author: RAY, Justice.

text:
    Arlen Y. STURDIVANT v. Mary Margaret STURDIVANT.
    No. 8472.
    Court of Civil Appeals of Texas, Texarkana.
    May 3, 1977.
    Rehearing Denied May 31, 1977.

      Jack 0. Herrington, Lovett & Herring-ton, Clarksville, for appellant.
    Pat C. Beadle, Beadle & Beadle, Clarks-ville, for appellee.
   RAY, Justice.

Mary Margaret Sturdivant, appellee (petitioner), sought modification of the child support set out in the decree of the District Court of Red River County dated October 30, 1973, in which Mrs. Sturdivant was granted a divorce and support for the three minor children born to her and appellant (respondent), Dr. Arlen Y. Sturdivant. This is a companion case to No. 8456 filed in this Court in which it was decided that an order entered by the trial court on September 21, 1976, was an order for temporary child support and therefore not appealable. The instant case concerns the final or permanent order entered by the trial court on November 22,1976, for child support in the sum of $1,502.50 per month. Appellant has perfected his appeal from the November 22, 1976 judgment and submits one point of error for our consideration.

Appellant’s point of error is as follows: “POINT OF ERROR 1. The District Court erred in entering a judgment for Petitioner because, pending an appeal, the trial court is without authority to take further action in a case which disturbs the status quo of the matters on appeal.”

Appellant’s point of error is without merit and is overruled because this Court decided in Cause No. 8456 that the trial court’s first order (September 21, 1976) was a temporary order, not appealable, and even if the temporary support order were appeala-ble, “. . . appellant failed to file the record in this Court within the time required by Rule 385 relating to appeals from interlocutory orders.” This Court then determined that it did not have jurisdiction to review the propriety of the trial court’s action in issuing the temporary order and dismissed the appeal. Because this Court determined that no appeal could be taken and that none had been perfected, the trial court was at liberty to take whatever action it deemed necessary and reasonable in entering its final order related to child support. Appellant’s point of error is therefore overruled.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: O’QUINN, Justice.

license: Public Domain

text:
    H. E. DuBOIS, Individually and as Independent Executor of the Estate of Genevieve Rix Fitzwilliam, Deceased, Appellant, v. Cleve W. JACOBS, Jr., et ux., Appellees.
    No. 12556.
    Court of Civil Appeals of Texas, Austin.
    May 4, 1977.

      James T. Odiorne, Bastrop, for appellant. No brief for appellee.
   O’QUINN, Justice.

Appellees brought this action for reformation of conveyance in a deed reserving certain royalty interests in oil, gas, and other minerals and, alternatively, for declaratory judgment holding that the reservation did not include coal, lignite, sand, and gravel.

The record discloses that Genevieve Rix Fitzwilliam in December of 1967 conveyed 326 acres in Bastrop County to Cleve W. Jacobs, Jr., and wife, with reservation to grantor, her heirs and assigns, “an undivided ½ royalty of all the oil, gas and/or other minerals” and specifying that the “interest hereby reserved is a non-participating royalty.” The grantor subsequently died, leaving a will by which H. E. DuBois, appellant here and defendant below, became the principal beneficiary of the estate and the independent executor.

In an earlier appeal, after trial of another phase of this controversy, this Court reversed judgment of the trial court, that the deed was ambiguous and its terms in conflict, and we remanded the cause for further proceedings. DuBois v. Jacobs, 533 S.W.2d 149 (Tex.Civ.App. Austin 1976, no writ). Full text of the reservation in the deed is quoted in our earlier opinion. 533 S.W.2d 150-151.

Plaintiffs sought in the second trial to show that, through mutual mistake of the parties to the deed, the interest in minerals reserved by the grantor was not limited to her lifetime, but by mistake provided a reservation of a mineral interest in fee. Under pleadings in the alternative, plaintiffs also sought declaratory judgment that the mineral reservation did not include coal, lignite, sand, and gravel.

After trial before the court without a jury, the court entered judgment that the deed was not subject to reformation on the basis of mutual mistakes in its exécution, but did find that the mineral interest, reserved in fee, did not include “any sand, gravel, coal or lignite.”

DuBois appealed only from that part of the judgment declaring that the mineral reservation of “other minerals” did not include sand, gravel, coal or lignite. Appellant brings three points of error, the first being a direct attack upon the holding of the trial court that the mineral reservation in the deed did not include the specified natural materials. The last two points claim there was no evidence and insufficient evidence to support the court’s finding.

We will reform the judgment of the trial court and, as reformed, the judgment will be affirmed.

Appellees failed to file a brief on appeal and instead filed a motion which from its contents appears to seek reversal of the trial court’s judgment and remand of the cause. The basis for remand presumably is to afford appellees opportunity to introduce evidence as to whether coal, lignite, sand, and gravel on the subject land must be recovered by “shaft mining” or by “strip mining.” The prayer fails to state what disposition appellees seek, either of the judgment or the cause. We overrule the motion and will dispose of the case on the record and appellant’s brief.

Appellant DuBois takes the position that appellees abandoned the alternative portion of their suit, for “construction of the reservation of mineral interest in the deed” from Mrs. Fitzwilliam to appellees, because appellees “presented no evidence concerning any minerals that may be located in, on, or under the property.” We do not regard the introduction of evidence a prerequisite to construction of the deed, which is in evidence and a part of the record on appeal.

In a suit for declaratory judgment the Supreme Court in 1971 had before it a deed purporting to convey “an undivided ½ interest in and to all of the oil, gas and other minerals in and under, and that may be produced from” the tract of land. (Emphasis added). The question in that suit was whether an interest in iron ore passed to the grantee under the deed. The Supreme Court held that “Unless the contrary intention is affirmatively and fairly expressed . [in the deed] a grant or reservation of ‘minerals’ or ‘mineral rights’ should not be construed to include a substance that must be removed by methods that will, in effect, consume or deplete the surface estate.” (Emphasis added). Acker v. Guinn, 464 S.W.2d 348, 352 (Tex.Sup.1971).

The Supreme Court restated the established rule in Texas that grant or reservation of minerals by the fee owner effects a horizontal severance and creates two separate and distinct estates, an estate in the surface and another estate in minerals. (464 S.W.2d 352, citing Texas Co. v. Daugherty, 107 Tex. 226, 176 S.W. 717).

The Court observed in Acker that “. parties to a mineral lease or deed usually think of the mineral estate as including valuable substances that are removed from the ground by means of wells or mine shafts . . . [and although the mineral estate] is dominant . . . and its owner is entitled to make reasonable use of the surface for the production of his minerals [nevertheless, ordinarily it is not contemplated] . . . that the utility of the surface for agricultural or grazing purposes will be destroyed or substantially impaired.”

The record in this case reflects that prior to execution of the deed, in which grantor reserved an interest in the mineral estate, the parties by preliminary contract recognized that the property to be conveyed was “under a grazing lease” which would prevent delivery of possession until expiration of the lease.

In both the preliminary contract and in the deed the parties agreed that specified portions of the land might be converted by appellees to a subdivision, in contemplation of which the parties provided against necessity of grantor’s joinder in plats but that grantor would join in dedication of streets and alleys upon advance payment of $100 per acre on the principal indebtedness.

Thus the record shows the surface was already devoted to grazing purposes and that at least part of the land was suitable for development as a subdivision.

Examination of the full text of the reservation by Mrs. Fitzwilliam, appearing in our earlier opinion, contains nothing, aside from the general reference to “other minerals,” even remotely suggesting an intention to reserve in grantor the right to share in minerals that could not be produced without destroying the surface. Acker v. Guinn, supra. We hold as a matter of law that the reservation of mineral interest in the deed did not include any substance that must be removed by methods which will in effect consume or deplete the surface estate.

Appellant argues that under the holding in Acker and two recent decisions of the Waco Court of Civil Appeals appellees, having failed to present evidence relating in some “manner to the minerals in, on, and under the particular tract of real estate” in this action, “apparently abandoned their action to declare that coal and lignite were not included in the mineral reservation.” The decisions of the court of civil appeals are Williford v. Spies, 530 S.W.2d 127 (Tex.Civ.App. Waco 1975, no writ) and Wylie v. Reed, 538 S.W.2d 186 (Tex.Civ.App. Waco 1976, writ granted, Nov. 10, 1976).

It is our view that the holding of the Supreme Court in Acker is controlling in this case, and that, in construing the terms of the deed, evidence showing the presence or absence of specific minerals or substances is not essential to construction of the deed. We consider the holding of the Supreme Court to stand for the proposition that in deeds conveying or reserving an “interest in and to all the oil, gas and other minerals in and under, and that may be produced from” the land, no interest will pass or be reserved in substances that must be produced in such manner as to destroy, deplete, consume, or substantially impair the surface.

The judgment of the trial court specified certain substances, in which the court found grantor did not reserve an interest. We regard the judgment as more restrictive than the rule of Acker requires. The judgment of the trial court is modified to provide that the reservation in the deed to appellees did not reserve to grantor any substance that must be produced or removed by methods which will in effect consume or deplete the surface estate. As modified, the judgment is affirmed.

      . The prayer in full states:
      “WHEREFORE, premises considered, Ap-pellees pray that the above styled and numbered cause as far as it effects [sic] that portion of the judgment which held that the term ‘other minerals’ as included in such deed of conveyance, does not included [sic] coal, lignite, sand and gravel, and that all costs of court herein incurred be taxed against the Appellees.”


author: J. CURTISS BROWN, Chief Justice.

text:
    Frances L. Walley KNIPE, Appellant, v. Kenneth COLPITTS, Appellee.
    No. 1596.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    May 4, 1977.

      Marie H. Martin, Charles E. Martin, Martin & Martin, Houston, for appellant.
    Thomas Clarke, Houston, for appellee.
   J. CURTISS BROWN, Chief Justice.

This is an appeal from an order of the trial court establishing temporary child visitation rights. Frances L. Walley Knipe (formerly Frances Colpitts), appellant, and Kenneth Colpitts, appellee, were divorced in November, 1971. Custody of their two minor children was awarded to appellant. On March 25,1976, the Court of Domestic Relations No. 2, Harris County, entered an order in accordance with the divorce decree establishing visitation rights for appellee with his children at certain intervals in March and April of that year. In July 1976, appel-lee filed a motion for contempt alleging that appellant had refused to comply with the order of March 25. On December 21, 1976, a hearing was held on this motion during which the trial court concluded that appellant, under the influence of her present husband, Dee Knipe, had failed to comply with appellee’s visitation privileges. He recommended that a social study be made of the children’s situation, that a guardian ad litem be appointed, and, thereafter, a hearing be held on January 24, 1977. He also entered a temporary order to allow appellee visitation rights in the interim over the Christmas and New Year’s holidays, and enjoined Dee Knipe from interfering with appellee’s exercising the visitation privileges. It is from this order that appellant has brought her appeal.

Appellant urges that the court erred in modifying the prior existing order of March 25, because there was no motion, petition or pleading requesting the modification. She also argues that Dee Knipe could not be properly enjoined since he was not served with process and that there was no pleading asking that he be so enjoined.

We need not pass upon appellant’s points since the order she complains of is not ap-pealable. It is clear from the statement of facts and the order itself that the purpose of the December 21 order was to allow appellee visitation privileges over the Christmas and New Year’s holidays, unrestrained by appellant’s husband, prior to a hearing on January 24, 1977, at which time a final order would be rendered. At the hearing the trial judge expressly declined to issue a final order without first having a social study prepared and a guardian ad litem appointed.

Orders of this nature affecting visitation and conservatorship are interlocutory only and not appealable. See Johnson v. Parish, 547 S.W.2d 311 (Tex.Civ.App.-Houston [1st Dist.] 1977, no writ); Carpenter v. Ross, 534 S.W.2d 447 (Tex.Civ.App.-Beaumont 1976, no writ). Therefore, the appeal is dismissed.

Appeal dismissed.


author: HALL, Justice.

text:
    C. W. LAMBERT et al., Appellants, v. H. MOLSEN & CO., INC., Appellee.
    No. 5670.
    Court of Civil Appeals of Texas, Waco.
    May 5, 1977.
    Rehearing Denied May 26, 1977.

      La Font, Tunnell, Formby, La Font & Hamilton, Plainview, for appellants.
    Richard F. Stovall, Stovall & Stovall, Plainview, Thomas A. Blakeley, Jr., Grady, Johnson, Smith & Blakeley, Dallas, for ap-pellee.
   HALL, Justice.

H. Molsen & Co., Inc., brought this suit against C. W. Lambert, Vic Struve, and Jack Jackson for damages alleging that the defendants, all cotton farmers in Hale County, breached contracts individually executed by them with Molsen’s agent to sell and deliver their entire production of cotton during the 1973-74 harvesting season. The principal issues on the trial were whether the contracts included cotton with micro-naire ranges above 3.5, and whether the contracts included the shares of the defendants’ landlords. Trial was to a jury. Excepting the shares of Struve’s and Lambert’s landlords, which were found not to be included in their contracts, findings were made by the jury against defendants. Judgment was rendered on the verdict in favor of Molsen. Defendants appeal. We affirm.

The contracts were executed in March and April, 1973. They are represented in their pertinent parts by the following excerpt from one of Jackson’s contracts:

COTTON CROP CONTRACT

1973-74 CROP YEAR

The undersigned agrees to sell and deliver to TEXANA COTTON COMPANY or his agent (hereinafter referred to as PURCHASER) and the PURCHASER agrees to buy SELLER’S entire production of cotton which shall be produced, gathered and ginned from the following farms during the 1973-74 harvesting period. [Here, farm identification and acreage are set forth].
The contract price shall be figured on net weight against the following prices [per pound]:
Below Grades and Minus 2.4 Micronaire will be at market price, also yellow stained.
Delivery of all cotton shall be made to the PURCHASER promptly upon receipt by SELLER of government classing cards and the warehouse receipts, and this contract shall be considered fulfilled when the SELLER delivers all cotton produced and ginned on the above farm or farms in the 1973-74 season.

Micronaire range represents the thickness of the cotton fiber. This quality is strictly controlled by weather conditions under which a crop is raised, and is therefore unpredictable at the time of planting. Excepting very high ranges (not in issue here) the value of cotton increases with the increase of its micronaire range. The record shows without dispute that the micronaire range of virtually all of defendants’ 1973 production was above 3.5. It also shows without contradiction that the market price of cotton increased substantially between the time of execution of the contracts and the harvesting season in the fall of 1973.

When the time arrived for delivery under the contracts, defendants refused to deliver their production above 3.5 micronaire to Molsen for 30$ per pound on theories that (1) the contracts did not include cotton above 3.5 micronaire range, or (2) if they did include it, the price was left “open-ended” and should be at market price. Mol-sen’s position was that the contract covered defendants’ “entire production” as called for by its terms.- that the 3.5 micronaire range specified in the contract meant “3.5 and up”; and that, by the terms of the contract, only below grades, minus 2:4 mi-cronaire, and yellow stains were left open for market price. Defendants tendered delivery to Molsen under their construction of the contracts, Molsen refused, and defendants eventually sold their cotton to other buyers. This lawsuit followed.

With separate issues as to each defendant, the jury was asked, “Do you find from a preponderance of the evidence that at the time the contracts with [the defendant] were signed the parties mutually intended that the contract price specified for 3.5 mike cotton should apply to any cotton produced by [the defendant] on the land described in the contract that would mike 3.5 or higher?” In each instance, the jury answered, “They did intend.”

Molsen pleaded that by custom and usage in the cotton business a designation of “3.5 micronaire” means 3.5 and higher, and adduced proof on the trial in support of this pleading. Defendants made contradictory proof. The court instructed the jury in effect that if it found from a preponderance of the evidence that the custom and usage actually existed, then it could be considered by the jury toward determining the parties’ contractual intent. Defendants requested special issues to the jury inquiring (1) whether the custom and usage of the trade existed, and, if it did, (2) whether it was intended by the parties to apply to the contracts in question. They assign error to the court’s refusal of these requests. These assignments are overruled. The ultimate issue was whether the parties intended by the contracts to include cotton with micronaire range above 3.5. This issue was submitted to the jury. In this case the existence or not of the custom and whether the parties intended it should apply to their dealings, along with the other proof on the trial (including the written contracts) were merely evidentiary questions relating to the ultimate issue. Because of the other evidence in the record on the parties’ intent, negative answers to defendants’ requested custom and usage issues, if submitted, would not have conflicted with the jury’s answers on the parties’ contractual intent and would not have prevented a judgment for plaintiff on the verdict. Evidentiary issues should not be submitted to the jury. Rule 279, Vernon’s Tex.Rules Civ.Proc. The court properly handled the question with its instruction. Rule 277, Vernon’s Tex.Rules Civ.Proc. The instruction was not a comment on the evidence. It did not assume the existence of the custom, and it did not require the jury to consider it.

Because their contracts were executed individually and without joint obligations, defendants moved for severance of their cases before the trial began. The motions were overruled. Defendants say the court erred in these rulings. We disagree.

Rule 40, Vernon’s Tex.Rules Civ.Proc., contains these provisions:

(a) Permissive Joinder. All persons may join in one action as plaintiffs if they assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all of them will arise in the action. All persons may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all of them will arise in the action. A plaintiff or defendant need not be interested in obtaining or defending against all the relief demanded. Judgment may be given for one or more of the plaintiffs according to their respective rights to relief, and against one or more defendants according to their respective liabilities.

Defendants’ motions for severance necessarily called for a determination based upon the pleadings. Hindman v. Texas Lime Company, 157 Tex. 592, 305 S.W.2d 947, 954 (1957). At the time of the court’s rulings on the motions, the pleadings showed the same material questions of law and fact were common to Molsen’s causes of actions against all the defendants, namely, were the contracts ambiguous, did the contracts include cotton in the micronaire range above 3.5, did the contracts include the defendants’ landlords’ share, and what was the market price of the cotton.

Defendants say that Rule 40 requires more than common fact and law questions for joinder of separate causes against several defendants, and that it also requires as a mandatory predicate for the joinder that plaintiff’s case against the defendants must arise out of the same transaction or same series of transactions. Thus, they say, they were entitled to the severances as a matter of law. We disagree. Defendants’ construction of Rule 40 is too restrictive. It is settled that questions of joinder of parties and causes of action, consolidation, and severance, are addressed to a broad discretion bestowed upon the trial courts in such procedural matters by our rules of civil procedure. Rules 37 to 43, 97, and 174; Hamilton v. Hamilton, 154 Tex. 511, 280 S.W.2d 588, 591 (1955). Absent a showing of an abuse of the discretion, prejudicial to the complainant, the court’s rulings in those matters will not be disturbed on appeal. Parker v. Potts, 342 S.W.2d 634, 636 (Tex.Civ.App. — Forth Worth, 1961, writ ref’d n.r.e.)

In our case the contracts sued upon are identically worded in every material respect; each was solicited and executed on behalf of Molsen by the same agent; and, as we have said, all raise the same questions of law and fact which are crucial to this dispute. On the trial, the same testimony on trade customs and practices, technical terms and their meaning, expenses saved by Molsen, and micronaire range production statistics dealing with the major factual disputes in the case, was relevant to all defendants. The only fact question not common to all was the landlord’s share issue. Jackson conceded during his testimony that the contracts were intended to include the shares of his landlord. Struve and Lambert did not. However, the jury found in favor of Struve and Lambert, so no harm resulted to any defendant on this issue.

Our review of the record has failed to reveal the prejudice to defendants they claim was generated by trying their cases together. We find no abuse of discretion in the court’s rulings on the motions for severance. See, Texas Employment Commission v. International Union of Electrical, Radio And Machine Workers, 163 Tex. 135, 352 S.W.2d 252, 253 (1962); Hindman v. Texas Lime Co., 157 Tex. 592, 305 S.W.2d 947, 954 (1957).

Molsen was awarded pre-judgment interest by the court. Defendants challenge this award, asserting Molsen “failed to allege and prove a specific date as the date of breach from which pre-judgment interest could be determined.” The judgment was signed January 19, 1976. Simple mathematical computations show that the “pre-judgment interest at 6% per annum” given to Molsen in the judgment against each defendant began on March 19, 1974. The evidence shows without contradiction that the 1973-74 ginning season ended in early February, 1974. It also shows without question that well before that time defendants had conveyed to Molsen their definite intention not to deliver cotton with a micronaire range above 3.5 for less than market price. Accordingly, defendants were not prejudiced because the court began the pre-judgment interest on March 19, 1974.

Defendants bring forward other points and contentions and Molsen has several cross-points. Some are rendered immaterial by our holdings, above. The others are without merit. All are overruled.


author: KEITH, Justice. DIES, Chief Justice,

text:
    CITY OF PORT ARTHUR, Appellant, v. Patricia L. BOWLING et vir., Appellees.
    No. 7924.
    Court of Civil Appeals of Texas, Beaumont.
    May 5, 1977.
    Rehearing Denied May 26, 1977.

      Geo. Wikoff, Earl Black, Port Arthur, for appellant.
    Jon Burmeister, Port Arthur, for appel-lees.
   KEITH, Justice.

City appeals from a judgment based upon jury findings that its maintenance of a sewer line constituted a nuisance amounting to a constitutional damaging of plaintiffs’ property and the jury fixed the amount of damages at $11,800. City has prosecuted the appeal upon four points of error but we do not find it necessary to discuss each since we are of the opinion that the second point, interposing the two-year statute of limitations, is valid and dispositive of the cause. We reverse the judgment of the trial court and now render judgment for City for the reasons now to be stated.

On June 26,1975, several weeks after the motion for rehearing in Bowling I had been overruled by this court, and while the application for writ of error was still pending, plaintiffs filed this suit seeking damages. They alleged, in general terms, that City, in the operation of its sanitary sewer system near plaintiffs’ home, permitted noxious gases to escape therefrom; that because of the obnoxious odor, plaintiffs were deprived of the enjoyment of their home; that, because of the escape of hydrogen sulfide gas from the City’s mains, the copper drain waste pipes in plaintiffs’ home were so damaged and injured that sewer water and waste materials emptied into the walls of plaintiffs’ home causing extensive damage “which in turn caused tremendous mental anguish and aggravation.” A further allegation was made that the hydrogen sulfide gas was present in “greater concentrations than normal, causing additional personal injuries to the Plaintiffs.”

The jury found that because of the odors escaping from defendant’s sewer line near plaintiffs’ property there had been both a “taking” and a “damaging” thereof which caused a diminution in the market value of such property in the sum of $11,800. Other issues found that the operation of the sewer line “constitutes a nuisance” as defined in the charge; that the nuisance was a proximate cause of plaintiffs’ damage; that the nuisance was not permanent but temporary. Other answers established that the nuisance “was created before June 26, 1973”, and in answer to an inquiry as to when the odors and fumes from the defendant’s sewer line constituted a nuisance, the jury responded “on 1967”. The jury did not find defendant guilty of negligence but did. find that the difference in rental value immediately prior to and immediately after the creation of the nuisance up to the time of trial was $3,240.

The qnasi-tort of which plaintiffs complained in the trial court was one arising under the doctrine of inverse condemnation or the so-called “constitutional takifig” In the seminal case of City of Abilene v. Downs, 367 S.W.2d 153, 158 (Tex.1963), the Court was “called upon to consider the troublesome problem of damage occasioned by the invasion of air space by noxious odors, flies, and insects occasioned by the construction of a municipal sewage treatment plant. The Downs Court held that where the odors result in personal discomfort and annoyance to those who live upon the land — as in the case at bar:

“The damages consequent therefrom are recoverable as a taking or damaging of private property for a public use under Article I, Section 17, of the Constitution only if, and after, the operations of the sewer farm constitute a nuisance.” (367 S.W.2d at 158, emphasis supplied)

The Court quoted at length from Sherman Gas & Electric Co. v. Belden, 103 Tex. 59, 123 S.W. 119, 120 (1909), concluding with this language:

“ ‘If there be no nuisance, there can be no recovery of damages for such annoyance as may exist, nor for diminution in the value of the property.’ ”
The Downs Court also held:
“Liability arose against Petitioner [City] when, and not until, the operations of its sewage disposal system were such as to constitute a nuisance . . ..” (367 S.W.2d at 160)

Where there has been a taking of the property by a physical invasion or appropriation thereof, “the land limitation rather than the general limitation statutes apply to such inverse condemnation proceedings.” Brazos River Authority v. City of Graham, 163 Tex. 167, 354 S.W.2d 99,109 (1961). Thus, in Brazos River the flooding of the sewage disposal plant amounted to a physical invasion thereof and the 10-year statute controlled.

The jury in our case found as a fact, based upon a great deal of evidence of probative nature, that the nuisance was created more than two years before plaintiffs brought their suit (in 1975), and had existed since 1967. The two-year statute of limitations, Art. 5526, subdiv. 1 (1958), applies for “injury done to the estate or the property of another.” See Atlas Chemical Industries, Inc. v. Anderson, 524 S.W .2d 681, 685 (Tex.1975).

Plaintiffs rely principally upon City of Houston v. McFadden, 420 S.W.2d 811 (Tex.Civ.App. — Houston [14th Dist.] 1967, writ ref’d n. r. e.), but we do not find this case to be persuasive in the case at bar. In Downs, supra, it was held that the nuisance amounts to a “damaging” of the property, whereas, McFadden holds that the continual flying of noisy airplanes over plaintiff’s house amounted to a “taking” under the constitutional provision noted earlier. Other cases have held that the type of injury found in McFadden amounted to a taking. See, e. g., authorities discussed in Jefferson County v. Farris, 476 S.W.2d 457, 459 (Tex.Civ.App. — Beaumont 1972, orig. proceedings); Jefferson County v. Cohrt, 487 S.W.2d 444 (Tex.Civ.App. — Beaumont 1972, no writ), wherein it was held that eminent domain proceedings constituted the proper method of acquiring such an easement.

From the undisputed evidence, and based upon the jury verdict, the nuisance affected plaintiffs’ lands more than two years before the present suit was instituted, therefore, the two-year statute of limitation controls the liability question. Thus, when the jury found, in answer to Special Issue No. 18 that the odors and fumes from City’s sewer line had constituted a nuisance since 1967, judgment should have been entered for defendant City.

We do not find it necessary to discuss the remaining points of error brought forward. It now becomes our duty to render the judgment which the trial court should have rendered: that the plaintiffs take nothing by reason of their suit.

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

REVERSED and RENDERED.

DIES, Chief Justice,

dissenting.

I respectfully dissent. I believe the case we review is almost identical to City of Abilene v. Downs, 367 S.W.2d 153 (Tex.1963). There, respondents alleged the sewage disposal plant of the City of Abilene caused

“ ‘. . . the obnoxious fumes and obnoxious odors which spread across and invaded the property and buildings became so offensive as to make their premises unfit for continuous habitation; that such odors from and after the date here-inabove set out being generated on and originating from the sewage disposal plant of the defendant have become so offensive and collect on the property of these plaintiffs that their property has been diminished in value and damaged as hereinafter set out in violation of Section 17, Article One of the Constitution of Texas.’ ” (367 S.W.2d 156).
The Court held:
“The damages consequent therefrom are recoverable as a taking or damaging of private property for a public use under Article I, Section 17, of the Constitution only if, and after, the operations of the sewer farm constitute a nuisance.” (367 S.W.2d 158)

It is true that in discussing the limitation question the Court said:

“Article 5526, Vernon’s Ann.Tex.Stats., imposes a limitation period of within two years after the cause of action shall have accrued regarding actions in trespass for injury done to the estate or property of another.” (367 S.W.2d 159)

But it did not dispose of the case on the basis of Tex.Rev.Civ.Stat.Ann. art 5526 (1958). Nor did the Court conclude this was the applicable statute of limitation.

The Court concluded the burden was on the City of Abilene to establish its defensive plea of limitation which it had failed to do by not requesting or securing a finding when operations of the sewage facilities were such as to constitute a nuisance under the standard to be applied.

Our case then is one of inverse condemnation which had its inception in the creation of a nuisance in 1967, as found by the jury. This case was filed in 1975.

Limitation in such a case is governed by Brazos River Authority v. City of Graham, 163 Tex. 167, 354 S.W.2d 99, 109-110 (Tex.1961):

“We might add, however, that insofar as the sewage disposal plant is concerned, we have a taking by inverse condemnation and the great weight of American authority supports the position that, absent a particular statute covering the situation, the land limitation rather than the general limitation statutes apply to such inverse condemnation proceedings, [citing authorities] The Texas rule is in accord. In case of a ‘taking’ of property, the city’s right thereto would not be barred if ever until the expiration of the ten year period necessary to acquire lands by adverse possession under Art. .5510, Vernon’s Ann.Tex.Stats.”

One of the cases cited by J. Norvell in Brazos River Authority, supra, is Tarrant County Water Control and Imp. Dist. No. 1 v. Fowler, 175 S.W.2d 694 (Tex.Civ.App.— Dallas 1943, writ ref’d w. o. m., 142 Tex. 375, 179 S.W.2d 250 (1944). There, Fowler was the owner of 184 acres of land on both banks of Ash Creek which flows from the west into the West Fork of the Trinity River. The water district completed Eagle Mountain Dam across the West Fork of the Trinity. Fowler sued on the basis that the dam produced a backwater condition in Ash Creek causing water constantly to be stored in the channel of Ash Creek, which caused his riparian valley lands to be inundated.

The Court held this was a “taking” and damaging of property under Art. 1, Sec. 17 of the Texas Constitution and had this to say about the question of limitations:

“ ‘When under such a Constitution property is appropriated to the public use without complying therewith, the owner’s right to compensation is not barred except by adverse possession for the prescriptive period.’ ” (175 S.W.2d 700)

In Tarrant County Water Control & Improvement Dist. v. Reid, 208 S.W.2d 290 (Tex.Civ.App. — Fort Worth, writ ref’d n.r.e.) (also cited in Brazos, supra), Reid alleged that the Eagle Mountain Dam slowed down the overflow water across his land, thereby depositing sand, gravel and other debris and also caused the channel of the river adjacent to his land the branch there of running through his land to be filled with sand to the point where they were wholly inadequate to carry the normal flow of water.

The court held this to be a “taking” under the Texas Constitution and that a claim would not become barred before the period necessary to acquire land by adverse possession.

I do not agree with the majority that City of Houston v. McFadden, 420 S.W.2d 811 (Tex.Civ.App. — Houston [14th Dist.] 1967, writ ref’d n. r. e.) is not persuasive. There, plaintiff purchased his property in 1954. In 1960, the City extended its runway to make possible the landing and takeoff of jet propelled aircraft, causing physical damage to his property, such as vibrations, wall cracks and noise. In citing Griggs v. Allegheny County, 369 U.S. 84, 82 S.Ct. 531, 7 L.Ed.2d 585 (1962), the Houston court said:

“This type of action has been recognized and approved as a ‘taking’ of property, in the constitutional sense, in the nature of an air easement for which compensation must be made.” (420 S.W.2d 814)

It is difficult for me to accept that noise and vibrations from aircraft constitute a “taking”, while leaking sewer fumes do not.

The majority cites Jefferson County v. Cohrt, 487 S.W.2d 444 (Tex.Civ.App.— Beaumont 1972, no writ), and declares, “wherein it was held that eminent domain proceedings constituted the proper method of acquiring such an easement.” But there, a “clear zone easement” was taken pursuant to the Municipal Airports Act of Texas acquiring “a perpetual easement within the said Clear Zone Approach Area over and above . . . said property and premises an air space unobstructed by any structure or tree, as defined by law.”

. The Cohrt Case might be regarded as the typical or direct “taking” of property under the Constitution, but it in no way, as I see it, offers any method of relief for the plaintiffs in our case who are seeking damage for an “inverse condemnation”, a taking by the City without court action. A “taking” under Cohrt provides a method of assessing damages to recompense an owner. In a situation of inverse condemnation, as in the case we review, no damages are paid unless and until the owner brings suit and prevails.

Originally our plaintiffs filed suit for negligence against City in the operation of its sanitary sewer system. Bowling v. City of Port Arthur, 522 S.W.2d 270 (Tex.Civ.App. — Beaumont 1975, writ ref’d n. r. e.). They gave notice to the City Manager, who referred it to the City’s insurance carrier, and a City representative inspected the claimed damage. But because the notice was not verified and sent to the City Manager rather than the City Commission, we affirmed an order granting City a summary judgment. Now we propose to reverse a judgment for plaintiffs and render it for the City because plaintiffs failed to bring their suit within two years from the occurrence of the nuisance. This may make good “law”, but it is poor equity.

      . This is the second time we have reviewed a controversy between the same parties involving the same subject matter. See Bowling v. City of Port Arthur, 522 S.W.2d 270 (Tex.Civ.App. — Beaumont 1975, writ ref’d n. r. e.). Since we are authorized to take judicial notice of our own records under the line of authorities collated in Barnett v. Maida, 523 S.W.2d 325, 327 (Tex.Civ.App. — Beaumont 1975, writ ref’d n. r. e.), We know that the application in Bowling I, supra, was refused, no reversible error, on July 7, 1975, and the motion for rehearing on said application was overruled on July 30, 1975.

      . Tex.Const. art. I, § 17: “No person’s property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made . ..

      . The quotation is from the late Justice Norvell, “Compensable and Noncompensable Damages”, SW. Legal Foundation Institute on Eminent Domain 1, 19 (1963).

      . This holding in Anderson was not affected by the subsequent action of the majority in reinstating, on rehearing, the award of exemplary damages.


author: DIES, Chief Justice. DIES, Chief Justice.

text:
    BROOK MAYS ORGAN COMPANY, INC., Brook Mays Piano Company of Pasadena, Inc., Brook Mays Piano Company, a partnership, Southwest Building Company, a partnership, Green Tree Realty & Finance Corporation and Melvin A. Sondock, Appellants, v. Eleanor SONDOCK, Individually and as Administratrix with Will Annexed of the Estate of Filmore M. Sondock, Deceased, Appellee.
    No. 7929.
    Court of Civil Appeals of Texas.
    May 5, 1977.
    Rehearing Denied May 26, 1977.

      Taylor Moore, William H. White, W. James Kronzer, Houston, R. H. Brin, Jr., Dallas, for appellants.
    Walter P. Zivley, Charles H. Waters, Jr., Houston, for appellee.
   DIES, Chief Justice.

Brook Mays Organ Company, Inc., together with four other corporations and partnerships, filed suit in probate court for a declaratory judgment as to the interpretation to be given certain buy-sell agreements executed by the shareholders and partners of the above five entities. When these agreements were executed, there were four shareholder partners who shared common ownership in these entities; but, at the time suit was filed, two of these had withdrawn and sold their interests therein. Filmore M. Sondock, one of the two remaining owners, died on August 14, 1974, and the proper application of the buy-sell agreements as to his interest in these businesses is the primary issue made the basis of this lawsuit.

Under plaintiffs’ original petition, the former shareholder partners or their representatives; the estate of the decedent Fil-more M. Sondock; and the widow of Fil-more M. Sondock were all named as party defendants. At trial, however, all parties defendants other than Eleanor Sondock, individually, and as administratrix with the will annexed of the estate of Filmore M. Sondock, had been severed out of this lawsuit or dismissed.

Trial was to a jury, and both plaintiffs and defendants obtained some favorable jury findings. Judgment was entered on the verdict that plaintiffs execute a number of promissory notes payable to Eleanor Son-dock, individually, and as administratrix, totaling $544,795, each note to be payable in semi-annual installments over a ten-year period. All parties have appealed.

Under the terms of the buy-sell agreements here involved, it is clear that, in the event of the death of a shareholder partner, the agreements obligate the remaining partners and corporations to purchase from the estate of the decedent all of the interest in the partnership or shares of stock held by the decedent as of the date of his death. With respect to the partnerships involved, the agreements typically provide that the value of the portion of the partnership attributable to the deceased partner is “book value”. A representative definition of the term “book value” which is contained in the agreements provides:

“The term ‘Book Value’ is defined as the capital account of the decedent determined as of the date of death, increased or decreased by the portion of any deficit or impairment of capital attributable thereto, as shown in the last preceding balance sheet of the Partnership or such later balance sheet prepared as of the controlling date for the transaction involved in accordance with generally accepted accounting principles.”

Similarly, the buy-sell agreements executed as to the corporate entities provided that stock buy-outs be predicated upon “book value”, and for the purposes of these agreements, book value was defined, as follows:

“The term ‘Book Value’ of the shares of Stock for all purposes hereof is defined as the par value of the shares of stock involved, increased by the proportionate part of the surplus or undivided profits attributable thereto and by Deferred Income from Installment Sales attributable thereto, and decreased by the portion of any deficit or impairment of capital attributable thereto, as shown on the last preceding balance sheet of the Corporation or such later balance sheet prepared as of the controlling date for the transaction involved in accordance with generally accepted accounting principles.”

Subsequent to the death of Filmore M. Sondock, the five plaintiffs (hereinafter the Brook-Mays Group) hired Haskins & Sells, an accounting firm, to aid them in determining the book value of the businesses so that the buy-sell agreements could be effectuated. A dispute then arose between the Brook-Mays Group and decedent’s representatives as to the monetary amount due to the estate and heirs of Filmore M. Son-dock.

The amount of money due to the estate varies according to the accounting methods used to reflect such items as, e. g., installment sales, credit life insurance, band directors’ commissions and the companies’ liability for lifetime payments to be made to former shareholder Joe Sondock and his wife in the event one of them is still living when all payments to them are complete under the terms of their buy-out. Using the accounting methods advocated by defendants (Eleanor Sondock) results in a rise in the net book value of the companies involved, while the accounting methods which plaintiffs wished to use result in a reduction of their book value. Clearly, an increase in book value results in more money available for distribution to the estate, whereas a reduction in book value lowers the sum available for distribution.

In their pleadings and at trial, the Brook-Mays Group took the position that book value was properly determined on the basis of the accounting procedures which the companies had previously utilized for general business purposes. Defendants on the other hand, urged that the agreements themselves dictated that for buy-sell purposes, book value was to be determined “in accordance with generally accepted accounting principles”, and further contended that the companies’ books were not being kept in accordance with generally accepted accounting principles as of the date of Filmore M. Sondock’s death. Thus, defendants claimed that book value — for the purposes of the buy-sell agreement— could not properly be determined by using the accounting principles which had been previously used by the Brook-Mays Group.

At trial, and in this appeal, plaintiffs/Brook-Mays Group contended that defendants were estopped from questioning the accounting practices used by plaintiffs in determining their book value because of the acquiescence and participation of the decedent in prior buy-outs, etc,, based on these same accounting practices.

While plaintiffs’ pleadings did raise the issue of estoppel and evidence was introduced as to some of its elements, no special issues in re estoppel were either requested or submitted to the jury. Plaintiffs argue, however, that they adequately preserved error as to estoppel by their motions for directed verdict and judgment non obstante veredicto. Reduced to its simplest terms, plaintiffs’ contention is that they have established an equitable estoppel as a matter of law. We disagree.

In the seminal case, Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929, 932 (1952), our Supreme Court set out the elements essential to establishing equitable estoppel, as follows:

“On the question of estoppel we find that ‘In order to constitute an equitable estoppel or estoppel in pais there must exist a false representation or concealment of material facts; it must have been made with knowledge, actual or constructive, of the facts; the party to whom it was made must have been without knowledge or the means of knowledge of the real facts; it must have been made with the intention that it should be acted on; and the party to whom it was made must have relied on or acted on it to his prejudice.’ Also, ‘Before an estop-pel can be raised there must be certainty to every intent, and the facts alleged to constitute it are not to be taken by argument or inference. Nothing can be supplied by intendment. No one should be denied the right to set up the truth unless it is in plain contradiction of his former allegations or acts. If an act or admission is susceptible of two constructions, one of which is consistent with a right asserted by the party sought to be es-topped, it forms no estoppel.’ ” (Citations omitted)

And, in Concord Oil Co. v. Alco Oil and Gas Corp., 387 S.W.2d 635, 639 (Tex.1965), our Supreme Court stated:

“ ‘The burden of proving an estoppel, and the essential elements thereof, is on the party asserting it.
“ ‘Estoppel is ordinarily regarded as [an] affirmative matter; and under the rule that he who has the affirmative of the issue has the burden of proof, a party who claims, asserts, or invokes, or who alleges and relies on, an estoppel has the burden of establishing it, or all of the facts or elements necessary to constitute it, or the grounds on which it rests, and the failure to prove any one or more of the elements constituting an estoppel has been declared to be fatal. The opponent of the party relying on an estoppel is not required to show the absence of any of its component elements.’
“An essential element of estoppel is that the party relying on an estoppel must have acted on it to his prejudice.’’ (Citations omitted; emphasis supplied)

The thrust of plaintiffs’ estoppel theory revolves around an alleged acceptance of benefits by the decedent in the two prior buy-outs. In effect, they argue that, if the prior method of determining book value results in undervaluation of an owner’s interest, the decedent benefited thereby in receiving and retaining the interests purchased thereunder to the detriment of the former shareholder partners. Assuming ar-guendo that this is true, the detriment, if any, was suffered by the two former shareholders and not by plaintiffs. On the contrary, pursued to its logical conclusion, plaintiffs’ theory compels the conclusion that they in fact benefited greatly from the use of the disputed accounting procedures in the prior buy-outs.

The record reveals that there was no evidence offered by plaintiffs to show that they had been injured by any misrepresentation or act of concealment by the decedent. Having failed to prove that they themselves were in any way prejudiced by decedent’s acts or omissions, plaintiffs may not rely on estoppel. Accordingly, all plaintiffs’ points of error in re estoppel are overruled.

The Brook-Mays Group also contends that there is no evidence or, in the alternative, insufficient evidence to support the jury’s findings. We shall deal with all of these points together.

In considering “no evidence” points of error, we are constrained to review the evidence in the light most favorable to the jury’s findings — to consider only the evidence and inferences which support the findings and to reject the evidence and inferences contrary to the findings. Martinez v. Delta Brands, Inc., 515 S.W.2d 263, 265 (Tex.1974); Rourke v. Garza, 530 S.W.2d 794, 799 (Tex.1975). In determining whether or not the jury’s findings are so against the great weight and preponderance of the evidence as to be clearly wrong, we must consider all of the evidence including that which is contrary to the findings. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

The questions as to which accounting procedures should properly be used in computing book value were hotly contested at trial. Both sides produced qualified experts who testified at great length on each and every accounting area in dispute. As to the majority of these issues, the jury chose to believe the defendants’ witnesses.

Applying the proper rules, as stated above, we find that there is evidence to support the jury findings, and that such findings are not clearly wrong or manifestly unjust. These points of error are overruled.

Plaintiffs additionally complain of the trial court’s failure to give effect to certain “multiple deaths” provisions contained in the buy-sell agreements. Essentially, these provisions called for a reduction in the amount of the monthly payments together with an increase in the number of monthly installments due under a buy-out should one buy-out occur while payments are still being made under a previous buyout.

There are no pleadings by plaintiffs which would support any such “deceleration” order by the trial court, and, in fact, plaintiffs raised this issue for the first time in their amended motion for new trial. Under these circumstances, plaintiffs have clearly waived any right they may have had to such relief. Board of Firemen’s Relief & Retire. Fund v. Stevens, 372 S.W.2d 572 (Tex.Civ.App. — Houston 1963, no writ); 33 Tex.Jur.2d, Judgments §§ 56, 65 (1962).

Next, the Brook-Mays Group complains that “the probate court erred in entering judgment providing only generally that ap-pellee Eleanor Sondock do all things and execute and deliver all instruments of conveyance and other documents as may be necessary under the buy-sell agreement without the specificity necessary to any practical enforcement of such provision.”

The law is well settled that a decree must define in clear, specific and Unambiguous terms the duties or obligations imposed upon a party. Many years ago, the rule was announced with reference to certainty in judgments. In Spiva v. Williams, 20 Tex. 442 (1857), it was said:

“The very object of a suit is to adjudicate and declare the respective rights of the parties, in a shape so that the ministerial officers can with certainty carry into execution the judgment of the court, without the ascertainment and determination of additional facts.”

See also, Rausheck v. Empire Life Insurance Co. of Amer., 507 S.W.2d 337, 340 (Tex.Civ.App. — Texarkana 1974, writ ref’d n. r. e.):

“It is elementary that a ‘judgment must be sufficiently definite and certain to define and protect the rights of all litigants, or it must provide a definite means of ascertaining such rights.’ ”

See also, Gasperson v. Madill National Bank, 455 S.W.2d 381, 397 (Tex.Civ.App.— Fort Worth 1970, writ ref’d n. r. e.).

We are of the opinion that the judgment itself should divest defendants of any title or ownership in the business entities involved upon the execution by plaintiffs of the required promissory note. During oral argument, counsel for appellants and appel-lee offered to reach an agreement as to the proper language to effect this divestiture, and we, therefore, remand this case to the trial court for reformation of this portion of the judgment in accordance with the language agreed upon.

Plaintiffs also complain of the trial court’s action in ordering them to execute and deliver notes to defendants for the amounts in full found to be due under the buy-sell agreements without giving credit or reduction for the funds paid by them into the registry of the court and withdrawn by defendants. It is obvious that plaintiffs are fearful of double recovery by defendants and they rely, among other cases, upon Thomas v. Housing Authority of City of Dallas, 153 Tex. 137, 264 S.W.2d 93 (1953), for the proposition that such is prohibited. While we have no fear of a double recovery in the case at bar, we are of the opinion that the notes executed by plaintiffs should properly be drawn to reflect the precise amounts due to defendants on the date of their execution; and, upon remand, these sums should be ascertained so that this procedure may be followed. We would also point out that future payments need require no new execution of notes or revision of the judgment.

Defendants contend, inter alia, that the trial court erred in dividing court costs equally between plaintiffs and the defendants. A trial court possesses broad discretion to assess court costs, and same should not be disturbed without a clear showing of abuse of that discretion. Broadway Plan v. Ravenstein, 364 S.W.2d 741 (Tex.Civ.App.— Fort Worth 1963, writ ref’d n. r. e.); Rubin v. Adams, 368 S.W.2d 42 (Tex.Civ.App.— Amarillo 1963, writ ref’d n. r. e.).

While it is true that defendants greatly improved their position as a result of this trial, it is equally true that some of the jury’s findings favored the Brook-Mays Group. Since both parties were successful to some extent, we are unable to say that the trial court has clearly abused its discretion, and we, therefore, overrule this point of error.

All parties have other points of error which we have considered, and, finding them to be without merit, they are overruled. The judgment of the trial court is remanded with instructions to make more certain the divestiture of defendants’ interests in plaintiffs’ companies and in order that the precise amounts of the notes to be executed may be ascertained. In all other things, the judgment of the trial court is affirmed. Costs are taxed one-half to plaintiffs and one-half to defendants.

Judgment AFFIRMED in part, and in part REMANDED with instructions.

Motion for Rehearing

DIES, Chief Justice.

On motion for rehearing, plaintiffs vigorously argue that this court should have modified the judgment of the trial court so as to grant to Brook Mays Piano Company of Houston, a partnership, an effective judgment for the amount due to it rather than allowing it to be set-off against defendants’ notes from the other four business entities involved herein. We agree.

The debt in question is one due solely to Brook Mays Piano Company of Houston, but this company is the only entity which did not owe defendants any money under the buy/sell agreements.

Under the rules applicable to set-off, same is proper only where the demands are mutual, between the same parties, and in the same capacity or right. Masterson v. Goodlett, 46 Tex. 402, 407 (1877); Greathouse v. Greathouse, 60 Tex. 597, 598 (1884); Thompson v. Prince, 126 S.W.2d 574, 576 (Tex.Civ.App. — Waco 1939, writ ref’d). Since no debt was due from the estate to any entity other than Brook Mays Piano Company of Houston, it was improper under the foregoing authorities for the trial court to set-off the debt owed

by defendants’ decedent against the sums owed by the other four entities to defendants. Moreover, as no sums were due defendants from Brook Mays Piano Company of Houston, set-off was likewise unavailable as against this entity.

Accordingly, we have concluded that the cause of action for decedent’s debt to Brook Mays Piano Company of Houston should be severed from the main action. It is so severed and, as to it, the judgment of the trial court is reversed and judgment rendered that plaintiff Brook Mays Piano Company of Houston recover of and from the estate of Filmore M. Sondock the sum of $118,789 with interest of nine percent from the date of the trial court’s judgment.

All other points urged by plaintiffs on this motion for rehearing are overruled. Our prior judgment is modified to reflect the severance, reversal and rendition as to the $118,789 debt due to plaintiff. In all other respects our prior judgment is affirmed.

      . All of these points are directed toward those findings of the jury to the effect that various accounting procedures used by plaintiffs were not in accordance with “generally accepted accounting principles.”

      . The parties, according to correspondence reaching our clerk since the cause was submitted, have agreed upon the language of divestiture; however, we do not have in our record an accurate statement of the sums paid into the registry of court for credit upon the notes to be executed. Consequently, we are of the opinion that a remand to the trial court is appropriate so that the details may be incorporated into a judgment which fixes the rights of the parties in accordance with our instructions.

       Defendant by her brief admitted that the parties stipulated at the outset of the trial of this cause that decedent’s estate was indebted to plaintiff Brook Mays Piano Company of Houston, a partnership, in the sum of $118,789.


author: STEPHENSON, Justice.

text:
    John W. SJOLANDER, Appellant, v. The CITY OF HOUSTON, Appellee.
    No. 7937.
    Court of Civil Appeals of Texas.
    May 5, 1977.
    Rehearing Denied May 26, 1977.

      Price Daniel, Jr., Liberty, for appellant. Otis H. King, Houston, for appellee.
   STEPHENSON, Justice.

This is an action for damages to a leasehold interest held by plaintiff, John W. Sjolander. The City of Houston is defendant, and inverse condemnation is the nature of the cause of action. Trial was before the court, and judgment was rendered that plaintiff take nothing.

The findings of fact made by the trial court succinctly state the factual situation which existed. The findings which plaintiff agrees are correctly stated, in substance, as follows: In 1969 and prior years, plaintiff was a rice farmer and held a leasehold interest in the property involved in this suit. Only the Federal Aviation Administration has ground control of flights of aircraft within the Terminal Control Area in which the property involved is located. In April 1969, plaintiff planted seventy-five acres of rice, and, in May 1969, he planted another seventy-five acres. The Houston Intercontinental Airport, which is owned by defendant, was constructed and began operation June 6, 1969. June 10, 1969, the air service, which plaintiff had contracted with to spray his rice land, applied for a permit and were told their planes must have two-way radios to operate within the control area. Not having two-way radios, the air service notified plaintiff it could not get a permit. The proper time for spraying rice crops is critical, and a delay of one or two days can cause substantial loss. The yield from the two seventy-five acre tracts should have been thirty barrels per acre valued at $8.00 per barrel.

The trial court’s only conclusion of law is as follows:

“There was no taking or damaging of the Plaintiffs’ property by the Defendant and any loss sustained by Plaintiff was caused by the failure of Plaintiff to contract with an air service which could meet the requirements of the Federal Aviation Administration.”

Plaintiff’s lease was not offered in evidence although he testified that it was in writing and that he had secured one each year.

This case must first be distinguished from a “clear zone easement” case. This court has written on that subject in Jefferson County v. Cohrt, 487 S.W.2d 444 (Tex.Civ.App. — Beaumont 1972, no writ). That was an eminent domain case in which Jefferson County condemned a specific clear zone approach area for its airport. In that type of taking the owner of the land could not use the air space taken for any purpose. In the case before us, there is no such restriction upon the landowner or the holder of the leasehold interest. The air space could be used but only by an airplane equipped with a radio. We have come to the conclusion that the regulation of the use of the air space over the leasehold interest in question is a taking by inverse condemnation and is compensable under Tex.Const. art. I, § 17. See Griggs v. County of Allegheny, 369 U.S. 84, 82 S.Ct. 531, 7 L.Ed.2d 585 (1962). In that case the Supreme Court held that low landing and takeoff flights over the property in question made such property undesirable and unbearable for residential use and constituted a “taking” of the air space over the property in question. In that case it was also held that the County, as the promoter, owner and lessor of the airport, and not the United States, is the one who takes and must pay compensation. See also United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206 (1945).

However, the “taking” in the case before us is a partial taking, at most, and must be adjudged accordingly. An unbroken line of authority since State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194 (Tex.Com.App.1936, jdgmt. adopted), has held the amount of damage to the remainder must be determined by finding the difference in the market value immediately before and immediately after the taking.

In the case before us, even though the plaintiff designated his case to be one of inverse condemnation, there are no allegations as to the market value of the leasehold interest before and after this taking. The case was tried as a damage suit, and plaintiff offered evidence to show the amount of profit he would have made from this rice farm if there had been no restriction upon the use of the air space. Defendant objected to the introduction of such evidence specifically upon the ground that there were no pleadings as to the value of the leasehold interest before and after the taking. In spite of that objection, there is no evidence in the record before us as to the values of this leasehold interest before and after the taking.

There are few Texas cases passing upon the admissibility of evidence as to profits from a business in a condemnation case. In Reilly v. State, 382 S.W.2d 116, 121-122 (Tex.Civ.App. — San Antonio 1964, writ ref’d n.r.e.), in a well written opinion by Chief Justice Murray, this is written:

“Under the Texas decisions income or profits from a business are admissible in evidence in condemnation cases in only two situations: (1) In those cases where the landowner’s business has been temporarily interrupted because of a denial of access the landowner can recover his loss of profits as an element of damage. Hart Bros. v. Dallas County, Tex.Com.App., 279 S.W. 1111; City of La Grange v. Pieratt, 142 Tex. 23, 175 S.W.2d 243; Gandy v. State, Tex.Civ.App., 293 S.W.2d 534. (2) In those cases where only a part of the landowner’s land is taken, an owner may show loss of profits as an injury to his business, not as a separate item of damage, but as affecting the market value of the remaining land and improvements for the uses to which they were adapted and were being put. City of Dallas v. Priolo, 150 Tex. 423, 242 S.W.2d 176; Milam County v. Akers, Tex.Civ. App., 181 S.W.2d 719.

“With the exception of the above two mentioned situations, the Courts have held that business profits are too uncertain, speculative, conjectural and remote to be considered as a basis for computing market value. State v. Parkey, Tex.Civ.App., 295 S.W.2d 457. This Court has held that future profits from a farming operation are of no value in passing upon the question of market value, because they are too speculative. Lower Nueces River Water Supply Dist. v. Sellers [Tex.Civ.App.], 323 S.W.2d 324.”

There being no pleadings or competent evidence upon which the trial court could render judgment for plaintiff, there was no error in the judgment rendered that plaintiff take nothing.

AFFIRMED.


author: WALTER, Justice.

text:
    Robert E. WALTREUS, Appellant, v. Dorothy Rose BRADDOCK, Appellee.
    No. 5045.
    Court of Civil Appeals of Texas, Eastland, Texas.
    May 5, 1977.
    Rehearing Denied May 26, 1977.
    H. Glenn Cortez, Bob Andrews, Austin, for appellant.
    Richard D. Mock, Taylor & Pratt, Burnet, for appellee.
   WALTER, Justice.

Robert E. Waltreus’ application for writ of habeas corpus was denied and he has appealed.

Waltreus filed an application for a writ of habeas corpus and alleged he was entitled to possession of his child, Linda Marie Waltreus, by virtue of an order of the superior court of the State of California for the County of Los Angeles in Cause No. EAD21370 and that said order was in full force and effect. He alleged the child was being illegally restrained by the respondent, Dorothy Rose Braddoek, the maternal grandmother. The habeas corpus proceeding was No. 6691 on the docket of the District Court of Burnet County.

There was also pending in said District Court Cause No. 6684 styled “In the Interest of Linda Marie Waltreus, a Child.” Cause No. 6684 was instituted by Mrs. Braddoek which sought to terminate the parental rights of the parents of the child. Mr. Waltreus submitted himself to the jurisdiction of the court in Cause No. 6684, but the natural mother of the child had not been served with citation and had not submitted herself to the jurisdiction of the court. The statement of facts reveals the court heard both matters at this hearing. The court entered a judgment denying the writ of habeas corpus and said:

“The court finds that the child LINDA MARIE WALTREUS has resided in the County of Burnet, State of Texas, for the preceding twelve months and that it would be in the best interest of the child to deny the Writ of Habeas Corpus as prayed for.”

The statement of facts conclusively establishes the court consolidated the two cases and heard them at the same time. The statement of facts was approved by Richard Mock as attorney for petitioner in Cause No. 6684 and for respondent in Cause No. 6691 and by H. Glenn Cortez for respondent in Cause No. 6684 and attorney for petitioner in Cause No. 6691. After the court announced he would hear evidence in the consolidated cases, no objection was made by either party. The court reporter’s certificate shows this to be “a true and correct Statement of Facts and proceedings had in Causes Nos. 6684 and 6691.”

At the conclusion of the trial, the statement of facts before us reveals the following:

“THE COURT: All right. It is my understanding that Article 1410 of the Family Code provides an exception to the usual habeas corpus case when the child has been within the State of Texas for at least twelve months immediately preceding the filing of the petition on the writ; that appears to be the situation in this case, and so the application for writ of habeas corpus is denied. And the temporary conservatorship is placed in the petitioner in Cause No. 6684, Dorothy Rose Braddock . . .”

Appellant contends the court erred in denying him the immediate possession of his child under Section 14.10(a) of the Family Code, because possession of said child was conclusively governed by a valid court order. He introduced a stipulation for modification of interlocutory judgment and order rendered by the superior court of the State of California for the County of Los Angeles on August 9, 1976. By the terms of this order, the physical custody of said child was given to the petitioner, Robert Eugene Waltreus, and the natural mother was given the right of reasonable visitations.

Section 14.10 of the Family Code is as follows:

“§ 14.10. Habeas Corpus
(a) If the right to possession of a child is presently governed by a court order, the court in a habeas corpus proceeding involving the right to possession of the child shall compel return of the child to the relator if and only if it finds that the relator is presently entitled to possession by virtue of the court order.
(b) The court shall disregard any cross action or motion pending for modification of the decree determining managing con-servatorship, possession, or support of or access to the child unless it finds that the previous order was granted by a court of another state or nation and that:
(1) the court did not have jurisdiction of the parties; or
(2) the child has been within the state for at least 12 months immediately preceding the filing of the petition for the writ.
(c) The court may issue any appropriate temporary order if there is a serious immediate question concerning the welfare of the child.
(d) While in this state for the sole purpose of compelling the return of a child through a habeas corpus proceeding, the relator is not amenable to civil process and is not subject to the jurisdiction of any civil court except the court in which the writ is pending and in that court only for the purpose of prosecuting the writ.
(e) If the right to possession of a child is not governed by a court order, the court in a habeas corpus proceeding involving the right of possession of the child shall compel return of the child to the relator if, and only if, it finds that the relator has a superior right to possession of the child by virtue of the rights, privileges, duties, and powers of a parent as set forth in Section 12.04 of this code.
(f) The court shall disregard any motion for temporary or permanent adjudication relating to the possession of the child in a habeas corpus proceeding brought under Subsection (e) of this section unless at the time of the hearing an action is pending under this chapter, in which case the court may proceed to issue any temporary order as provided by Section 11.11 of this code.”

In Russell v. McMurtrey, 526 S.W.2d 270 (Tex.Civ.App. — Beaumont 1975, writ ref. n. r. e.), the court said:

“The trial court took the only action it could under the circumstances in this case. The issue of custody had been litigated in the Colorado court less than thirty days before this habeas corpus hearing. Custody of the minor child had been placed in the father, and under Tex. Family Code Ann. art. 14.10 (1975) he was permitted to file a petition in habeas corpus to try the issue of ‘right of possession.’ In order to refuse to carry out the Colorado judgment, the trial court here would either have to have found that the Colorado court did not have jurisdiction of the parties or that Sean McMurtrey had been within the state of Texas for at ¡east twelve months immediately preceding the filing of the petition for this writ. Neither the mother nor the grandparents made any contention below or make any contention here, that either of those two situations existed.” (Emphasis added)

See also: Seaberg v. Brogunier, 515 S.W.2d 398 (Tex.Civ.App. — Waco 1974, writ ref. n. r. e.).

The court found the child resided in Texas for at least twelve months immediately preceding the filing of the writ of habeas corpus. We hold under Subdivision (b)(2) of Section 14.10 of the Family Code the court was authorized to deny the writ of habeas corpus.

We have considered all of the appellant’s points and find no merit in them. They are overruled.

The judgment is affirmed.


text:
    TEXAS EMPLOYMENT COMMISSION, Appellant, v. JOHNNIE DODD AUTOMOTIVE ENTERPRISES, INC., Appellee.
    No. 5673.
    Court of Civil Appeals of Texas, Waco.
    May 5, 1977.
    Rehearing Denied June 2, 1977.
    Michael E. Stork, Austin, for appellant.
    John L. Bates, Waco, for appellee.
   HALL, Justice.

The Texas Unemployment Compensation Act (Articles 5221b-l, et seq., Vernon’s Tex. Civ.St.) provides for the funding of the State Unemployment Compensation Fund primarily by taxes collected from employers in the State for that purpose; for payment of benefits from the Fund to qualified unemployed persons; for “chargebacks” against former employers’ tax accounts and an increase in their tax rates to replenish the account when benefits are paid to a claimant; and for the administration of the Act by the Texas Employment Commission. Provision is also made in the Act for the filing of claims by the unemployed; notice of the filing to former employers; determination of the validity of the claim; notice of potential chargebacks; and appeals by claimants and former employers to examiners, then to appeal tribunals, then to the Commission, and finally to the courts, under specified timetables.

In the case before us, the tax rate of appellee Johnnie Dodd Automotive Enterprises, Inc., was increased by the Commission as the result of a chargeback based upon payment of unemployment benefits to appellee’s former employee, Mrs. Edith M. Harvey. When appellee received notice of the tax increase, it filed a protest with the Commission asserting that Mrs. Harvey was not entitled to benefits, and that it had never received notice of her claim. The Commission affirmed the increase on the theory that it was without jurisdiction to entertain the protest because appellee had failed to appeal an examiner’s decision overruling appellee’s protest of the potential chargeback upon which the increase is based. At this stage of the controversy, appellee for the first time employed legal counsel and an appeal was taken to the 74th District Court of McLennan County, the county of Mrs. Harvey’s residence. After a hearing without a jury, the court set aside the rate increase. The Commission brought this appeal asserting, among other grounds for reversal, that because it had lost jurisdiction the trial court also lacked jurisdiction in the case. Alternatively, the Commission seeks remand of the case to it for hearing on the chargeback contest. We grant the latter relief.

Article 5221b-4(b) provides for the filing of the claimant’s initial claim; requires the Commission to mail notice of the filing of claim to the claimant’s last employer; calls for “prompt” notice thereafter to the Commission by the employer “of any facts that may adversely affect such claimant’s right to benefits, or that may affect a charge to its account”; and then provides that, “If such [last employer] does not mail or deliver such notification to the Commission within ten (10) days from the date notice of a claim was mailed to it by the Commission, such [employer] shall be deemed to have waived all rights in connection with such claim, including any rights it may have under [Article 5221b-5, § (c)(2)].”

In its pertinent parts, Article 5221b-5(c)(2)(B) provides as follows:

To each employer to whom notice of an initial claim has not already been mailed under [Article 5221b-4(b)], and whose account is potentially chargeable with benefits as the result of such initial claim and payment of benefits, a notice of his maximum potential chargebacks shall be mailed when benefits are first paid and an opportunity afforded for protest of his potential chargebacks. ... If a timely protest is filed, the examiner shall promptly decide the issues involved in such protest and shall mail a notice of his decision thereon to the protesting employer. Such decision shall become final twelve (12) days from the date of mailing thereof, unless such employer mails to the Commission at Austin, Texas, a written appeal therefrom within such twelve (12) days. Administrative review hereunder shall be in accordance with Commission rules or regulations, and appeals to the Courts shall be permitted only after such employer has exhausted his administrative remedies (not including a motion for rehearing) before the Commission .

The facts material to our disposition of this appeal are without dispute. Mrs. Harvey voluntarily quit her job with appellee and then applied for unemployment benefits. The Commission’s records reflect that a copy of Mrs. Harvey’s claim for benefits was mailed to appellee. It has been appel-lee’s contention throughout the controversy, and it was so on the trial, (1) that Mrs. Harvey quit her job without good cause connected with her work, (2) that appellee did not receive the copy of Mrs. Harvey’s claim and (3) that the claim was never mailed to appellee by the Commission. Findings on these questions in favor of ap-pellee are implicit in the judgment, and they are amply supported by evidence we need not detail. Of course, without knowledge of Mrs. Harvey’s claim, appellee did not contest it. However, appellee did receive “Notice of Maximum Potential Chargeback” mailed to it by the Commission on December 27,1974. Appellee’s president filed a timely protest of the charge-back on behalf of appellee (on January 6, 1975), stating, “I did not fire this employee. She told me she had to quit to take care of her husband.” Ten days later, on January 16, 1975, the Commission responded to the protest by mailing appellee notice of an examiner’s decision that “Benefits Are Chargeable.” In addition to the names of the parties, identification of the claim, the amount of benefits chargeable to appellee’s account, and “date mailed,” the notice of decision contained the following information:

Explanation Of Notice Of Decision Of Potential Chargeback
A decision that “Benefits Are Chargeable” means the amount of benefits (not to exceed the amount shown as Benefits Chargeable) paid this claimant following the initial claim date will be used in computing your experience tax rate because it has been determined that the claimant’s last separation from your employment prior to the initial claim date shown above was not a separation as described in statement 1, 2, or 3 below.
1. A separation required by a Federal or Texas statute or Texas municipal ordinance; or
2. A voluntary quit without good cause connected with the work; or
3. A discharge for misconduct connected with the work.

Section 7(c)(2)(B) of the Texas Unemployment Compensation Act provides that this decision shall become final twelve (12) days from the date it is mailed to you unless you mail to the Commission at Austin, Texas, a written appeal therefrom within such twelve (12) days. If you appeal, please mail it to the Texas Employment Commission, Appeal Tribunal, TEC Building, Austin, Texas 78778.

Explanation of why “Benefits Are Chargeable”
Your protest to the Notice of Maximum Potential Chargeback . . . was timely filed. However, notice of this individual’s claim was sent to you when the initial claim was filed. You either did not file a timely protest to the claim, or you have been notified previously that your account was chargeable with benefits paid the claimant. Therefore, unless you have an appeal pending regarding this individual’s initial claim, you have no further right to protest this notice of chargeback except with respect to any clerical or machine error as to the amounts [shown on the decision]. If you have such an appeal pending, the appeal decision will rule on this potential charge-back.

The record shows without dispute that ap-pellee received a copy of this decision in time to perfect a timely appeal from it to the Commission. However, appellee did not appeal the decision, and it became final on January 28, 1975.

Later, in January, 1976, when appellee was notified by the Commission that its tax rate had been increased due to the charge-back of benefits paid to Mrs. Harvey, appel-lee sought a rehearing on the whole controversy, including Mrs. Harvey’s right to benefits, asserting that it never received notice of her claim, and that its first notice of her claim was the notice of potential charge-back mailed in December, 1974, which it protested. The Commission ruled that because appellee failed to appeal the examiner’s notice of decision of potential charge-back (in January, 1975) it had become final, and that the Commission did not have jurisdiction to review the tax rate increase on the grounds assigned by appellee. As we have said, appellee then employed legal counsel for the first time in this controversy, and an appeal was taken to the district court.

Clerical or machine errors as to the amount of the chargeback are not asserted.

Under the provisions of Article 5221b-5(c)(2)(B), notices of maximum potential chargebacks are to be mailed to employers “to whom notice of an initial claim has not already been mailed”; and “an opportunity [shall be] afforded for protest of his potential chargebacks” on its merits by an employer who timely mails his protest with a statement of facts upon which the protest is based to the Commission, as ap-pellee did. Accordingly, under the record, the examiner erred in summarily deciding appellee’s protest of the notice of maximum potential chargeback, without consideration of its merits, on the basis that appellee was mailed a copy of Mrs. Harvey’s claim but did not protest it.

As shown above, in its “Notice Of Decision Of Potential Chargeback” the Commission first told appellee that it could appeal the decision, and then told appellee “unless you have an appeal pending regarding this individual’s initial claim” (which appellee did not have because of lack of notice of the claim) “you have no further right to protest this notice of chargeback.” Later, because appellee did not appeal the erroneous decision, the Commission ruled it was final, and thereby terminated the controversy without ever according appellee a hearing on the merits of its contentions. Although the Commission was technically correct in this ruling, the record supports an implied finding that appellee did not appeal the examiner’s decision because of the statement in the Commission’s Notice that it had no further rights in the matter.

It was not unusual that appellee was not represented by a lawyer before the Commission. It is well known that hearings before administrative agencies are generally informal. Cook Drilling Co. v. Gulf Oil Corporation, 139 Tex. 80, 161 S.W.2d 1035, 1036 (1942). Consequently, in many cases parties may, and properly do, avail themselves of the action of such agencies without the assistance of attorneys at law. See, Booth v. Texas Employers’ Ins. Ass’n, 132 Tex. 237, 123 S.W.2d 322, 326 (1938). This is reason enough to commend an agency for attempting to advise a party of his rights, but it is also reason enough for the agency to scrupulously avoid instructing him in terms which might in a particular case (as here) misinform and thereby defeat, rather than affirm, those rights.

Constitutional due process requires an administrative agency to accord a full and fair hearing on all disputed fact issues critical to the rights of the parties on a question before it. Article 6252-13a, § 13(a), Vernon’s Tex.Civ.St.; Richardson v. City of Pasadena, 513 S.W.2d 1, 3 (Tex.Sup., 1974); Trimble v. Texas State Board of Registration For Professional Engineers, 387 S.W.2d 876 (Tex.Sup., 1965). The Commission has not yet given appellee a hearing on the merits of its contest of the charge-back which resulted in the tax rate increase. The Commission would charge this failure to appellee, but as we have shown it resulted from the Commission’s mistaken belief that appellee had been mailed a notice of Mrs. Harvey’s claim for benefits; and from misinformation the Commission furnished appellee regarding its rights (and lack of rights) based upon the mistaken belief as to the claim notice. This case should have been returned to the Commission for the hearing.

The judgment is set aside. The tax rate increase is set aside. This cause is remanded to the Commission for a hearing on the merits of appellee’s protest of the potential chargeback.


author: CHADICK, Chief Justice.

text:
    Mary Lou COOPER, Appellant, v. BROOKSHIRE GROCERY COMPANY, Appellee.
    No. 8413.
    Court of Civil Appeals of Texas, Texarkana.
    May 10, 1977.
    Gary Beckworth, Jr.., Whitehead-Beck-worth, Longview, for appellant.
    Larry W. Starr, Kenley, Boyland, Hawthorn, Starr & Coghlan, Longview, for ap-pellee.
   CHADICK, Chief Justice.

This is a slip and fall case. Mrs. Mary Lou Cooper brought suit for personal injuries sustained when she fell in a store operated by Brookshire Grocery Company. A jury decided the special issues submitted but the trial judge disregarded the jury’s findings on some issues and entered a take nothing judgment. Mrs. Cooper has appealed.

In response to the special issues submitted the jury found that strawberries on the floor of the Brookshire Store constituted a dangerous condition; that by exercise of reasonable care, the store operator should have known of such condition; that the operator failed to remove the dangerous condition; that such failure was negligence and the proximate cause of Mrs. Cooper’s injury. The jury also found that Brook-shire’s method of selling strawberries created a dangerous condition and that the method used was negligent and the proximate cause of the occurrence. The jury absolved Mary Lou Cooper from negligence and found damages in the amount of $8,307.15. The jury’s findings considered favorable to Brookshire were that Brook-shire’s failure to make a reasonable inspection was not a proximate cause of the occurrence; that Brookshire did not have actual knowledge of existence of the “dangerous condition;” and that failure of Brook-shire to warn of the condition was not negligence.

The salient issue raised by Mrs. Cooper’s first point of error is that the trial court erred in granting judgment notwithstanding the verdict of the jury on the special issues because the evidence was sufficient to support the jury’s finding that Brookshire was negligent in failing to discover the dangerous condition created by strawberries scattered on the store floor. To recover upon the basis postulated by the point of error would require evidence tending to prove that the strawberries had been on the floor for such length of time that the berries would have been discovered had Brookshire exercised ordinary care. Sherwood v. Medical & Surgical Group, Inc., 334 S.W.2d 520 (Tex.Civ.App. Waco 1960, writ ref’d); H. E. Butt Grocery Co. v. Johnson, 226 S.W.2d 501 (Tex.Civ.App. San Antonio 1949, writ ref’d n.r.e.).

Mrs. Cooper testified she did not observe the condition of the floor before she fell and that immediately afterwards as a store employee came to her assistance she asked, “What did I fall on?” and he replied, “Strawberries.” Neither Mrs. Cooper nor any other witness testified to the length of time the berries were on the floor before she slipped and fell. The evidence does not directly or circumstantially tend to prove the time the berries were on the floor or whether they were underfoot for such time that the store operator in the exercise of ordinary care would have discovered such condition. The point of error is overruled. H. E. Butt Grocery Company v. Russell, 391 S.W.2d 571 (Tex.Civ.App. Waco 1965, writ ref’d n. r. e.); Kroger Company v. Benavides, 486 S.W.2d 877 (Tex.Civ.App. Corpus Christi 1972, no writ); Franklin v. Safeway Stores, Inc., 504 S.W.2d 514 (Tex.Civ.App. Dallas 1973, writ ref’d n. r. e.); Furr’s Supermarkets, Inc. v. Arellano, 492 S.W.2d 727 (Tex.Civ.App. El Paso 1973, writ ref’d n. r. e.).

Mrs. Cooper’s second point of error is that judgment notwithstanding the jury verdict on the special issues was error because sufficient evidence supported the jury’s finding that the method of selling the strawberries created a dangerous condition. It is contended under this point that when the operating methods of a proprietor are such that dangerous conditions are continuous or easily foreseeable, actual or constructive notice to the proprietor of specific conditions need not be proven. In support of the proposition, Jasko v. F. W. Woolworth Co., 177 Colo. 418, 494 P.2d 839 (1972), is cited, together with a number of cases from other foreign jurisdictions.

This Court had under consideration the operating methods of a proprietor in 1967 and reached a conclusion somewhat in harmony with the proposition advanced by Mrs. Cooper. On review, the Supreme Court reversed. See J. Weingarten, Inc. v. Razey, 414 S.W.2d 532 (Tex.Civ.App. Texarkana 1967), writ granted, 426 S.W.2d 538 (Tex.1968). Later, in Seideneck v. Cal Bayreuther Associates, 451 S.W.2d 752 (Tex.1970), the court said,

“. . .an owner or occupier of land can be charged with knowledge and appreciation of a dangerous condition on his premises only if from a reasonable inspection a reasonably prudent person should have foreseen a probability that the condition would result in injury to another. See Restatement (Second) of Torts, § 343(a) (1965).”

This rule is applicable in this appeal.

It is undisputed that Mrs. Cooper slipped upon berries lying on the floor. Mrs. Cooper testified that on a previous occasion she noticed a broken jar of syrup on the floor, that she had never seen employees clean the store and was of the opinion “they never keep the store up” and it “could be kept a lot better . . .Another witness testified she was in the store ten minutes when Mrs. Cooper fell. She saw no one cleaning the store; that it was disorderly and unclean before and after Mrs. Cooper’s injury; the strawberries on the floor at that time remained for several days. The witness said that the berry boxes had no lids and the boxes were full and “rounded across the top.” A third witness testified that as a customer in the store prior to the Cooper mishap she had found potatoes on the floor, seen lettuce leaves thereon, and two weeks after the Cooper injury had been in the store twenty to thirty minutes in the afternoon and had seen no “mop, pail, bucket or broom” nor evidence of clean-up activity.

An expert in produce department operation, a former employee of the store, testified that stacking pint containers of strawberries “over one level high” would be hazardous, as the boxes fall over very easily and spill on the table and floor. The store’s assistant produce manager testified the store was understaffed and another employee said the store had special problems because something was always falling off the racks and that the store now puts lids on the strawberry containers.

This being a judgment notwithstanding the jury verdict, the foregoing summary of the facts has been stated in the light most favorable to Mrs. Cooper. Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194 (1952). However, the Cooper brief insists that testimony of the expert on produce department management with reference to “stacking” related to berries, not containers. The hypothetical question put to this witness inquired about display of “open package strawberries in pint containers.” The question did not assume the containers were stacked one on top of the other. The expert’s answer was “If they were stacked over one level high, they would be hazardous.” He explained, as previously recited, that the spillage would occur when stacked at more than one level.

The evidence does not prove, as Mrs. Cooper would have it under Jasko v. F. W. Woolworth Co., that the operational methods of the store were such that dangerous conditions were continuous or easily foreseeable. There is no evidence the berry containers were stacked one on another. The only evidence of the manner in which berries were displayed is that the boxes of berries, rounded over, were on the display shelf. However, when or how the berries causing the slip and fall reached the floor is not shown. Neither does the evidence raise the issue of foreseeability under Seideneck v. Cal Bayreuther Associates, that is, that the display presented an unreasonable risk of harm or probability of a harmful event occurring that a reasonable person would have foreseen.

All issues briefed have been carefully considered and reversible error is not found. It becomes the duty of this Court to affirm the trial court judgment. It is so ORDERED.


author: PHILLIPS, Chief Justice.

text:
    AMERICAN BIOMEDICAL CORPORATION, Appellant, v. Bob BULLOCK, Comptroller of Public Accounts, Appellee.
    No. 12571.
    Court of Civil Appeals of Texas, Austin.
    May 11, 1977.
    Rehearing Denied June 1, 1977.

      Michael L. Cook, Monty G. Humble, Clark, Thomas, Winters & Shapiro, Austin, for appellant.
    John L. Hill, Atty. Gen., Gilbert J. Ber-nal, Jr., Asst. Atty. Gen., Austin, for appel-lees.
   PHILLIPS, Chief Justice.

Appellant brought this suit in the court below to recover sales taxes paid under protest. Trial to the court resulted in a take nothing judgment from which appeal has been perfected to this Court.

We affirm.

Appellant, a corporation, is engaged in the business of operating medical laboratories designed to test certain products as well as to test and analyze human body fluids and tissues. The tests performed on human body fluids and tissues are performed only at the request of medical doctors.

The Comptroller audited appellant’s records under the provisions of Article 20.02, Title 122A, Taxation-General Y.A.C.S. The audit covered the time prior to July 3,1973, and made a deficiency determination which disclosed that additional state and local sales taxes were due. Appellant paid $25,-969.08, under written protest, which included state and local sales taxes plus penalties. After appellant’s administrative remedies were exhausted with respect to the Comptroller’s office, it brought this suit.

Appellant maintains that it is entitled to an exemption from the tax by virtue of Article 20.04(M), Title 122A, Taxation-General, V.A.C.S., the pertinent part being:

“(M) Drugs, Medicines, Prosthetic Devices. There are exempted from the taxes imposed by this Chapter the receipts from sales of, and the storage, use or other consumption of insulin and of drugs and medicines when prescribed or dispensed for humans or animals by a licensed practitioner of the healing arts.”

Appellant contends that the chemicals, dyes and reagents in question are exempted from taxes under Article 20.04(M), as they are drugs and medicine prescribed or dispensed for humans by a licensed practitioner of the healing arts. Under our disposition of the case we need not pass on the question of whether the reagents or chemicals used by appellant are in fact drugs under the statute. Appellant then points to testimony in the record by doctors that there is no difference between the doctor’s request which invokes appellant’s use of its chemicals, dyes and reagents and the prescription which invokes the pharmacist’s sale of drugs. The sale of drugs prescribed by a doctor are exempt under the Act. Appellant then reiterates that it does not perform tests except on orders from physicians.

The tax sought by the State is the tax paid by appellant on certain chemicals necessary to perform the tests ordered by the doctors. This is not a tax on sales to physicians or their patients. Since there is no evidence to the contrary, we must assume that appellant ordered its supplies to meet its inventory demands and under the facts of the case and under the clear wording of the statute, we are unable to find that the drugs or reagents used in the tests, were “prescribed or dispensed for humans or animals by a licensed practitioner of the healing arts . . . that is, by the doctors who ordered the appellant laboratory to make the tests.

Appellee taxed only appellant’s purchase of supplies; supplies to be used only by appellant and not by direction of a licensed practitioner of the healing arts. On completing the tests, appellant’s bill would be paid either by the doctor ordering the tests, the usual method of payment, or by the doctor’s patient.

Thus, in our opinion, we are not faced with a situation where the statute exempts drugs prescribed by a licensed practitioner of the healing arts, when prescribed or dispensed for humans or animals, but a situation where the laboratory performed tests at the behest of the licensed practitioner, which tests include the use of drugs or chemicals purchased by the laboratory for use in the tests themselves, the results of which were then sold to the doctor and the patient.

In arriving at this conclusion, we are ever mindful of the acute scrutiny that the law requires for any exemption from taxation and, further, the rule requiring any taxpayer claiming an exemption, to bring himself clearly within the express terms of an exemption statute. McGallum v. Associated Retail Credit Men of Austin, 41 S.W.2d 45 (Tex.Com.App.1931, jdgmt. adopted).

The judgment of the trial court is in all things affirmed.

Affirmed.

      . Article 20.02, Title 122A, Taxation-General, V.A.C.S., as amended.