author: AKIN, Justice.

text:
    Billy WAGNER et al., Appellants, v. ESTATE of Eugene Dixon DUNCAN, Deceased, Appellee.
    No. 19046.
    Court of Civil Appeals of Texas, Dallas.
    Jan. 14, 1977.
    Rehearing Denied Feb. 10, 1977.

      Ralph W. Currie, William J. Neilon, Jr., Dallas, for appellants.
    Roy J. True, True & Zable, Dallas, for appellee.
   AKIN, Justice.

This is an appeal from an order admitting to ancillary probate in Texas a will previously probated in New Hampshire. The application for ancillary probate alleged that the decedent was domiciled in New Hampshire. The probate court also granted letters testamentary to the executor appointed by the New Hampshire court and denied appellants the right to contest the ancillary probate. One of the grounds upon which the contest was predicated was that the decedent was domiciled in Texas rather than New Hampshire. The question presented is whether appellants have the right to contest the domicile of the decedent before the foreign will is admitted to probate or whether the foreign will should be admitted and appellants then required to file a suit to set the probate aside. Because we hold that the Probate Code requires that the will be admitted to probate as a ministerial act without any prior court proceeding in this state, the judgment of the probate court is affirmed insofar as it admits the foreign will to probate and issues letters testamentary to the foreign executor. However, because we also hold that a proceeding to determine decedent’s domicile may be instituted at any time after the foreign will is properly filed and recorded, we reverse that part of the probate court’s order denying appellants the right to file their contest to determine the domicile of the decedent. Accordingly, this cause is remanded to the probate court with instructions to entertain proceedings to determine the decedent’s domicile.

This controversy arose when Millard L. Drake, executor of the Estate of Eugene Dixon Duncan under a will admitted to probate in New Hampshire, filed application for ancillary probate in Texas pursuant to Tex.Prob.Code Ann. § 95(d)(1) (Vernon Supp.1976). Appellants, undisputedly interested parties under section 10, attempted to contest the application on the grounds that the decedent was not a domiciliary of New Hampshire and that Drake exercised undue influence upon the decedent. The court refused to allow the contest to be filed; however, the probate court’s order recites that this refusal is “without prejudice to their right to file suit to set aside probate of said will.” Later on the same day, the court entered an order admitting the will to probate as a foreign will and issued letters testamentary to the foreign executor.

Appellants argue that it was error for the court to admit the foreign will to probate and to grant the foreign executor letters testamentary without first entertaining appellants’ contest. Their attack is two-pronged: (1) that under section 10 any interested party may file opposition in a matter pertaining to an estate “before any issue in any proceeding is decided upon by the court; ” and (2) that there is no evidence in the record that the decedent was domiciled in New Hampshire. We cannot agree with the first contention and hold the second is immaterial. Section 95(d)(1) provides:

If the will has been probated or established in the jurisdiction in which the testator was domiciled at the time of his death, it shall be the ministerial duty of the clerk to record such will and the evidence of its probate or establishment in the minutes of the court. No order of the court is necessary. When so filed and recorded, the will shall be deemed to be admitted to probate, and shall have the same force and effect for all purposes as if the original will had been probated by order of the court, subject to contest in the manner and to the extent hereinafter provided, [emphasis added]

Obviously, since this statute contemplates that the clerk shall ministerially file the foreign will upon application, no action by the court is necessary and no evidentiary hearing is contemplated. Section 10 is specifically limited to “any issue in any proceeding [to be] decided upon by the court; ” since no hearing by the court is provided for in this statute, section 10 is not applicable. It is likewise immaterial that the foreign court proceedings contain no explicit finding that the decedent was domiciled in New Hampshire. If a finding of domicile by the foreign court is required, then the clerk would have to interpret the foreign court’s order to determine if such a finding was made. For example, the New Hampshire order recites only that the decedent was “late of Chester, New Hampshire.” A clerk’s determination of whether this was equivalent to a finding of domicile would be beyond his ministerial powers. Additionally, if a finding of domicile is required and the foreign court neglects to recite such a finding in its order, this would preclude it from being filed and recorded under section 95(d)(1), despite the fact that the only condition prescribed by the statute — that “the will has been probated or established in the jurisdiction in which the testator was domiciled at the time of his death” — has been satisfied. Furthermore, a contest of the application to admit a foreign will to probate on the basis of prior proceedings held in the decedent’s domicile is not the proper procedure for litigating the question of domicile. That question may only be litigated pursuant to section 100(b), and if appellants prevail, the Texas probate will be set aside. Section 100(b) states:

If a will has been probated in this State in accordance with the procedure applicable for the probate of a will that has been admitted in the state of domicile, without the service of citation required for a will admitted in another jurisdiction that is not the domicile of the testator, and it is proved that the foreign jurisdiction in which the will was probated was not in fact the domicile of the testator, the probate in this State shall be set aside, [emphasis added]

We hold that a will filed and recorded pursuant to section 95(d)(1) has been probated within the meaning of section 100(b). There is no requirement, however, that the estate be distributed before the court may determine domicile. Therefore, a proceeding to determine domicile is proper at any time after the will is filed and recorded. Our reading of these statutes is supported by the language of section 95(f), which provides that anyone who purchases property, in good faith and for value, from the personal representative will not lose his right or title to the property purchased because the probate in this state is later set aside if the purchase is made before any proceeding to determine the decedent’s domicile is commenced. This section obviously contemplates that the question of domicile may be litigated before all property is distributed pursuant to the probate in this state. Otherwise, the language requiring that the good-faith purchase be made “prior to the commencement of the proceeding” would be superfluous.

Appellants also contend that the probate court erred in issuing the letters testamentary to the foreign executor because section 10 provides that an interested party may file opposition to any matter pertaining to an estate at any time “before any issue in any proceeding is [determined] by the court,” including the issue of domicile. We do not so read section 10. As we read section 10, it means that any interested party may file opposition to the particular proceeding before the court and a hearing must be had thereon before any issue in that proceeding is decided by the court. Therefore, after a foreign will is probated under section 95, section 105 mandates that the foreign executor shall be entitled to letters testamentary upon proof that he qualified in the foreign jurisdiction and is not disqualified in this state. Thus, with respect to the issuance of letters to a foreign executor, a contest under section 10 is limited to the issues set forth in section 105, although, of course, such letters must be revoked if a contest of domicile is successful. Accordingly, we hold that the probate court did not err in issuing letters testamentary without first determining the decedent’s domicile.

Appellants further argue that the New Hampshire executor is likely to remove the assets of the estate beyond the jurisdiction of the probate court if letters are issued before a determination of domicile is made. Therefore, they insist that if they ultimately prevail upon the question of domicile and the Texas probate based on the New Hampshire order is set aside, they will likely encounter difficulty and undue expense in pursuing the assets in another state against a nonresident. Moreover, appellants may be wholly without remedy if the courts of the other state do not recognize the determination of domicile by the Texas court. We agree, therefore, that Texas residents who are interested in an estate should have some sort of protection against removal of assets by a foreign executor pending contest of the domicile issue. A logical remedy would be to require the executor to file a bond before he can remove assets from the state, but section 215 of the Code, which is the only provision authorizing the court to require a bond of an executor exempted by the will from giving bond, does not include this situation among the grounds specified. Consequently, any power to restrain the executor in this respect must be found in the general equitable powers of the court. Whether appellants have grounds for such equitable relief is a question not now before us. We hold only that when a will is filed as a foreign will under section 95 and the foreign executor’s qualifications are established, the pendency of a contest of domicile does not in itself prevent the filing of the will as a foreign will or suspend the executor’s right to issuance of letters testamentary-

Although appellants’ attempt to contest the application for probate was not technically the proper procedure under the Probate Code to determine domicile, the pleading adequately apprised appellee that appellants were contending that New Hampshire was not the decedent’s domicile. As such, it was entitled to be filed as soon as the foreign will was filed and recorded. Tex.R.Civ.P. 71. We remand, therefore, this cause to the probate court for proceedings to determine domicile. Otherwise, the order is affirmed.

      . Actually, the will should have been filed and recorded by the clerk as a ministerial act under Tex.Prob.Code Ann. § 95(d)(1) (Vernon Supp. 1976). This section provides that no court order is required. Since the statute does not prohibit a court order, it does not affect the validity of the ancillary probate. However, the mandate that the act is a ministerial one should apply to action taken by the court as well as the clerk.

      . All citations are to Tex.Prob.Code Ann. unless otherwise specified.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    TEXAS ELECTRIC SERVICE COMPANY, Appellant, v. Burlyn H. NELON et ux., Appellees.
    No. 17775.
    Court of Civil Appeals of Texas, Fort Worth.
    Jan. 14, 1977.
    Rehearing Denied March 4, 1977.

      Cantey, Hanger, Gooch, Munn & Collins, Jack C. Wessler and S. G. Johndroe, III, Port Worth, for appellant.
    Crumley, Murphy & Shrull, William M. Murphy, Fort Worth, for appellees.
   OPINION

PER CURIAM.

This case presents an appeal from a condemnation award entered against a public utility in a proceeding resulting from the construction of Comanche Peak generating plant, the first nuclear-powered generating plant in Texas. Appellant, Texas Electric Service Company, asserts excessiveness in the jury’s award for damages to the market value of the remainder of the owner’s land as a result of the condemnation of the strip of land for railroad easement in that it was improperly influenced by testimony of fear of purported nuclear danger.

The appeal is based upon “no evidence” and “insufficient evidence” points relating to the jury’s findings, the admissibility of evidence of fear of accidents or sabotage during the transportation of nuclear waste, an assertion that the jury award was grossly excessive, and other evidentiary matters.

We affirm.

Appellant (to be referred to as TESCO) brought a statutory condemnation proceeding against Mr. and Mrs. Burlyn H. Nelon. These condemnees objected to the special commissioners’ award of $22,000.00. Subsequently a jury trial was held in the 29th District Court of Hood County, Texas. Judgment was rendered upon the jury verdict.

On June 3, 1975, TESCO acquired the easement of 7.687 acres as a right-of-way strip for a railroad spur through the Nelons’ 358-acre farm in Hood County. A portion of the ten-mile railroad spur crosses the property about 3V2 miles from the Comanche Peak generating plant on Squaw Creek Reservoir. It connects with the main Santa Fe Railroad line at Tolar, Texas. The farm is currently leased for the production of peanuts. No one lives on the property, although it is used as a weekend retreat.

Condemnees presented evidence at trial that one of the purposes of the railroad spur line was to carry nuclear waste away from the Comanche Peak site. It is undisputed that a portion of that waste will be plutonium, a highly dangerous radioactive substance which must be carefully contained.

TESCO does not quarrel with the $6,149.60 awarded the condemnees for the 7.687-acre easement. The controversy relates solely to the amount of damages to the remainder resulting from construction of the railroad and its intended use.

Jury findings in answer to Special Issues Nos. 3 and 4 were that the reasonable market value of the 350.413-acre remainder immediately before the taking on June 3, 1975, was $280,330.40, and immediately after the taking, $175,206.50.

TESCO in its first four points of error asserts that there is “no evidence” and “insufficient evidence” to support these jury findings of market value. In Point 5 TES-CO complains of the admission of the opinion testimony of condemnees’ value witness, Vernon Thomas, in regard to the alleged reduction in market value of the remainder because of the fear of purported nuclear danger. By its sixth point TESCO asks this court for a remittitur.

In essence, TESCO’s position under its first six points is (1) that condemnees’ value testimony is not supported by market data; (2) that condemnees did not establish the nature of the damage to the remainder, its effects upon the various portions of the tract, and the relationship of the damage to market value as required by Tennessee Gas & Transmission Co. v. Zirjacks, 244 S.W.2d 837 (Tex.Civ.App., San Antonio, 1951, writ dism’d); and (3) that condemnees’ evidence of fear did not meet the test of Heddin v. Delhi Gas Pipeline Company, 522 S.W.2d 886 (Tex.Sup., 1975) because there was no proof that the alleged fear was based upon actual experience.

In considering the “no evidence” points we must view the evidence in the light most favorable to the jury’s findings and disregard all evidence to the contrary. If there is any evidence of probative force to support the jury’s findings, we are bound by those findings. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

In considering whether the evidence is “insufficient” to support the jury’s findings, we must review all the evidence. The case should be remanded for new trial only if the verdict is so contrary to the overwhelming weight of all the evidence as to be clearly wrong or manifestly unjust. In re King’s Estate, supra.

The jury’s finding of decreased value suggests that it did not consider fear of nuclear danger a factor. The findings of value before and after taking show a decrease of $105,123.90. This figure corresponds mathematically to the $300-per-acre decrease (from $800 to $500) in the value of the 350.413-aere remainder which Thomas, con-demnees’ value witness, testified to be the result of the construction of the railroad, without any consideration of the nature of its intended freight.

We may not assume that the jury did not consider the fear factor, however. “The jury is at liberty to reach its conclusion by blending all of the evidence admitted before it, aided by its members’ own experience and knowledge of the subject of inquiry. Jurors are not compelled to credit all the testimony of any witness or to reject it all. Opinion evidence is not conclusive. A jury may consider and accept or reject opinions or it may find its own opinion from evidence and by utilizing its own experience in matters of common knowledge.” Coastal Industrial Water Authority v. Reynolds, 503 S.W.2d 593, 601 (Tex.Civ.App., Houston, 1st Dist., 1973, writ ref’d n. r. e.), citing Coxson v. Atlantic Life Ins. Co., 142 Tex. 544, 179 S.W.2d 943 (1944).

We first consider the evidence concerning the lanc| value immediately before the taking and the damage to the remainder allegedly resulting from the taking for the railroad, apart from a consideration of the evidence of fear and its effect upon the value of the remainder.

VALUE OF REMAINDER IMMEDIATELY BEFORE TAKING

Nelon testified that he was in the commercial and residential construction business and has been buying land for development since 1959. In his opinion the value of the tract was $1000 per acre at the time of taking, June 3, 1975.

Condemnees’ expert value witness was real estate appraiser Vernon Thomas. He testified that the property’s highest and best use was for small-tract development and for small-scale food and livestock production. It was his opinion that the remainder was worth $800 per acre immediately before the taking. Thomas based his opinion upon the following sales of property which he considered comparable: (1) Williams to Hyde: a 1974 sale of 30.25 acres at $1500 per acre; (2) Ballard to Pearson: a 1973 sale of 245.755 acres at $1000 per acre; (3) Johnson to Ross: a 1974 sale of 29.2 acres at $800 per acre; (4) Manning to McKenzie: a 1974 sale of 38.5 acres at $825 per acre.

TESCO’s expert value witness, real estate appraiser James W. Daniels, testified that the remainder was worth only $700 per acre before taking. He based his opinion upon the following sales which he considered comparable: (1) Willy to Decker: a 1974 sale of 80 acres at $900 per acre; (2) Davis to Williams: a 1973 sale of 157 acres at $557 per acre; (3) Couch to Ragle: a 1973 sale of 206 acres at $525 per acre; (4) Moore to Ramsey: a 1974 sale of 89.23 acres at $644.44 per acre.

The weight of the opinion evidence presented was a matter for the jury’s determination. There was ample evidence to support the jury’s finding of $800 per acre as the value of the remainder before taking. We overrule TESCO’s points 1 and 3.

VALUE OF REMAINDER IMMEDIATELY AFTER TAKING

Condemnees’ witness Thomas testified over objection to his opinion that there was greater diminishment in the value of small tracts near a railroad than in the value of those farther away. As an example, he cited: (1) Stroud Creek Estates to Schemake: a 1973 sale of 11 acres (3 lots) far from the railroad at $1000 per acre; (2) Stroud Creek Estates to Lucker: a 1973 sale of 42 acres (11 lots) abutting the railroad at $500 per acre.

Thomas testified that in his opinion con-demnees’ remainder was worth $500 per acre after the utility condemned the land for its right-of-way.

The only other opinion evidence of value after taking was that of TESCO’s witness Daniels. He testified that the presence of the railroad had no effect upon the value of the remainder and that in his opinion it was worth $700 per acre before and after taking.

We hold that there was sufficient market data supporting condemnees’ value evidence. “When a witness gives evidence that he is acquainted with market value, he is prima facie qualified to testify concerning value as an expert,” and the question then becomes one of the weight of his testimony. Jefferson County v. Cohrt, 487 S.W.2d 444, 446 (Tex.Civ.App., Beaumont, 1972, no writ); City of Houston v. McFadden, 420 S.W.2d 811 (Tex.Civ.App., Houston, 14th Dist., 1967, writ ref’d n. r. e.).

EVIDENCE OF DAMAGE TO REMAINDER

Henry Randall, a tenant who farms the Nelon land, testified that the railroad bisects the land in such a way that there would be considerable inconvenience in its future cultivation. TESCO urges that such testimony should not be considered as evidence of damage to the remainder because it does not relate to damage which interferes with the use of the land for small tract development. There was also testimony, however, that the highest and best use of the land was for small-scale production of food and livestock.

Certainly the evidence was properly admitted. Evidence of interference with cultivation as a result of condemnation is an element which may be considered in awarding damages. Texas Electric Service Company v. Etheredge, 324 S.W.2d 322 (Tex.Civ.App., Eastland, 1959, no writ).

TESCO made no objection to the court’s charge which instructed the jury to consider “all of the uses to which (the remainder) is reasonably adaptable and for which it either is or in all reasonable probability will become available with the reasonable future.”

Exhibits introduced by condemnees, including photographs of portions of the land, also evidence the nature of the damage and its effects upon the remainder. These photographs showed parts of the farm before and after the construction of the railroad was begun, the types of cuts of land made, the types of fills used, and the railroad embankments constructed on the property.

We hold that condemnees met their burden to show the nature of the damage to the remainder, the effect upon various portions of the tract and the relationship of same to market value. Coastal Industrial Water Authority v. Reynolds, supra; City of Houston v. McFadden, supra; State v. Scarborough, 383 S.W.2d 839 (Tex.Civ.App., Texarkana, 1964, writ ref’d n. r. e.).

Condemnees having presented ample evidence to support the jury’s findings to Special Issue No. 4 as to value after taking, we overrule TESCO’s points 2 and 4.

ADMISSIBILITY OF EVIDENCE OF FEAR IN DETERMINING MARKET VALUE AFTER TAKING

TESCO’s fifth point complains that the trial court erred in the admission of the opinion testimony of the value witness, Vernon Thomas, in regard to alleged reduction in market value of the condemnees’ remainder land because of fear of a purported nuclear danger. TESCO asserts that no proper predicate was laid for Thomas’s testimony that the fear of nuclear danger further lowered the value of the remainder to $350 per acre. It is our opinion that the necessary predicate was laid.

In answer to an interrogatory TESCO stated that one of the purposes of the railroad spur line was to carry nuclear waste away from the Comanche Peak site. At trial, Maurice Wendt, TESCO’s engineering manager called by condemnees as an adverse witness, testified that the spent atomic fuel will first be stored at the plant site and then moved to another site for reprocessing.

He also testified that TESCO’s answer to the interrogatory meant only that the railroad would be available for such use but that it was not certain that it would actually be so used because the plans for removal of the waste had not yet been made. He would not testify, however, that the railroad would not be used for the transportation of the waste.

The rule regarding the relevancy of proof of fear in the minds of the buying public is set out in Heddin v. Delhi Gas Pipeline Company, 522 S.W.2d 886, 888 (Tex.Sup., 1975). “. . . fear in the minds of the buying public on the date of taking is relevant to the proof of damages when the following elements appear:

“1. That there is a basis in reason or experience for the fear;
“2. That such fear enters into the calculations of persons who deal in the buying and selling of similar property; and
“3. Depreciation of market value because of the existence of such fear.”

Thus condemnees were required to establish either an “actual danger forming the basis of such fear or that the fear is reasonable, whether or not based upon actual experience.” Heddin, supra.

Condemnees’ expert witness, Dr. Peter A. Girardot, is a university professor who teaches a course in solid waste management, including the disposal of nuclear waste. He testified that the railroad transportation of high-level nuclear waste across condemnees’ property presents an actual danger from escaped radiation along the ten-mile right-of-way because of the danger of accidents or sabotage along the route. He further testified that the fear is based upon fact, rather than fancy, delusion or imagination because of danger that the containers might rupture in an accident. He also testified that the hazards of transportation of nuclear waste were under study by the Nuclear Regulatory Commission.

It is true it was not proved that it was probable an event might occur causing the rupture of the containers and an escape of radiation. Nor was proof presented that there has as yet been a breach of a shipping container in commercial transportation of nuclear waste. But the rule in Heddin does not require that an accident of the type feared already have occurred; it is sufficient if there is a basis in reason for the fear.

TESCO also urges that the admission of fear in condemnees’ case-in-chief was error under Heddin, supra. In that pipeline condemnation case, evidence of a pipeline accident which occurred after the date of taking was held inadmissible to substantiate allegations of fear of actual danger because it was not offered to rebut an assertion by the condemnor that the pipeline was not dangerous or that fear of any such danger did not affect market value. The court in Heddin stated “the general rule that compensation for land taken by eminent domain is measured by its market value at the time of taking would appear to require exclusion of evidence of all ruptures occurring after the date of taking. A rupture occurring subsequent to the date of taking could not have had an effect on market value as of the date of taking.” 522 S.W.2d 886, 889.

TESCO has not complained of the introduction of any evidence of accidents or sabotage in the transportation of nuclear waste which occurred after June 3, 1975. Its contention apparently is that all evidence of fear should have been excluded from con-demnees’ case-in-chief and could have been offered only to rebut an assertion by TES-CO that transportation of nuclear waste was not dangerous or that fear of any such danger did not affect the market value of the remainder. We do not interpret Heddin as support for this proposition. The rule in Heddin applies only to evidence of accidents occurring after the date of taking.

We hold that condemnees sufficiently demonstrated that the fear of nuclear danger from accidents or sabotage during transportation of nuclear waste is based in reason, thus establishing a proper predicate for Thomas’s testimony as to reduced market value as a result of such fear.

The jury also had some evidence of the existence of fear in the Hood County area from the testimony of Maurice Wendt, TESCO’s own engineering manager. Wendt testified concerning the public information program which TESCO instituted in Hood County at the time the planned construction of the plant was announced. He conceded that one of the purposes of the program was to allay fears of the public. Wendt further testified that Fort Worth newspapers, which circulate in Hood County, had carried articles on the dangers of transporting nuclear waste.

There were no comparable sales involving the ultimate question of how condemnations involving the particular element of fear had affected the market value of other remainder property. The instant case was the first in the area in which it was necessary to consider the propriety of admitting evidence of fear of such nuclear danger as a factor in a decrease of market value.

Of course there must be a first time for the happening of events, and the admission of Thomas’s testimony was proper in this case. He was undoubtedly qualified. TES-CO made no objection on the ground that he lacked any qualification. He testified that the general public had developed a fear caused by the intended use of the railroad, and he gaVe his expert opinion as to the reduced market value of the remainder of the Nelon property which resulted. TES-CO’s objection was merely that condemnees failed to lay a proper predicate for his testimony of decreased market value because of the fear, and we have rejected that contention.

We overrule TESCO’s fifth point.

ON REMITTITUR

TESCO’s sixth point asks that a re-mittitur be applied to that part of the court’s judgment which established the damages based upon the difference, as found by the jury, in the values of con-demnees’ remainder before and after the taking.

We find no ground for a remittitur in this case, and we overrule this point.

The values were well within the range of the market value testimony of the expert witnesses. There is no indication of any passion or prejudice on the part of the jury, and there is no manifest excessiveness in the damage award of the judgment. Urban Renewal Ag. of City of San Marcos v. Bethke, 420 S.W.2d 803 (Tex.Civ.App., Austin, 1967, writ ref’d n. r. e.); 22 Tex.Jur.2d, Eminent Domain, Sec. 319, “Excessive or insufficient verdict,” p. 443 (1961).

OTHER EVIDENTIARY MATTERS

TESCO’s seventh point complains that the trial court erred in overruling its objections to the admission of exhibits and in permitting condemnees’ counsel to testify concerning them in the jury’s presence. TESCO’s eighth point complains that these exhibits employed an averaging process which did not constitute competent, admissible evidence in support of the jury’s answers to Special Issues Nos. 3 and 4.

During his cross-examination of Daniels, TESCO’s value witness, the attorney for condemnees used charts listing the four sales of properties which Daniels had previously testified were comparable to con-demnees’ remainder. Counsel for con-demnees then advanced what he termed logical extensions of Daniels’ prior testimony. Daniels rejected those conclusions as being based upon an incorrect appraisal procedure.

The conclusions shown on the exhibits included (1) a computation of the average sale price ($656.50) of the four properties; (2) a computation of the difference in per-acre price between the oldest sale (March 1973) and the newest (September 1974) amounting to $375; and (3) a computation of the average monthly rate of increase ($20) over the 18-month period separating the two sales. Counsel for condemnees then added an increase of $180 based upon the $20 average monthly increase over the nine-month period extending from the last sale cited by Daniels to the date of taking on June 3, 1975. These computations resulted in the sum of $836.50 per acre as the value of condemnees’ remainder based upon the “logical extension” of Daniels’ own testimony.

TESCO made no objection to this method of cross-examination until the charts on which these computations were made were themselves offered in evidence. At that point TESCO objected to their admission for the reason that Daniels had denied their validity and counsel for condemnees had not taken the stand to prove them up.

We have examined this portion of the record and the events in the examination of the opposing witness leading up to the introduction of the exhibits. While it seems that condemnees’ counsel made a jury argument at the evidentiary stage, there is nothing in what occurred which amounted to reversible error. T.R.C.P. 434, “If Judgment Reversed.” It is our conclusion that the error, if any, was not such as was reasonably calculated to cause, nor did it probably cause the jury to return an answer to any issue in the verdict any different from what would have been returned had the error not occurred.

We overrule TESCO’s seventh and eighth points.

By its ninth point TESCO complains that the trial court erred in overruling its “Supplemental” Motion for New Trial on the grounds of newly discovered evidence.

The evidence by which TESCO hoped to obtain a new trial is the Rasmussen Reactor Safety Study released by the Nuclear Regulatory Commission on December 1,1975, the date this case went to trial.

There was testimony at the hearing on the motion that the Rasmussen Report contained the statement that it is not possible to estimate the probabilities of acts of sabotage which would result in danger or loss of life. TESCO sought to use this statement at a new trial to show that the opinion of Dr. Girardot, condemnees’ expert witness, was not based upon scientific investigation of the risk involved in the transportation of nuclear waste material. TESCO asserts this statement is evidence that there is no basis in fact for the alleged fear.

At the hearing Dr. Girardot testified the Rasmussen Report did not attempt to analyze the hazards of nuclear waste transportation. He also testified it was not the study the Nuclear Regulatory Commission was making of the hazards of transportation of nuclear waste to which he referred at trial and which, upon completion, he would regard as having some basis in the science of probability.

There was also testimony at the hearing by TESCO’s expert, Dr. C. William Garrard, Jr. Dr. Garrard was employed as a nuclear engineer and manager of nuclear fuel by Texas Utilities Service Company and was responsible for nuclear fuel at the Comanche Peak plant.

Dr. Garrard admitted on cross-examination that he did not attempt to obtain a copy of the report until after trial, although he had mentioned it to TESCO’s attorneys prior to trial; that a draft copy had been available in 1974; and that on November 14, 1975 an article appeared in “Science”, a periodical to which his employer subscribes. The article, which was admitted in evidence at the hearing, was critical of the Rasmussen Report because it did not analyze “the likelihood of catastrophes from sabotage or acts of war, or the risks involved in other elements of the fuel cycle, such as transportation and waste disposal”.

Although he did not recall having read the “Science” article, Dr. Garrard also admitted that the Rasmussen Report concerns “the chances of people living within the vicinity of a nuclear power plant being injured or killed, or sustaining property damage as a result of a reactor failure inside the plant” or some other event occurring inside the plant.

TESCO’s argument at the hearing was that the testimony of Dr. Girardot, con-demnees’ expert, might have been different at trial if he had the final Rasmussen Study, a position which Dr. Girardot expressly rejected.

We have examined this “newly discovered evidence” and fail to perceive how it bears upon the material issue of market value at time of trial. We hold that TES-CO has not satisfied the requirements set forth in Conwill v. Gulf, C. & S. F. Ry. Co., 85 Tex. 96, 19 S.W. 1017 (1892) and quoted with approval in New Amsterdam Casualty Company v. Jordan, 359 S.W.2d 864, 866 (Tex.Sup., 1962), viz: “A new trial will not be granted on the ground of newly-discovered evidence, unless it is made to appear that it has come to the knowledge of the applicant since the trial; that it could not have been sooner discovered by the exercise of diligence; that it is not merely cumulative; that it is not for the purpose of impeachment.”

We overrule TESCO’s ninth point.

Judgment is affirmed.


author: RAY, Justice.

text:
    Mahlon L. WALTERS, Appellant, v. Luvenia Allsbrook PETE, Appellee.
    No. 8379.
    Court of Civil Appeals of Texas, Texarkana.
    Jan. 18, 1977.
    Rehearing Denied Feb. 22, 1977.

      L. F. Burke, Longview, for appellant.
    J. R. Cornelius, The Cornelius Law Firm, Jefferson, for appellee.
   RAY, Justice.

The opinion formerly delivered in this cause on November 23, 1976, is withdrawn and the following is substituted therefor.

This is a trespass to try title case. Luve-nia Allsbrook Pete, appellee (plaintiff), brought suit against C. R. Newland, the predecessor in title of appellant (defendant), Mahlon L. Walters. The suit was commenced in 1962 and Newland conveyed the land to Walters in 1970. Walters and Pete both filed motions for summary judgment which were overruled by the trial court. Thereafter, the case was tried to the court without the aid of a jury. The trial court entered judgment for Appellee Pete. Appellant Walters submits twelve points of error for our consideration. The judgment of the trial court will be reversed.

Appellant and appellee both claim title to the same tract of land in Marion County. Appellee Pete has long claimed the tract, but under a mistaken impression that the tract was accurately described in her deed. The predecessors in title of Appellant Walters have long held a deed accurately describing the tract, but under a mistaken impression that the deed describes a separate, nearby tract upon which the predecessors in interest had made their home. Title to this second nearby tract is not in issue.

The common source of title of the parties was Charles W. Ray. The divergent interests were created in 1944. In March of that year, Ray conveyed to O. S. Delamer the tract of land subsequently conveyed to Ap-pellee Pete. In June of 1944, Ray conveyed to John and Rosie Alford the tract subsequently conveyed to Newland and finally to Appellant Walters. All deeds were promptly filed and recorded.

The Alfords took possession of and resided upon a tract of land some 200 feet south of the tract described in their deed from Ray. The appellee has never resided upon the tract described in her deed or the tract described in the Alford deed. She believed, however, that she owned the land described in the Alford deed.

The tract of land actually described by Appellee Pete’s deed was not owned by her grantor, Ray. The appellee contends that the description as it stands is the product of a scrivener’s error. The tract as conveyed to both Delamer and to Appellee Pete is described by metes and bounds as follows:

All that certain lot, tract or parcel of land lying and being situated in the County of Marion and State of Texas, a part of the Miles Reed Headright Survey described as follows:
BEGINNING at the Northeast corner of a tract now owned by Charles W. Ray and in the South margin of the Jefferson-Gilmer road;
THENCE South 121 vrs to a stake for corner;
THENCE East 163.4 vrs to a stake for corner;
THENCE North 121 vrs to corner in the South margin of Jefferson-Gilmer road and the same being the Northeast corner of a 2 acre tract;
THENCE West with said tract 163.4 vrs to the place of beginning, containing 3.50 acres of land.

The appellee asserts that the second and fourth calls, that is the East and West calls, were mistakenly reversed. If this were the case, then a corrected deed would describe land formerly included in the Ray holdings, the same land, in fact, described in the Alford deed.

No error in or conflict between deeds and holdings was known until Newland succeeded to the tract described in the Alford deed in 1962. At that time Newland dispossessed Appellee Pete, and she responded by filing a trespass to try title suit.

The trial court agreed with Appellee Pete’s contention that her deed contained scrivener’s errors which should be corrected, and that her claim to the tract of land, then described by both the Delamer-Pete deed and the Alford-Newland-Walters deeds, was superior.

Findings of fact and conclusions of law were filed in support of the judgment.

This case involves parties other than the original grantor and grantee. The deed from Charles W. Ray to O. S. Delamer under which Appellee Pete claims is not ambiguous on its face. The deed was thus a legally binding written instrument not subject to being varied, added to or contradicted by parol evidence under the pleadings in the case before us. Ulbricht v. Friedsam, 159 Tex. 607, 325 S.W.2d 669 (1959).

Appellee contends that the deed from Ray to Delamer should be construed as a matter of law to have contained latent ambiguities which became apparent when the description was applied on the ground and that by the use of parol evidence the East and West calls in appellee’s deed should be exchanged such that appellee would then be the holder of the superior legal title to the land claimed by Appellant Walters. Appel-lee states that it is the duty of the court to construe the deed so as to make the deed cover the land it was intended to convey.

In 49 Tex.Jur.2d, Records and Registration Acts, Sec. 98, pp. 428 — 429, it is stated:

“Registration of an instrument is not constructive notice of a conveyance or encumbrance of property differing from that described in the recorded instrument, as where there is a substantial discrepancy between the property intended and that described in the instrument, or where there is a mistake in a call in a deed and there is nothing on the face of the instrument to indicate what was intended, or, again, where the terms of description, though not ambiguous in themselves, require a complete reformation in order to express the intention of the parties.”

The rule permitting latent ambiguities or mistakes in a deed to be explained or corrected as between the parties does not affect third persons having no notice of the ambiguity or mistake, and who have only such constructive notice as the record gives. Neyland v. Texas Yellow Pine Lumber Co., 26 Tex.Civ.App. 417, 64 S.W. 696 (1901, no writ).

The deed under which Appellee Pete claims was not in Appellant Walters’ chain of title and since the Ray-Delamer-Pete deeds contained no ambiguities on their faces which would put Walters on inquiry about Pete’s claim, the mere registration of those deeds would not constitute constructive notice that Pete was claiming the land to which Walters had secured a deed. Since Walters was a stranger to the original transaction, he is not charged with notice of the latent ambiguity because he is only charged with such constructive notice as the record itself gives. Neyland v. Texas Yellow Pine Lumber Co., supra. Here, there is nothing that appears on the face of the deed from Ray to Delamer which would have caused Walters to be aware of any latent ambiguity or mistake or which would incite him to an inquiry which would have cleared up the latent ambiguity. Thus, he was not required to look any further than his own chain of title to determine whether or not he was acquiring good title to his property.

To recover in a trespass to try title case, the plaintiff must recover on the strength of his own title. Hejl v. Wirth, 161 Tex. 609, 343 S.W.2d 226 (1961). He may recover by (1) proving a regular chain of conveyances from the sovereign, (2) by proving a superior title out of a common source, (3) by proving title by limitations, or (4) by proving prior possession without abandonment. Land v. Turner, 377 S.W.2d 181, 183 (Tex.1964).

Appellee Pete has never resided on or occupied the land in question. She does not assert prior possession or title by limitations. Appellee relies on superiority of title out of a common source, but admits that her deed as written does not accurately describe the tract. Reformation, then, was a condition precedent to appellee’s right of recovery. Cleveland State Bank v. Gardner, 286 S.W. 173 (Tex.Comm.App. 1926, opinion adopted); 87 C.J.S. Trespass to Try Title § 4, p. 1123. It is, however, within the power of the court to reform an instrument relied upon in trespass to try title when the deed contains a mutual mistake of fact, Spain v. Fuston, 242 S.W.2d 892 (Tex.Civ.App. Fort Worth 1951, no writ), provided the parties are before the court and limitation has not barred the action. Alfalfa Lumber Co. v. Mudgett, 199 S.W. 337 (Tex.Civ.App. Amarillo 1917, no writ).

The four-year statute of limitations, Tex.Rev.Civ.Stat.Ann. art. 5529, applies to actions for reformation of deeds. Mathis v. Stockdick, 189 S.W.2d 106 (Tex.Civ.App. Galveston 1945, writ ref’d). It has been said to be well established, however, that the statute of limitations will not run against the purchaser of land who enters into actual possession and occupies the land and whose title is never disrupted. He may have a description in his deed corrected to conform to the original intent of the parties. Gage v. Owen, 396 S.W.2d 189 (Tex.Civ.App. Fort Worth 1965), 435 S.W.2d 559 (Tex.Civ.App. Fort Worth 1968, writ ref’d n. r. e.); Payne v. Ross, 10 Tex.Civ.App. 419, 30 S.W. 670 (1895, no writ). The appel-lee did not know of the error in her deed until she was dispossessed in 1962.

When appellee filed her suit in 1962, she alleged that she was dispossessed of the 3.5 acre tract previously described by metes and bounds in this opinion. Appellee did not seek reformation in her original petition. Subsequently, on October 4, 1974, appellee filed her first amended original petition stating that she had been dispossessed on July 31,1970, of a 3.5 acre tract of land. In her original petition she had described the tract as it was conveyed to her but which she later asserted in her amended petition contained erroneous east and west calls. In the amended petition appellee purported to describe the tract with the correct calls and sought reformation of the description of the tract in her deed from Delamer. It is clear from appellee’s amended petition that if she were dispossessed of the correctly described tract on July 31, 1970, but did not seek reformation until the filing of her amended petition on October 4, 1974, the four-year statute of limitations would have run and she would be barred from her recovery action.

In Kirk v. Head, 137 Tex. 44, 152 S.W.2d 726, 729 (1941), it was stated:

“It is the general rule that the pleadings in a particular case, for the purpose of use as such in that case, are to be regarded as judicial admissions, rather than just ordinary admissions.”

We therefore conclude that appellee has judicially admitted that she was dispossessed of the property she claimed on July 31, 1970, and that she did not bring her suit for reformation until October 1974, a period of time in excess of four years. Appellee’s cause of action for reformation was thus barred by the four-year statute of limitations, Tex.Rev.Civ.Stat.Ann. art. 5529.

It is a familiar rule that reformation of a written instrument will not be granted when to do so would disturb the rights of a bona fide purchaser. Marchman v. McCoy Hotel Operating Co., 21 S.W.2d 552 (Tex.Civ.App. Fort Worth 1929, no writ); Henderson v. Odessa Building & Finance Co., 24 S.W.2d 393 (Tex.Comm.App. 1930, opinion adopted); Miles v. Martin, 159 Tex. 336, 321 S.W.2d 62 (1959).

Under certain circumstances the law will presume that a party is an innocent purchaser for value and in such cases a party may generally rely upon his right as a bona fide purchaser without pleading it. Valley Ready-Mix Concrete Co. v. Valley State Bank, 227 S.W.2d 231 (Tex.Civ.App. San Antonio 1950, no writ). It is the rule in this state that the burden of proof is on the one who attacks the legal title to land and asserts a superior equity therein based upon a mistake in a prior deed, to show that the holder of legal title is not a bona fide purchaser. Cities Service Oil Co. v. Dunlap, 308 U.S. 208, 60 S.Ct. 201, 84 L.Ed. 196 (1939); Miles v. Martin, supra; 59 Tex. Jur.2d, Vendor and Purchaser, Sec. 813, p. 329.

In the instant case, appellee (plaintiff), Pete, had the burden of pleading, proving and getting findings from the trial court not only that Pete’s deed was the result of a scrivener’s error, but also was required to show that Appellant Walters was not a bona fide purchaser or that Walters purchased the land with notice of Pete’s claim. Appellee Pete mistakenly thought that the defense of bona fide purchaser was one to be asserted by Appellant Walters and that since Walters failed to do so, Walters could not complain. The rule is, however, that:

“One who claims an equitable interest or title as against a subsequent purchaser of the legal title assumes the burden of showing that the latter was not an innocent purchaser, that is, that he did not pay value or that he purchased with notice of the equity, or notice of such facts as would put a prudent man on inquiry.” 59 Tex.Jur.2d, Vendor and Purchaser, Sec. 813 p. 339.

Scull v. Davis, 434 S.W.2d 391, 392 (Tex.Civ.App. El Paso 1968, writ ref’d n. r. e.). There are no pleadings by Appellee Pete asserting that appellant was not an innocent purchaser and there are no findings by the trial court that Walters was not an innocent purchaser. We therefore conclude that Appellee Pete failed in her burden of establishing that Walters was not an innocent purchaser; that it was her burden and she having failed to obtain findings that Walters, the holder of legal title, took same with notice of Pete’s equity, Walters is entitled to have judgment here rendered in his behalf.

Appellant’s twelfth point of error is sustained. The judgment of the trial court is reversed and judgment is here rendered that Appellee Pete take nothing.

CORNELIUS, J., not participating.


author: PEDEN, Justice.

text:
    UNION BOTTLING COMPANY, Appellant, v. Mickey Gene McDANIEL et al., Appellees.
    No. 16798.
    Court of Civil Appeals of Texas, Houston (First Dist.).
    Jan. 20, 1977.

      Lorance, Thompson & Wittig, Rayburn Berry, Houston, for appellant.
    Riddle, Murphrey, O’Quinn & Cannon; John M. O’Quinn, Houston, for appellees.
   PEDEN, Justice.

The defendant, Union Bottling Company, complains that the trial court’s $65,000 award of damages to plaintiff Mickey Gene McDaniel for his personal injuries was excessive. Union Bottling says the jury’s damage finding was not supported by sufficient evidence and was against the great weight of the evidence. We affirm.

McDaniel, then 15, was injured on May 18,1973, in Texas City when his motorcycle collided with a truck owned by Union Bottling. We review his testimony. Before the accident he worked at a grocery store on week-ends and after school. In the summers, he worked there full time. He was earning about $2.50 or $2.60 an hour when he got hurt. This amounted to about $200 a month during school, but he made $400 a month or more in the summer. Before the accident he had no trouble with his middle or lower back. He thinks he was thrown about fifteen feet from his motorcycle by the impact. He was unconscious at first. He was taken to a hospital, where he stayed for about a week and was treated by a specialist in orthopedic surgery, Dr. Pearson. When he left the hospital he couldn’t go to school and couldn’t work at all until fall, when he was given light duties. A physical therapist taught him some exercises that he still takes.

He had to stay on his back in the hospital. The worst pain was caused by his being unable to move. After he got home the pain got better, then a lot better, then leveled off, and he had good days and bad. It seems a little worse the last eight or ten months. At night when he studies it hurts to sit for a long time; he has to move around, and he finds himself leaning over. When he walks he has to make himself straighten up. He gets spasms, muscle cramps in his back. If he doesn’t do his back exercises, his back hurts the next day, as it does when he tries to play games like touch football and basketball.

He has no part-time job now. He is studying accounting at the University of Texas, and that keeps him busy. He knows he is unable to do part-time work that requires lifting, bending and stooping. He has not seen Dr. Pearson since the fall of 1974 because Dr. Pearson couldn’t do anything else; surgery wouldn’t help, and he just has to learn to live with his condition.

On cross-examination McDaniel said he returned to work in the fall of 1973 and worked straight through high school. He wore the back brace for five months, then discarded it on advice of his doctor. When he got hurt in May, 1973, he stayed in the hospital for a week, then saw Dr. Pearson regularly until October as an out-patient, then was told to come by in a couple of months for a check-up. After that he saw a therapist but has not seen any other doctors for treatment, and has not looked for a doctor in Austin. He still makes almost all A’s and hasn’t missed time from school. No surgery was performed on his back. He was not in a cast when he was in the hospital, but he was not supposed to move.

On re-direct McDaniel said Dr. Pearson had excused him from physical education class the year after the accident. He hadn’t gone to doctors every week or so because they are expensive and neither he nor his mother can afford them.

The plaintiff then introduced certain deposition testimony of Dr. Lynn Pearson. He saw McDaniel at the hospital on May 18, 1973, the day of his accident. McDaniel had a fracture of the first and second lumbar vertebrae. Dr. Pearson made a final evaluation on October 1,1973. The usual healing period of these fractures is three months, and McDaniel’s had healed on schedule. He was taken out of his brace on August 23. “Radiographically he still had his wedged vertebra, which was holding its height satisfactorily on physical examination.” Sensations and reflexes were within normal limits. The doctor found no limitation of activities. He found leg length, calf, and thigh circumference measurements to be equal. He thought McDaniel would “pretty well be able to physically and actively do what he so desired to do.”

Dr. Pearson, referring to records of an office visit on May 30, 1973, said x-rays revealed the compression fragments were holding their own. McDaniel had gone without his brace around the house, and the doctor explained to him that if he receives a second injury, such as by tripping, his injury could be extended into paralysis. “Neurological is intact. Reflexes are brisk and equal bilaterally, as is the strength in the quadriceps and dorsiflexors of his feet.”

The purpose of the back brace is to limit the range of motion at the fracture site. Healing of a fracture fragment by calcification does not necessarily mean that the total injury has healed or that there will not be any symptoms of physical impairment. He did not find “considerable soft tissue residual or other physical impairment still present.” Even though the fracture heals, one can still have a bothersome residual. He would expect that within two years after the accident McDaniel had achieved all of the physical improvement he will attain. A traumatic injury causing a compression fracture like McDaniel had can cause soft tissue injury, including formation of scar tissue.

Dr. Neal Longley, a specialist in radiology, testified that he had taken x-rays of the plaintiff’s lumbar spine on the day before the trial. He introduced them. Lumbar vertebrae L-l and L-2 appear to be normal as does an intervertebral disc space at that level; it is wider in front than in back, but the others are not. The back of L-l is 4 centimeters high, while its front is only 2.2 centimeters high. This means its front has been smashed down to half of its height in back. The picture of L-2 is slightly denser than the others, indicating that it had been fractured. The disc space is widened because the body, in attempting to stay erect, is using the muscles to hold the vertebrae above the narrowed one in a straight column. This causes the plaintiff to constantly make an unusual effort to stay erect so as to avoid more kyphosis. The doctor thinks this effort of the muscles to keep the back erect has caused the widening of the disc space. It is important to keep the back straight and avoid abnormal weight bearing, which causes more wear and tear, may cause or accentuate painful muscle spasms, and tends to lead to the development of arthritic changes as the body’s protection against wear and tear.

In response to a long hypothetical question that encompassed evidence concerning the accident and its effect on the plaintiff, the doctor said he believed the abnormalities he saw in the plaintiff’s x-rays were caused by his accident of May 18,1973. He said he would expect the plaintiff to develop either further compression or degenerative arthritic changes or both. His condition will worsen. He probably had tears of adjacent muscles and stretching of ligaments and possibly of the spinal cord.

His physical activities in recreation and employment will be adversely affected for the rest of his, life.

“Whereas he is able to by muscular control keep the front of the vertebra almost in line with the other vertebrae by widening the interspace between, sooner or later the muscles are going to lose their strength and there will be a gradual wedging down of the whole spine at the point where the vertebrae is wedged, therefore the weight bearing will instead of being in the center of the spine will be pushed forward and the front edges of the vertebrae will carry more weight and will tend to give more and more wedging so as the muscles loosen or become less strong then there should be a forward displacement of the weight bearing line and further curvature of his back.”

In the doctor’s opinion there is going to be a “significantly recognizable deformity” in the plaintiff’s back in the future.

On cross-examination, Dr. Longley said the fractures have healed. Some of the abnormality he saw was just as if a little extra calcium was found around a break in an arm bone. The doctor gave these answers when asked these questions:

“Q Suppose the physician who treated this young man assuming he was referred to the young man by his family doctor was asked this question and gave this answer: ‘In your examination of this patient of October 1st, 1973, this would be approximately five months after the accident, did you find any evidence of physical difficulties arising from compression at the L-l level, and did you in fact find any compression at this level’ and suppose with me Doctor that the treating physician answered as follows: ‘Radiographi-cally he still had his wedged vertebra which was holding its height satisfactorily on physical examination. His examination was within normal limits as far as sensation and reflexes went. And I did not find any limitation of activities. His leg lengths were equal and his calf and thigh circumferential measurement were equal.’ Assuming that statement were given by the boy’s treating physician on October 1st, ’73, would there be anything that you found in your x-ray that would contradict that?
“A No.
“Q All right. Assume also, Doctor, that the same physician, a treating physician who treated the young man in the hospital, took care of him in the hospital and was referred by the young man’s family physician was asked this question and gave this answer: ‘You many times see fractures where later the fracture fragments healed and yet there is considerable soft tissue residual or other physical impairments still present. That is true but in this case I did not find that.’ So assuming that his treating physician found no soft tissue residual in this patient some three to five months after the accident, is there anything in your diagnosis in these x-rays to contradict that?
“A No.”

He knows nothing about the plaintiff’s soft tissue or scar tissue, since x-rays do not show them. His treating physician would “supposedly” be far better qualified to know about that. Nothing in the x-rays contradicts the treating physician’s finding that the compression fractures of L-l and L — 2 were completely healed within three months after the accident. Dr. Longley said his evaluation does not contradict a statement made by the treating doctor one month after the accident that McDaniel was wearing his back brace, had no real complaint about his back, is only slightly tender to palpation, his x-rays showed holding of the fracture in position, “neurological is intact” in lower extremities, and said that he can walk on his toes and heels. Dr. Longley did not examine the plaintiff, only his x-rays. A wedge-shaped vertebra is not necessarily unstable and may hold itself satisfactorily.

On re-direct examination Dr. Longley testified that the healing of the plaintiff’s fractures does not mean that he has no physical impairment. Nor does the treating doctor’s report one month after the accident mean that the plaintiff does not have an injury that was significantly recognizable on x-ray or that he was not going to have permanent impairment such as kyphosis or a wedge-shaped vertebra after it healed. It is highly likely that the plaintiff will develop arthritic changes at the level of the fractures. At this time Dr. Longley finds no change in the support given by the plaintiff’s back muscles.

The damage finding was made in response to this special issue:

“What amount of money, if any, if paid now in cash, do you find from a preponderance of the evidence would fairly and reasonably compensate Mickey McDaniel for the injuries directly resulting from the collision in question? You shall take into consideration such of the following elements of legal damages as you find established by a preponderance of the evidence, and none other:
“1) Physical pain and mental anguish which he has suffered from May 18, 1973 until now.
“2) Loss of capacity to work, perform services, and earn money which he has suffered from May 18, 1973 until now.
“3) Physical impairment which he has suffered from May 18, 1973 until now.
“3) Physical impairment which he has suffered from May 18, 1973 until now.
“4) Physical pain and mental anguish which, in reasonable probability, he will suffer in the future.
“5) Loss of capacity to work, perform services and earn money, which in reasonable probability, he will suffer in the future.
“6) Physical impairment which, in reasonable probability, he will suffer in the future?
“Answer by stating an amount, if any, in dollars and cents.”

Since the plaintiff was only 15 when injured, he had a long life expectancy. We have noticed all the evidence touching on the question of excessiveness of the award. We are not to merely substitute our judgment for that of the jury, and we find no indication of bias or prejudice in the entire record. The jury is entitled to consider the decrease in the value of the dollar. Personal injury damages are not capable of measurement by any certain standard, so the jury has wide discretion in fixing the amount of the award. Hammond v. Stricken, 498 S.W.2d 356 (Tex.Civ.App.1973, writ ref. n. r. e.).

We have carefully examined the entire record and have reviewed the awards in numerous other cases. We conclude that the award in this case was not excessive.

The appellant’s other point of error is that the trial court erred in overruling its motion for new trial because the jury’s answer to Special Issue 2b was not supported by sufficient evidence and was against the great weight of the evidence. Issue 2b asked whether the jury found from a preponderance of the evidence that on the occasion in question the plaintiff was negligent in following too closely. The jury’s negative finding means that it decided the defendant had not sustained its burden of proof on the issue.

We overrule this point. The plaintiff and the defendant’s truck were both proceeding north on the east half of 21st Street before the accident. Each half of the street was wide enough to be divided into two lanes. The plaintiff and the only disinterested eyewitness both testified that the defendant’s truck was near the center stripe while the plaintiff was on the outer side of the northbound portion. The jury was entitled to decide that when the plaintiff was about to overtake the truck he was behind it in the sense that he had not yet caught up with it but that he was east as well as south of it. Had lanes been marked on the street at that time the two vehicles would have been in different lanes. Under these circumstances the jury could find that the plaintiff was not following too closely.

Affirmed.


author: EVANS, Justice.

text:
    Kenneth Loyd ROGERS et ux., Relators, v. Hon. Robert L. LOWRY, Judge, Juvenile Court, Harris County, Texas, Respondent.
    No. 16843.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Jan. 20, 1977.

      R. E. McDaniel, Winnie, for relators.
    Joe G. Resweber, County Atty., Billy E. Lee, Theodore H. Wu, Jr., Asst. County Atty., Houston, for respondent.
   EVANS, Justice.

Relators in this mandamus proceeding seek to compel the Honorable Robert L. Lowry, Judge of the Juvenile Court, Harris County to proceed to trial in adoption proceedings instituted by relators.

Relator Janie Rogers is the natural mother of two minor children born out of wedlock in 1970 and 1972 and having different biological fathers. Relator Kenneth Loyd Rogers is the step-father of the two children, having married the children’s mother in 1974. On September 9, 1976, Relators filed the subject proceedings for the adoption of the two children. The adoption petition indicates that the Relator Janie Rogers is the natural mother of the children and that Relator Kenneth Loyd Rogers is the children’s step-father, but the petition does not reflect the names or addresses of the biological fathers. In Relators’ letter to the clerk of the trial court, transmitting the petition for filing, it is stated that no service is needed in the case “as parental rights are not sought to be terminated.”

It is the Relators’ position that the children’s biological fathers are not “parents” within the meaning of the Texas Family Code and therefore are not entitled to notice and opportunity to be heard with respect to the adoption proceedings.

A child, as defined in the Texas Family Code, is a person under 18 years of age, who is not and has not been married and who has not had his disabilities of minority removed for general purposes. Section 11.-01(1). A parent is defined as the child’s mother, a man as to whom the child is legitimate, or an adoptive mother or father, unless the parent-child relationship has been terminated. Section 11.01(3). An illegitimate child is one who is not and has never been the legitimate child of a man and whose parent-child relationship with its natural mother has not been terminated by court decree. Section 11.01(8). The Code also specifies the rights, privileges, duties and powers of a parent under the parent-child relationship. Section 11.01; Section 12.04.

Relators argue that because of the children’s illegitimate status, no statutory parent-child relationship ever existed between the children and their biological fathers and that it would be legally impossible to terminate a relationship which never existed. On this basis they contend that it would be meaningless to accord to the biological fathers of illegitimate children any right of notice or opportunity to be heard with respect to the adoption proceeding. Relators contend that the biological fathers of illegitimate children have no rights to terminate, and to require that they be given notice and an opportunity to be heard would be wasteful in time and money.

The contentions advanced by Rela-tors run contrary to constitutional concepts of due process. The biological father of an illegitimate child has a “cognizable and substantial interest” in the custody of his illegitimate children, and the denial of his right to notice and an opportunity to be heard with respect to such custody violates his constitutional right to due process. Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972).

In Stanley, as here, it was contended that an unwed father was not a “parent” whose existing relationship with his children must be considered in a dependency proceeding instituted by the state. The Illinois statute defined a parent as the father and mother of a legitimate child, or the survivor of' them, or the natural mother of an illegitimate child, including an adoptive parent. The United States Supreme Court held that the unwed father was entitled to a hearing on his claim of parental qualification for custody of the children before the state could remove them from his custody. In its opinion that Court stated:

. . ‘To say that the test of equal protection should be the “legal” rather than the biological relationship is to avoid the issue. For the Equal Protection Clause necessarily limits the authority of a State to draw such “legal” lines as it chooses.’ Glona v. American Guarantee & Liability Ins. Co., 391 U.S. 73, 75-76, 88 S.Ct. 1515, 1516, 20 L.Ed.2d 441 (1968).” 92 S.Ct. 1213.

The Court also commented on the state’s argument that unmarried fathers were so seldom fit that the state should not be required to undergo the administrative inconvenience of serving notice. After stating the argument, the Court declared:

“. . . The establishment of prompt efficacious procedures to achieve legitimate state ends is a proper state interest worthy of cognizance in constitutional adjudication. But the Constitution recognizes higher values than speed and efficiency. Indeed, one might fairly say of the Bill of Rights in general, and the Due Process Clause in particular, that they were designed to protect the fragile values of vulnerable citizenry from the overbearing concern for efficiency and efficacy that may characterize praiseworthy government officials no less, and perhaps more, than mediocre ones.” 92 S.Ct. 1215.

Both Relators and Respondent make reference to the recent decision of the Texas Supreme Court, In the Interest of K, 535 S.W.2d 168 (Tex.1976). In that case proceedings were instituted by the Child Welfare Unit to terminate the parent-child relationship between the child and its mother. The biological father was served with citation. The biological father then filed a petition for the voluntary legitimation of the child and sought to be appointed the child’s managing conservator. The trial court denied the father’s petition, determining that he was not a fit person to act as the child’s parent and granted the Child Welfare Unit’s petition. The majority of the Texas Supreme Court held that under the circumstances of the case the trial court could properly have denied the father’s petition based upon a determination of the child’s best interest and that it was not required to base its determination upon one or more of the specific grounds for termination set forth under Section 15.02 of the Texas Family Code. The majority opinion did, however, recognize the father’s constitutional right of due process as set forth in Stanley v. Illinois, supra, indicating in its opinion that the biological father had been given notice and an opportunity to be heard. 535 S.W.2d 171.

The legislature has specifically designated the persons who are entitled to service of citation upon the filing of a petition in a suit affecting the parent-child relationship. Texas Family Code, Section 11.09. The Code does not specifically provide that the biological father of an illegitimate child is entitled to service of citation except in a suit in which the termination of the parent-child relationship between an illegitimate child and its mother is sought, or in a suit to determine the paternity of the child. The statute does provide, however, that service of citation “may” be given to any person who has or who may assert an interest in the child and may be given to the unknown father of an illegitimate child. Section 11.-09(b). The statute specifically authorizes citation by publication in the event persons to be cited cannot be notified by personal service or by registered or certified mail and to persons whose names are unknown. Section 11.09(d). It is apparent from a reading of the statute that the legislature contemplated that service of citation might be given to persons other than those specially designated, including biological fathers of illegitimate children.

It was evidently the intent of the legislature that the trial court should have some discretion in determining the manner in which service of citation might be given with respect to persons interested in a suit affecting the parent-child relationship, even though such persons were not specifically designated as being entitled to service. In cases, such as the one before the court, where the petition affirmatively shows the illegitimacy of the child and that the child’s biological father is not a party to the proceedings, the court “may” require or cause the issuance of personal service of citation upon the father, or if the father’s identity or whereabouts are unknown, may issue notice by constructive service of citation as authorized by the statute. Under special circumstances the trial court, in its discretion, might determine that any attempt at giving notice would be wholly ineffectual and proceed to trial without issuance of either personal or constructive service of citation upon the biological father.

This court cannot agree with Relators’ argument that since the biological fathers were not made parties to the adoption proceedings and would not be bound by the judgment of adoption, they would not be prejudiced thereby. A similar contention was rejected in Stanley v. Illinois, supra, the U.S. Supreme Court stating that the biological father would suffer from deprivation of his children during the period that he was denied their custody and that merely according him the right to regain their custody in a subsequent proceeding would be futile and burdensome procedure. 92 S.Ct. 1211.

An adoption proceeding creates a new parent-child relationship and a child’s biological father has such a substantial interest in the proceeding that due process requires he be afforded notice and opportunity to be heard. Stanley v. Illinois, supra; Rothstein v. Lutheran Social Services of Wisconsin and Upper Michigan, 405 U.S. 1051, 92 S.Ct. 1488, 31 L.Ed.2d 786 (1972); State ex rel. Lewis v. Lutheran Social Services of Wisconsin, 59 Wis.2d 1, 207 N.W.2d 826 (1973). It is not the ruling of this court that a biological father must be made a party to proceedings to terminate parental rights under Section 15.02 as a prerequisite to the entry of an order for adoption; only that due process requires he be given notice and opportunity to be heard. In the Interest of K, supra. See also Furlow v. Harris County Child Welfare Unit, 527 S.W.2d 802 (Tex.Civ.App. — Houston [1st] 1975, no writ).

Respondent, the Honorable Robert L. Lowry, acted within his discretion in refusing to proceed with the adoption proceedings until Relators make appropriate disclosure with respect to the names and whereabouts, if known, of the biological fathers of the children in question, and in requiring that such fathers be given appropriate notice and opportunity to be heard. Under the circumstances presented by Rela-tors’ petition for mandamus, there was no clear legal duty on the part of the trial court to proceed to trial in the adoption proceedings.

The Relators’ petition for mandamus is denied.


author: HUGHES, Justice.

text:
    David D. CORLEY, Appellant, v. Jacqueline H. CORLEY, Appellee.
    No. 17782.
    Court of Civil Appeals of Texas, Fort Worth.
    Jan. 21, 1977.

      Earl Rutledge, Fort Worth, for appellant.
    Jackson & Supple, and Alfred J. Jackson, Jr., Fort Worth, for appellee.
   OPINION

HUGHES, Justice.

In October, 1972, David D. Corley and his wife Jacqueline were divorced. By that judgment decree the children of the parties were placed in the physical custody of the mother as managing conservator. David, the father, the parent “out of custody,” was granted visitation rights and made posses-sory conservator, burdened with duties of financial support for the children. The children are: Charissa, born 1959; David, Jr., born 1961, and Valarie, born 1970.

In July 1974, David Corley, who since the parties’ divorce had remarried to a woman named Mary, petitioned the Domestic Relations Court which had granted the 1972 divorce, for appointment as managing conservator of the three children on the grounds of changed conditions. Alternative relief by way of reduction of child support was also prayed.

Pursuant to the petition of David D. Cor-ley the issues were joined, and trial was held without intervention of a jury, with the judgment order of the Court providing in substance as follows: Jacqueline Corley appointed managing conservator of Charis-sa and Valarie. David D. Corley was appointed managing conservator of David, Jr., with the visitation of the possessory conservator parent to be between each possessory conservator and David, Jr., and Charissa, respectively, without control or interference by their particular managing conservator. Therefrom David D. Corley has appealed.

Judgment is in part affirmed and in part reversed and remanded to the Trial Court for reconsideration and entry of an amended order without requirement that there be a new trial.

For convenience, David D. Corley, will be referred to as David, and Jacqueline H. Corley as Jacqueline. The children will be referred to by their first names.

Generally, the evidence in the Trial Court was controverted on the matter of each of the respective parties’ fitness to be managing conservator of the children. The Trial Court heard the evidence as to Jacqueline’s housekeeping, her morals, her giving of insufficient funds checks, her supervision of the childrens’ school work, the amount of money required for child support and David’s ability to pay it as well as evidence of David’s propriety as a managing conservator, and resolved the questions in Jacqueline’s favor to the extent of retaining her as managing conservator of the two daughters and setting child support at $265.00 per month per daughter, but named David as managing conservator of David, Jr.

Based upon the evidence, David has presented points of error Nos. 1, 2 and 4. Based upon Jacqueline’s disobedience of a subpoena duces tecum, David has presented points of error Nos. 5 and 6. David’s point of error No. 3 has relation to abuse of the Court’s discretion in providing by order terms of visitation of the child, David, Jr.

We overrule all points except point of error No. 3, which we sustain.

The first point of error contends that overwhelming preponderance of evidence show it would be to the best interest of Valarie Doris Corley to have her custody awarded to her father; and the second point of error contends that the Trial Court abused its discretion in awarding Jacqueline custody of Valarie Doris Corley.

(David Corley formally waived any claim to Charissa and her custody is not a matter under consideration upon the appeal.)

The test to be applied by a reviewing Court relative to points of error Nos. 1 and 2 are not what the Appellant Court would have done under the circumstances, but whether the commandment of the Court amounts to an abuse of discretion to the extent it should be reversed. Watts v. Watts, 390 S.W.2d 30 (Tex.Civ.App. — El Paso 1964, writ ref’d n. r. e.); Ponce v. Ponce, 412 S.W.2d 777, 779 (Tex.Civ.App.— Dallas 1967, writ dism’d). The judgment of the Trial Court must be affirmed if it has support in the evidence and is not so contrary to the greater weight and preponderance of the evidence as to be clearly erroneous. We find that such judgment does have support in the evidence as viewed from the testimony favorable to appellee and is not contrary to the greater weight and preponderance of the evidence. We therefore overrule points of error Nos. 1 and 2.

Point of error No. 3 complains of Trial Court’s order that David, Jr., could visit his mother without control or interference by his father.

We sustain point of error No. 3.

There is no question as to right of access of the possessory conservator to the child and we adhere to our holding Wood v. Wood, 510 S.W.2d 399, 401 (Tex.Civ.App.— Fort Worth 1974, no writ), that the Trial Court should encourage normal visitation by a parent “out of custody.” However, to authorize the visitation by the possessory conservator “to be arranged and handled by each of such children directly with the respective possessory conservator of each without any interference or control by the respective managing conservator and each such child”, defeats the purpose of Tex. Family Code Ann. § 14.02(a) (1975), as amended.

To remove control of the managing conservator as to visitation and place it wholly in the hands of a child would not only abrogate the authority of a managing conservator under § 14.02(a), but would invite problems for all concerned, more particularly the child himself. He would be, by Court order, placed in the position of being able to “call the turn” on his father and mother, authorized to dictate not only his comings and goings but theirs as well. The Family Code did not intend to foist on children this burden, or to afford them such a privilege.

Point of error No. 4 complains of excessiveness in the amount of child support for David to pay in respect to maintenance of Charissa and Valar ie. The amount awarded by judgment was $265.00 per month per child. David testified to $44,000.00 per year salary. Jacqueline testified to monthly expenses of $2,224.00 for various items of necessities. She admitted to fluctuating income from oil and gas royalties ($700.00 to $2,000.00 per month) and a salary of over $300.00 per month. It is well-settled that the Court has wide discretion in setting child support payments commensurate with the children’s need and the parent’s ability to pay. The Trial Court did not abuse its discretion in this case. Point of error No. 4 is overruled.

Point of error No. 5 complains of the Trial Court having refused to enforce the subpoena duces tecum served upon Jacqueline at the beginning of the trial to produce her bank records and thereby depriving David of material evidence on support question.

Point of error No. 6 complains of the same failure as 5 with assertion of denial of constitutional right to due process of law.

Points of error Nos. 5 and 6 are overruled. With respect thereto, Jacqueline’s counterpoints are well taken. David failed to urge, object or move for any action or ruling from the Court relative to Jacqueline’s failure to have her bank records in Court on the last day. No motion was made to have the Court command this production, no motion for continuance was presented, and no formal bill of exception was made by David. Therefore, David waived any error; certainly he did not preserve any complaint. Biddle v. National Old Line Insurance Company, 513 S.W.2d 135, 140 (Tex.Civ.App. — Dallas 1974, writ ref’d n. r. e.).

For all of the reasons above stated, we overrule all of the points of error submitted except point of error No. 3, which is sustained.

Accordingly, the judgment of the Trial Court is affirmed in all matters except that of visitation of Valarie and David, Jr., and as to that, it is reversed and remanded for further consideration by the Trial Court, and for entry of an amended order not inconsistent with this opinion without necessity of any retrial.


author: MASSEY, Chief Justice.

text:
    DeWayne Lee SHEPARD, Appellant, v. Margaret Alison SHEPARD, Appellee.
    No. 17793.
    Court of Civil Appeals of Texas, Fort Worth.
    Jan. 21, 1977.
    Martin, Harrison & Withers, W. Gene Box, Dallas, for appellant.
    Jerry A. Garrett, Denton, and Richard S. Podgorski, Dallas, for appellee.
   OPINION

MASSEY, Chief Justice.

Margaret Alison Shepard, plaintiff, brought suit for divorce and division of property against her husband, DeWayne Lee Shepard, defendant. By trial amendment plaintiff added prayer for relief by way of award of reasonable attorney’s fee necessary to be incurred in prosecution of the case. However, at trial the defendant wholly made default, having filed no answer and having made no appearance upon trial. He would have had no notice of the trial amendment.

Trial was to the court without a jury, following which there was prompt rendition of judgment. The court granted the relief for which there had been original prayer, plus relief prayed for in trial amendment by award of $350.00 as attorney’s fee. Grant thereof was by in personam judgment. In other words, the grant was wholly unrelated to the division made of property.

From this judgment the defendant appealed. He has not filed a brief. As appel-lee, plaintiff did file her brief.

The judgment is reformed, and as reformed is affirmed.

On hearing before this Court appellant’s presentation was primarily based upon the denial of opportunity to have a statement of facts prepared for purposes of appeal by the Official Court Reporter of the trial court. His oral representation was that no court reporter was present upon trial. He had no brief and therefore no point of error by which he requested reversal because of a deprivation of a statement of facts. He insists, however, that the state of the law is such that reversal is compelled because of his inability.

Prior to May 27, 1975, it was obligatory by statute that the Official Court Reporter of a district court of Texas be in attendance upon trial and take full shorthand notes of all oral testimony offered, etc. Tex.Rev. Civ.Stat.Ann. art. 2324 (1971), “Duty of Reporter”. By Acts 1975, 64th Leg., p. 826, ch. 319, Sec. 1, effective May 27,1975, there was amendment of the statute by providing for attendance by the Official Court Reporter “upon request”.

The above is referenced though we are of the opinion it is immaterial to our disposition whether the amendment, effective May 27, 1975, was part of our law at time of trial (although it was). As a result of the amendment it would appear that reversibility would not automatically be a consequence of the inability to have the Official Court Reporter prepare the statement of facts for purposes of appeal upon request (formerly Texas law by the decisions in Morgan Express, Inc. v. Elizabeth-Perkins, Inc., 525 S.W.2d 312 (Tex.Civ.App.-Dallas 1975, writ ref’d); Smith v. Smith, Tex., 544 S.W.2d 121 (1976) rev’g, 535 S.W.2d 380 (Tex.Civ.App.-Beaumont 1976) and Muldoon v. Musgrave, Tex.Civ.App., 545 S.W.2d 539 (1976).

Here we hold appellant’s contention immaterial because he has no brief. It would be by his brief that his complaint would be presented in the form of a point of error on appeal. In the absence of his brief there is not fundamental error apparent on the face of the record — in this instance the transcript alone, one which does not even reflect that any statement of facts was requested.

By T.R.C.P. 415, “Briefs: Dismissal for Failure to File”, the appellate court is authorized, though not compelled, to dismiss the appeal for want of prosecution, unless good cause is shown for a failure to file the appellant’s brief, plus showing that appellee has not suffered material injury by reason of the failure.

A court will not dismiss the appeal for failure of the appellant to timely file his brief, even upon the motion of the appellee, where there appears from the face of the record (judgment roll, etc., i. e., the instruments in the transcript) a true question of fundamental error. Upon a determination that there has been fundamental error which vitiates the judgment it should be reversed whether any brief has or has not been filed.

When an appellant’s brief has been stricken as untimely filed so that it is not before the court at time for its decision, and where it appears from the record that there is no fundamental error which taints the judgment, the proper order is one of af-firmance. Weaver v. Ham, 429 S.W.2d 687 (Tex.Civ.App.-Dallas 1968, no writ). The same is true where no appellant’s brief is ever filed.

We hold that appellant’s inability to obtain a statement of facts from the Official Court Reporter was not fundamental error and that his inability is improper to be considered in any other aspect because of the want of an appellant’s brief.

However, we have concluded that there has been fundamental error requiring reversal by the grant of in personam judgment for an attorney’s fee, entirely without the scope of or in relation to the property division made by the judgment. 3 Tex. Jur.2d Rev., p. 425, “Appeal & Error — Civil Cases”, sec. 100, “(Manner of Presenting and Reserving Questions in Lower Court, A. Generally) — Fundamental error as exception to general rule”. Indeed, it would appear that a want of “due process of law” is involved in a grant of relief beyond that for which there was any request by pleading served upon the appellant.

Where the trial court has exceeded its jurisdiction in the grant of improper relief, but it is nevertheless possible to preserve a part of the judgment by correcting the same so as to make it conform to the trial court’s jurisdiction by elimination of the elements of relief which it had not the authority to award because of a want of jurisdiction, the appellate court may modify the judgment to accomplish that purpose. 4 Tex.Jur.2d Rev. (Part 2), pp. 560-61, “Appeal & Error — Civil Cases”, sec. 897, “Modification) — To conform judgment to pleadings and proof”, and sec. 898, “(Correction of Errors in Lower Court Judgment) — In general.”

There being no other fundamental error in the judgment from which there has been appeal other than the award of attorney’s fee, a power beyond and without jurisdiction of the court, the judgment of the trial court is reformed so as to delete therefrom the award of the amount of $350.00 as an attorney’s fee to plaintiff/appellee.

As so reformed the judgment is affirmed.

Costs of the appeal are assessed to the extent of 50% of the total thereof against each party.