr., Ronald L. Neill, Dallas, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal from a summary judgment for plaintiff Stull for $4500, (plus interest and attorneys’ fees), due on 4½% debenture of defendant Lanpar Company.

Plaintiff alleged he was the holder of defendant’s 4½% debenture #19 in amount of $7500, which was due on November 14, 1964; that defendant had paid $3000 on the principal and $607 on the interest, leaving due and owing $4500 plus interest. Defendant answered that the debenture was issued without money paid, labor done, or property received for same; and further that when defendant purchased plaintiff’s shares of defendant corporation and issued therefor the debenture upon which plaintiff sues, the corporation was Insolvent.

Plaintiff moved for summary judgment for the past due $4500 (plus interest and attorneys’ fees), and attached affidavit that he was owner of the debenture sued on; that such was due and owing in the sum of $4500 plus interest and attorneys’ fees.

Defendant opposed plaintiff’s motion, and itself moved for summary judgment that plaintiff take nothing; and attached affidavit that defendant did not receive any money, property or consideration for the debentures; and that the defendant was insolvent at the time it purchased plaintiff’s stock and issued the debenture therefor. Plaintiff opposed defendant’s motion for summary judgment and attached affidavit that plaintiff owned 3000 shares of stock in defendant company for which he paid $7650; that defendant by letter invited stockholders to convert their common stock for 4½% debentures to be paid within 5 years; that such action was pursuant to a settlement agreement of a pending lawsuit the company had with a Dr. R. L. Dingus; that plaintiff exchanged his stock for a $7500 debenture; that defendant paid $3000 on the principal and $607 interest on the debenture, but was in default on the balance.

The trial court decreed that defendant take nothing by its motion for summary judgment, and granted plaintiff’s motion for summary judgment for $4500 principal, $835.31 interest and $500 attorneys’ fees (which the parties stipulated were reasonable) against defendant.

Defendant appeals, contending the trial court erred in granting summary judgment for plainiff because:

1) There exists a fact issue as to lack of consideration for the debenture.
2) There exists a fact issue whether the debentures were issued in violation of Art. 12, Sec. 6, Texas Constitution, Vernon’s Ann.St.
3) There exists a fact issue whether defendant was insolvent when debentures issued.
4) Plaintiff failed to prove he was the holder of the debenture.

We revert to defendant’s 1st and 2nd contention that there exists a fact issue whether defendant received any consideration for the issuance of the debenture; and that such debenture was issued in violation of Article 12, Section 6 of the Texas Constitution.

The record reflects plaintiff owned 3000 shares of stock in defendant company; that defendant’s Board of Directors offered to exchange debentures for stock ffom stockholders, and further that such was pursuant to the settlement agreement in a pending lawsuit. Plaintiff established by affidavit that he exchanged his stock for the debenture, and that defendant received such stock. Defendant’s affidavit does not deny the foregoing, but asserts it received no consideration. Defendant’s affidavit is not sufficient to prevent summary judgment. Sparkman v. McWhirter, Tex.Civ.App., Er. Ref., 263 S.W.2d 832.

Article 12, Section 6 of the Texas Constitution forbids a corporation to issue debentures except for money paid, labor done, or property received. Defendant received plaintiff’s 3000 shares of stock for the debenture. Such stock was personal property. Benson v. Greenville Bank, Tex.Civ.App., n. r. e., 253 S.W.2d 918, 928; Automobile Mtg. Co. v. Ayub, Tex.Comm.App., 266 S.W. 134.

Defendant received property as well as consideration for the debentures; the Texas Constitution was not violated, but fully complied with.

Defendant’s 3rd contention is that a fact issue was raised as to whether it was insolvent when the debenture was issued. Article 2.03, subd. F of the Texas Business Corporation, V.A.T.S. Act precludes a corporation from purchasing its own shares when it is insolvent. Defendant asserts by affidavit it was insolvent at the time of exchanging the debenture for the plaintiff’s shares.

The foregoing section is to safeguard the rights of creditors. No creditor has here complained; the complaint is made by the defendant corporation who purchased the stock. In such situation the defendant is estopped to deny the validity of the transaction. San Antonio Hdw. Co. v. Sanger, Tex.Civ.App., Er.Ref., 151 S.W. 1104; Whitten v. Republic Nat. Bank, Tex., 397 S.W.2d 415.

Defendant’s 4th contention is that plaintiff failed to prove he was the holder of the debenture. Plaintiff in his affidavit stated under oath that he was the owner and holder of the debenture sued on, and that a true copy was attached. Plaintiff did establish that he was the holder of the debenture for purposes of summary judgment. Alexander v. Houston Oil Field Material Co., Tex.Civ.App., n. r. e., 386 S.W.2d 540.

All of defendant’s points and contentions are overruled.

Affirmed.


text:
    LONE STAR GAS COMPANY, Appellant, v. E. G. SMITH et ux., Appellees.
    No. 4501.
    Court of Civil Appeals of Texas. Waco.
    June 16, 1966.
    Rehearing Denied July 7, 1966.
    Barnes & Barnes, Terrell, Philip Bilton, Dallas, for appellant.
    Elliott & Elliott, Canton, Wynne & Wynne, Wills Point, for appellees.
   OPINION

McDONALD, Chief Justice.

This is a condemnation case wherein Lone Star Gas Company (a public utility), condemned a gas pipeline easement of 1.48 acres out of a 160 acre tract owned by defendant. Such easement is 50 feet wide, and extends from east to west 1287 feet across the 160 acre tract. The pipe is buried 3½ to 4 feet beneath the surface.

Trial to a jury resulted in a verdict of $175 for the land taken, and $8010 damage to the remainder ($50 per acre). The trial court rendered judgment on the verdict for defendants for $7965. ($8185 less $220 deposited by plaintiff after award of Commissioners) ; and provided that such $7965 draw 6% interest from the date of taking.

Plaintiff appeals, contending:
1) There is no evidence, or insufficient evidence to support the jury’s finding of damage to the remainder; and such findings are against the great weight and preponderance of the evidence and excessive.
2) The trial court erred in permitting defendants to testify they read of gas line explosions; and in permitting defendants’ attorneys to read excerpts from newspapers relating to a gas line explosion in Louisiana.
3) The trial court erred in awarding interest on the $7965 from the date of the taking, because there are no pleadings to justify such interest.

We revert to plaintiff’s first contention that there is no evidence or insufficient evidence to support the jury’s finding of damage to the remainder. The jury found the remainder had a value of $225 per acre before the taking of the 1.48 acre easement; and a value of $175 per acre immediately after the taking of the easement, (making a damage to the remainder of $8010).

Plaintiff asserts that defendants’ witnesses all testified that their opinions as to damage to the remainder were predicated on the right of ingress and egress plaintiff had over the entire 160 acre tract, and by the element of fear of a high pressure gas pipeline, and the effect these elements had on value.

The witness Mills testified the remainder was worth $200 per acre before the taking and $150 after the taking; the witness Story testified the remainder was worth $250 per acre before the taking and $200 after the taking; the witness Calhoun testified the remainder was worth $250 before the taking and $195 after; and the witness Robinson testified the remainder was worth $225 before the taking and $175 after the taking. All of these witnesses were licensed real estate agents and all stated they knew the value of the property on the date of taking. It is true that these witnesses tes-ified that the right of plaintiff to ingress and egress over the property would hurt the market value of the property; and testified in essence that the fact that a 12 inch pipeline was across the property would diminish the value because there is a fear by the public of explosions from high pressure gas lines. Plaintiff objected to this testimony by the witness Mills (which objection was overruled); but made no objection to the same testimony by the witnesses Stasey, Calhoun and Robinson. Plaintiff waived his objection to the complained of testimony by permitting the same evidence to be later introduced by the other 3 witnesses without objecting thereto. State v. Dickson, Tex.Civ.App., 401 S.W.2d 361; Texas Law of Condemnation, Rayburn, p. 319.

Plaintiff’s second contention is that the trial court erred in permitting defendants to testify they read of gas line explosions; end erred in permitting defendants’ attorney to read excerpts from newspapers relating to a gas line explosion in Louisiana.

The trial court permitted the witness Mills to testify that he had read of a “number of cases where there has been explosions.” The plaintiff obj ected that such was hearsay, irrelevant and immaterial. The trial court overruled the objection when apprised that such was “a basis for the witness’ opinion” that fear of explosion would affect the market value of the property, and was not offered as to the truth of the matter read. We think the matter, if error, harmless. Rule 434 Texas Rules of Civil Procedure. Counsel for defendant asked plaintiff’s witness White on cross examination if he had read a newspaper clipping about an explosion, and handed the clipping to the witness. No objection was made by plaintiff.

Plaintiff’s third contention is that the trial court erred in awarding interest from the date of the taking when defendant “had no pleadings that would legally justify such interest.” Defendant plead for “just and adequate damages and compensation, and for such other and further relief to which they may show themselves entitled.”

A prayer “for such other and further relief to which they may show themselves entitled”, in the absence of special exception is sufficient to support the trial court’s award of interest. Buckner & Sons v. Arkansas Fuel Oil Corp., (n. r. e.) Tex.Civ.App., 319 S.W.2d 204; Scott v. Gardner, 137 Tex. 628, 156 S.W.2d 513, 141 A.L.R. 50.

Plaintiff’s points and contentions are overruled.

Affirmed.