author: WARD, Justice.

text:
    DeWITT AND REARICK, INC., Trustee, Appellant, v. The STATE of Texas, Appellee.
    No. 6421.
    Court of Civil Appeals of Texas, El Paso.
    Nov. 26, 1975.
    Rehearing Denied Dec. 31, 1975.

      Peticolas, Luscombe, Stephens & Windle, John B. Luscombe, Jr., Harry Lee Hud-speth, El Paso, for appellant.
    John L. Hill, Atty. Gen. of Texas, C. W. Pearcy, Watson C. Arnold, Asst. Attys. Gen., David M. Kendall, First Asst. Atty. Gen., Austin, for appellee.
   OPINION

WARD, Justice.

This is a condemnation partial taking case where claim for severance damages to the remainder was waived. The condemnation action was by the State of Texas, and it sought 3.423 acres of land for what was to become the Border Highway. The one issue submitted to the jury inquired as to the market value of the land condemned. The jury determined this to be $17,115 or $5,000 an acre. The landowner, being dissatisfied with the jury finding and with the judgment entered, has appealed. We affirm.

In 1965, the landowner purchased thirty acres of farm land for residential development purposes and at a price of $4,329 an acre. The property was south of and adjoined a fully developed residential subdivision of El Paso. The eastern boundary of the tract lay next to the Ascarate Golf Course while the southern end adjoined International Boundary Commission land containing the Rio Grande River next to the Mexican border. The landowner successfully developed most of the area, and by 1968 had disposed of all of the property with the exception of an irregularly shaped ten-acre tract of land lying in the south portion of the original thirty acres. At that time, the landowner determined that for the best and highest use, the remaining property could be developed as multi-family or apartment dwellings. An application for rezoning was presented to the City of El Paso, and after consideration it was refused. Further development of the landowner’s property stopped, which the landowner blamed on the uncertainty in official circles as to where the Border Highway would be located. In 1971, the landowner sold a diagonal strip of land through his property to the City for what became known as the Delta Street Extension, and in 1972, the southeastern corner of the property was also sold to the City as a flood ponding area. Admittedly, these two conveyances were made under the threat of condemnation by the City and were purchased for use with the proposed Border Highway. This was the situation on February 12, 1973, the date of taking, when the State acquired the questioned 3.423 acres of this remaining property for the purposes of constructing the Border Highway, which will extend from the center of El Paso and follow the Rio Grande River and the Mexican border southward.

The landowner contends that there was no evidence, and that the evidence was insufficient to support the jury’s answer to the submitted issue, and finally, that the answer was against the great weight and preponderance of the evidence. The landowner’s testimony was to the effect the highest and best use of the entire remaining tract, including the part taken, was as multi-family or apartment use and that there was a reasonable probability that the property could be so favorably rezoned. The landowner’s valuation testimony ranged from $20,000 an acre to $21,775 an acre. The State’s testimony was that the highest and best use of the land was as residential lots and that a reasonable valuation was $3,000 an acre. The value as found by the jury was well within the range of the valuation testimony received. After having considered only the evidence favorable to the jury finding, together with the reasonable inferences arising therefrom, and ignoring all other evidence, the “no evidence” point is overruled. After considering all of the evidence, the “insufficient evidence” point is overruled, and finally, the jury’s answer is not against the great weight and preponderance of the evidence and that point is likewise overruled.

The Appellant, by a series of four points, finds fault with the form of the special issue and the accompanying instruction. For convenience, we set forth the issue and instruction as submitted and as requested:

“ISSUE AND INSTRUCTION SUBMITTED
“Issue
“From a preponderance of the evidence, what do you find was the market value of the 3.423 acres of land condemned by the State of Texas for highway purposes on February 12, 1973?
“Instruction
“In answering Special Issue Number One you are instructed that you shall not take into consideration any increase in value, if any, and decrease in value, if any, which may have accrued to the Defendant’s land due to the location of said highway on such land.”
“TSSTJE AND INSTRUCTION REQUESTED
“Issue
“From a preponderance of the evidence, what do you find was the market value of the Defendant’s tract of land being condemned immediately before the taking, considering the fact that it was supported by and was a part of the Defendant’s whole property?
“Instruction
“In answering the foregoing Special Issue Number One you are instructed to exclude increase in value, if any, and decrease in value, if any, by reason of the benefits or injuries with regard to the property taken for State Highway purposes and you are to consider the reasonable market value of the land being taken as if there were no State Highway being constructed, but consider only the reasonable market value of the land as that term has been defined heretofore.”

All valuation witnesses apparently concluded that the part taken was not a self-sufficient economic unit and could not be considered independent of the remainder, and all values were ascertained by evaluating the part taken as a proportionate part of the whole. All witnesses further testified that the value of the part taken did not differ in any material respect from the value of the remainder. In light of this testimony, the proper basis was established for the proper admission of the average value technique. City of Tyler v. Brogan, 437 S.W.2d 609 (Tex.Civ.App.—Tyler 1969, no writ). See discussion, City of Richardson v. Smith, 494 S.W.2d 933 (Tex.Civ.App.—Dallas 1973, writ ref’d n. r. e.).

The first complaint made by the Appellant on the issue is in the failure of the Court to charge the jury in positive language to consider that the part taken was supported by and was a part of the whole property. Such a charge was suggested in the T. M. Diamond article, 11 Baylor Law Review 1 at p. 8. While the requested added part may have been proper, we fail to find error in the charge as given. The Court eliminated from the issue the phrase “considered as severed land” as contained in the standard Carpenter charge. State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194, rehearing denied, 126 Tex. 618, 89 S.W.2d 979 (1936). This is the portion often criticized when an average valuation is made of the part taken, and where it has been suggested that the words “considered entirely apart from the increase or decrease in value of the remaining land” be substituted for the phrase “considered as severed land.” State v. Cherry, 517 S.W.2d 337 (Tex.Civ.App.—Dallas 1974, writ ref’d n. r. e.). In the case before us where all appraisal witnesses valued the part taken as a proportional part of the whole, the charge as submitted was proper and the jury could not have been misled.

The Appellant complains that the issue and instruction permitted the jury to consider project influence in making the finding. Appellant offered testimony that from 1968 until the date of taking, there existed a general knowledge that the Border Highway was going to be constructed, that this caused the two previous sales to the City, and that this knowledge deflated values. Insofar as the complaint is that the jury was permitted to consider project influence, we fail to see how the trial Court could have instructed the jury any clearer than it did or how the suggested instruction was any improvement over the charge as given. That charge clearly directed the jury not to consider that influence. The Appellant made no effort to limit valuation as to any other date than that of the taking. City of Fort Worth v. Corbin, 504 S.W.2d 828 (Tex.1974). The series of points on the charge and instruction are overruled.

The trial Court granted two of the State’s motions in limine to suppress evidence regarding either benefits received or injuries suffered to the property caused by any delay in making final plans for the project and which occurred prior to the date of taking. This action of the trial Court is the subject of a series of Appellant’s points. As of February, 1973, the ten-acre tract had a most peculiar shape due to the prior two acquisitions made by the City. The State’s appraiser testified that one reason he did not consider the highest and best use of the property as suited for apartment or multifamily development was due to the odd shape of the property. As best we can determine, the Appellant argues that influence of the project caused the odd shape which in turn destroyed the highest and best use of the land, and that he should be able to show project influence to this extent. Aside from the Appellant’s inconsistent approach made in the group of points previously discussed, these points will be overruled. Any loss suffered by the Appellant due to the odd shape of the property and any loss from the refusal to rezone because of the odd shape was because of the two previous conveyances made by Appellant to the City under the threat of condemnation. Those losses, if any, were attributable to those conveyances and were compensated for at those times. They had nothing in common with the present taking.

Complaint is made of the admission of testimony of the State’s witness, Norman Haddad, regarding 4.3 acres of land he purchased for $5,300 an acre within three months of the date of taking. This property adjoined a portion of the Appellant’s property to the west, had similar residence zoning, and was bought by Haddad for residential development. The sale was also used by the State’s witness, Mr. Crook, as one of the bases for his opinion of value. The complaints are that this sale contained project influence. Haddad testified that Glenwood Drive on which the property fronted came to a dead end at its south end. This was the situation at the time of sale and the same dead end would exist after the completion of the project. The street had no connection with the project. The objections are overruled.

The State filed and was granted a motion to suppress any evidence of sales of land made to the City of El Paso in connection with the City’s participation in the Border Highway. While one of the Appellant’s witnesses was testifying and was being questioned by the Appellant’s attorney, he suddenly blurted out that the City did acquire one such tract of .54 acres for $22,-500. Such a sale to a condemning authority was clearly inadmissible. Gomez Leon v. State, 426 S.W.2d 562 (Tex.1968). Out of the presence of the jury, the witness then informed the parties that the correct amount of the sale was $2500 for the .54 acre tract. The State moved for a mistrial, and in the alternative, requested the Court to instruct the jury not to consider the amount paid by the City that had been stated by the witness. The motion for mistrial was overruled, and the Court then instructed the jury not to consider the statement as made, and referred to the price as $2500. The Appellant now complains of the instruction of the Court and that it re-emphasized the amount in the minds of the jury and was an unauthorized comment by the Court on the evidence. The instruction was proper. In the face of the original motion to suppress, the statement made by the Appellant’s witness was unfortunate and was entirely uncalled for. The error, if any, can be considered as being invited, as the statement came from the Appellant’s own witness. The Appellant should not now be heard to complain. Hanna v. Wright, 504 S.W.2d 779 (Tex.Civ.App.—Tyler 1974).

The statement made by the witness was again referred to by the Appellee’s attorney in argument. Here the Appellant objected and requested the Court to instruct the jury not to consider the remark. The Court sustained the objection and so instructed the jury. Any error in the argument under these circumstances was cured.. Points regarding these matters are overruled.

In its final argument, the State’s attorney made the statement that “Now, I have tried to protect the peoples’ money, that is what I have done.” The argument was objected to and the objection was properly sustained. Any error in such argument was removed by the Court’s instruction. Camp v. Commissioners’ Court of El Paso County, 279 S.W.2d 927 (Tex.Civ.App. — El Paso 1955, writ ref’d n. r. e.). The Appellant’s point concerning this argument is overruled.

The Appellant objected to the Court’s instruction limiting the jury’s consideration of the experts’ testimony regarding the prices at which comparable properties were sold. The same instruction and limitation is set forth in State v. Oakley, 163 Tex. 463, 356 S.W.2d 909 (1962) at 911. We find no error in the instruction and the point in this regard is overruled.

Three comparables used by the State’s witness are the subject of the last points made by the Appellant. Considering the trial Court’s broad discretion, and the circumstances in this case, the points are overruled. Texas Electric Service Company v. Graves, 488 S.W.2d 135 (Tex.Civ.App. — El Paso 1972, writ ref’d n. r. e.).

We have considered all of the points presented by the Appellant and they are overruled. The judgment of the trial Court is affirmed.


source: Caselaw Access Project

author: PEDEN, Justice

license: Public Domain

text:
    The ATCHISON, TOPEKA AND SANTA FE RAILWAY CO., et al., Appellants, v. TEXAS EMPLOYERS’ INSURANCE ASSOCIATION et al., Appellees.
    No. 16550.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Dec. 4, 1975.
    Rehearing Denied Dec. 31, 1975.

      McKay & Wash, John J. McKay, Austin, for appellants.
    Butler, Binion, Rice, Cook & Knapp, Tom M. Davis, Jr., Houston, for appellee Employers Cas. Co.
    Fulbright & Jaworski, Royce R. Till, Houston, for appellee, Texas Employers Ins. Co.
   PEDEN, Justice

This is an appeal from an order sustaining the pleas of privilege of third-party defendants Texas Employers’ Insurance Association (T.E.I.A.) and Employers’ Casualty Company (Employers) after a non-jury hearing.

Appellants, Santa Fe Railway and two of its employees, hereinafter referred to as Santa Fe, rely only on Subdivision 4 of Article 1995, Vernon’s Texas Civil Statutes, to hold venue in Washington County on their third-party complaint. Subdivision 4 provides that if two or more defendants reside in different counties, suit may be brought in any county where one of the defendants resides.

Santa Fe urges two points of error, the first of which is:

“As against Texas Employers’ Insurance Association the pleadings and evidence present a cause of action in behalf of appellant against resident defendants, and a joint cause of action against T.E. I.A. or one so closely connected with it, that the causes of action should be joined, and venue held in Washington County against T.E.I.A. under subdiv. 4, Art. 1995, and the trial court erred in failing to so rule.”

Santa Fe’s second point is identical with its first except that Employers is substituted for T.E.I.A. We affirm.

On December 12, 1970, a car owned by Robert Lange, Inc. (Lange, Inc.) collided with a Santa Fe train at a crossing in Somerville, Texas. Robert Lange, president of the company and driver of the automobile, was killed in the accident and Michael Lee Cavender, a passenger, was injured. At the time of this appeal three lawsuits have resulted from the accident:

1. Cavender brought a personal injury suit against Lange, Inc., in the District Court of Washington County, Texas. Mr. Jack Hebdon, retained by Employers to defend its insured, Lange, Inc., also filed a third-party action for Lange, Inc., against Santa Fe for indemnity and contribution. Cavender settled with Lange, Inc., and Lange, Inc., took a non-suit as to Santa Fe.

2. Cavender sued Santa Fe in federal court for his personal injuries, and Santa Fe filed a third-party action against Lange, Inc., for indemnity and contribution. Neither Robert Lange’s widow, Mrs. Lillie Lange, nor the estate of Robert Lange was ever made a party in the suit in federal court. Santa Fe settled with Cavender and dismissed its third-party complaint against Lange, Inc.

3. Mrs. Lange, individually and as personal representative of the estate of Robert Lange, deceased, filed suit in state district court in Washington County against Santa Fe and two of its employees, B. H. Woods and L. N. Heffington, for the wrongful death of Robert Lange. Santa Fe brought a third-party action, which resulted in this appeal, against Lange, Inc., T.E.I.A. and Employers and filed a counterclaim against Mrs. Lange and the estate of Robert Lange, deceased. Santa Fe alleges that as part of the consideration for settlement of the federal suit, Mr. Hebdon was to furnish releases from Mrs. Lange, Robert Lange estate, Lange, Inc., T.E.I.A. (Lange, Incorporated’s compensation carrier), and Employers, but that he failed to do so.

Santa Fe’s brief summarizes its third-party action thus:

“A. That by virtue of their wrongful actions and the representations of their attorney-agent in connection with settlement of the federal court case, T.E.I.A. and Employers and Lange, Inc. are es-topped to assert any claims against Santa Fe through plaintiff or otherwise, and that plaintiff is likewise so estopped.
“B. That if plaintiff and the Lange estate are not estopped to assert any portion of their claims against Santa Fe, then T.E.I.A. and Employers, by virtue of their wrongful conduct, are bound to hold Santa Fe harmless from the plaintiff’s claims.
“C. That if Santa Fe is not entitled to protection as in A, above, then, as against plaintiff and T.E.I.A., it is entitled to judgment that the first $16,046.00 of the plaintiff’s claim for her husband’s death is owned by T.E.I.A. (workmen’s compensation death benefits as to which it is subrogated), and T.E.I.A. is bound by es-toppel and waiver from asserting any claim to said sum, and it is recoverable by either plaintiff or T.E.I.A.
“In this regard, and by the same principles of estoppel and waiver, Employers is the subrogated owner of the sum of $12,-581.55 it paid Mrs. Lange, and of the sum of $3,330.00 it paid Lange, Inc., and Santa Fe is entitled to judgment that as to these sums neither plaintiff nor Lange, Inc. nor Employers can recover these amounts against Santa Fe.
“D. Further, if Santa Fe is not entitled to protection as in A, above, then Santa Fe is entitled to judgment against the Lange estate and Lange, Inc. for indemnity (alternatively, for contribution) on account of the tort liability resulting from the negligence of the defendant, Mr. Lange (driver) in bringing about the injuries to Cavender, whereby Santa Fe paid out $35,000.00 directly to Cavender, and about $7,000.00 in expenses in defending itself against the Ca-vender claims.”

T.E.I.A. and Employers filed pleas of privilege to be sued in Dallas County and Santa Fe filed controverting affidavits. A single non-jury hearing was had on both pleas of privilege. Neither findings of fact nor conclusions of law were made by the trial court and apparently none were requested, so we should affirm the order of the trial court if it can be done on any reasonable theory supported by the evidence and authorized by law. Farris v. Kohlmeyer & Co., 476 S.W.2d 432 (Tex.Civ.App.1971, no writ).

Appellants argue only the applicability of Subdivision 4 of Art. 1995, Y.T.C.S. Its necessary venue facts are: 1) one defendant resides in the county of suit (this fact must be established by affirmative evidence); 2) the party asserting his privilege is at least a proper party to the claim against the resident defendant (this may be established by reference to the controverting affidavit and the petition to show the nature of the suit); 3) the plaintiff has a bona fide claim against the resident defendant (he must plead and prove by a preponderance of the evidence each element of this bona fide claim; it must be the same claim asserted in the controverting affidavit). 1 McDonald, Texas Civil Practice, 439-444, Venue, Sec. 4.10.2 (1965).

It is uncontroverted that third-party defendant Lange, Inc., is a resident of Washington County for venue purposes and that T.E.I.A. and Employers are both residents of Dallas County. Lange, Inc., does not have any pending claim against Santa Fe. We find no basis for asserting the defense of estoppel against Lange, Inc.

We hold that the evidence supports a finding, which we presume in support of the trial judge’s order, that the only cause of action Santa Fe proved by a preponderance of the evidence against any of the third-party resident defendants or cross-defendants was that based on Robert Lange’s having negligently caused the accident and not those based on the negotiations to settle the suit in federal court. We look to Santa Fe’s third-party petition and counterclaim to determine whether it alleged a joint claim against the parties or at least a cause of action against the non-resident third-party defendants so intimately connected with the negligence claim against the resident third-party defendant that it requires the claims to be tried together to avoid a multiplicity of suits. Stockyards National Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300 (1936); 1 McDonald, supra, § 4.10.2.

Clearly, the negligence claim against Mrs. Lange and Lange, Inc., on the one hand, and the claims against T.E.I.A. and Employers (based on settlement negotiations), on the other, are not joint claims, and we hold that the trial court did not err in presumably concluding that they should not be joined under the rules intended to avoid a multiplicity of suits.

Affirmed.


author: COLEMAN, Chief Justice.

text:
    D. A. LOVELESS et al., Appellants, v. TEXAS FIRST MORTGAGE REIT, Appellee.
    No. 16557.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Dec. 4, 1975.
    Rehearing Denied Jan. 8, 1976.

      Winstead, McGuire, Sechrest & Trimble, W. Ted Minick, Balias, for appellants.
    Alan Schulman, Vinson, Elkins, Searls, Connally & Smith, Houston, for appellee.
   COLEMAN, Chief Justice.

This is an appeal from an order overruling the defendants’ pleas of privilege. The principal issue on the appeal is the admissibility of a note without proof of execution, where the suit was on an instrument guaranteeing the payment of the note. We find that the note was properly admitted into evidence without proof of execution and, accordingly, affirm.

Texas First Mortgage Reit (Reit) filed suit in Harris County to recover from guarantors the deficiency remaining on a promissory note which was not executed by the guarantors. The guarantors filed pleas of privilege and Reit filed a controverting affidavit asserting that venue is proper in Harris County by virtue of Article 1995(5), V.A.C.S., providing that suit on a contract in writing to perform an obligation in a particular county, expressly naming such county, or definite place therein, may be brought in such county.

Guarantors admit that they are parties to the guaranty contract and that the contract is an unconditional and absolute guaranty of a promissory note dated March 80, 1973, executed by Hysite Corporation in favor of Reit. The guarantors executed an instrument dated March 30, 1973, whereby they unconditionally guaranteed payment of a loan in the sum of $375,000.00 evidenced by “a promissory note of even date herewith from Hysite Corporation to Lender.” By this agreement the guarantors agreed to guarantee the full and timely payment of the note “irrespective of the validity, regularity or enforceability” of the note and agreed upon the borrower’s failure to pay the indebtedness at maturity to make such payment “at the place specified in the note for payment.” At the beginning of the trial counsel for Reit stated to the court that he had copies of the note and the guaranty agreement, as well as the originals, and asked if the copies could be marked for convenience. The originals were given to counsel for guarantors for examination. The copies were thereafter marked for identification. A witness was then sworn and identified the agreement of guaranty and stated that it guaranteed a certain $375,000.00 promissory note from Hysite Corporation to Texas First Mortgage Reit dated March 30, 1973. He testified as to other provisions of the agreement including the agreement to pay the indebtedness at the place specified in the note.

He was then shown Exhibit No. 2 and identified the document as being a promissory note dated March 30, 1973, in the amount of $375,000.00, and stated that “it is executed on behalf of Hysite Corporation by William Lee Folse, president.” Thereafter, at the request of counsel for Reit, he read to the court portions of the note including the provision that the note would be payable in Harris County, Texas. He testified that Texas First Mortgage Reit was the owner and holder of the note and that the note was in default. All of this testimony was given without objection. On cross-examination the witness testified that he was not present at the execution of the guaranty agreement or the note. He also testified that the commitment which resulted in the loan in question was issued to Lee Folse Properties, Incorporated, and that Reit subsequently made other loans to Lee Folse Properties, Incorporated.

After both parties had rested, counsel for guarantors called attention of the court to the fact that the note had not been introduced into evidence, and stated that he had specific objections to its introduction. At that point the court stated that he recalled that they were introduced. Counsel for guarantors stated to the court that he would like to urge his objections and the court permitted him to dictate them into the record. He objected that there was no evidence as proof of due execution of the note and that it was hearsay as to the guarantors. He pointed out that there was an ambiguity in that the note referred to a guarantee by Lee Folse and makes no mention of the guarantee by the defendants in this case. He also urged that the description of the note being guaranteed was insufficient. He then urged the court to strike any testimony relating to the note or the guaranty agreement because “it’s not adequately been proved, nothing more than hearsay evidence as to these defendants.” The court made no specific ruling on the objections to the introduction of the note or on the motion to strike. However, the trial court found that the guaranty contract is expressly performable at the place specified in the Hysite promissory note for payment; that plaintiff introduced into evidence, as Exhibit 2, the original promissory note dated March 30, 1973, made payable to the order of Texas First Mortgage Reit and signed by Hysite Corporation by its president, William Lee Folse; and that the promissory note provides that it is payable to order of Texas First Mortgage Reit “at 1919 Allen Parkway, Houston, Texas, 77019, or at such other location in Harris County, Texas, as holder may direct.”

The trial court concluded that the testimonial and documentary evidence offered by plaintiff was sufficient to prove that the promissory note, which was the subject of the guaranty agreement, was performable in Harris County, Texas. He further concluded that the defendants contracted in writing to perform an obligation in Harris County, Texas, and that venue was proper in Harris County, Texas, by reason of Subdivision (5), Article 1995, V.A.C.S.

Since the note specifies that it is payable in a specific place in Harris County, Texas, and by the contract of guaranty the guarantors have agreed to pay the indebtedness at the place specified in the note for payment, venue in Harris County was properly established in accordance with Article 1995(5), V.A.C.S., if that provision of the note specifying the place of payment is properly in evidence. Rost v. First National Bank of Gonzales, 472 S.W.2d 579 (Tex.Civ.App.—Corpus Christi, 1971, no writ history); Forman v. Barron, 120 S.W.2d 827 (Tex.Civ.App.—El Paso, 1938, writ ref’d).

There was parol evidence that the note contained a provision requiring payment in Houston, Harris County, Texas. While the guarantors moved to strike this evidence on the basis of their contention that it was hearsay, the trial court failed to rule on the motion, and proceeded to consider such evidence. Although the witness testified that he did not see the note executed, there is no evidence that he did not know of his own knowledge that the note was executed by those whose signatures it bore. It is clear from the evidence that he did know the content of the instrument concerning which he testified. In the absence of an objection based on the best evidence rule the trial court properly admitted the testimony and properly refused to strike it from the record. Blair v. Boyd, 61 Tex.Civ.App. 435, 129 S.W. 870 (Houston, 1910, error ref’d).

The guaranty agreement described the note which it guaranteed as being made by Hysite Corporation payable to Texas First Mortgage Reit dated March 30, 1975, and in the principal sum of $375,000.00. The note offered at the trial fit this description. The validity of the note was not an issue at this venue hearing. The issue was whether the note introduced was the note described in the guaranty agreement. The trial court’s affirmative finding on this issue is supported by the evidence.

When the execution of a writing is not an issue but only the content of such writing, proof of execution is unnecessary. 32 C.J.S. Evidence, Sec. 733b; 7 Wigmore, Evidence, Sec. 2132.

Sec. 3.307(a), Texas Business and Commerce Code, provides in part:

“Unless specifically denied in the pleadings each signature on an instrument is admitted . . . ”

This provision of the Code is clear and specific and not subject to construction. A sworn denial of execution required by Rule 93, Texas Rules of Civil Procedure, was not required because the note is not alleged to be executed by any one of the guarantors nor by anyone authorized to bind the guarantors. McDonald’s Texas Civil Practice, Sec. 7.29, p. 234. Nevertheless, by reason of Sec. 3.307(a), supra, a specific denial of the validity of the signatures on the note is required to place due execution of the instrument in issue.

Affirmed.


author: MASSEY, Chief Justice.

text:
    SOUTHWEST WATER SERVICES, INC., Appellant, v. Frank COPE et al., Appellees.
    No. 17670.
    Court of Civil Appeals of Texas, Fort Worth.
    Dec. 5, 1975.
    Rehearing Denied Jan. 9, 1976.

      Dixon & Petrovich, and George J. Petro-vich, Jr., Fort Worth, for appellant.
    Glasgow & Jones, and Donald R. Jones, Stephenville, for appellees.
   OPINION

MASSEY, Chief Justice.

This is an appeal by defendant Southwest Water Services, Inc., hereinafter termed Southwest, from order of the trial court granting permanent injunction to plaintiffs. Plaintiffs’ suit was a T.R.C.P. 14 class action for relief. Named plaintiffs in the class action were Frank Cope and others.

Judgment order affirmed.

Each of the plaintiffs who were members of the class had purchased property in what is known as Oak Trail Shores, a land subdivision in Hood County, Texas. The subdivision was land carved into approximately 3800 lots. It had been established in 1969. Western Resort Properties, Inc. was the owner and developer. The promoters of Western Resort Properties were not only its officers and stockholders but also those of two other corporations separately organized to function in respect to laying out and platting the subdivision, running water lines, and operating the water works supply to the lots within the subdivision as it was being developed. Of these the operator of the water works was the defendant, Southwest.

Pursuant to promotion of the subdivision there was thereat a crew of salesmen, with a sales manager, all trained in their primary jobs of lot sales. Part and parcel thereof were representations authorized relative to water supply to be afforded any lot purchaser. The location was some six miles south of Granbury, Texas, the nearest town. Of interest is the fact that the sewage disposal for each lot (or land parcel) was to be effected by use of septic tanks; making obvious the importance that there be a means of water supply to any prospective lot purchaser through water lines rather than individual wells. The sales force was authorized and directed not only by Western Resort Properties but by Southwest to sell lots by representing, among other inducements, that a purchaser would be entitled to receive water from Southwest at a specified rate, to-wit: that until water meters were installed there would be a “flat rate” charged regardless of the amount of water used, with a “metered rate” to apply once water meters were installed at a rate of cost which would not be in excess of the rate paid by the residents of the City of Granbury who were customers of its municipal water works, and such rate would be that charged so long as the purchaser owned his lot.

On this, since it developed that the City of Granbury charged a different rate to customers living outside its city limits from the rate charged to customers living within its limits, there was testimony that what was represented and intended to be represented was that the rate charged residents of Oak Trail Shores would be that charged the residents living inside the city limits of the City of Granbury, Texas. This testimony came from the man who had formerly been the sales manager at the Oak Trail Shores subdivision, though engaged in other employment at time of the trial.

From the evidence it would appear that as applied to Western Resort Properties and Southwest each might properly be said to have constituted the alter ego of the other as applied to the transaction of initial sale of the lots of Oak Trail Shores. In any event the evidence established that there was pre-existent agency authorization for Southwest by the sales organization at the subdivision, and also ratification on the part of Southwest after sales, of the promissory representation above stated in inducement of lot purchases, viz: by representing that Southwest would supply water to lot purchasers at the rates charged by the City of Granbury for as long as they continued to own their lots.

Indeed, after the lots were purchased Southwest presented a written form of contract which was substantially in accord with the representations made; or at least not in contradiction.

The written contract prepared by Southwest and used initially upon each lot owner becoming applicant for water service, included among its provisions, the following: “Applicant agrees and acknowledges that such rates are for residential use only and that Supplier has the right at any time to install a meter and charge for water used at the same rate as charged for residential water service by the City of Granbury, Texas.” Nothing in this contract related to-time and duration. It was only in parol evidence that time and duration of entitlement was shown. Such evidence was that as part of inducement for each lot purchase there was representation that the rate would persist so long as the purchaser owned his lot. There was no like agreement when a lot owner appeared before Southwest and contracted for water.

Beginning about September 13, 1971, Southwest began to install meters. As they were installed it began to charge its customers the “metered rate” which was the same charge being made to those residents living inside the City of Granbury by their municipal water works. December 30,1971, Southwest sent notices to its Oak Trail Shores customers advising of a certain increase of rates to be charged for “metered service”. These rates were above those charged in Granbury. This did not occasion action by its customers. There was some sort of difficulty with a federal agency encountered at this time by Southwest. Pending resolution of the difficulty Southwest notified its customers that charge for water would revert to the old “flat rate”. The difficulty was resolved. In June, 1972, without notice, Southwest began to charge at a “metered rate” slightly in excess of that which was then being charged in the City of Granbury to residents within its city limits. This did not occasion action by the Oak Trail Shores customers of Southwest.

In December of 1973, however, action taken by Southwest did occasion counteraction. In January, 1974, with some qualification of its December 30, 1971, program for charges upon “metered rates” for water supplied residents of Oak Trail Shores, Southwest finally settled upon the position it would take. It prepared and forwarded notices to its customers in Oak Trail Shores that effective beginning January 15, 1974, the monthly rates to be charged would be a $7.50 minimum for the first 5,000 gallons (or any lesser amount), plus 90<t per thousand for the next 10,000 gallons, plus 80<t per thousand for water used in excess of 15,000 gallons. The rates then being charged residents within the City of Gran-bury was less than two-thirds the intended rate to be charged plaintiffs living in Oak Trail Shores. February 2, 1974, twenty-eight named plaintiffs filed a class action suit against Southwest in behalf of themselves and all other property owners in the subdivision who had contracted with the defendant upon the initial form of contract.

We need not be concerned with action prior to trial of the case on the merits, as for permanent injunction. Following such trial before the court, without a jury, judgment was rendered as follows: “IT IS THEREFORE ORDERED . . . that . Southwest Water Services, Inc., its employees, servants and agents be, and they are hereby enjoined and restrained from: (1) charging water rates to said Plaintiffs in excess of the rates presently charged or hereafter established by the City of Granbury, Texas, for residential water use within the city limits of said City; and (2) from terminating the water service to Plaintiffs because of the refusal of Plaintiffs to execute other or additional contracts for water service which would terminate or supersede the Contracts under which Plaintiffs are now receiving water services.

“IT IS FURTHER ORDERED that said injunction shall be in full force and effect as to each of the Plaintiffs herein (a) for a period of ten (10) years from the date of execution of the hereinabove described contract by each of the respective Plaintiffs hereto; OR (b) until the property owned by each of said Plaintiffs in the Oak Trail Shores Subdivision in Hood County, Texas, is sold to a third party, whichever event shall first occur.”

The court filed Findings of Fact, among which was the finding that: “I further find that Defendant, by and through its agents and sales representatives expressly represented to the various Plaintiffs when they purchased their lots in the Oak Trails Subdivision that the metered rates which would be charged under the terms of the contract for water services would be the same as those charged by the City of Granbury to its residents within said city.” This fact finding was amply supported by evidence in the record. Indeed it is not attacked. From the record it is clear that the time of the representation was at the stage where it was made as an inducement of each lot purchase.

Such fact finding, under the circumstances of this case, adequately supports the grant of affirmative injunctive relief under the doctrine of promissory es-toppel. This premise for relief was not presented by plaintiffs’ pleadings. However, the issue was raised by the evidence in the case and it was tried by express or implied consent of the parties. Therefor, it is to be treated as if raised by the pleadings whether that be true or not. T.R.C.P. 67, “Amendments to Conform to Issues Tried Without Objection”.

Language in what has been written upon the doctrine of promissory estoppel might mislead and cause one to believe that its use must be purely defensive. Here we have stated that the plaintiffs are benefitted and are entitled to prevail thereby under the fact finding of the trial court. It is now settled that there may be appropriate use of the doctrine by a plaintiff as a ground of entitlement to relief. Wheeler v. White, 398 S.W.2d 93 (Tex.Sup., 1965). That it might be so used was later affirmed in the celebrated case of “Moore” Burger, Inc. v. Phillips Petroleum Company, 492 S.W.2d 934 (Tex.Sup., 1972). In that case the plaintiff was held as proper to be treated as able to make out a case thereunder, and so to make improper the summary judgment which had been rendered against him. In “Moore” Burger the court quoted from the Restatement of the Law, Contracts, Sec. 90, “Promise Reasonably Inducing Definite and Substantial Action”, the following: “A promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.”

In the instant case all the elements are present, and in particular it is evident that injustice can be avoided only by enforcement of the promise. See also Restatement of the Law, Contracts, Sec. 240, “In What Cases Integration Does Not Affect Prior or Contemporaneous Agreements”. Each plaintiff represented by the class action entered into possession of real estate for a residential purpose. Each will be utterly at the mercy of Southwest with respect to what he might be obliged to pay for water service unless injunction be granted.

Under the above stated theory for affirmance Southwest’s Points of Error Nos. 3 and 4 become immaterial. They are overruled for that reason. Southwest has raised by these points the contention that the contract whereby it was to furnish water (executed subsequent to lot purchase) was indefinite and uncertain and not to be enforced by writ of injunction in that it failed to specify duration of its obligation to furnish water at any certain rate for any certain time; and that it lacked mutuality on the part of the parties. The necessity of consideration is further obviated when it is recognized that the Statute of Frauds is without application under the circumstances of the case and our decision that the doctrine of promissory estoppel applies and that it is to the lot-purchase transactions themselves that we should look for finding support of the judgment. See Restatement of the Law, Contracts, Sec. 12, “Unilateral and Bilateral Contracts”, and Sec. 198, “When Contracts Not Performable Within a Year are Within Class V of § 178”. (Section 178 is “Classes of Contracts Within the Statute of Frauds”).

Point of Error No. 8 complains that the trial court erred in not finding and declaring that the contract in question (and Southwest means the written contract entered into after the purchase of each lot) could be terminated in the event of nonpayment of a water bill or for a user’s wilful or negligent pollution of the water supply. This was no part of the controversy on trial and as such was not proper to be litigated or mentioned in the judgment. As a cause of action it is one which has not arisen.

Points of Error Nos. 6 and 7 complain of the 10 year period by the injunction set for plaintiffs who retain their lots and do not sell, of the lesser period in the event of sale to any third-parties by those who might dispose of their lots, and because the limitation of metered charge was that rate charged the residents of Granbury, Texas, who lived inside rather than outside the Granbury city limits. The answer to these complaints is that the relief granted was supported by the evidence and requested by the prayer for relief. Furthermore, it could only be those of the plaintiffs who might retain their lots for longer than 10 years who could be prejudiced by the judgment of the court relative to duration of the permanent injunction, and they have made no complaint upon the appeal.

For convenience in preparation of this opinion we have not earlier written upon the remaining points of error, Points Nos. 1 and 2. These attack propriety of the plaintiffs’ suit as a class action, and claim error in that the trial court did not properly or adequately define the persons in the class.

The applicable Rule is T.R.C.P. 42, “Class Actions”. One portion provides authorization for bringing a class action where the right sought to be enforced is several, as applied to those who might be individual plaintiffs, and there is a common question of law or fact affecting the several rights and a common relief is sought, and where the number of these individuals are so numerous as to make it impracticable to bring them all before the court. In such an instance such of them, one or more, as will fairly insure the adequate representation of all may bring and prosecute the suit on behalf of all. On this see 1 McDonald, Texas Civil Practice, (1965 Revised Volume), p. 338, “Parties”, Sec. 3.34.1, “Class Action. A. Types”, and p. 351, Sec. 3.42.2 “ — B. Adequacy of Representation”.

On the foregoing we may observe that it is no part of the duty of the court to define the persons in the class elsewhere than in the judgment in the event relief is granted, and as we construe the complaint such is not attacked by the points of error. In any event the order of permanent injunction does adequately and properly define the members within the class who are afforded relief thereby. The court, in determining propriety of the suit as a class action, passes upon the sufficiency of the pleadings to define the plaintiffs. The court does no more than this. The express or implied ruling in permitting prosecution of the suit as a class action is appropriate to be challenged on appeal. Such a case was Matthews v. Landowners Oil Ass’n, 204 S.W.2d 647 (Amarillo Civ.App., 1947, writ ref., n. r. e.), where there was an appeal from a plea in abatement to and dismissal of a case as an improperly attempted class action suit. Thereon Southwest places strong reliance.

In our opinion the language of the case in the Landowners Oil case supports rather than condemns the action of the court allowing prosecution of the instant case as a class action. Evidence introduced on trial and made a part of the record on appeal established that there were at least one hundred and eighty-four (184) persons with the same right, born in the same kind of transaction as the named individuals bringing the suit. All had executed the identical contract with Southwest following consummation of purchase of lots within the Oak Trail Shores subdivision. These were members of the class represented as plaintiffs by the class action brought. In these circumstances a class action suit was proper.

Cases holding to the same effect in similar situations are: Group Hospital Service, Inc. v. Barrett, 426 S.W.2d 310 (Houston Civ.App., 14th Dist., 1968, writ ref., n. r. e.), and Texarkana Independent School District v. Lewis, 470 S.W.2d 727 (Texarkana Civ. App., 1971, no writ hist.). All points of error of Southwest are overruled.

Judgment is affirmed.


author: WALTER, Justice. RALEIGH BROWN, Justice McCLOUD, Chief Justice

text:
    The CITY OF WICHITA FALLS, Texas and Wichita County Water Improvement District No. 2, Appellants, v. Wilmer G. GLEGHORN, Appellee.
    No. 4808.
    Court of Civil Appeals of Texas, Eastland.
    Dec. 5, 1975.
    Rehearing Denied Jan. 15, 1976.

      Fillmore, Parish, Martin, Kramer & Fillmore, H. P. Hodge, Jr., City Atty., Wichita Falls, for appellants.
    Joe H. Staley, Jr., Locke, Purnell, Boren, Laney & Neely, Dallas, D. J. Brookreson, II, Seymour, for appellee.
   WALTER, Justice.

This is a condemnation suit. Wichita Falls, Texas and Wichita County Water Improvement District No. 2, hereafter referred to collectively as the City or appellants, filed suit against Wilmer G. Gleghorn to create a flowage easement over a portion of his land. Gleghorn recovered a judgment for $200,000 and the City and the Water District have appealed.

The City filed a motion to dismiss after the verdict was returned and it was overruled. We cannot agree with the City the court erred in refusing to permit them to dismiss. Article 3265, Vernon’s Ann.Civ. Stat., and cases cited by appellants including City of Rockwall v. Mitchell, 497 S.W.2d 378 (Tex.Civ.App. — Waco 1973, writ ref. n. r. e.); and Huntsville Independent School District v. Scott, 483 S.W.2d 344 (Tex.Civ.App. — Houston (14th Dist.) 1972, 487 S.W.2d 692), authorize dismissal provided there has been no taking in the condemnation proceeding or under an agreement with the condemnee pending the proceedings.

A stipulation by the parties is as follows:

“The date of taking of the property by the Plaintiffs in this cause of action is January 21, 1974;
That the City of Wichita Falls and the Wichita County Water Improvement District No. 2, under the laws of the State of Texas and the Texas Constitution, have the right to condemn this property for the purposes set forth in their First Original Statement of Condemnation;
That the area of the part taken in this proceeding consists of 469.16 acres of land;
That the only remaining issues to be tried in this case are the damage issues, that all other matters in controversy have been admitted by the defendant.”

Government regulations of the Corps of Engineers required that this property be obtained by the City. The dam at Lake Kemp was being raised and at the time of trial was not completed but the witness Fred Parky said it would be completed in a few days. The court in his findings of fact set forth in the judgment found the dam had been substantially completed at the time of trial.

In their statement of condemnation the City alleged:

“Plaintiffs further aver that since the spillway level of Lake Kemp is presently being raised from 1153.5 ft. m.s.l. to 1160 ft. m.s.l., the land area herein sought to be acquired between 1153.5 ft. m.s.l. and 1163 ft. m.s.l. will be used for the purpose of being submerged by water collected and impounded by the Lake Kemp storage dam, which is presently being raised as stated aforesaid, so that when the water in the Lake Kemp storage reservoir on the upstream side from said dam reaches the same elevation as the spillway level in said dam, to-wit, 1160 ft. m.s.l., the said land area herein sought is necessary to serve or partially serve as a precautionary measure against wave action, surge and backwater.”

The manager of the district testified substantially as follows:

The City will have no control over letting the water in or letting it out insofar as the top ten feet of the dam is concerned. The top ten feet is known as the “flood control pool”.
He was asked “are you taking it for the purpose of being submerged by water collected and impounded by the Lake Kemp Reservoir?”, and he answered “Yes, that is the reason it is taken.” “And doesn’t this become a part of Lake Kemp?” And he answered, “It does”.

In Brazos R. Conservation & Reclamation Dist. v. Allen, 171 S.W.2d 842, (Tex.1943), at pages 844, 845, the court said:

“. . .A condemnor has the right to correct its errors, to dismiss its proceeding for condemnation, to abandon the purpose of taking the land, but it may not exercise any of these rights to the prejudice of the land owner. ... It is true that it does not affirmatively appear from the record that respondents’ land had actually been submerged by the waters of the reservoir when the District, on October 23,1940, sought to dismiss the first suit and withdraw the deposit, but, as has been said, the dam at that time was practically completed and little, if anything, remained to be done except closing the gates or openings in the dam and awaiting the accumulation of water to complete the actual taking of the land by inundation. Because of the practical completion of the dam, its magnitude, the purpose of the project and the location of respondents’ land, the inundation of the land was at that time inevitable and imminent and the taking, to all intents and purposes, had been accomplished.” (Emphasis added)

We hold the landowner would be prejudiced if the motion to dismiss were granted and there has been a taking of Gleghorn’s property for all intents and purposes.

The Court gave the following instructions to the jury:

“You are instructed that the easement being taken by the City of Wichita Falls and the Wichita County Water Improvement District No. 2 from the Defendant between contours 1153.5 ft. m.s.l. up to and including contour lines 1163 ft. m.s.l. totals 469.16 acres and is to be used for the purpose of being submerged by water collected and impounded by the Lake Kemp storage dam which is presently being raised and it is also to serve or partially serve as a precautionary measure against wave action, surge, and backwater.
You are further instructed that the presumption is that the Wichita County Water Improvement District No. 2 and the city of Wichita Falls can exercise their rights and use of the 469.16 acres taken from the Defendant to the fullest extent of the rights acquired which are described in this charge, which rights include the right of being submerged by water.”

Appellants objected to such instructions because they amounted to a comment on the weight of the evidence.

They rely on City of Pearland v. Alexander, 483 S.W.2d 244 (Tex.1972), wherein the court held the following instructions to be erroneous as a comment on the weight of the evidence.

“ ‘You are instructed that the surface estate of the ten (10) acre tract of land condemned by the City of Pearland in this case and described as Tract One in the evidence before you will be used by the City of Pearland as a site for a sew[er]age disposal plant and you- are to presume that the City of Pearland will exercise its rights and use and enjoy this properly to the full extent for such a sew[er]age disposal plant.’ ”

We hold City of Pearland v. Alexander, supra, is controlling and we sustain appellants’ point that such instructions constituted a comment on the weight of the evidence.

Special issues number 3 and 4 and the jury’s answers are as follows:

“SPECIAL ISSUE NO. 3
What do you find from the preponderance of the evidence was the market value of the Defendant’s remaining tract of approximately 1130.84 acres of land, excluding the easement permanently over, across and upon the 469.16 acres on January 21,1974, immediately before the 469.-16 acres strip of land was condemned?
Answer by stating the amount in Dollars and Cents.
ANSWER: $282,710.00
SPECIAL ISSUE NO. 4
What do you find from a preponderance of the evidence was the market value of the remainder of Defendant’s land on January 21, 1974, immediately after the other part was taken, giving consideration to the uses to which the part taken is to be subjected?
Answer by stating the amount in Dollars and Cents.
ANSWER: $141.355.00
In answering Special Issue No. 3 and Special Issue No. 4 you will take into consideration that a portion of the property in the remaining approximate 1130.-84 acres of land is subject to a pre-exist-ing easement to the Wichita County Water Improvement District No. 1.”
On page' 43 of appellants’ brief, they say:
“The parties stipulated that the easement involved in the present case at bar covered from contour line 1153 to 1163 m.s.l. and contained 469.16 acres. The evidence revealed that the defendant’s tract of land contained 1600 acres in all; that since 1922 there was a pre-existing flowage easement to contour line 1153 in almost the identical words; that this old easement covered 1,077 acres.”

Appellants contend the court erred in failing to submit an issue on whether or not that portion of the remainder covered by the pre-existing easement suffered any additional damage. They also contend there was no evidence and insufficient evidence of any additional damage. We disagree.

Under these points of error, the appellants say:

“The writer can find no case in Texas jurisprudence where damages have been allowed for an additional easement or servitude to land covered by a pre-exist-ing easement, whether rights under the proposed easements are no greater than the rights covered by the pre-existing easement.”

However, they cite no cases holding to the contrary. They cite a quotation from Nichols on Eminent Domain.

In State v. Hays, 361 S.W.2d 401 (Tex.Civ.App. — Dallas 1962, writ ref. n. r. e.), at page 406, the court said:

“In their third point appellants complain because the court refused to give appellants’ requested special Issue No. 1 as follows:
‘From a preponderance of the evidence, what do you find was the market value of the land and improvements encumbered by an easement, condemned by the State of Texas and County of Dallas for highway purposes at the time it was condemned, considered separate property?’

The court did submit the following issue:

‘From a preponderance of the evidence what do you find was the market value of the Defendants’ property taken by the State of Texas for highway purposes at the time it was condemned on June 12, 1959, considered as separate property?’
The condemned property is subject to an easement. Appellees’ witness Eastus testified about it. Appellees’ witness McElya testified about it in great detail. Certainly, it was brought to the attention of the jury.
The issue submitted by the court was in the form approved in State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194. Though the issue as submitted did not expressly mention the easement it was all inclusive, so included the easement about which testimony had been received.
Appellants argue that the trial court apparently was of the opinion that there is something sacred about the Carpenter case. To negate such view they cite several cases which approve a departure from the language of the Carpenter case. State v. Oakley, Tex., 356 S.W.2d 909; Holbrook et al. v. State of Texas, Tex.Civ.App., 355 S.W.2d 235; City of Austin v. Cannizzo, 153 Tex. 324, 267 S.W.2d 808.
We have no quarrel with the holding in the above eases.
We certainly shall not hold that it is always wrong to depart from the forms of issues as set out in the Carpenter case. We do say that in the case now before us it was not wrong to adhere to the forms approved in the Carpenter case.
Since the issue submitted was broad enough to include the easement in question, it was not error to refuse submission of the appellants’ requested issue.” (Emphasis added)

In 22 Tex.Jur.2d Eminent Domain § 156 (1961), it is stated:

“. . . To enable the jury to determine the depreciation of the remainder, the parties have the right to introduce evidence of everything that would tend to affect the value of the land in the estimation of a proposed purchaser, or that would tend to make it more or less valuable to the present owner. In other words, all facts are relevant for consideration that tend to show that the remainder of the tract has been depreciated.”

Gleghorn’s value witnesses took in consideration the 1922 flowage easement before giving their opinions on the market value of the remainder.

The easement giving the City the right to flood up to 1163 ft. m.s.l. has increased the burden on the 1922 easement in that a greater quantity of water could be stored on the land covered by the old easement. Another significant matter that could reasonably be given consideration in negotiations by a willing seller and a willing buyer is the fact the Corps of Army Engineers have the absolute control over the top ten feet of the dam which they refer to as “the flood control pool”. These factors would be considered by a willing buyer and a willing seller. This has been pointed out recently by our Supreme Court in Spindor v. LoVaca, 529 S.W.2d 63 (1975), where they said:

“Article 3265, § 1, allows damages for diminution in value of the remainder to those which accrue ‘by reason of the condemnation of the property, and its employment for the purpose for which it is to be condemned.’ The factors to be considered are those which would reasonably be given consideration in negotiations between a willing seller and a willing buyer. City of Pearland v. Alexander, 483 S.W.2d 244 (Tex.1972); City of Austin v. Cannizzo, 153 Tex. 324, 267 S.W.2d 808 (1954). Since the damage to the lake was actually foreseen and hence clearly foreseeable, a hypothetical willing buyer-willing seller would take that factor into consideration in negotiating for the purchase of that property.
The expert’s estimated cost to restore property is admissible in a condemnation trial to prove the probable diminution in fair market value of the remainder immediately after the taking, regardless of whether any actual damage occurs. State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194 (1936). This estimate would go to the jury for their consideration in fixing the amount of foreseeable damages in the employment of the land for the purpose for which it was condemned.”

In answering the issues on damages to the remainder, the trial court instructed the jury to take into consideration the pre-ex-isting easement on a portion of the land. We hold the Court did not err in failing to submit an issue concerning the damages, if any, to that portion of the remainder covered by the 1922 easement.

The Court withdrew all the testimony of the City’s appraiser witness J. B. Featherston, from the jury’s consideration. Mr. Featherston qualified as a real estate appraiser with many years of experience. He was a member of the American Institution of Real Estate Appraisers. There is no dispute about his qualification as an appraiser.

Mr. Featherston testified as to his qualifications substantially as follows:

I have appraised ranch property in Montague, Knox and King counties. I have appraised the Waggoner Ranch which is located in Wilbarger, Montague, Knox, Hardeman, Baylor and Foard Counties. I have made a study of the rural land values for the entire county of Baylor. Since I made a study of the entire county of Baylor, I am aware of sales in this county of rural property. I have knowledge of the market value of the land located in this county. I was retained to appraise the fair market value of the Gleghorn property. I am familiar with the plaintiff’s exhibit number 2. It is a map. (“This map was introduced into evidence without objection and shows the 1600 acres of land owned by Gleghorn and the land covered by the 1922 easement is colored in pink and the land covered by the easement sought in the present ease is yellow and Mr. Gleghorn’s remaining land is in green.”)
I was asked to appraise the land covered in yellow, the area between 1153 and 1163. I was asked to appraise the area covered in green which represents the land which is above 1163 contour. I went to the Gleghorn property on two different occasions. On my first visit to this property I took some water samples and drove over the property with Mr. Fred Parky and Mr. Gleghorn. Mr. Gleghorn was not present when we took the water samples but he gave us permission. On my first visit I visited with Mr. Gleghorn. The next time I visited the property was on January 16th. I visited with Mr. Gleghorn and told him I wanted to make a complete inspection of his property and he informed us that his attorney had suggested that he go along. We traveled first to the headquarters and went through the river crossing on the west side. Mr. Gleghorn and I put on our waders and walked across to the top of this high ground. Mr. Gleghorn then described to me what he had done in breaking and clearing the brush and planting sorpham alom. We then drove over the east river crossing. We again put on our waders and crossed the river and went up to the area which was a high point. We went to a point where Mr. Gleghorn had his irrigation equipment stacked because he wanted to show it to me. I asked Mr. Gleghorn if there was anything else he wanted to show me and he said he believed we had pretty well seen the property.
In addition to walking on the property, I rented an airplane and flew around the general area of Mr. Gleghorn’s property.

The City sought to show by Mr. Feather-ston’s testimony the market value of the land taken by the easement and the severance damages to the remainder.

In the City’s Bill of Exception Mr. Feath-erston testified substantially as follows:

I have read the Statement of Condemnation in this case and have analyzed it to the best of my ability. I do have an opinion as to the fair market value of the area within the easement as of January 21, 1974, after the imposition of the proposed easement. I would say the fair market value is $100 per acre. (He had testified the value of such property before the easement to be $112.50.) I do have an opinion as to the fair market value of the remaining property that is shown in green on plaintiff’s exhibit # 2 as of January 21,1974, immediately prior to the imposition of the easement. That value is $75 per acre. I do have an opinion as to the fair market value of the remainder immediately following the imposition of the easement and that value would be $75 per acre. The values I have expressed are in response to Mr. Fillmore’s questions.
His questions were: First, as to the area in the yellow on the map which I understand would be the area between 1153 elevation and 1163, and I gave my opinion as to the value of this area before and after the imposition of the easement. The Second question related to the area shown in green which is the land that will remain above 1163 elevation and I was asked for my opinion as to the value of this particular acreage before and after the imposition of the easement.

Gleghorn objected to such testimony because:

“(1) that there was unity of use of the property and the whole unit must be appraised; (2) the witness’ testimony as to the records of the U. S. Army Corps of Engineers on the probability of flooding is hearsay; and (3) that the witness’ testimony was based on an improper assumption of occasional flooding.”

At the time these objections were made, Featherston was using an improper basis for his opinion and the objection at that time was good. However, after giving the testimony referred to in Gleghorn’s objection, Featherston read the statement of condemnation in this case and thereafter gave testimony based on the proper basis as to what rights were taken from and what rights were reserved by Gleghorn.

We hold the court committed reversible error in instructing the jury not to consider the testimony of Featherston because such testimony was relevant and material to the issues involved. Rule 372, T.R.C.P.

The judgment is reversed and the cause is remanded.

RALEIGH BROWN, Justice

(concurring).

I concur in the reversal and remand of the cause.

McCLOUD, Chief Justice

(dissenting).

I would affirm the judgment. The excluded testimony of the witness, J. D. Featherston, was merely cumulative. Appellants’ witness, L. D. Jones, Jr., a qualified real estate appraiser, who was a member of the American Society of Appraisers, testified at length. He prepared a detailed map and aerial photographs of Gleghorn’s property. He physically inspected the property, took numerous pictures, and prepared a soil analysis. He testified to comparable sales. Jones testified that in arriving at the fair market value, he took in consideration the probability of the type of flood it would take to inundate the easement. He stated he had been in Baylor County for fifty years and had never heard or been aware of the water being high enough to inundate Gleghorn’s property. Jones said that would be a consideration in arriving at the fair market value of the property. Jones testified that the value of the 469.16 acres in the easement prior to the taking was $46,900 and after the taking was $42,-201. The remainder of the property above 1163 ft. m.s.l. Jones valued at $23,300 before the taking and $22,135 after the taking.

Both Jones and Featherston recognized that Gleghorn owned 1600 acres and that all the land was being used as an economic unit, but each upon instructions from appellants, appraised only those acres which were not burdened by the 1922 prior easement. They evaluated only the land above 1153 ft. m.s.l. Under the 1922 easement, which covered 1,077 acres, appellants had the right to store water on the 1,077 acres “when the water in the reservoir above said storage dam reaches the elevation of the level of the spillway in said dam.”

Appellants’ witness, Fred Parky, general manager of Wichita County Water Independent District No. 2, testified that water had never run over the old 1153 ft. m.s.l. spillway level. He stated that in 1950, during flood conditions, the water got within a foot or two of the spillway and almost got to the 1153 mark.

I do not think the excluded cumulative testimony of Featherston was reasonably calculated to and probably did cause the rendition of an improper judgment. Rule 434, T.R.C.P.

In my opinion the instructions given by the trial court did not constitute error.

The first paragraph of the instructions under attack merely tracks the language contained in the Statement for Condemnation and established the purposes for which the easement is taken and the rights acquired.

In the second paragraph the jury is instructed the presumption is that appellants, “. . . can exercise their rights and use of the 469.16 acres taken from the Defendant to the fullest extent of the rights acquired which are described in this charge, which rights include the right of being submerged by water.” (emphasis added)

City of Pearland, supra, cited by the majority, is distinguishable. There the jury was instructed, “. . .to presume that the City of Pearland will exercise its rights and use and enjoy this property to the full extent for such a sewerage disposal plant." (emphasis added) The trial court had restricted the City from showing the actual uses of the ten acre site which at the time of the taking were reasonably foreseeable and probable. The City was contending, but not permitted to show, that the entire ten acres would not be covered by a plant. Our Supreme Court held:

“. . . In our view, this instruction could only be understood by the jury as a mandate to presume a full use of the entire ten acres for an actual plant, rather than as a site for the plant and facilities that would be reasonably required; and as a further directive that in answering the market value issues the jury was to be governed by this presumption regardless of any evidence to the contrary, and whether or not such presumed use of the entire site for an actual plant was reasonably probable at the time of taking and would, or would not, be reflected in the market value of the remainder tract at such time. As such, the instruction was clearly erroneous as a comment on the weight of the evidence.”

In the instant case the court permitted both appellants and defendant to show what each contended would be the reasonable and probable uses of the easement. Appellants’ witnesses Parky and Jones, testified, in effect, that Gleghorn’s property in all reasonable probability would never be submerged by water. Gleghorn and his appraisal witness, Heely, assumed appellants would use the easement to its fullest extent. The court instructed the jury that appellants could use the easement to its fullest extent. The jury was not instructed that appellants would so utilize the easement.

I do not think the instructions constituted an objectionable comment on the weight of the evidence. Rule 277, T.R.C.P., provides:

“The court shall not in its charge comment directly on the weight of the evidence or advise the jury of the effect of their answers, but the court’s charge shall not be objectionable on the ground that it incidentally constitutes a comment on the weight of the evidence or advises the jury of the effect of their answers where it is properly a part of an explanatory instruction or definition.”


author: KEITH, Justice.

text:
    E. Wayne MOUNCE, Trustee, et al., Appellants, v. Herman BOSTICK et al., Appellees (two cases).
    Nos. 7754, 7762.
    Court of Civil Appeals of Texas, Beaumont.
    Dec. 11, 1975.
    Rehearing Denied Jan. 8, 1976 in No. 7762.

      Richard R. Morrison, III, Liberty, for appellants.
    J. C. Zbranek, Liberty, for appellees.
   KEITH, Justice.

We review two separate appeals in this single opinion, and this brief statement will serve to identify the parties to the litigation.

E. Wayne Mounce, Trustee, and Williams Forest Products Corporation sought a temporary injunction to prevent Herman Bos-tick and W. C. Leasure from interfering with their use of a road and land adjacent thereto. This relief was denied and Mounce and Williams have perfected their appeal under our No. 7754. Shortly thereafter, Bostick and Leasure, as plaintiffs, sought a temporary injunction against Mounce and Williams to prevent their further use of the road and the land in question. The trial court granted their application for a temporary injunction, with Mounce and Williams perfecting their appeal under our No. 7762.

The dominant parties are Mounce and Leasure, and they will be designated by their respective surnames without any distinction being made as to their status in the litigation.

Mounce owns a seven hundred acre tract of land in the Thomas Newman Survey in Liberty County. Leasure began acquiring adjacent land as early as 1962 and by 1969 had acquired all of the property along the entire north, south, and west boundary lines of Mounce’s land. In September 1969, Lea-sure acquired a strip of land two hundred feet wide lying adjacent to the entire east boundary line of Mounce’s acreage.

Leasure was required, by the terms of the instrument in which he acquired the title to the strip of land, to construct an improved road thereon which would include a bridge over a flowing creek. The grantor in this deed agreed to fence the west line of the strip while Leasure was required to fence the east line thereof. Additionally, grantor reserved to itself “its agents, assigns, and employees” the right to use said road and “any connecting roads situated adjacent” to its property.

In 1974, Leasure’s grantor of the 200-foot strip of land assigned to Mounce the right to use the road which had been built, at least partially, on the strip by Leasure. It appears from our confused record that this roadway was down the center of the strip with approximately seventy or eighty feet on each side of the strip being untouched by the road itself.

On June 2, 1975, Williams Forest Products Corporation, pursuant to a contract with Mounce, entered upon the roadway on the 200-foot strip, cut several trees (which it claimed were unmerchantable and of no value) between the roadway and Mounce’s east line, and entered upon Mounce’s land for the purpose of harvesting marketable timber thereon. Williams had been cautioned by counsel for Mounce to “enter the Newman [Mounce’s land] from the East end and begin cutting with one saw as a test of the validity of our easement.'’ (emphasis supplied)

Bostick, Leasure’s manager, discovered this covert operation about June 13 and ordered Williams and its employees to cease use of the land lying between Mounee’s property and the road down the middle of the 200-foot strip. Mounce sought the temporary injunction to restrain further interference by Bostick and Leasure with the logging operations. This relief was denied.

However, after being denied the relief they sought in this suit, Mounce and Williams continued the logging operations and Leasure then sought and procured a temporary injunction to prevent further trespass upon his lands.

Both of Mounce’s points of error have as a common ground the contention that the two orders entered by the trial court did not preserve the status quo pending a final trial upon the merits of the cause; thus the trial court abused its discretion in each instance. We disagree.

The rule governing our decision is that stated in Janus Films, Inc. v. City of Fort Worth, 163 Tex. 616, 358 S.W.2d 589 (1962):

“In suits for temporary injunctions, the trial judge is endowed with broad discretion to grant or deny the injunction. * * * Accordingly, the scope of appellate review in such cases is limited to the narrow question of whether the action of the trial judge in granting or denying the temporary injunction constitutes a clear abuse of discretion.” (citations omitted)

In a hearing on an application for a temporary injunction the only question before the court is the right of the applicant to a preservation of the status quo of the subject matter of the suit pending a final trial of the case on the merits. Transport Co. of Texas v. Robertson Transports, 152 Tex. 551, 261 S.W.2d 549, 552 (1953). In the same case the Court continued:

“The ‘status quo’ to be preserved by temporary injunction is ‘the last, actual, peaceable, noncontested status which preceded the pending controversy.’” (261 S.W.2d at 553-554)

See also, 6 Texas Practice, Remedies, Injunctions § 153, at 185-186 (2d ed. 1973).

It clearly appears that the last actual, peaceable, noncontested status preceding this controversy was that which existed before Mounce and Williams began their “one-saw” test of the validity of the assignment of the easement to Mounce. Mounce and Williams, by their unilateral act of entering upon the land lying between the roadway and Mounce’s east line changed the peaceable status which had existed for several years.

The basic dispute between the parties is the nature and extent of the rights acquired by Mounce in his assignment of the right to use the roadway. But, Mounce sought no declaration of those rights and the only relief (other than a nominal $1,000 damage claim probably added for jurisdictional purposes) sought was injunctive relief. The recent opinion in Frost v. Mischer, 463 S.W.2d 166 (Tex.1971), is adverse to the Mounce contentions and is dis-positive of the question.

It appears to be uncontradicted in our record that by virtue of the assignment from Leasure’s grantor, Mounce had the right “to use said road and any connecting roads situated adjacent” to the property of the grantor, (emphasis supplied) From our review of the evidence, it also appears that there may be a “connecting” road adjacent to such property. Thus, the temporary injunction granted to Leasure is too broad in scope in that it would forbid Mounce the full enjoyment of his rights under said assignment.

It is clear from our record that the grant- or of the 200-foot strip of land reserved the right for said grantor “its agents, assigns and employees to use the road upon said 200 foot strip and any connecting roads situated” adjacent to its property. This grantor then assigned to Mounce “the non-exclusive right to exercise all of the rights, privileges, uses and easement or easements reserved” by said grantor in said deed to the 200-foot strip of land.

From our review of the record, it also appears that there may be a “connecting road” adjacent to such property, although not at the place wherein Mounce entered upon his land.

Thus, the temporary injunction granted to Leasure forbidding any use of said road which would include access to “connecting roads” is too broad in scope in that it would forbid Mounce the full enjoyment of his rights under said assignment.

We modify the judgment in our Cause No. 7762 by adding to the first adjudicatory paragraph this language: “Provided, however, that the Cross-Defendants and Plaintiffs, E. Wayne Mounce, Williams Forest Products Corporation, C. E. Whitmire, their agents, servants and employees may use the road upon the said 200-foot strip of land and any connecting roads situated, adjacent to the property of the grantor of said strip of land.”

The judgment of the trial court in our No. 7754 is affirmed; the judgment of the trial court in our No. 7762 is modified and, as modified, is affirmed.


author: REYNOLDS, Justice.

text:
    Odis WESTBROOK, Appellant, v. John Henry REED et al., Appellees.
    No. 8613.
    Court of Civil Appeals of Texas, Amarillo.
    Dec. 15, 1975.
    Rehearing Denied Jan. 12, 1976.

      Alexander, Lowe & Pratt, Benny J. Lowe, Odessa, for appellant.
    Stokes, Carnahan & Fields, Gary W. Barnard, Underwood, Wilson, Sutton, Berry, Stein & Johnson, Don M. Dean, Amarillo, for appellees.
   REYNOLDS, Justice.

Plaintiff sought to hold the two actors in a primary vehicular collision and their employers liable for the personal injuries he received while a passenger in a vehicle involved in a secondary collision with one of the vehicles in the primary collision. The jury refused to find negligence on the part of one of the primary collision actors, but found the other guilty of negligence which was a proximate cause of plaintiff’s injuries. The trial court disregarded the proximate cause finding and rendered a take-nothing judgment from which plaintiff has appealed, challenging only the court’s adjudication of lack of proximate cause. There being evidence of probative force supporting the jury’s finding of proximate cause, the court was not authorized to disregard the finding. Affirmed in part; reversed and rendered in part.

Defendant John Henry Reed was in the employ of, and he was operating a truck tractor towing a trailer owned by, defendant Dicky’s Dozer Service as he proceeded in a northerly direction along U. S. Highway 385, a road with which he was familiar. About nine o’clock in the morning some three miles north of Dimmitt, Texas, where the two-lane highway is forty-four feet wide from improved shoulder to shoulder, he approached a dense sandstorm. A high velocity wind was blowing dirt from a field lying to the west of the highway to the east and across the highway, reducing visibility to not more than four feet. Reed slowed his vehicle and, after observing two southbound automobiles emerge from the dust “right close together,” he drove into the sandstorm at a speed of ten to fifteen miles an hour knowing, so he testified, there would be vehicles travelling south in the left lane. The thick dust obliterated his view of the highway.

Approaching from the north was defendant John Kesner Fore, an employee of defendant Burke Inman Trucking, whose truck tractor and trailer Fore was operating in a southerly direction. When Fore came to the sandstorm, he reduced his speed to ten miles an hour and entered it. Because Fore’s vehicle shielded the blowing sand, he was able to observe the yellow center line on the black highway.

After Reed and Fore had travelled approximately 100 and 200 yards, respectively, into the sandstorm, the two truck tractors collided left fender to left fender with little physical damage to the trucks and without personal injury to the drivers. The evidence is that Fore was operating his vehicle in his lane of traffic and, according to Reed who could not see the road, Reed’s vehicle apparently drifted to his left and, so Fore said, into Fore’s lane. Following the collision, Reed and Fore met at the front of the trucks- to assess the damage.

Meanwhile, nearing the scene from the north were plaintiff Odis Westbrook as a passenger in, and Danny Flanary as the operator of, a tractor-trailer owned by Ray Atkinson Pipe & Supply Company, by whom they both were employed. Entering the cloud of dust, Flanary slowed his speed to between thirty and forty miles an hour.

Reed and Fore, hearing the noise of the tractor-trailer operated by Flanary within one to two minutes after their primary accident, ran away from their trucks and off the highway. It was Reed’s testimony that “Those up here (the southbound vehicles subsequently striking Fore’s trailer), we could do nothing about because we had no time to, but we could on this end (the southern part of the sandstorm) where nobody had come in.” The tractor-trailer driven by Flanary impacted the rear of Fore’s trailer, and Westbrook sustained serious injury.

Westbrook instituted this suit against, and sought to recover damages for his personal injuries from, John Henry Reed, Dicky’s Dozer Service, John Kesner Fore and Burke Inman Trucking. After the defendants had answered, Insurance Company of North America, alleging it was the workmen’s compensation insurance carrier for Ray Atkinson Pipe & Supply Company, intervened to receive out of any recovery by Westbrook the amount it had paid in workmen’s compensation benefits to, and the sum of medical expenses paid on behalf of, Westbrook together with its reasonable attorney’s fees.

The jury found that Reed drove his vehicle to the left of the center line of the highway which was negligence and a proximate cause of Westbrook’s injuries. The jury was not convinced that either Reed or Fore was negligent in continuing to drive along the highway under the existing conditions or in failing to turn his vehicle to the right immediately before the primary collision. Although Westbrook had alleged that his injuries were also proximately caused by the negligence of Reed and Fore in failing to warn of the dangerous condition existing as a result of the primary collision, issues inquiring about these matters were not submitted to the jury.

Flanary’s rate of speed and his failure to apply his brakes or otherwise slow his vehicle and to keep a proper lookout did not, in the jury’s view, meet the standards of a person using ordinary care under the same or similar circumstances. The act of commission and both acts of omission were each found by the jury to be a proximate cause of Westbrook’s injuries.

The jury refused to find that Flanary and Westbrook were engaged in a joint enterprise or that Westbrook failed to keep a proper lookout for his own safety. Finding that Westbrook failed to request Flanary to further reduce his speed, the jury did not find that the failure was negligence.

The trial court found that the verdict was for defendants Fore and Burke Inman Trucking and, following a hearing on a motion by defendants Reed and Dicky’s Dozer Service, the court further found that, as a matter of law, Westbrook’s injuries were not proximately caused by any negligence of Reed and Dicky’s Dozer Service. Thereupon, the court rendered judgment that Westbrook take nothing by his suit, and that Reed and Dicky’s Dozer Service take nothing by reason of their plea for indemnity and contribution from Fore and Burke Inman Trucking.

Westbrook perfected an unlimited appeal from the judgment, but the only appellate issue raised is whether the trial court was correct in disregarding the jury’s finding that Reed’s negligence was a proximate cause of Westbrook’s injuries. Rule 301, Texas Rules of Civil Procedure, authorizes the court to disregard any special issue jury finding that has no support in the evidence, but the rule is inoperative if there are conflicting facts bearing on the question of proximate cause, Robertson v. Alberty, 499 S.W.2d 361, 363 (Tex.Civ.App.— Amarillo 1973, no writ); cf. Liberty Film Lines, Inc. v. Porter, 136 Tex. 49, 146 S.W.2d 982, 983 (1941), for then the question whether a negligent act is a proximate cause of the injury is for determination by the fact finder. Clark v. Waggoner, 452 S.W.2d 437, 439-40 (Tex.1970).

In Texas, two elements are necessary to constitute proximate cause: cause in fact and foreseeability, Hopson v. Gulf Oil Corp., 150 Tex. 1, 237 S.W.2d 352, 355 (1951), and there must be proof of both elements. Enloe v. Barfield, 422 S.W.2d 905,- 908 (Tex.1967). Here, however, the parties have narrowed the issue to the foreseeability element of proximate cause. The test for the foreseeability element is whether the negligent defendant, as a person of ordinary intelligence and prudence, should have anticipated the danger to others created by his negligent act, and it is not required that he anticipate just how injuries will grow out of the dangerous situation. Sullivan v. Flores, 134 Tex. 55, 132 S.W.2d 110, 111 (1939).

Reed knew that visibility on the two-lane highway was severely limited for all motorists. He knew that there was vehicular traffic in the southbound lane and that the oncoming two cars he had seen emerge-from the dust were travelling “right close together.” When he drove into the sandstorm, he could not see the highway. From this evidence the jury was justified in concluding, with reason, that Reed should have anticipated, as would an ordinarily intelligent and prudent person, that if he negligently drove into the lane of oncoming traffic there was the likelihood of a collision, as well as other collisions before he had time for preventive action, producing injury.

Reed points out that he was not required to anticipate Planary⅛ negligence; yet, under the test, that does not excuse him from foreseeing that injuries might grow out of, and be inflicted on a person situated with relation to, his negligent act. Moreover, if his negligence was a proximate cause of Westbrook’s injuries, it is immaterial to his and Dicky’s Dozer Service’s liability that Planary’s negligence was also a proximate cause. Biggers v. Continental Bus System, 157 Tex. 351, 303 S.W.2d 359, 367 (1957).

Notwithstanding, Reed and Dicky’s Dozer Service insist that Westbrook’s injuries were the result of the intervention of an independent agency; i. e., Flanary, which, as a matter of law, Reed was under no legal duty to foresee. In urging this principle, they rely primarily on Bell v. Campbell, 434 S.W.2d 117 (Tex.1968), but also depend, in cited order, on City of Vernon v. Lisman, 17 S.W.2d 769 (Tex.Comm’n App.1929), Wester v. Smith, 213 S.W.2d 550 (Tex.Civ.App. — Port Worth 1948, no writ), and East Texas Motor Freight Lines v. Loftis, 148 Tex. 242, 223 S.W.2d 613 (1949).

It would serve no beneficial purpose to lengthen this opinion by reciting the facts in those cases. They are not factually analogous to the case at bar, except that the force of the primary negligence had come to rest without personal injury before the occurrence of the collision producing the injury in litigation. In those cases, no one was in real or apparent danger when the primary negligence occurred, and each party injured by the negligence was so far removed from the dangerous situation at the time of its creation that each negligent defendant ought not to have foreseen, and it was purely speculative, that the injury or some similar injury would be the natural and probable result of the wrongful act. In none of those cases did the negligence actively contribute to the injury involved in litigation. Here, however, as the jury determined from evidence of probative force, the conditions were such that Reed ought to have foreseen that his negligence would probably and naturally result in and actively contribute to injury to one situated as Westbrook was in relation to his negligent act. Under these circumstances, we cannot say as a matter of law that Reed ought not to have foreseen the consequences of his act.

Accordingly, the trial court was not authorized to disregard the jury’s finding of proximate cause. Reed and Dicky’s Dozer Service did not, as permitted by Rule 324, T.R.C.P., cross-assign as error that the jury’s finding of proximate cause was against the great weight and preponderance of the evidence. It follows that we must render the judgment that the trial court should have rendered in harmony with the jury’s verdict. Rule 434, T.R.C.P.

That portion of the judgment decreeing that Westbrook take nothing by his suit against Reed and Dicky’s Dozer Service is reversed, and judgment is here rendered that Odis Westbrook do have and recover of and from John Henry Reed and Dicky’s Dozer Service, jointly and severally, the sum of $60,000, the sum fixed by the jury as reasonable compensation for Westbrook’s injuries, with interest thereon at the rate of six (6%) per cent per annum from May 5, 1975 (the date of the trial court’s judgment), until paid, and all costs of suit; in all other respects, the judgment is affirmed.

      . After a lapse of time estimated by Fore to be no more than one and one-half minutes, a Tip Top Oil Company gasoline truck driven by Wayne Jones, who was braking to a speed of fifteen miles an hour, sideswiped the right rear of the Flanary trailer, ripping the side of the gasoline truck but not causing any personal injury. Very shortly thereafter, an Oldsmobile automobile occupied by a Mrs. Hutchins hit the rear of the Flanary trailer. She was taken to a hospital. Neither the oil company nor Mrs. Hutchins is a party to this lawsuit.

      . The judgment does not expressly refer to or dispose of Insurance Company of North America’s plea in intervention; however, because the intervention is conditioned and dependent on, and not separate from and independent of, Westbrook’s cause of action, it will be presumed that the intervention was disposed of in the judgment rendered after the conventional trial on all the merits, making it a final, appealable judgment. North East Independent School District v. Aldridge, 400 S.W.2d 893, 897-98 (Tex.1966); cf. Dawn v. Amerada Petroleum Corporation, 434 S.W.2d 451, 453 (Tex.Civ.App. — Waco 1968, no writ). The presumptive disposition is a denial of the recovery sought. There is no evidence of, nor any stipulation to, the merits of the intervention. The carrier has neither expressed disapproval of the court’s judgment nor perfected an appeal. No party to this appeal raises the matter, and it will not be further noticed.

      . The transcript does not contain a plea by Reed and Dicky’s Dozer Service for indemnity and contribution from Fore and Burke Inman Trucking. No issue about this matter has been raised on appeal and, therefore, the trial court’s adjudication will be affirmed.

      .Reed and Dicky’s Dozer Service mention only obliquely the cause in fact element. They suggest that Westbrook could not claim his injuries would not have happened but for Reed’s negligence in causing the primary collision, because the vehicle in which Westbrook was riding was travelling in a dust storm at a speed from three to four times faster than Fore’s vehicle and might well have overtaken and struck the rear of Fore’s vehicle without the primary collision. That issue is not seriously pursued, and suffice it to state that the record evidence of distance and speed most favorable to the suggestion lends itself to the calculation that, except for the primary collision, the Fore vehicle would have negotiated the remaining 100 yards of dust into daylight where, in Reed’s opinion, the visibility was unobstructed for a mile and one-half at least ten seconds before the Flanary vehicle entered the density of the sandstorm 300 yards to the north.


author: GUITTARD, Justice.

text:
    Ex parte C. M. (Tex) HARDY.
    No. 18853.
    Court of Civil Appeals of Texas, Dallas.
    Dec. 16, 1975.
    Larry L. Gollaher, Dallas, for appellant.
    B. I. Evans, Fort Worth, for appellee.
   GUITTARD, Justice.

In this application for a writ of habeas corpus, relator attacks an order of a domestic relations court finding relator in contempt, assessing a fine of $250, and committing him to jail for seventy-two hours. Relator asserts that the order is void on its face in that it does not apprise him of the reason for his commitment and fine. We agree and grant the writ.

The order, with its blanks and deletions, is as follows:

On this the 27 day of _October_ A.D. 19 75 came on regularly to be heard, the sworn motion of Sia±nt±f£ Defendant to adjudge the said Plaintiff-SsfsHáaRt to be in contempt of this Court for failure to observe and obey the order, judgment and decree of this court of record in
Minute Book _ at page _ of the minutes of this courts and came the Plaintiff-fiafEndaHl: in person and by attorney, and came BiaiHiixf-Defendant in person and by attorney, and all matters of law and fact having been submitted to the court, and the court having heard the evidence, the pleadings and the argument of counsel is of the opinion, and so finds that the Plaintiff-BafenáHHX has failed to observe and obey the order, judgment and decree shown on the records of this court referred to above, and that _he is and should be adjudged to be in contempt of this court for such failure and disobedience;
IT IS THEREFORE ORDERED, ADJUDGED and DECREED by this court that _C.M. HARDY_ be, and _ he is adjudged to be in contempt of this court for such failure and disobedience, and the punishment therefor is fixed and ($12.00 court costs) assessed at a fine of $ 250.00 / and confinement by the Sheriff of Dallas County, Texas, in the Common jail of Dallas County, Texas, for a period of 72 hours, aHdxtkBxssfXex
fHríkHrxKfiHÍxHHdxi-RXXHzdxjaiixHxixixxxxfeHxfcasxfuiiyxpurgEd himSEifXEfxXKSrhxESnlíHBl^XXfeyxXhExfMiixBbXHXKaJSKBXXHdXHbHdiEHSH afxtfaHxdEEXHEXBfxfkiXXKKXnciXXSfErXEldxXBXabBXEXbyXífeEXpHyiItEHt sjExXfaBxsxaxBfxgxxxxxxxxxxxxxxxfarxXfeBxxHjspflxXxB^xkxxxshlidxKH.
IT IS FURTHER ORDERED that all commitments, writs, attachments and other process necessary for the enforcement of this order be issued. gHfEXEEmaHixBfxtksaxaxdExxsKxpKKdsd fszxxxxxxxxxxxxxxiáaya.
Costs taxed against Flaintiff-BEfKxriHHi.

Relator points out that although the order recites that it is based on a previous order entered in the minutes of the court, it fails to identify any particular order because the volume and page references are blank. He asserts further that this information cannot be supplied from the record because there is no written order in the minutes other than the contempt order itself. Counsel for respondent acknowledges that the “order” referred to in his motion for contempt was oral. The motion alleges four violations of this oral order. The contempt order, however, recites no finding of any particular violation. Relator contends, therefore, that he is unable to determine the particular violation of which he has been convicted and is unable to demonstrate from the record that such essential finding fe without support in the evidence.

In these circumstances we must hold that the order in question does not meet the essential requirements of a judgment for contempt. Such a judgment should clearly state in what respect the court’s previous order has been violated. Ex parte Proctor, 398 S.W.2d 917, 918 (Tex.1966). It must contain specific findings so that the contem-ner will be fully apprised of his alleged act of misconduct so that he may overcome by proof, if any is available, the presumption of validity of the order. Ex parte Davis, 171 Tex.Crim. 629, 353 S.W.2d 29, 33 (1962). The present order fails to meet this test. The only finding recited is failure to obey an order in the minutes of the court, but the order disobeyed cannot be identified because, admittedly, no such order is contained in the minutes. Neither can the nature of the violation be determined by examination of the motion for contempt because that motion alleges several different violations and the order does not specify which of these allegations is found to be true. Consequently, under the above authorities, the judgment of contempt is void.

The writ of habeas corpus is granted and relator is discharged from custody.