author: BAUGH, Justice.

text:
    DARGAN et al. v. ROBINSON.
    No. 8865.
    Court of Civil Appeals of Texas. Austin.
    April 17, 1940.
    Rehearing Overruled May 22, 1940.

      Upton, Upton & Baker, of San Angelo, for appellants.
    Joab Campbell, of Eldorado, for appellee.
   BAUGH, Justice.

The parties will be designated as in the trial court. Robinson as plaintiff sued K. S. Dargan, A. L. McMurtrey and Leslie L. Baker for damages for failure to procure-for him a fire insurance policy covering cotton owned and transported by him on his own trucks from Eldorado, Texas, to gulf ports during the cotton season of 1936. He alleged the following:

“(6) That heretofore to-wit, on or about the 10th day of October, A. D. 1936, the defendants, acting jointly and through their agents as aforesaid, as well as individually, for the consideration hereinafter mentioned, agreed and contracted with plaintiff in their capacity as fire insurance agents, as aforesaid, that 'from and after said date, all bales of cotton belonging to plaintiff, while in or on the hereinafter described motor truck for transportation, should stand and be insured, for one year from said date, against loss by fire in and with one of said fire insurance companies, in the sum of One Thousand Dollars for a premiuin of $25.00 which plaintiff agreed and became liable to pay the defendants;
“(7) That on said last named date, the defendants, acting jointly and severally, further agreed and contracted with plaintiff that within a reasonable time, a policy should be duly executed by one of said fire insurance companies for the said sum of $1,000.00 and delivered to plaintiff at Eldorado, Texas, that the said policy should be in the usual form of policies issued by said fire insurance companies and in accordance with the terms of said contract.”

He further alleged that on November 6, 1936, he lost by fire in transit 13 bales of cotton of the value of $800 which would have been protected by insurance but for the failure of the defendants to procure the policy they agreed to procure for him.

K. S. Dargan was a licensed fire insurance agent at Houston, Texas; A. L. McMurtrey a licensed fire insurance agent at San Angelo, Texas; and Leslie L. Baker, assistant cashier of a bank at Eldorado, Texas, with which Robinson did business. Baker was not a licensed fire insurance agent. He did, however, assist McMurtrey in procuring insurance business, who divided commissions with him. When Robinson made known to Baker that he desired insurance to cover his operations, Baker contacted McMurtrey who came to Eldorado, took the matter up with Robinson and undertook to procure for him the insurance desired. Three types of insurance on Robinson’s trucks were requested; public liability, property damage, and cargo insurance. At the time Mc-Murtrey did not know the premium rates on any of them. He took the matter up with Dargan who placed such insurance with one' of his companies. When the policies arrived the public liability and property damage rates were much higher than anticipated, and Robinson was unwilling to accept them; and advised Baker to see if he could have these policies can-celled. This Baker succeeded in doing. At the same time the cargo insurance, which had been bound by telegram from Dargan to McMurtrey, was, after a telephone conversation between Baker and McMurtrey, also cancelled, but Robinson was not notified of this cancellation.

Appellants’ defenses were that there was no agreement made, in that the minds of the parties never met on the terms of the policy; that Baker was the agent of Robinson, who was bound by his conduct, and not the agent of appellants; and that Baker had requested appellants, prior to the fire, to cancel all of said insurance.

The case was submitted to a jury on special issues, in answer to which they found, in effect, as follows:

* 1. That appellants agreed with Robinson for a premium of $25 to .insure, for a period of one year from October 10, 1936, to the extent of $1,000, all cotton handled on the truck involved.

2. That the market value of the 13 bales of cotton destroyed by fire was $767.14.

3. That McMurtrey held Baker out as his agent for the purpose of soliciting insurance.

4. That the minds of the parties did meet on the terms o-f the policy requested by Robinson, and the rate to be charged.

The other findings were upon the defenses pleaded and were against the defendants. Based upon these findings, the trial court -rendered judgment for the plaintiff against the defendants jointly and severally for $767.14, from which Dargan arid McMurtrey have appealed.

Appellants contend that the evidence conclusively shows that appellants acted only as fire insurance agents; that they procured the cargo insurance requested for appellee and notified him that it was in force; and that,' therefore, they were not personally liable.

The appellants offered in evidence a cargo policy issued on October 12, 1936, by Cravens-Dargan & Company, agents for Sun Insurance Office, Limited of London, insuring two trucks of Robinson in the sum of $500 each, for a recited premium of $50. This policy was never delivered to Robinson nor accepted by him. Manifestly it did not conform to the agreement which the jury found that Robinson had with Mc-Murtrey for the $1,000 coverage on each truck for a premium of $25, and did not constitute a compliance with that agreement. Even if it had, however, the evidence showed that it had been cancelled prior to the loss of the cotton, at the instance of Baker, without any authority from -Robinson to do so. If Baker had been the agent of Robinson in the premises, Robinson would have been bound by his authorized instructions to McMurtrey to cancel whatever insurance he had. But the jury found, upon sufficient evidence to support such finding, that McMurtrey held Baker out as his agent in the matter of procuring the insurance for Robinson; and both Baker and Robinson testified that Robinson had never authorized Baker to have cancelled his cargo insurance, but only the public liability and property damage coverages. In brief, Robinson was hauling his cotton upon information that he had cargo coverage under his agreement with Baker and McMurtrey to secure it, when in fact he was without such protection.

We think the facts presented bring this case within the general rule “that a broker or agent who, with a view to compensation for his services, undertakes to procure insurance on the property of another, and who fails to do so, will be held liable for any damage resulting therefrom.” See annotations in 18 A.L.R. 1214; Diamond v. Duncan, 107 Tex. 256, 172 S. W. 1100, 177 S.W. 955; Stevens v. Wafer, Tex.Civ.App., 14 S.W.2d 295 ; 32 C.J., § 170, p. 1088; 14 R.C.L., § 50, p. 877 ; 24 Tex.Jur., § 128, p. 845.

The cotton having been totally destroyed, the measure of plaintiff’s damages was the market value thereof at the time and place of such loss. This the jury found to be $767.14. The appellants objected to the only testimony, that of the plaintiff, offered on this issue; and urge that this finding of the jury has no support in competent evidence to sustain it. This contention must be sustained. Plaintiff tes-fified that he had already sold this cotton to Anderscm-Clayton at Houston, under contract, for $767.14, to be delivered at Houston, Texas. He also testified that he often had cotton under contract for as much as 30 days before delivery. He did not state how long the cotton in question had been under contract. This manifestly did not establish the market price of the cotton at the time and place of the loss. The cotton was destroyed near Sonora, far removed from Houston. It is a matter of common knowledge that there is a readily determinable market value for cotton throughout the cotton producing area of Texas capable of definite establishment by proof at any time; and that such market fluctuates from day to day. Freeman v. Taylor, 61 Tex.Civ.App. 393, 130 S.W. 733, 734. Manifestly the market value of cotton concentrated at a port of embarkation for shipment (and practically all of it is shipped out of Texas), would not be ■the same on a given date, as the inland markets; where long hauls are required as the instant case reveals was necessary. The .cost, of transportation and other contingencies would necessarily affect the inland market. And if the cotton in question had been contracted long before shipment, clearly the contract price would not determine the November 6, 1936, market value. That being true, no market value at or near Sonora on the date of its loss was shown; and the burden was upon the plaintiff to prove' it by competent evidence. Even if the contract price at Houston had been the market value there on November 6th, this would not be competent evidence of the market value at Sonora. See 17 Tex.Jur., § 175, p. 462, and cases cited.

For the reasons stated, the judgment of the trial court must be reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: GRISSOM, Justice.

license: Public Domain

text:
    MAYBEN v. STATE.
    No. 1987.
    Court of Civil Appeals of Texas. Eastland.
    April 12, 1940.
    Rehearing Denied May 24, 1940.
    J. E. Garland, of Lamesa, for appellant.
    Carl Rountree and Vernon D. Adcock both of Lamesa, for appellee.
   GRISSOM, Justice.

This is an appeal from a judgment in a condemnation proceeding, instituted by the State, acting through the Commissioners’ Court of Dawson County, Texas, wherein a right-of-way across Sam Mayben’s farm was condemned for use as a state highway. The Commissioners awarded Mayben $211.-95 for the land taken for highway purposes. No question is presented as to said award for the land actually taken. The jury failed to award any damages to the remainder of Mayben’s farm not taken for highway purposes. From a judgment denying compensation to Mayben for damages to his land not taken for highway purposes, he has appealed.

Mayben’s contention is, in substance, that the undisputed evidence shows he sustained injuries peculiar to him and connected with his ownership, use and enjoyment of that part of his farm not actually taken for highway purposes, and further that the undisputed evidence shows the benefits he received, by the increase in the value.of said land, if any, by virtue of the building of the highway, were not benefits peculiar to him, but were such as were received in common with the community generally.

The evidence discloses that the new highway, instead of running along the east side of Mayben’s 480-acre farm and parallel with its east boundary line, as the old road or highway does, entered Mayben’s farm a very short distance west of its southeast corner and gradually curves northward, cutting off a very narrow strip of land in the southeast corner, which strip gradually grows larger as the highway goes northwest, leaving the north boundary line of the 25-acre strip so cut off apparently several times the length of its south boundary line. There are two sets of improvements on the 480-acre farm. The new highway divides the two sets of improvements leaving on the larger tract, of about 347 acres, a three-room residence, barn and well located near the southeast corner of said tract, and a two-room house, barn and well on the 25-acre tract cut off by the highway, said improvements being located near the northeast corner of said 480-acre tract. The evidence shows that the building of the -highway in the manner and at the place at which it was built, will require fencing by Mayben of his farm adjoining the highway so that it may be used for the purpose and in the manner substantially as it has been heretofore; that the new highway comes slightly closer to one set of improvements than before, the main house being approximately 40 or 50 feet from the outside edge of the new highway and several trees were dug up at this residence to make room for the highway; the drainage and flow 'of water Has" been affected by the building of this highway, resulting in the formation of a lake upon the main tract of land that will prevent the use, for agricultural purposes, of about 10 acres of land upon the larger tract. That the removal of some of the improvements will probably he necessary for a proper and reasonable use of the new premises.

There was evidence by witnesses for the State to the effect that farms belonging to said witnesses had been crossed by another highway in the county and that said witnesses’ farms had increased in value as the result thereof. There was also evidence that, in the opinion of said witnesses, the value of Mayben’s farm had been increased by the building of said highway across it. With the exception of the witness, Wade Bartlett, who was Mayben’s witness, and whose testimony does not raise the issue of special benefits to Mayben’s land, both the State and Mayben rely upon the testimony of the same three witnesses to support their respective contentions that the evidence was, or was not, sufficient to make it a question for the jury whether or not Mayben’s land, not taken for highway purposes, received benefits peculiar to Mayben, and not received generally by the landowners in that community. Said witnesses are L. B. Stewart, H. H. Barron and Elmer Barron.

H. H. Barron testified, in substance, that he owned 160 acres “south of town”; that highway No. 9 (not the highway in question) in 1934 (not the time in question) crossed his said farm, “angling across it”, cutting off about 35 acres on the east side. That, in his opinion, the value of said 35 acres, so cut off, was increased $10 or $15 per acre. With reference to the effect of the highway in question being built across Mayben’s farm, the witness testified:

“Q. Now, just as a general proposition, I believe that your’s has advantages that are not had out here with this land of Mr. Mayben, but as a general proposition,. this highway should it run diagonally across it and cut off about twenty-five acres of land with one set of Mr. Mayben’s improvements and cutting off the remainder of his cultivated land with the other set of improvements, do you think that that would increase the value of his land under those conditions? A. It is owing to the distance it is from town. I don’t know just how far it is out there.

“Q. We will say three miles from town. A. That is about the same distance as mine.
“Q. Yes. A. J think it would. T think on the smaller tract of land.
“Q. Well, the fact that it came to a point, say one end, the south end, was one inch wide and the north end about two or three hunderd yards, do you think that would have any difference, make any difference in a man selecting it for a home? A. It would make some.
“Q. To the advantage or disadvantage? A. Disadvantage.
“Q. How much an acre do you think that would damage it being cut into that shape, how much would it damage that farm? A. Well, it is owing to how he handled it and how he sold it out. * * *
“Q. Now, Mr. Barron, don’t you feel that the splitting of a farm that way disregarding general benefits that the road would bring, general to the community, don’t you feel that it would really be a special injury to that place for it to run in that condition through there? A. Well, I don’t think it would benefit him as much as it would a fellow that got the benefit that didn’t have his land cut. * * *
“Q. Well, what we are trying to get at is the special advantages to this particular tract of land. Now, are there any advantages to that particular tract that are not general to the community or the adjacent lands by reason of that highway running through the farm? A. No, not where the highway is easy to get to.
“Q.- Where it is in the immediate vicinity? A. Where it is easy to get right on it and come right to' town. * * *
“Q. Then, Mr. Barron, as I understand it, it is your opinion that this Mayben farm would be worth more money with this highway running across it, even though it does cut this little tract off, though it runs across it, than it was before, that it will enhance the value of it, is that correct? A. Yes, it will increase the value of it some.
“Q. It would also increase the value of all adjacent land the same, wouldn’t it, wouldn’t be a special enhancement of value to that particular tract but general to the community? A. Those that touched the highway, where the highway is easy to get to, would be the same.”

Elmer Barron testified that, in his opinion, the building of the highway across Mayben’s farm would increase the value of the farm as a whole, but he further testified:

“Q. Now, the enhancement in value that you mentioned, that would be general to land in that vicinity wouldn’t it, in the whole vicinity? A. Yes.
“Q. And not special to this particular tract? A. Yes.”

We think it is evident the testimony of the Barrons, when properly understood, is to the effect that the increase in the value of the land caused by building the highway was a benefit received in common with the community generally, and not peculiar to Mayben.

A fair and proper interpretation of the testimony of the witness Stewart is perhaps more.difficult. He testified:

“Q. Well, take this 480 acre tract of land out here of Mr. Mayben’s, and it has two sets of improvements on the east side that he uses in working the western portion of it and this highway comes along there and whenever it strikes his place, instead of going to the side it just kind of takes a curve around and carves him out 25 acres over on the east side away from his improvements? A. Yes sir.
“Q. Now do you think that that would be an enhancement to the market value of the land for that to have occurred? A. I think so, yes sir.”

He further testified, in substance, that he was of the opinion that some person would come along who would want to buy the 25-acre strip; that there was a demand for small tracts of land. Stewart further testified that he owned a farm, now 9 miles southeast of Lamesa, that was at some time crossed by highway No. 9, that the highway “angled across it”, cutting off 425 acres on the west side of the highway and 200 acres on the east side of the highway; that the building of said highway across the witness’s land increased its value. That before the road was built the witness was 14 miles from town; that afterwards he was 9 miles from town. That in addition to the increase in convenience in getting to town there had been a saving in his expenses in transporting his farm products to market. But, with reference thereto, he further testified:

“Your neighbors down there in your community, they didn’t get the same benefits that you did? A. On the road?

“Q. Yes, the reduced marketing expense and hauling products to town and other things like that? A. I would think they do.
“Q. They do? Then they were general ? A. I think, they would be.
“Q. Those benefits you are talking about were general to the community? A. I think if a man wanted to use it, he would have it there to use.”

Comparing the witness’s situation with Mayben’s he testified: “Q. But you happen to have a special advantage that you had your house in the center and the road ran through the center of your section, that is where your advantage came wasn’t it? A. Yes sir.”

If there is evidence from said witness raising the issue as to whether or not Mayben received benefits peculiar to him, and not general to those in the community, it arises from the witness’s testimony to the effect that in his opinion there will be a ready sale, at a high price, for the small strip of land because there is a greater demand for small than large tracts of land so situated. If this new highway, instead of curving across the east end of Mayben’s land, had run adjoining to and parallel with the east line of Mayben’s farm, where the old road or highway is, if said witness’s, opinion is correct, Mayben could have voluntarily carved 25 acres off the east end of his farm and sold it for a larger price than the rest of the farm, and at a higher price than it could have been sold for before the highway was there. Had this been done, we think it could not have been reasonably contended that such increase in-the value of said 25-acre strip, so supposedly severed by Mayben voluntarily, was a special benefit to him and one not general to the community resulting from the building of a hard-surfaced highway adjacent to the farms of that community. If this is true, where the building of the highway has done no injury to Mayben’s property, then it is certainly true that the building of the highway, under the situation disclosed, which did injure Mayben, did not specially benefit Mayben by curving across the east end of his farm and cutting off the peculiarly shaped 25-acre tract of land. We think when the evidence is carefully considered and understood, it is wholly insufficient to make it an issue for the jury, or to support the jury’s presumed finding, that the State in so building its highway across Mayben’s land, conferred special benefits upon Mayben in contradistinction to benefits received generally by landowners in the community as a result of the building of a hard-surfaced highway in that community. Subdivisions 3 and 4 of Art. 3265, R.S. 1925, provide:

“When only a portion of a tract or parcel of a person’s real estate is condemned, the commissioners shall estimate the injuries sustained and the benefits received thereby by the owner; whether the remaining portion is increased or diminished in value by reason of such condemnation, and the extent of such increase or diminution and shall assess the damages accordingly.

“In estimating either the injuries or benefits, as provided in the preceding article, such injuries or benefits which the owner sustains or receives in common with the community generally and which are not peculiar to him and connected with his ownership, use and enjoyment, of the particular parcel of land, shall not be considered by the commissioners in making their estimate.”

Applying the facts to the provisions of said statute we find that Mayben has received some injuries or damages peculiar to him; that the benefits he has received are only such as were received by him in common with the community generally. Art. 3265, R.S. 1925; 16 Tex. Jur. 992, 1014; State of Texas v. Carpenter, 126 Tex. 604, 89 S.W.2d 194, 199. Mayben is entitled to some compensation for the damage done his land not taken for highway purposes.

We are convinced that our former interpretation of the evidence was erroneous. "The appellant’s motion for rehearing is granted, our former opinion is withdrawn, and our judgment of affirmance is set aside; the judgment of the trial court is reversed and the cause remanded.


author: SPEER, Justice.

text:
    CROSS v. WICHITA FALLS & S. R. CO.
    No. 14090.
    Court of Civil Appeals of Texas. Fort Worth.
    May 10, 1940.

      Jimmie Cunningham and Tom M. Miller, both of Graham, for appellant.
    Fred T. Arnold, of Graham, G. C. Mc-Dermett, of Wichita Falls, and John B. King, of Dallas (Bullington, Humphrey & Humphrey, of Wichita Falls, of counsel), for appellee.
   SPEER, Justice.

This is an appeal by plaintiff, M. S. Cross, from a directed verdict in favor of defendant, Wichita Falls & Southern Railroad Company, tried in the District Court of Young County, Texas.

Plaintiff was injured in Archer City when he drove his automobile along a public street and highway at about 10 o’clock on a dark, misty night in April in 1938, and collided with an oil tank car standing on the intersection of the highway and railway track. The defendant was charged with negligence in several respects, claimed to have proximately caused the injury. Defendant’s acts, constituting the alleged negligence, are said to he, (a) leaving a train across the highway for more than five minutes, (b) that an oil tank car stood across the highway, blocking traffic, and no light or other signal was placed on it to warn the public of its presence, and (c) failure to ring the'bell or sound the whistle of the locomotive to give a signal of the presence of the train across the highway. Defendant plead general denial and contributory negligence in many ways, including inadequate brakes and lights on the automobile and plaintiff’s failure to keep a lookout for his own safety.

It seems to be conceded that the court gave the summary instruction for defendant upon the theory that as a matter of law plaintiff was guilty of negligence proximately causing the accident. It will therefore be unnecessary to discuss at length the alleged negligent acts of defendant. It is well settled that a party cannot recover for an injury sustained, if the act complained of was proximately contributed to by the negligent act of the injured party. 30 Texjur. § 88, p. 754.

It may be said that as a general rule, whether or not certain acts constitute negligence and proximate cause present jury issues, for, after all is said, one’s conduct in such cases is to be measured by what a reasonably prudent person would have done under like or similar circumstances. It is equally well settled by our courts that if the facts are such that reasonable minds can reach but one conclusion, no jury question is raised. Stated another way, when there exists such a state of facts that reasonable minds, when considering them in the light of all the circumstances, can reach different conclusions, then whether there is negligence, either direct or contributory, is a question for the jury. St. Louis B. & M. R. Co. v. Brack et al., Tex. Civ.App., 102 S.W.2d 261.

In the case at bar, a directed verdict was returned and the controlling question in this appeal is, Did the trial court commit error in taking the case from the jury? We have carefully studied every phase of the evidence brought forward in the narrative statement of facts, and to construe it in its most favorable light to plaintiff’s contention, we believe no reversible error is shown.

On the night of April 7, 1938, plaintiff and a friend were desirous of going to the latter’s home in Archer City, situated beyond the railroad tracks from the business part of town. The friend walked outside of the building and waited perhaps ten minutes while plaintiff prepared to close the place for the evening. The night was dark and it was misting rain. They got in plaintiff’s car and drove down State Highway No. 25, about 600 feet to where the highway intersects the defendant’s tracks. The highway carries much traffic, although none other than plaintiff’s car is shown to have been on the road at the time and place of the collision. Plaintiff and his friend, Mr. Crowley, knew the railway tracks were there and each had crossed them many times in the past. Plaintiff ,was driving at around 15 to 20 miles per hour, his lights were good and his brakes adequate to stop his car within a distance illumined by his lights. A “railroad crossing” sign stood near the pavement 96 feet west of the railroad track and a street light, 10 feet higher than the sign, was located 14 feet east, between the sign and the tracks; the pavement is level from the sign to the tracks, a distance of between 90 and 100 feet. Defendant’s extra freight train was standing on its track, the engine and 20 cars had passed the crossing and there were 12 cars in the train that had not crossed the intersection. An oil tank car stood directly on the intersection of the track and the highway. Plaintiff’s automobile struck the tank car near one end where the trucks support it; after the collision the automobile was stuck under the frame work of the tank car. Plaintiff was injured in the collision, for which this suit was instituted. Plaintiff testified: “Yes, I had been over that crossing.a number of times before the collision; I knew the railroad tracks were down there; I knew they ran trains over those tracks; I didn’t think anything about approaching the railroad tracks, I never thought anything about it.” Again he said: “I didn’t see that train across the crossing until I ran into it; we were right on it before we ever seen it; it rose up like a cloud; I guess I hit the north end of the tank car, hit, the trucks; we hit the thing and run under the tank car.” He further testified: “Yes, my headlights were burning all the way down there; I guess they were good headlights; I guess they would shine 500 feet down the highway, I never did measure that to see; * * * I could have stopped my car in the distance that my lights picked up the train, considering the condition of my lights and brakes. I figure my lights undoubtedly went under that car. I don’t know how high that car was off the ground, but I believe it was' about chest high, but I don’t know, I was right up on it before I saw it. When I saw this tank car with my lights shining, the light went in under the car I guess; the lights had been shining on the road ahead of me.” Again he said: “If I had stopped my car when I entered the intersection of the highway and railroad tracks, I don’t know whether I could have seen the train or not, I didn’t see any train; considering the weather conditions and everything. I think I could have stopped my car at that distance. * * * The tank car was the first thing I seen; it appeared like it was a cloud rising above; I guess my lights were shining under it; I didn’t see anything down the pavement, I was looking down the highway.” Other undisputed evidence introduced by the defendant shows that the train involved in the collision was an extra and had no regular schedule. The oil tank car sits on a set of four wheel trucks near each end; the wheels are 33 inches in diameter and the frame of steel bars ties the wheels of the truck together and leaves a clearance between the bottom and the rails of approximately 15 inches; near the center of the tank car are'cylinders, beams and so forth, which extend down to within about 28 inches of the rails; the tank car is about 13 feet high from the rail to its top.

Our courts are not in complete harmony in the application of the rule of what is and what is not negligence and proximate cause, as a matter of law. We are cited to two cases in which persons drove their automobile into standing cars on highway intersections, and upon jury findings that they were not guilty of negligence proximately producing the injury, the courts have permitted the judgments to stand. Cases referred to are St. Louis, B. & M. R. Co. v. Brack, Tex.Civ.App., 102 S.W.2d 261, and Beaumont S. L. & W. R. Co. v. Richmond, Tex.Civ.App., 78 S.W.2d 232, writ dismissed. In each of those cases there were facts disclosed which tended to show that because of the conditions that existed, an optical illusion was produced causing the drivers to believe the intersection was open. The instant case resembles those above cited only insofar as plaintiff said he figured that his lights must have reflected under the tank car and beyond, although he said that the tank car presented to him the appearance of a dark cloud rising. We think that reasonable minds could not differ upon the extent to which lights of an approaching automobile would shine on the pavement when the rays were pointed directly at the solid car wheels and the track which at most gave a clearance of about 15 inches. Plaintiff’s evidence, in its most favorable light to him, indicates that, at the time of the trial, he “figured” or “guessed” that since his lights had been shining on the pavement they must have continued to shine on it under the tank car.

It is unquestionably true that the train was lawfully upon the track before plaintiff undertook to use the highway at that point, nor could both use it at the same time. Plaintiff knew of the presence of the railway tracks at the intersection. He was charged with knowledge of the dangers incident to approaching trains and that there may be cars on the intersection. It was incumbent upon him to approach that intersection with the care and caution commensurate with the hazards of which he was charged with having had notice. San Antonio & A. P. R. Co. v. Singletary, Tex.Civ.App., 251 S.W. 325, writ dismissed; Gulf, C. & S. F. R. Co. v. Gaddis, Tex.Com.App., 208 S.W. 895. It was held in the last cited case that where no care is exercised for one’s own safety, and injury follows, negligence follows as a matter of law. The degree of care required by one situated as was plaintiff must be measured by the surrounding facts and circumstances. The vigilance required must be proportionate with the dangers involved. Koock v. Goodnight, Tex.Civ.App., 71 S.W.2d 927, writ refused. However, the general rule is not changed from such care as a reasonably prudent person would exercise under the same or similar circumstances. To take plaintiff’s own testimony, we find that with knowledge of the presence of the railway tracks and that trains were accustomed to being there, he drove his automobile into the standing tank car. If he could not see it because of the insufficiency of his lights, occasioned by the atmospheric conditions, he might as well have been driving into a dangerous place without lights. It needs no argument to convince any sane person that a driver takes his life into his own hands when he voluntarily drives his automobile into a dangerous place when he is unable to see what confronts him. This statement is borne out by plaintiff’s testimony that he was not thinking about there being a train on the track; he was just driving along looking down the highway; that he did not know if he could have seen the train if he had stopped his car and looked; that he did not see it until he was right up to it, then it looked like a dark cloud rising. We fail to see in the testimony where plaintiff took any precautions whatever to guard against the presence of the train which he must have known was likely to be on the crossing. There was no new or intervening cause shown which would have rendered his own acts anything but the proximate cause of the collision.

In some instances our courts have said that cases are rare where it has been held that acts, other than violations of penal laws, constitute negligence as a matter of law. See Seinsheimer v. Burkhart, 132 Tex. 336, 122 S.W.2d 1063. The facts as disclosed by the opinion in that case were such that clearly it was proper for the court to hold that an issue of fact was raised as to whether or not plaintiff was guilty of contributory negligence. However, under a different state of facts, our courts have many times held that a party shows himself to be negligent, as a matter of law, proximately causing his injuries. Some of the cases so holding are International & G. N. R. Co. v. Edwards, 100 Tex. 22, 93 S.W. 106; Gulf, C. & S. F. R. Co. v. Gaddis, Tex.Com.App., 208 S.W. 895; Galveston H. & S. A. R. Co. v. Price, Tex.Com.App., 240 S.W. 524; Fort Worth & D. C. R. Co. v. Bell, Tex.Civ.App., 14 S.W.2d 856; Robinson v. Houston, B. & T. R. Co., Tex.Civ.App., 23 S.W.2d 894; Texas Mexican R. Co. v. Hoy, Tex. Com. App., 24 S.W.2d 18; Texas & N. O. R. Co. v. Adams, Tex.Civ.App., 27 S.W.2d 331, writ dismissed; Blakesley v. Kircher, Tex. Com.App., 41 S.W.2d 53; Koock v. Goodnight, Tex.Civ.App., 71 S.W.2d 927, writ refused; Texas & N. O. R. Co. v. Stratton, Tex.Civ.App. (2 cases), 74 S.W.2d 741 and 746, writ refused both cases; Texas & N. O. Ry. Co. v. Berry, Tex.Civ.App., 74 S. W.2d 750, writ refused; Wichita Valley Ry. Co. v. Fite, Tex.Civ.App., 78 S.W.2d 714, and many cases there cited; Kypfer v. Texas & P. R. Co., Tex.Civ.App., 88 S. W.2d 528, writ dismissed; Standard Paving Co. v. Webb, Tex.Civ.App., 118 S.W. 2d 456. Many other such cases could be cited, but we think the exception to the general rule stated is about as well established as the rule itself. Authorities above cited discuss, in several instances, the doctrine of proper lookout, which invariably enters into the principle of whether or not a complaining party is guilty of contributory negligence in that respect. We deem it unnecessary to extend this opinion by discussing this point.

To use the language of the Commission of Appeals, in Blakesley v. Kircher, supra [41 S.W.2d 56]: “We see no escape from the' conclusion that the situation (in the instant case) presents one where the defendants in error [plaintiff here] were guilty of contributory negligence as a matter of law.” By the same token, his acts proximately caused his injuries.

We hold that under the undisputed facts relied upon by plaintiff in this case, and the authorities above cited, the trial court was justified in directing a verdict for the defendant. The judgment should be and is therefore affirmed.


author: MONTEITH, Chief Justice.

text:
    UNITED EMPLOYERS’ CASUALTY CO. v. BURK.
    No. 11044.
    Court of Civil Appeals of Texas. Galveston.
    May 9, 1940.
    Rehearing Denied May 30, 1940.

      Will R. Saunders, of Dallas (Henry D. Akin, of Dallas, of counsel), for plaintiff in error.
    Jones & Jones and C. A. Brian, all of Marshall, for defendant in error.
   MONTEITH, Chief Justice.

In this opinion plaintiff in error will be designated as appellant and defendant in error as appellee.

This is an appeal in a compensation suit brought in the district court of Marion County by appellee, Claud Burk, as plaintiff, against appellant, United Employers Casuálty Company, to set aside an award of the Industrial Accident Board and to recover compensation for total and permanent incapacity alleged to have been the result of an injury sustained by him on or about September 25, 1938, in the course of his employment as a driller’s helper with Red Iron Drilling Company, who carried compensation insurance with appellant.

Appellant answered by general demurrer, exceptions, and a general denial.

The jury found, in answer to special issues submitted, that the injuries .received by appellee on the occasion in question resulted in total incapacity; that the total incapacity is permanent; that such total incapacity is not temporary; that said injuries did not and will not result in partial incapacity; that a manifest hardship and injustice will result to appellee if the compensation insurance due him by appellant is not paid in a lump'sum; and that the work being performed by the drilling crew on which plaintiff was working when he was injured was one of necessity.

Based on the answers to said special issues, judgment was rendered in favor of appellee, setting aside the award of the Industrial Accident Board and awarding appellee recovery for total and permanent disability for a period of 387 weeks at the rate of $20 per week, payable in a lump sum.

Appellant contends that special issue No. 1 of the court’s charge was submitted too generally; that it was not confined to the injuries pleaded and proven, and that the jury was permitted to speculate upon injuries out of the record, and was not confined to a consideration of the injuries supported by the pleadings and evidence.

Special issue No. 1, complained of, reads:“Do you find from a preponderance of the evidence, if any, that the injuries received by Claud Burk on or about September 25, 1938, while employed by Red Iron Drilling Company as a back-up man or driller’s helper, resulted in total incapacity?”

Appellee pled in connection with the injuries alleged to have been received by him that “ * * * plaintiff wa-s hit by the loose end or the end of a heavy piece of .rope or other piece of material or object, across the neck and side of the head and other portions of the body, and that as a result thereof he sustained the grievous, severe and permanent general injuries hereinafter more extensively referred to * * *; that he was struck by said heavy piece of rope as above alleged, he was rendered unconscious or semi-unconscious or dazed and stayed in these states or some of them for quite some time. Plaintiff was rendered sick by said blow. That thereafter and continuously since that time, plaintiff has been troubled constantly by headaches and dizziness, increased intra-cranial pressure * * '

There was no eye witness to the “actual blow, if any, which caused appellee’s injuries. He testified that he was working on the derrick floor, engaged in what is known as “running a spinning rope and.using the tongs”, which consisted in holding and allowing to run through his hands a rope an inch and a half or an inch and three-quarters in diameter which was wound around a revolving shaft attached to and run by a motor; that the last thing he remembered was holding this rope and that when he awakened he was in a hospital.

Fred Meyer, who was working with ap-pellee, testified that he did not see anything actually strike appellee but that he looked around and saw him lying on his back and that he saw a welt back of his neck running across his right jaw.

X-ray pictures of appellee’s head showed a linear fracture that extended from the groove of the lateral sinus straight downward two and a half inches in length.

From above record, it is obvious that appellee received only one injury on the date inquired about in special issue No. 1, and that the matters complained of by appellant as separate injuries. were pled by appellee and established by the record to be the results of and symptoms of the injury referred to therein.

Since the question to be determined by said special issue No. 1 was the extent of the injury received by appellee at the time and under the circumstances inquired about therein, we think that there was no error in assuming that there was some injury, in the submission of said issue, or in inquiring as to the extent of the disability resulting therefrom, particularly since no issue was requested by appellant as to whether appellee did sustain an injury on or about September 25, 1938, while employed by Red Iron Drilling Company. Security Union Ins. Co. v. Hall, Tex.Civ. App., 37 S.W.2d 811; Lloyd’s Casualty Ins. Co. of New York v. Grilliett, Tex.Civ.App., 64 S.W.2d 1005; Texas & P. Ry. Co. v. Dickey, Tex.Civ.App., 70 S.W.2d 614.

In its third proposition appellant contends that the court erred in submitting special issue No. 4, inquiring as to how many weeks appellee’s total incapacity has continued or will continue after September 25, 1938, conditioned on a negative answer to special issue No. 2, inquiring as to whether such total incapacity will be permanent, on the ground that it was entitled to an unconditional submission of its alleged affirmative defense, that appellee’s total incapacity was not permanent.

Special issues Nos. 2, 3 and 4 of the court’s charge,read:

“Special Issue No. 2. Do you find from a preponderance of the evidence, if any, that the total incapacity, if any you have found, in answer to Special Issue No. 1, is permanent? Answer 'Yes’ or ‘No’.” Answer: “Yes.”

“Special Issue No. 3. Do you find from a preponderance of the evidence, if any, that such total incapacity, if any you have found, in answer to Special Issue No. 1, is not temporary? In the event your finding on this issue is in the affirmative, let your answer be, ‘It is not temporary’; otherwise, let your answer be ‘no’.” Answer : “Not temporary.”

“If you have answered Special Issue No. 2 ‘No’, then answer the following question :

“Special Issue No. 4. How many weeks, if any, do you find from a preponderance of the evidence, if any, that such total incapacity, if any, you have found in answer to Special Issue No. 1, has continued or will continue from and after September 25,1938?” Answer: “-.”

While it is now the settled law in this state that an insurance carrier is entitled to an unconditional submission of an issue as to whether or not the claimant’s incapacity is temporary where there is evidence to justify it, Texas Fire & Cas. Underwriters v. Watson, Tex.Civ.App., 126 S.W.2d 496; Wright v. Traders & General Ins. Co., 132 Tex. 172, 123 S.W.2d 314, we think that the appellant’s right to the unconditional submission of the issue as to whether appellee’s total incapacity was not temporary but permanent was preserved to it by the submission of special issue No. 3, inquiring as to whether such total incapacity was “not temporary”.

This rule is sustained in the recent case of Traders & General Ins. Co. v. Herndon, Tex.Civ.App., 95 S.W.2d 540, and Service Mutual Ins. Co. of Texas v. White et al., Tex.Civ.App., 138 S,W.2d 273, in which it is held that the error in refusing an issue in a compensation suit as to whether an employee’s total incapacity was temporary, was cured by the unconditional submission of another issue inquiring as to how long the employee’s total incapacity, if any, continued or would continue.

Appellant complains of the submission of special issue No. 5 of the court’s charge, inquiring as to whether the injuries received by appellant resulted, 01-will result, in partial incapacity, on the ground that said issue erroneously placed the burden of proof upon the appellant to prove the affirmative thereof.

Special issue No. 5 reads: “Do you find from a preponderance of the evidence, if any, that the injuries received by Claud Burk, on or about September 25, 1938, resulted or will result in partial incapacity? Answer ‘Yes’ or ‘No’.” Answer: “No.”

The exact question involved in this proposition has been decided by the Supreme Court contrary to appellant’s contention in the case of Wright v. Traders & General Ins. Co., 132 Tex. 172, 123 S.W.2d 314, 316, Tex.Com.App., opinion adopted. This was an action brought to set aside a compensation award in favor of an insurance carrier. The court submitted the issue of partial incapacity affirmatively. The court in its opinion says: “The foregoing statement within itself constitutes an all sufficient reason against its negative submission, unless, of course, it is necessary to so submit it in order to prevent a denial of right to either plaintiff o.r defendant. The issue affirmatively phrased correctly submits plaintiff’s alternative basis of recovery and at the same time accords defendant an affirmative submission of its ground of defense. The burden of proof is not misplaced by an affirmative statement of the issue, as the defendant has the burden of establishing by a preponderance of the evidence its defense of partial incapacity. Nor has defendant any just ground of complaint to its submission affirmatively. It is no more onerous for defendant to establish the fact of partial incapacity by an inquiry stated affirmatively than it would be to establish the same fact by an inquiry phrased negatively. The mere fact that it is more likely that a mistrial due to conflicting findings will .result from its negative submission constitutes no just reason therefor. If the probability of such a result is the sole reason for negative submission, it is not predicated upon a right, and if the court fails or refuses to ■submit the issue in such form the litigant •desiring that it be so submitted suffers no denial of right. No reason is apparent why the finding of the jury upon the issue affirmatively submitted cannot justly serve the diverse purposes of plaintiff and defendant.”

In its fifth proposition appellant contends that the trial court erred in submitting to the jury the instruction, “that you will make your verdict by consideration of the evidence introduced before you under the ruling of the court”, on the ground that when considered in connectoin with other instructions it was conflicting and confusing on the burden of proof.

The court in his charge also gave the following instructions: “By the term ‘preponderance of the evidence’, as used in this charge, is meant the greater weight or degree of the credible testimony admitted under the rulings of the court.” Following this definition the court began each issue with: “Do you find from a preponderance of the evidence * * * ”, or similar language.

Taking above instructions into consideration, it is obvious that the court, in giving the instructions complained of, did not charge on the burden of proof, but instead instructed the jury as to what they could consider as evidence in arriving at their verdict. St. Louis, S. F. & T. Ry. Co. v. Allen, Tex.Civ.App., 296 S.W. 950; Standard v. Texas Pacific Coal & Oil Co., Tex.Civ.App., 47 S.W.2d 443.

In its sixth proposition appellant contends that the court erred in admitting certain X-ray pictures in evidence over its objection that there was no proof that they had been properly taken and developed, or that they correctly portrayed the portions of appellee’s body purported to be shown.

The record shows that the six X-ray pictures in question were taken by Dr. S. H. Kahn, a graduate physician, who had read and interpreted X-ray .pictures for a period of eighteen years. He testified that the pictures, which were taken from a lateral view, showed a suspicious line in the back of appellee’s skull, but that two sets of antero-postero views, being 3 and 3-a and 4 and 4-a, to which appellant objected, showed a fracture in the back part of appel-lee’s skull.

Dr. C. C. Nash, who qualified as a specialist in surgical diseases of the nervous system, identified the X-ray pictures in question. He stated that he was qualified to interpret X-ray pictures of the head; that he was in the room when the pictures were made and when they were developed. He testified that appellee was placed in the correct position when the pictures were made, and when he was asked if they were correctly taken, he answered that the “picture is the best evidence of that, they are-good pictures.”

It is uniformly held that X-ray photographs of parts of the body are properly admitted in evidence when it is shown that the witness personally took the photographs ; that they were taken in accordance with recognized standards of taking such photographs; and that they had been continuously in the possession of the witness. Federal Underwriters Exchange v. Cost, 132 Tex. 299, 123 S.W.2d 332; Houston & T. C. Ry. Co. v. Shapard, 54 Tex.Civ.App. 596, 118 S.W. 596; Utilities Indemnity Exchange v. Burks et al., Tex.Civ.App., 7 S.W.2d 1112.

Appellant complains of the action of the court in overruling its motion for an instructed verdict, on the alleged ground that there is neither pleading nor proof of ap-pellee’s average weekly wage, nor of any proper basis for arriving at appellee’s rate of compensation.

Appellee alleged that “Plaintiff shows that after the happening of the occurrence above described, defendant, United Employers Casualty Company, admitted its liability in the premises, and began the payment of Workmen’s Compensation Insurance to plaintiff by paying him the sum of $20.00 per week, said payments continuing for fourteen consecutive weeks. * *

“Plaintiff shows that his compensation herein should be computed at the .rate of $20.00 per week by admission of the defendant in issuing said checks or drafts above referred to, * * * ”.

It is uncontroverted that appellant paid to appellee compensation for fourteen weeks at the rate of $20 per week prior to the institution of this action.

No issue was submitted to the jury and no issue was requested pertaining to plaintiff’s average weekly wage or his rate of compensation. It was stipulated by counsel that appellee worked 270 days during the year immediately preceding the time of his injury, at $7 per day.

There is ■ no pleading by appellant that said payments were made by appellant as a result of misrepresentation or mistake.

The court made the following recitation in its judgment: “It is further ordered, adjudged and decreed that plaintiff, Claud Burk, do have and recover of and from defendant, United Employers’ Casualty Company,' the sum óf $20.00 per week for a period of three hundred and eighty-seven (387) weeks, payable in a lump sum, discounted according to law.”

It is stated in 45 Texas Jurisprudence, page 660, that: “Where the insurer has •admitted the payment of the claimant’s weekly compensation, and has voluntarily paid that sum for a period, no issue is present as to the average weekly wages, there being no claim' that the payment was induced by mistake or fraud.”

In discussing the question o-f agreements as to average weekly wages it is stated in Texas Workmen’s Compensation Law by J. John Lawler, page 319, section 163, that “another very common form of admission is payment by the insurer of weekly payments to the claimant prior to the trial. It should be noted here, however, that although the payment of weekly compen.sation does constitute a-n admission, the payment of a lump sum, quite properly, does not constitute an admission as to the average weekly wage.”

In the case of Fidelity & Casualty Company of New York v. Branton, Tex.Civ. App., 70 S.W.2d 780, 783, it is said: “The contentions that it was error not to submit issues for a finding as to what plaintiff’s average weekly wages were * * * are without force. Plaintiff’s weekly compensation was not in question.' Defendant admitted it to be $20 per week, and voluntarily paid that sum for 24 weeks. That was for total incapacity.”

The above holding is followed in the case of Traders & General Ins. Co. v. Slusser, Tex.Civ.App., 110 S.W.2d 598, 600, in which it is held: “Furthermore, the evidence shows that appellant paid appellee compensation after his injury at the rate of $20 per week, for 19 weeks, in the absence of a showing that it did so as a result of misrepresentation or mistake it would be estopped to deny that the $20 per week was based upon the proper wage rate.” (Citing cases).

The latest expression by our courts on the question as to whether error was committed by a trial court in failing to submit to the jury an issue as to appellee’s wage rate and the court’s independent finding of an average weekly wage rate is found in the case of Industrial Indemnity Exchange v. Ratcliff et al., Tex.Civ.App., 138 S.W.2d 613, 619 (writ of error dismissed W.O.J., Correct Judgment), in which the court in its opinion says: “It is without dispute, in fact appellant plead that it had paid appellee fifteen weeks’ compensation at the rate of $9.97 per week. So it appears that appellant had recognized appellee’s right to recover at that rate, and had actually paid him for fifteen weeks’ compensation at that rate. Undisputed facts do not have to be submitted to the jury for a finding. The fact that appellee’s wage was undisputed authorized the court to find in accordance with such undisputed fact. Commercial Standard Ins. Co. v. DeHart, Tex.Civ.App., 47 S.W.2d 898; Texas Emp. Ins. Ass’n v. Hamor, Tex, Civ.App., 97 S.W.2d 1041; Traders & General Ins. Co. v. Slusser, Tex.Civ.App., 110 S.W.2d 598; Southern Surety Co. v. Eppler, Tex.Civ.App., 26 S.W.2d 697, writ refused.”

Under above authorities appellant is in no position to complain of the findings' of the court fixing appellee's compensation at $20 per week.

Finding no reversible error in the record, the judgment of the trial court is in all things affirmed.

Affirmed.


author: STOKES, Justice.

text:
    McCHRISTY v. HALL COUNTY.
    No. 5152.
    Court of Civil Appeals of Texas. Amarillo.
    April 29, 1940.
    Rehearing Denied May 27, 1940.
    H. D. Stringer, of Memphis, for appellant.
    W. J. Bragg, J. O. Fitzjarrald, and Sam J. Hamilton, all of Memphis, for appellee.
   STOKES, Justice.

This is an appeal from a judgment of the county court awarding to appellant, Mrs. Sarah McChristy, the sum of $18 as compensation for .36 of an acre of land condemned under the right of eminent domain by Hall County in connection with the right-of-way of a highway. The commissioners in condemnation made their report on the 31st of March, 1939, to which appellant filed her exceptions and objections on the 3d of April, 1939. Issue was duly joined and the case tried on the last named date.

The record shows that sometime before the condemnation proceedings in this case were instituted the county had acquired a strip of land 100 feet in width across a tract of 7 acres adjoining the town of Memphis belonging to appellant. The road had been located, the right-of-way established, the contract for construction of the road let, and a' large portion of the road from Memphis east to Highway No. 4 in Childress County had been graded. The right-of-way ran across appellant’s land in an easterly direction, leaving the small strip here sought to be condemned on the south thereof and separated it from the balance of appellant’s land which is located north of the highway. Appellee desired this small tract as a place from which to procure earth, stone and gravel in order to build the highway and to repair and maintain the same.

A jury was selected to try the case and appellant, after admitting the right of appellee to condemn the land and that the only issue was the value thereof, assumed the burden of proof. At the close of appellant’s testimony appellee presented a motion for an instructed verdict, which was granted, and, upon the court’s instruction, the jury returned a verdict in favor of appellant awarding her $18 as compensation for the land taken in the condemnation proceeding. Her motion for a new trial being overruled, appellant gave notice of appeal and presents the case in this court upon two assignments of error, both of which present substantially the same contention.

In an attempt' to establish the value of the property, appellant introduced N. E. Burke as a witness who, after qualifying as to his knowledge of real estate values, testified in substance that on March 31, 1939, the fair market value of the property sought to be condemned was $150. He testified that he was familiar with the market value of lands in the vicinity and that his estimate of the value of this property was based upon his knowledge and information concerning those values. Upon cross examination he said that the property would not be worth $150 if there had not been a highway in process of construction at the location. He said the property would be a good location for a gasoline filling station. Appellee immediately moved the court to strike his testimony concerning the value of the land since it was based upon the opening of the highway. This motion was sustained by the court and the witness limited in his estimate to the value per acre of the entire tract, including the property being condemned, without regard to the highway, which value he said was $50 per acre.

The questions presented by the assignments of error are, first, whether or not the court erred in sustaining the motion to strike the testimony and, secondly, whether or not error was committed by the court in giving to the jury a peremptory instruction to return a verdict awarding to appellant $18 as the value of her property.

As we have stated, the witness showed himself to be qualified to testify concerning the fair market value of the property. He said he based his opinion of its value on what it would bring, by which he evidently meant what it would bring in the market if offered for sale. He said that it would not bring $150 “if there wasn’t a highway being put there; but it would bring it now.”

It will be seen from the foregoing statement that the condemnation proceeding was" not in connection with, nor a part of, the procedure by which the original right-of-way for the road was procured. That had already been accomplished and the location of the road definitely established. Not only so, but the contract to build the road had been entered into and a large portion of the grading completed. This proceeding was not incidental to the establishment of the highway but one in- ' stituted after the highway had been established and it became desirable to use the earth, rock and gravel from this tract for use in constructing the highway. It was, therefore, an independant proceeding and, under the law, appellant was entitled to the fair market value of her land under the circumstances and conditions existing at the time it was taken only four days prior to the trial of the case. The testimony shows that its market value without the road or without reference to its location or projection would have been practically nothing and appellee’s motion seems to have been urged upon the theory that the witness had based his valuation upon the fact that a highway had been projected and located in such manner as that this property abutted thereon. The rule is well established that the owner of property condemned for public use is entitled to a judgment based upon the fair market value of his property at the time it is taken. The fact that previous improvements have been made by the condemnor or others is a factor which it is proper to consider in arriving at its value. It is not contended by appellee that it was absolutely necessary to condemn this par-' ticular tract in order to procure the materials necessary to construct the road, nor is the suggestion made that this condemnation proceeding is a part of, or has any connection with, any procedure which had been instituted or conducted for the purpose of obtaining the right-of-way when the road was located some months before. But, even if it had been necessary for that purpose, and although this particular tract had been the only one available for the purposes to which appellee desired to appropriate it, appellant’s right to the fair market value of her property at the time it was taken would not have been changed nor in any manner affected as a consequence thereof. She was entitled to the value of her property regardless of those matters. The benefits and enhancements in value that had already accrued on account of the previous improvements or the enterprise that had already been initiated to establish and build the road are not matters to be considered as offsets when subsequent condemnations such as this are instituted. The owner is entitled to such compensation as is warranted by the facts shown to exist at the time the land is taken. San Antonio & A. P. Ry. Co. v. Ruby, 80 Tex. 172, 176, 15 S.W. 1040; Gulf C. & S. F. Ry. Co. v. Brugger, 24 Tex.Civ.App. 367, 59 S.W. 556; Citv of El Paso v. Coffin, 40 Tex.Civ. App. 54, 88 S.W. 502, 504.

In the case of City of El Paso v. Coffin just cited the city and a railroad company which was building a line of road into the city agreed on plans for a union passenger depot. The city agreed to acquire by condemnation or otherwise certain lots which were to be appropriated as a park near the site of the depot. Negotiations between Coffin, the owner of some of these lots, and representatives of the city for the purchase by the latter of the lots having failed, the city instituted condemnation proceedings. The trial court instructed the jury “That in ascertaining the market value of said property on the 6th day of October, 1904, you should consider the condition of the property at that time, its locality with respect to business and demand for property at that time, and any increase or development thereof that might have been reasonably expected in the immediate future at that time. In ascertaining what the market value of the property involved in this controversy was on the 6th day o.f October, 1904, you should consider the 00^⅛⅛^⅛±11£1»-exist-ing at said time, but you would not be authorized to consider speculative or merely possible contingencies, and you would not be authorized to consider any evidence •as to speculative values.”

This charge to the jury was assailed by the city as being erroneous and the Court of Civil Appeals, in passing upon the assignment, upheld the charge upon the ground that the railway company had already acquired the property to be used for a depot site and that in so far as the operations, survey and acquisition of the site for the depot indicated with reasonable probability that the depot would be established in the immediate future, these things should have been considered in fixing the value of Coffin’s property on the date it was taken.. This is but a reasonable application of sound justice. The owner may be able to sell his land to others at the value to which it is enhanced by the location of the road and we conceive no reason why he should be penalized merely because it is desired by the public and being taken for public use. The plat of the tract involved attached to the statement of facts shows that it is just outside of the corporate limits of the city of Memphis. No road except the highway then being established is shown to be contiguous to the property. It is reasonable to suppose that a small tract of only about a third of an acre of land so located would have practically no value under such circumstances, but it is likewise reasonable to apprehend that such a tract of land upon a popular highway might have distinct value by virtue of its location. The witness Burke testified that it would be a good site for a gasoline filling station which, under modern conditions of business and travel upon the highways, cannot be said to be without basis to support it. The effect of granting the motion to strike the witness’ testimony based upon these conditions was to deprive appellant of all value that had been. brought to her property by the location of the highway which it abutted and of the present value which the witness said it had by virtue of the contemplated establishment of the highway. Of course, it is not permissible for the jury to consider mere speculative contingencies nor is testimony which ascends to the realm of speculations and fancies that may occur to the minds of optimistic witnesses concerning the future prospects of the property and its value admissible, but the testimony of the witness Burke cannot be said to consist of such. He sought to base his estimate of the value of the property upon the substantial fact that the road had already been laid out, established, surveyed, the contract for its construction entered into, and a large portion of it already graded. As we have shown and as held by the courts in the cases above cited, appellant was entitled to the testimony which, was stricken under the motion of appellee and in granting the motion the court committed error for which the case will have to be reversed. Texas Power & Light Co. v. Hill, Tex. Civ.App., 27 S.W.2d 842; Gulf C. & S. F. Ry. Co. v. Burger, Tex. Civ.App., 45 S.W. 613; Sullivan v. Missouri K. & T. Ry. Co., 29 Tex.Civ.App. 429, 68 S.W. 745; Crystal City & U. R. Co. v. Boothe, Tex.Civ.App., 126 S.W. 700.

Appellee contends that the witness Burke fixed the value of the property in a prospective sense, that is, he was estimating what its value would be after the road had been completed. We do not so interpret the testimony. On direct examination, the witness testified very positively that, in his opinion, the value of the property on March 31, 1939, was $150 and that there had been no change between that date and the trial. Upon cross examination, he said that it would not bring $150 “if it was not for the highway being put there, but it would bring it now.” While the witness expressed himself in different terms which, standing alone, may bear the interpretation that he was referring to the conditions and value after the completion of the road, we think the fair interpretation of his tesimony is that, he was throughout endeavoring to place the value as of March 31, 1939, and base it upon the fact that the road was being projected. The witness made a number of efforts to explain his testimony, but, upon objection of counsel, the court denied him the privilege. This, of course, was contrary to the most elementary rules of evidence. Biggs v. Miller, Tex. Civ.App., 147 S.W. 632; Teutonia Ins. Co. v. Tobias, Tex.Civ.App., 145 S.W. 251. But, withal, the testimony as given justifies our conclusion as the only rational interpretation that can be placed upon it.

As to the remaining contention of appellant, viz., that the court erred in giving to the jury a peremptory instruction to return a verdict in her favor for the sum of $18, it is obvious that the instruction was based upon the only testimony permitted by the court which had reference to the value of the progprty as acreage property only and in disregard of the location of the highway. It follows that in this the court also committed reversible error.

The judgment will be reversed and the cause remanded.


text:
    MADDOX v. SMART et al.
    No. 2014.
    Court of Civil Appeals of Texas. Eastland.
    April 26, 1940.
    Rehearing Denied May 24, 1940.

      Griffin & Morehead, of Plainview, for appellant.
    Ritchie & Ritchie and Bouldin & Bouldin, all of Mineral Wells, for appellees.
   GRISSOM, Justice.

This is an appeal from a judgment of the County Court of Palo Pinto County sustaining a general demurrer to the plaintiff’s (J. E. Maddox, administrator) petition and dismissing his suit.

Plaintiff alleged in substance: That a judgment was rendered in the probate court of Lamb County in May, 1936, in favor of the estate of Bell Morgan, deceased, and against S. R. Smart (1) canceling a lease contract, whereby Blanche Morgan Bran-non, executrix of said estate, had leased a ranch belonging to said estate to Smart and (2) decreeing “that a reasonable and fair rental” of said ranch “was the sum of $500.00 per year.” That Smart, as principal, and the other defendants, as sureties, executed an appeal bond in the sum of $1,500 “conditioned that the said S. R. Smart, shall prosecute the appeal to effect and perform the decision, order, decree and judgment which the District Court shall make thereon, in case said cause shall be decided against him * * That the appeal bond was approved and the appeal to the District Court of Lamb County perfected. That in August, 1936, in said District Court “the judgment of the County Court canceling said lease and judging the valuation of the same was in all things affirmed. The said S. R. Smart was ordered by the District Court to deliver possession of the Morgan ranch to J. E. Maddox, Administrator with the will annexed' * * That said judgment was certified to the Probate Court of Lamb County for its enforcement. That Maddox was the administrator, with the will annexed of said estate. That said appeal bond was given for the use and benefit of plaintiff and said estate. That Smart did not give possession of said ranch “until the last year of the purported rental contract”, although plaintiff demanded possession; that Smart did not abide by said judgment. “That by virtue of the premises” Smart and the sureties .on his said appeal bond became liable .to pay plaintiff $500, alleged to be the market value of the use of said ranch “which was held and retained by * * * Smart”; that in' addition to refusing to deliver possession of the ranch Smart damaged pecan trees on the' ranch “as the result of his abusive treatment of the same and his failure to take proper care and cultivation of them, in the additional sum of $300.00. That all of such injuries and damages as suffered by the estate * * arose because of the failure of the said S. R. Smart to abide by and carry out the judgment of the District Court on appeal and in accordance with the provisions of his bond.”

The sureties on Smart’s appeal bond, answered by plea 'in abatement, general demurrer, many special exceptions, (one of which was to the effect that as to the item of $300 damages to the pecan trees, the time of the alleged injury “was not alleged, same being too remote and there being no connection shown between the obligations on said appeal bond and the said damages” etc.) They further answered, among other things, that the judgment of the probate court and the district court on appeal, made the basis, together with the appeal bond, of plaintiff’s entire cause of action, was void because said probate court, and, therefore, the district court on appeal, was without jurisdiction to render a judgment canceling the lease on real estate and ordering the possession delivered to plaintiff. Smart answered, among other things, as his sureties did.

We are of the opinion (1) that the probate court of Lamb County, and the district court on appeal, were without jurisdiction to render a judgment canceling said lease terminating defendant Smart’s leasehold interest and ordering possession of the ranch delivered to plaintiff, and the judgments to that effect are void. Berry v. Barnes, Tex.Civ.App., 26 S.W.2d 657; Coy v. Rowland, Tex.Civ.App., 164 S.W. 14; Timmins v. Bonner & Long, 58 Tex. 554; Edwards’ Heirs v. Mounts, 61 Tex. 398. (2) The judgments, insofar as they fixed the value of the lease, did not attempt nor purport to determine the liability of Smart therefor different from his contract with the executrix, and (although they may have fixed the liability of said executrix for the value of the rent on the contract, presumably made without the approval of the court, a question not here necessary to determine) constituted no basis for the present suit. (3) Plaintiff’s asserted cause of action being expressly based entirely on said void proceedings did not exist and the court did not err in sustaining the defendants’ general demurrers.

We are of the opinion that Arts. 3545 to 3551, R.S.1925, authorize the renting of real estate by an executrix without an order of the probate court approving the rent contract. Art. 3550 provides for the approval or disapproval of the executor’s report of such a contract, and, further, that if the report be disapproved the probate court may enter an order to that effect and adjudge against the éxecutor, who failed to protect himself by an order of court approving the contract prior to its execution, the reasonable value of the rent of such property. We think said statute does not authorize the cancellation of such contract or determination of rental value by the probate court as against the executor’s lessee merely on the ground that such court is of the opinion that the amount of rent agreed upon between the executor and lessee is insufficient. Simp-kins Administration of Estates (Holt) 3d Ed., p. 135.

Appellant relies upon decisions relative to sales of realty by an executor without an order of court to sustain his contention that the probate court had authority to cancel the lease contract. Relative to such sales, Art. 3553 provides: “No sale of any property of an estate shall be made by an executor or administrator without an order of the court authorizing the same.”

Articles 3545, 3546, 3547, relative to renting such property by an executor without an order of court, provide:

“Art. 3545. When an executor or administrator thinks it would be to the interest of the estate to hire out any of the personal property of the estate, o.r to rent any of the real estate, he shall do so either at public auction or privately, for cash or credit, as he may deem most advantageous to the estate. * * *

“Art. 3546. An executor or administrator if he prefers, may file a written application with the county clerk setting forth the property which he thinks should be hired or rented; and if the county judge be of the opinion that it would be to the interest of the estate to grant the application, he shall do so by an order entered upon the minutes, either in term time or in vacation, which order shall name the property to be hired or rented, and state whether such hiring or renting shall be at public auction or privately, and whether for cash or credit, and if on credit, the length of such credit, and shall also state the period of time for which such property shall be hired or rented.

“Art. 3547. When an executor or administrator hires or rents property belonging to an estate without an order of the court authorizing him to do so, he shall be held responsible to the estate for the reasonable value of the hire or rent of such property, to be ascertained by the court by satisfactory evidence.”

We think said last-quoted statutes authorize such a rent contract and that they merely mean that the executor may avoid personal liability by obtaining an order of approval prior to renting the property “if he prefers”. Art. 3546. Oglesby v. Foreman, 77 Tex. 647, 14 S.W. 244; Morrell v. Hamlett, Tex.Civ.App., 24 S.W.2d 531, 534.

The judgment is affirmed.


author: PRICE, Chief Justice.

text:
    TEXAS UNDERWRITERS v. MARTINAL.
    No. 3939.
    Court of Civil Appeals of Texas. El Paso.
    April 18, 1940.

      Cameron & Hardin, of Edinburg, for appellant.
    West & Hightower, of Brownsville, for appellee.
   PRICE, Chief Justice.

This is an appeal from the judgment of one of the District Courts exercising jurisdiction in Cameron County. Plaintiff, Alfred Martinal, recovered judgment against defendants R. G. Treon and the Texas Underwriters in the sum of $846.93. The defendant last named perfected an appeal from such judgment. Defendant Treon was sued for the purchase price of certain citrus fruit, and the appealing defendant was joined as a surety upon a bond executed by Treon as principal with National Indemnity Underwriters of America as surety; the Texas Underwriters had, subsequent to the giving of the bond, assumed the liability thereof. The bond was given by Treon as a licensed “maximum dealer” in citrus fruit under House Bill No. 99, c. 236, Acts of the 45th Legislature, as amended by Senate Bill No. 24, Acts of the First Called Session of the 45th Legislature; in Vernon’s Statutes, Article 118b and Article 1287 — 2.

Treon answered by general exception and general denial. A general demurrer and numerous special exceptions were filed by the defendant Texas Underwriters, and likewise an answer to the merits.

The main question involved in the appeal is the constitutionality of the Act of the Legislature in pursuance of which the bond was given. Appellant asserts that the Act violates the Constitution of the State in many particulars, and likewise violates the Constitution of the United States.

On account of the length of the Act we shall not set same out in full, but shall attempt to give the substance thereof as to the matters in question here.

It provides one shall not be a dealer in citrus fruit unless he apply to the Commissioner of Agriculture for a license as such, receive such license, and file and have approved the five thousand dollar bond required by the Act This bond, conditioned as required by law, guarantees the payment by the dealer of fruit purchased on credit. Under the terms of the law and the bond anyone dealing with such licensed dealer may maintain action on same. If the Commissioner refuse the license, the law gives the applicant a right to appeal to the courts, and if, under the authority conferred on the Commissioner, said license be revoked, the right of appeal to the courts is also given. Venue of any criminal acts and civil suits under the Act is to be in the county where the violation of the Act occurred, or where the citrus fruit was delivered. The Commissioner of Agriculture is given broad and general powers for the enforcement of the Act.

Appellant’s principal was a “maximum dealer” as defined by subsection (e) of Section 1 of the Act in question, having made application for and received a license as a dealer as provided for in the Act The bond filed and approved by the Commissioner was in the sum of five thousand dollars, payable to the Governor, and conditioned in part, in substance, as follows: That the principal should honestly comply with the provisions of House Bill No. 99 and House Bill No. 557, c. 443, as passed by the Regular Session of the 45th Legislature of Texas, as amended by S.B.No. 24, passed by the First Called Session of the 45th, Legislature, Vernon’s Ann.Civ.St. art. 1287 — 1.

An Act of the Legislature is entitled to the presumption of constitutionality. Unless it clearly is in violation of the Constitution the court must hold same was within the power of the Legislature, and apply and enforce the law. The dominion, of the Act extends over the institutions through which the government functions, as well as over each citizen. 16 C.J.S. Constitutional Law, § 99, p. 250, par. 99, and authorities cited; 11 American Jurisprudence, p. 776, § 92, and § 128, and authorities cited.

The Act in question is regulatory in its nature, even though a license fee is exacted from the dealer. This license fee is by nature of the provisions of the Act not a tax, but strictly what it purports to be. Power of enactment must be considered from the standpoint of the police power of the State. This great and general power has never been entirely delimited and defined. Its source is the sovereignty of the State. Exercise of this power is for the Legislature. In lawful pursuance of same the Legislature may enact any measure which may be reasonably said to promote the health, safety, comfort or welfare of the inhabitants of the State, provided such power is not withheld or limited by the provisions of the Constitution. Sid Westheimer Co. v. Piner, Tex.Civ.App., 240 S.W. 985; Id., Tex.Com.App., 263 S.W. 578.

The basis of the attack made here on the Act is that it is not a valid exercise of the police power, in that it unreasonably and unwarrantably restricts the right to pursue a lawful business and interferes with the primary right of freedom of contract.

We shall first discuss the question from that broad standpoint, later disposing of the more specific questions involved in the attack not comprehended in the general discussion. Throughout it is to be borne in mind, however, only those provisions of the Act requiring the license and the bond are directly involved here. The appellant has not been refused a license, and a license held by it has not been revoked.

The San Antonio Court of Civil Appeals has held the Act in question constitutional. Attack on the law was there made on grounds almost identical with the attack here. In the case of Berry v. McDonald, Commissioner of Agriculture, Tex. Civ.App., 123 S.W.2d 388, the Act was held to be within the police power of the State. It was further held that the Act was not subject to the limitation contained in the Constitution against class and discriminatory legislation. The above holding is sustained by the great weight of authority throughout the United States. In the notes appearing in 3 A.L.R. 1271 ; 48 A.L.R. 453; 84 A.L.R. 640; 101 A.L.R. 827; and 117 A.L.R. 347, there is a collection of authorities on this point. There is also a comprehensive discussion of the power to require a bond to guarantee private contracts in connection with the licensing of a business or occupation. The collection of authorities in the above-cited notes seems to be comprehensive and complete. In the annotation, 3 A.L.R. 1271, supra, the following principle is set forth: “Since the State or a municipality may regulate any business, however lawful in itself, which may be so conducted as to become the medium of fraud and dishon•esty, a requirement of a bond to insure creditors of the business against financial . loss is a valid enactment, and is not class legislation, if the requirement is based on reasonable grounds and is not essentially arbitrary.”

Numerous authorities, both State and Federal, are cited supporting the proposition. In a supplementary note in 84 A.L. R. 640, the proposition is reiterated and additional authorities are cited and discussed sustaining same.

California has an Act relating to the purchase and handling of deciduous fruit adopted in 1929, Statutes 1929, p. 665. There is great similarity between our legislation and that of California. The California legislation seems to be more inclusive and drastic in its provisions than is our Act. In the case of People v. Perry, 212 Cal. 186, 298 P. 19, 76 A.L.R. 1331, there was before the Supreme Court of California a penal provision of the Act relating to the punishment of a “cash buyer” failing to meet his obligations. Under an attack, in a great measure paralleling the attack here made on our law, the legislation was upheld. In the attack it was there asserted, as here asserted, that the Dealers’ Act interferes with the freedom of contract, and is a deprivation of liberty and property without due process of law as guaranteed by the Fourteenth Amendment to the Constitution of the United States. In support of its holding denying the validity of the contention the court cites and discusses the case of Merrick v. N. W. Halsey & Co., 242 U.S. 568, 37 S.Ct. 227, 231, 61 L.Ed. 498. The following is quoted therefrom: “We think the statute under review is within the power of the state. It burdens honest business, it is true, but burdens it only that, under its forms, dishonest business may not be done. This manifestly cannot be accomplished by mere declaration; there must be conditions imposed and provision made for their performance. Expense may thereby be caused and inconvenience, but to arrest the power of the state by such considerations would make it impotent to discharge its function.”

The reasonableness and the necessity for the legislation in question are, in our opinion, evidenced by the fact that California and Florida, two great citrus producing areas, each has similar laws regulating this industry. In Arizona, likewise, a bond is exacted from a dealer in citrus fruit. The four citrus producing areas of the United States have each legislation in substance and nature the same regulating this industry,

A perusal of the Act we are here considering discloses a purpose to protect the producers of citrus fruit from fraud and imposition. This purpose is commendable, and unless the means invoked to that end are unreasonable and arbitrary, the legislation should be held valid. Fostering and protecting of a vast, valuable and rapidly developing industry within the State is vital to the welfare of the people of the State. Berry v. McDonald, Commissioner, supra, and authorities there cited; Ex parte Ferguson, 112 Tex.Cr.R. 153, 15 S.W.2d 650; 3 C.J.S., Agriculture, § 2, p. 367.

By the Act a lawful business is not prohibited,- but is reasonably regulated and fostered.

It is not a local or special law within the meaning of Article 3, Sect. 56, of the Constitution, Vernon’s Ann.St. Beyman v. Black, 47 Tex. 558; Clark v. Finley, 93 Tex. 171, 54 S.W. 343; Reed v. Rogan, 94 Tex. 177, 59 S.W. 255.

In our opinion legislative power is not delegated to the Commissioner of Agriculture. By the provisions of the Act, the action of the Commissioner in either refusing or cancelling the license may be called in question before the courts; likewise, due process is provided for in the hearings before the Commissioner.

The legislation is not class legislation within the prohibition of the Constitution. Ex parte Ferguson, supra.

All other assignments not discussed challenging the constitutionality of the Act in question have been considered and overruled.

We are likewise of the opinion that it may be by voluntarily applying for the license and giving the bond, the right to question in this proceeding its validity was waived. Cooley on Constitutional Limitations, 8th Ed., p. 368; White v. Manning, 46 Tex.Civ.App. 298, 102 S.W. 1160; Young v. City of Colorado, Tex.Civ. App., 174- S.W. 986; Louisiana Ry. & Nav. Co. v. State, Tex.Com.App., 7 S.W.2d 71; Hawkins v. Bleakley, D.C., 220 F. 378; Id., 243 U.S. 210, 37 S.Ct. 255, 61 L.Ed. 678, Ann.Cas.1917D, 637; Hershey v. Reclamation Dist. No. 108, 200 Cal. 550, 254 P. 542; Huson, State Commissioner of Agriculture, v. Richard B. Brown, 90 Misc. 175, 154 N.Y.S. 131; Musco v. United Surety Co., 196 N.Y. 459, 90 N.E. 171, 134 Am.St.Rep. 851.

The case last cited, in referring to a bond given under a somewhat analogous statute uses this apt language: “He (the principal) might well conclude that the giving of the bond would help him in his business whether he could be compelled so to do or not, and he executed one. An individual may waive even constitutional provisions for his benefit when no question of public policy or public morals is involved.”

The bond sued on is dated the 27th day of November, 1937; the approval of the Commissioner of Agriculture is dated the 20th day of December, 1937. It is shown by the agreed statement of facts that all of the fruit, the price of which is herein sued for, was delivered to Treon prior to the 20th day of December, 1937, except deliveries made on March 9, 1938, and April 16, 1938. The agreed price for the said last two named deliveries aggregates $271.27. On November 26th, 27th, 29th and 30th there were deliveries made aggregating $975.66. Between November 26th, 1937, and January 1st, 1938, Treon paid to plaintiff the sum of $400 on this account.

The bond, by its very terms, is for the period of the license; license, under the provisions of the law, may not be issued until the bond has been approved by the Commissioner.

•In our opinion the law is not retroactive by its provisions; it was not made with reference to past or existing obligations of the principal, but contemplated therein were the future obligations of the principal.

In our opinion the obligation due from the appealing defendant to the plaintiff is the sum of $271.27, with interest thereon at the rate of six per cent per annum from the date of the default.

It is ordered that the judgment of the trial court be so modified, and, as so modified, same is affirmed.


author: SMITH, Chief Justice.

text:
    COKE et al. v. POTTORFF et al.
    No. 13974.
    Court of Civil Appeals of Texas. San Antonio.
    May 15, 1940.
    Dent Taylor and Jim Weatherby, both of Kerrville, for relators.
    Weaver Baker, of Junction, for respondents.
   SMITH, Chief Justice.

Christine Coke, in her own behalf and that of her minor daughter, brought suit in the District Court of Bandera County, against George B. Pottorff, for damages for the alleged wrongful death of Bryan L. Coke. The venue of the suit was changed to Kimble County upon Pottorff’s plea of privilege. Upon the transfer of the case to Kimble County Pottorff filed an answer and by way of cross-action sought to recover of the plaintiffs damages for alleged malicious institution of the suit.

Thereafter, the plaintiffs below timely filed and presented their motion for leave to take a nonsuit, “without prejudice to either party, present or future, for the reason that the plaintiff does not at this time desire to press her cause of action,' if any.” Pottorff, as defendant below, resisted, and the trial judge overruled, the plaintiffs’ motion for nonsuit.

Mrs. Coke, for her minor daughter and herself, has now filed .in this Court her motion for leave to file an original petition- for mandamus to require the judge of the court below to dismiss the cause of action set up by the plaintiffs, in response to their motion for nonsuit. We overrule the motion for leave to file, on the ground that the petition tendered with the motion does not set- up probable cause for mandamus.

It is a general rule that it is reversible error to deny leave to a plaintiff to take a nonsuit upon his cause of action, even in the presence of a cross-action by the defendant; the plaintiff may take a nonsuit in any event, but his doing so will not be permitted to prevent the defendant from proceeding with his cross-action for affirmative relief. 15 Tex.Jur; pp. 236, 243, §§ 3, 10. ,

An order overruling a plaintiff’s motion for leave to take a nonsuit is not itself appealable. 3 Tex.Jur. p. 135, § 70; Texas & P. Ry. Co. v. Ft. Worth St. Ry. Co., 75 Tex. 82, 12 S.W. 977.

Nor is the writ of mandamus available to take the place or perform the office of appeal. 22 Tex.Jur. p. 573, § 32.

For, while it is error upon the part of a trial court to overrule a timely motion for leave to take a nonsuit, mandamus will not lie to compel the trial judge to correct such error. 28 Tex.Jur. p. 579, § 36; Matlock v. Smith, 96 Tex. 211, 71 S.W. 956, 957. “If a judge errs,” said Chief Justice Gaines in the cited case, “however palpably erroneous his decision may be, a mandamus is n.ot the remedy for the correction of his error.”

Obviously, the remedy of the injured party is to timely make and thenceforward preserve his exception, and present it in an appeal from the final judgment in the case. Cox v. Texas Electric Ry., Tex.Civ.App., 32 S.W.2d 669, affirmed, Tex.Com.App., 49 S.W.2d 725, 89 A.L.R. 11; Cornelius v. Early, Tex.Civ.App., 24 S.W.2d 757, affirmed, 120 Tex. 335, 39 S.W.2d,6; Davis v. Wichita State Bank & Trust Co., Tex.Civ.App., 286 S.W. 584; Weil v. Abeel, Tex.Civ.App., 206 S.W. 735; Apache Co. v. Watkins & Kelly, Tex.Civ.App., 189 S.W. 1083.

It is apparent from the record that respondent Pottorff resisted the motion for nonsuit in the fear he would be prejudiced by relator’s re-filing and prosecuting her suit in some county other than that of the forum; and such purpose on the part of relator may be surmised from the record. But there is no reasonable ground for this fear of respondent, or hope of relator, for venue of relator’s cause of action, if any, has been finally adjudicated to be in Kimble County, and the question may not be again litigated.Watson Co. v. Cobb Co., Tex.Com.App., 292 S.W. 174; Dallas Joint-Stock Land Bank v. Webb, Tex.Civ.App., 48 S.W.2d 434.

Relators’ motion will be overruled.


text:
    LOZANO, Constable, et al. v. GUERRA et al.
    No. 10823.
    Court of Civil Appeals of Texas. San Antonio.
    May 15, 1940.

      Geo. L. Wideman and J. F. Carl, both of Edinburg, for appellants.
    H. P. Guerra, Jr., of Rio Grande City, for appellees.
   SMITH, Chief Justice.

A judgment was rendered against G. A. Guerra in one of the district courts of Cameron County in favor of C. J. Liljestrand. An alias execution was issued on the judgment and delivered to Bruno Lozano, a constable of Starr County, who levied upon the undivided interest of G. A. Guerra in the real and personal estate of his mother,' Mrs. Virginia C. Guerra, deceased. That estate is in the process of an independent administration. The independent executors, appellees here, brought this suit for a temporary injunction to restrain the constable from proceeding with the advertisement and sale of the undivided interest of G. A. Guerra in the estate. The temporary injunction was granted as prayed for, and the constable and Liljestrand have appealed from that order.

In her duly probated will, the testatrix devised all of her estate to her children, including G. A. Guerra, share and share alike. It was provided in the fourth paragraph of the will that the “estate be kept intact as an estate under the complete control and management of the independent executors for a period of five years from the date of (her) death, unless in the discretion of the executors it is advisable to distribute” it, or any part of it, at an earlier date. The five-year period has not expired, and the executors have made no attempt to distribute the estate among the beneficiaries. In the will absolute management of the estate was given the executors with full power to sell or dispose of the property in the course of their administration.

The interest of G. A. Guerra, although undivided, is a vested interest which is subject to sale under writ of execution. Gregg v. First Nat. Bank, Tex.Com.App., 26 S.W.2d 179; Capies v. Ward, 107 Tex. 341, 179 S.W. 856. It is true that the interest is subject to administration, and it may be defeated, as for example, by the taking of the property for the payment of the debts of the deceased; but the purchaser at execution •would be charged with this knowledge, and must assume the risk. This possibility, however, does not change the character of the interest so as to render it exempt from execution.

It was contended by the executors in the court below that the sale under execution would interfere with and obstruct their administration of the estate and the injunction was apparently granted on this ■theory. In order to meet this contention, the appellants notified the executors that they did not intend to disturb them in the administration, but such intentions on the part of the constable and judgment creditor can not be considered as having any legal effect. We think the true test is, Will the sale of the undivided interest give to the purchaser rights and privileges which, if exercised, would have the effect of interfering with the duties of the executors under the will? If so, the sale is ineffectual and may be enjoined.

The executors are now in possession of the estate and under the terms of the will they are charged with the duty of administering it for not more than five years. The purchaser at the execution sale will not be entitled to take possession of G. A. Guerra’s interest so long as the executors are lawfully discharging their duties, and he can not abridge their right to possession and control of the estate. The purchaser will buy the title of G. A. Guerra, but this alone will not give him any rights to disturb the executors, and will cast no cloud upon the title of the executors.

Complete control of the estate is given to the executors. G. A. Guerra, as a devisee, can not interrupt this control. Since the purchaser at execution sale will succeed only to the title of G. A. Guerra, he will gain no other or greater rights by virtue of the sale than those of the judgment debtor. If the devisee had voluntarily sold all his interest in the estate, the executors could not complain, and they are not entitled to restrain an enforced alienation. The purchaser will assume the position of G. A. Guerra in his relationship with the executors; he will become bound by all the provisions of the will, and he can in no way interfere with or disturb the independent administration.

The executors urge the contention that they are in fact trustees and that the general rules preventing the sale of the corpus of a trust should be invoked here. We overrule this contention. , In the second paragraph of the will title to the property is vested in the children. The five-year period provided for in the fourth paragraph does not have the effect of defeating this title, but simply marks the limit of the period of administration. The nature of this administration is not such as to prevent the sale of the interest of a devisee. Sewell v. Taylor, Tex.Civ. App., 224 S.W. 530.

We therefore hold that the undivided interest of G. A. Guerra in the estate of his mother may be sold under writ of execution, subject to the independent administration and the provisions of' the will.

The judgment of the trial court is reversed, and the temporary injunction dissolved.

NORVELL, J., disqualified, not sitting.