Datasets:

conceptofmind

/

CAP-Dolma

like 0

sw2d_483/html/0465-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Michael Lynn CLARK, Appellant, v. The STATE of Texas, Appellee. No. 45173. Court of Criminal Appeals of Texas. July 26, 1972. Charles L. Caperton, Dallas, (on appeal only), for appellant. Ward P. Casey, County Atty., Waxa-hachie, and Jim D. Vollers, State’s Atty., Robert A. Huttash, Asst. State’s Atty., Austin, for the State. OPINION DOUGLAS, Judge. This is an appeal from a conviction for the offense of burglary with intent to commit theft. The jury assessed the punishment at six years. Complaint is made that the arrest of the appellant and the search of his car were illegal. The sufficiency of the evidence is not challenged. Officers found a two dollar bill that was taken from the burglary in appellant’s car some five days after the burglary. Braden Automotive Store in Waxahachie was entered the night of January 30, 1970 and six hundred dollars, a coin collection and other items were taken. At approximately 3 a. m. February 4, 1970, Officer Sullins of the Waxahachie Police Department saw an unoccupied car with out-of-county license plates parked in front of a lumber yard where no car had been parked a few minutes earlier. Officer Sullins shined a light inside the car and saw the barrel end of a leather holster and several tape deck speakers. Within a few minutes he saw the appellant and two others enter the car and drive away. Sullins followed and stopped the car. Since he was alone, he had the appellant follow him to the police station. At the station, the appellant consented to the search of the car. The officer found a black satchel containing what the State proved could be burglary tools and coins and coin wrappers in a glass container. In the glove compartment Sullins found three “walkie-talkie” radios. In the trunk of the car Officer Sullins found the two dollar bill taken in the burglary. The appellant testified that he was not in Waxahachie the night of the burglary. His version was that he obtained the two dollar bill in Dallas. He and his two passengers testified that on the night of their arrest they were going from Dallas to Galveston by way of San Antonio and the only reason they left the interstate highway was to get gasoline. They testified that they were out of the car because one of them had to answer a call of nature. The first complaint of the appellant is that his arrest was illegal. Article 14.03, Vernon’s Ann.C.C.P., provides: “Any peace officer may arrest, without warrant, persons found in suspicious places and under circumstances which reasonably show that such persons have been guilty of some felony or breach of the peace, or threaten, or are about to commit some offense against the laws.” In Taylor v. State, Tex.Cr.App., 421 S.W.2d 403, 408, cert. denied 393 U.S. 916, 89 S.Ct. 241, 21 L.Ed.2d 201, there was a somewhat similar fact situation and this Court held the arrest legal. See Baity v. State, Tex.Cr.App., 455 S.W.2d 305; Lara v. State, Tex.Cr.App., 469 S.W.2d 177. We hold that the arrest under Article 14.03, supra, was authorized. Next, he complains of the search of the trunk of the car because he was not warned that he could refuse to consent to the search. While testifying in his own behalf, the appellant stated that he consented to the search and unlocked the trunk. We held in Barnett v. State, Tex.Cr.App., 447 S.W.2d 684, that an officer did not have to warn one of his right to refuse to consent to a search. Several cases since then have followed that holding. See Jemmerson v. State, Tex.Cr.App., 482 S.W.2d 201 (June 21, 1972), and DeVoyle v. State, Tex.Cr.App., 471 S.W.2d 77. See also 9 A.L.R.3rd, Section 3.5, pages 858-925, which reflects that the majority rule is that the Miranda warnings are not applicable to searches and seizures and that consent to search is valid despite failure to give such warning. We again hold that no such warning is required before a search can be made. No reversible error is shown; the judgment is affirmed. ROBERTS, J., not participating. . It is not necessary to pass upon the question of the legality of the arrest under Article 487, Vernon’s Ann.P.C., which provides that an officer may arrest, without a warrant, one for unlawfully carrying a weapon.

sw2d_483/html/0467-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Doyle Gene KELLY, Appellant, v. The STATE of Texas, Appellee. No. 44791. Court of Criminal Appeals of Texas. May 3, 1972. Frank R. Jewell, Ennis, for appellant. Ward P. Casey, County Atty., Waxaha-chie, and Jim D. Vollers, State’s Atty., Austin, for the State. OPINION MORRISON, Judge. This is an appeal from a revocation of probation. The revocation of probation proceedings against appellants Doyle Gene Kelly and Jerry Dean Mitchell, Tex.Cr.App., 483 S. W.2d 481, this day decided, were held together; however, their cases will be considered separately on appeal because of the different fact situations involved. Appellant Kelly was convicted of possession of marihuana on February 4, 1971, assessed a five (5) year sentence and placed on probation. Among the conditions of his probation was a provision that he “[Ajvoid persons or places of disreputable or harmful character.” The petition for revocation of probation alleges that appellant “did violate his probation in that [he] did then and there associate and visit with persons and in places of disreputable and harmful character, to-wit: that [he] did then and there associate and visit with persons who were known narcotic users and persons who have been convicted of possession of narcotic (sic), and that further the said Doyle Gene Kelly did then and there associate and visit in a place where narcotics was (sic) being used and kept.” The State’s amended petition asserts that the persons of disrepute referred to are “Jerry Dean Mitchell, a convicted narcotics possessor, Bernie Prachyl and Marion Harper,” and that the place of disrepute referred to is the “premises located at 611 South Dallas Street, Ennis, Ellis County, Texas,” which was “under the control of Bernie Prachyl” and which was also the “place where narcotics were being used and kept.” The record reflects that on February 14, 1971, acting pursuant to a search warrant based on information from an unidentified informant, three Ellis County Deputy Sheriffs entered the garage apartment at 611 South Dallas Street, Ennis, Texas. The apartment contained a single living-room-bedroom area, a kitchen and a bathroom. Appellant was seated in the kitchen eating a piece of cake when the deputies arrived. One of the officers testified that marihuana was found in three places in the livingroom-bedroom area and that none was found on or near Kelly but that there was an odor of marihuana in the air and on appellant’s clothing. Appellant contends that the court erred in failing to require proof of the charges against him beyond a reasonable doubt. However, this Court has held that a revocation proceeding was not in the nature of a criminal trial. Tate v. State, Tex.Cr.App., 365 S.W.2d 789; Branch v. State, Tex.Cr.App., 465 S.W.Zd 160; Hood v. State, Tex.Cr.App., 458 S.W.2d 662. Further revocation may be based on a finding by the trial court that the terms of probation have been violated. Hall v. State, Tex.Cr.App., 452 S.W.2d 490; Ex parte Bruinsma, 164 Tex.Cr.R. 358, 298 S.W.2d 838; Seymour v. Beto, 5 Cir., 383 F.2d 384. In such a proceeding the judge is the sole trier of the facts, the credibility of the witnesses and the weight to be given their testimony. Hall v. State, supra; Maddox v. State, Tex.Cr.App., 466 S.W.2d 755; Hulsey v. State, Tex.Cr.App., 447 S.W.2d 165; and Farmer v. State, Tex.Cr.App., 475 S.W.2d 753. The only question before this Court is whether the trial court abused its discretion in revoking probation. Bennett v. State, Tex.Cr.App., 476 S.W.2d 281; Barnes v. State, Tex.Cr.App., 467 S.W.2d 437; Manning v. State, Tex.Cr.App., 412 S.W.2d 656; Seymour v. Beto, supra. Appellant relies on In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1971), to support his contention that he is entitled to have the question of his revocation decided “beyond a reasonable doubt.” However, in Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972) the Supreme Court of the United States said that Winship, supra, . . went no further than to confirm the fundamental right that protects ‘the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.’ ” and held that since neither a confession or the question of its voluntariness is an element of the crime charged, a judge could determine its admissibility by a less stringent standard; i. e., by a preponderance of the evidence, than is necessary to determine guilt or innocence. Likewise, in the case at bar, we are not dealing with guilt or innocence, with an initial determination of criminal culpability as in Winship, supra. That issue was decided adversely to appellant at his original trial. The question at a revocation hearing is whether the appellant broke the contract he made with the court after the determination of his guilt. It should be remembered that a defendant is not entitled to probation as a matter of right; granting probation is entirely within the trial court’s discretion. The majority of this Court is committed to the viability of the probation laws and favors any logical interpretation of them which would tend to encourage the granting of probation where at all justified. We are convinced that the trial judge is more likely to grant probation in a case where he is assured that if the terms of probation are violated he might revoke the same, without undue delay and protracted litigation. We, therefore, conclude it is not only logically inconsistent but judicially unsound to suggest that the standard of proof necessary to revoke probation should be as stringent as the one necessary to support the initial conviction. Appellant’s first contention is overruled. Appellant’s next two contentions are that the court erred in failing to hold that the terms of his probation were indefinite and uncertain and that the court failed to show knowledge on the part of appellant that the alleged persons and places were disreputable and harmful. The State contends that the fact that appellant was found in an apartment in which there was an odor of marihuana is sufficient circumstantial evidence to impute knowledge to appellant that he was in the company of harmful persons at a harmful place. The record does not establish that either Prachyl or Harper had prior criminal records. Mitchell had been convicted of possession of marihuana in 1970 and was on probation at the time of this occurrence. Appellant Kelly testified that he knew nothing disreputable about Prachyl or Harper and that he knew Mitchell only by name but had never spoken to him. He and several others present testified no marihuana was smoked that evening. Assuming that appellant did not know that the three individuals were of disreputable character as required by Jackson v. State, Tex.Cr.App., 464 S.W.2d 153, and Steed v. State, Tex.Cr.App., 467 S.W.2d 460, the fact that appellant, who had been convicted of possession of marihuana several days before and who admitted having smoked marihuana in Vietnam and knowing its odor, was found in an apartment where there was an odor of marihuana and where he admitted having been for several hours without a plausible explanation is sufficient for the judge to conclude that appellant knew he was at a harmful place in violation of his probation. Such a place was obviously harmful to the appellant since he was on probation for possession of marihuana. Appellant’s second and third contentions are overruled. The dissent raises a question concerning the manner in which probation was granted which disturbs me. At no time during the hearing on the motion to revoke did the appellant raise a question as to the sufficiency of the order of probation. While I cannot condone the loose manner in which the original judgment placing appellant on probation was worded, nor the fact that there is no showing that the clerk complied with his duties under Article 42.12 6(a), Vernon’s Ann. C.C.P., I have concluded there is no reversible error since the appellant never specifically claimed he was not aware of the terms of his probation but only claimed that they were vague and indefinite. See Blackshire v. State, Tex.Cr.App., 464 S.W.2d 108. Further, the record reflects that during sentencing the prosecutor called the court’s attention to the fact that he believed that the court had specifically admonished the appellant to stay away from people who smoke marihuana and not to use it himself. The Honorable Bruce Allen presided at both the appellant’s original trial and at the revocation hearing. There is no abuse of discretion. The judgment is affirmed. ODOM, Judge (concurring). In view of the importance of the decision reached in this case, I concur in the majority opinion, but feel that I should more fully express my reasons. Appellant urges this court to require the utilization of the reasonable doubt standard in revocation hearings. I can find nothing which indicates that either common sense or the Constitution of the United States requires the state to meet this burden. Whether a person convicted of a crime should be placed on probation rests within the sound discretion of the trier of fact, e. g. Smith v. State, Tex.Cr.App., 468 S.W.2d 828; Campbell v. State, Tex.Cr.App., 456 S.W.2d 918; Glass v. State, Tex.Cr.App., 450 S.W.2d 320; Ponce v. State, Tex.Cr.App., 398 S.W.2d 570; Stratmon v. State, 169 Tex.Cr.R. 188, 333 S.W.2d 135. As this court stated in Campbell v. State, supra: “ . . . there is no right to either the court’s or the jury’s grace. . . . ” An accused seeking probation bears the burden of proving his eligibility under the requirements of the Adult Probation Law. e. g. Brumfield v. State, Tex.Cr.App., 445 S.W.2d 732; Herring v. State, Tex.Cr.App., 440 S.W.2d 649. The granting of probation serves the function of protecting society while providing a means of rehabilitating lawbreakers. See, Mempha v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967) ; Burns v. United States, 287 U.S. 216, 53 S.Ct. 154, 77 L.Ed. 266 (1932); Hill v. State, Tex.Cr.App., 480 S.W.2d 200 (1972). In order to effectuate this purpose, this court has always held that the relationship between the probationer and the trial court is contractual in nature, e. g. McDonald v. State, Tex.Cr.App., 442 S.W.2d 386; Glenn v. State, 168 Tex.Cr.R. 312, 327 S.W.2d 763. As the Supreme Court of the United States wrote in Burns v. United States, supra, a probationer “ . . .is still a person convicted of an offense, and the suspension of his sentence remains within the control of the court. The continuance of that control ... is essential to the accomplishment of its beneficient purpose, as otherwise probation might be more reluctantly granted, or, when granted, might be made the occasion of delays and obstruction which would bring reproach upon the administration of justice.” Thus a probation revocation hearing is not a criminal trial. Hill v. State, supra; Cooper v. State, Tex.Cr.App., 447 S.W.2d 179; Hulsey v. State, Tex.Cr.App., 447 S.W.2d 165; Manning v. State, Tex.Cr.App., 412 S.W.2d 656. It is, instead, administrative in nature. United States ex rel. Sperling v. Fitzpatrick, 426 F.2d 1161 (2d Cir. 1970); United States ex rel. Lombardino v. Heyd, 318 F.Supp. 648 (E.D.La.1970), aff’d per curiam, 438 F.2d 1027 (5th Cir. 1971); cert. denied, 404 U.S. 880, 92 S.Ct. 195, 30 L.Ed.2d 160 (1972); Hill v. State, supra. As this court stated in Hulsey v. State, supra: “ . . . the result of such a hearing to revoke is not a ‘conviction’ but a finding upon which the trial court might exercise its discretion by revoking or continuing probation.” Even where the state has shown a violation of the probationary terms, the trial judge is vested with the discretion to allow the probationer to continue on probation. Dunn v. State, 159 Tex.Cr.R. 520, 265 S.W.2d 589. A probation revocation being administrative in nature, procedural and evidentiary requirements are not enforced as strictly as they would be in a criminal trial. This court has held: (1) that, where a probationer admits that he has violated a probationary term, no further evidence need be heard in order for the trial court to revoke probation; (2) that appointed counsel need not be afforded ten days to prepare for such a hearing; (3) that there is no necessity that the state obtain a final conviction for an offense alleged as grounds for revocation before the court can revoke ; (4) that a probationer does not have a right to trial by jury at a revocation hearing; and (5) that the testimony of an accomplice witness need not be corroborated in order for the evidence to be sufficient to support the decision of the court to revoke. Appellant now asks this court to saddle the administration of the probationary system with a standard of proof which would completely undermine its effectiveness. Appellant asks us to believe that such a result is required by the due process clause under the holding of the United States Supreme Court in In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). His reliance on that case is misplaced. Any inquiry into— “ . . . what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action.” In Winship, the court was presented with a situation in which a twelve year old boy had been adjudged to be a juvenile delinquent. The judge of the New York Family Court found that the boy had committed the offense of larceny. Under New York law, the boy was liable to confinement for as long as six years. Since the child was being punished for the commission of the penal offense, the court held that his guilt must be proven beyond a reasonable doubt. To apply the holding of Winship to a probation revocation hearing would be a complete denial of the reasoning in that case, because, where a person is not being held criminally liable for his prior acts, Winship has no application. Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972); Tippett v. Maryland, 436 F.2d 1153 (4th Cir. 1971). See also Nilsson v. State, Tex.Cr.App., 477 S.W.2d 592 (1972). In a probation revocation hearing, guilt has already been determined. In the instant case, appellant is not being held criminally liable because he associated with persons who used narcotics or because he visited places where narcotics were kept. He is being sent to prison because he was convicted on February 4, 1971, by proof beyond a reasonable doubt, of the offense of unlawful possession of marihuana and has since failed to rehabilitate himself by living up to the terms of probation. e. g. Burns v. United States, supra; Hulsey v. State, supra. On the surface, appellant’s contention that he has been “convicted” of violating the terms of his probation has some appeal. However, I submit that, upon careful analysis, the logical flaws and inherent defects in such contention become apparent. It is important to note that, after careful study, the American Bar Association Project on Standards for Criminal Justice recommended “establishment of the violation by the government by a preponderance of the evidence.” ABA Standards Relating to Probation, Sec. 5.4(iii) (Approved Draft 1970). This seems to be the accepted procedure in other jurisdictions, e. g. Shaw v. Henderson, 430 F.2d 1116 (Sth Cir. 1970); United States v. D’Amato, 429 F.2d 1284 (3rd Cir. 1970); United States v. Lauchli, 427 F.2d 258 (7th Cir. 1970), cert. denied, 400 U.S. 868, 91 S.Ct. 111, 27 L.Ed.2d 108 (1970); Amaya v. Beto, 424 F.2d 363 (5th Cir. 1970); United States v. Nagelberg, 413 F.2d 708 (2d Cir. 1969), cert. denied, 396 U.S. 1010, 90 S.Ct. 569, 24 L.Ed.2d 502 (1970); State v. Leighty, 5 Wash.App. 30, 485 P.2d 91 (1971); Smith v. State, 11 Md.App. 317, 273 A.2d 626 (1971); Dickson v. State, 124 Ga.App. 406, 184 S.E.2d 37 (1971); People v. Majerus, 271 N.E.2d 380 (Ill.App.1971); People v. Hardnett, 270 N.E.2d 864 (Ill.App.1971); People v. Hayko, 7 Cal.App.3d 604, 86 Cal.Rptr. 726 (1970); Raper v. State, 462 S.W.2d 261 (Tenn.Cr.App.1970); People v. Valle, 7 Misc.2d 125, 164 N.Y.S.2d 67 (Ct.Spec.Sess.1957); Reinmuth v. State, 163 Neb. 724, 80 N.W.2d 874 (1957). Moreover, the United States Supreme Court has recently declined review in two cases which raised the same contention as raised by appellant herein; once just prior to its decision in Winship and once since that decision. Finding no logical or legal reason for destroying the utility of probation as a tool for rehabilitation by requiring that the beyond a reasonable doubt standard be used, I concur. ROBERTS, J., joins in this concurrence. ONION, Presiding Judge (dissenting). As noted in the majority opinion, the revocation of probation proceedings against this appellant and against Jerry Dean Mitchell were held at the same time. At the conclusion thereof, the trial judge stated: “Well, of course, you fellows have done a good job. I will have to say that. I am like King Agrippa when he said, ‘Paul, thou almost persuadest me.’ But we do have a case that the State has brought evidence on and it isn’t beyond a reasonable doubt admittedly and I don’t have the wisdom and knowledge to know who is telling the truth and who isn’t. I certainly don’t get any pleasure out of revoking a probation and sending either of these boys to the Texas Department of Corrections, but I also know that we have got to have law and order. For that reason and under the facts, I am going to revoke the probation of both of these boys.” (emphasis supplied) It is clear that the trial court did not use the reasonable doubt standard of proof which appellant claims he should have used, nor is it altogether clear what standard he did use. Appellant relies upon In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Apparently for the first time, the question of the burden of proof required in a revocation of probation proceeding is squarely presented. This court has repeatedly said that once probation ‘has been granted, it should not be arbitrarily withdrawn by the court, and the court is not authorized to revoke without having found that the probationer has violated a condition of his probation. Certainly there is a presumption of innocence. And it has also been stated that the burden of proof in revocation proceedings to show such a violation of a probationary condition is upon the State. However, the standard of proof has never been adequately discussed. This court has not addressed itself to the question of whether the burden of proof is “beyond a reasonable doubt,” “by a preponderance of the evidence,” “by clear and convincing proof” or some other acceptable standard. This court has held on a number of occasions that revocation proceedings are not criminal trials in the constitutional sense. Since the earlier decisions of this court, however, concerning the nature of revocation proceedings, it is now clear that while a state is not constitutionally required to provide for probation revocation hearings as a part of its criminal process anymore than it is required to provide for appellate review, but that when it does, then due process and equal protection of the law is fully applicable thereto. The necessity of the application of due process and equal protection to revocation proceedings was recognized by this court in Campbell v. State, 456 S.W.2d 918 (Tex.Cr.App.1970), where it was also stated: “It would indeed now be difficult to conclude that probation revocation hearings are not criminal proceedings 'where substantial rights of an accused may be affected.’ Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336. The revocation proceedings cannot be isolated from the context of the criminal process. See Crawford v. State, Tex.Cr.App., 435 S.W.2d 148.” 456 S.W.2d at 921-922. See also McConnell v. Rhay, 393 U.S. 2, 89 S.Ct. 32, 21 L.Ed.2d 2 (1968). And only recently in Fariss v. Tipps, 463 S.W.2d 176 (Tex.1971), which involved an application for writ of mandamus, the Texas Supreme Court held that a proceeding to revoke probation is a “criminal prosecution” within the state constitution and a probationer was entitled to a speedy trial and further that the speedy trial provision of the Sixth Amendment of the United States Constitution was a due process requirement applicable to state revocation proceedings through the Fourteenth Amendment. See Article 24, Vernon’s Ann.P.C. Certainly it has been recognized that a revocation proceeding is a critical stage of the criminal process where counsel must be appointed if the probationer is indigent, without counsel and has not been warned of the same. In Re Winship, supra, held that proof beyond a reasonable doubt, which is required by the due process clause in criminal trials, is among the “ ‘essentials of due process and fair treatment’ required during the adjudicatory stage when a juvenile is charged with an act which would constitute a crime if committed by an adult.” 397 U.S. at 359, 90 S.Ct. at 1070. The Supreme Court noted that proof beyond a reasonable doubt in criminal cases dated from our early years as a nation and that such standard “. . . plays a vital role in the American scheme of criminal procedure.” 397 U.S. at 363, 90 S.Ct. at 1072. “It is,” the court stated, “a prime instrument for reducing the risk of convictions resting on factual error.” Id. See also Article 38.03, Vernon’s Ann.C. C.P., establishing the reasonable-doubt standard in all criminal cases in Texas. The court further wrote in Winship: “. . . As we said in Speiser v. Randall, supra, 357 U.S. [513] at 525-526, 78 S.Ct. [1332], at 1342 [2 L.Ed.2d 1460] : ‘There is always in litigation a margin of error, representing error in factfinding, which both parties must take into account. Where one party has at stake an interest of transcending value— as a criminal defendant his liberty — this margin of error is reduced as to him by the process of placing on the other party the burden of . persuading the factfinder at the conclusion of the trial of his guilt beyond a reasonable doubt. Due process commands that no man shall lose his liberty unless the Government has borne the burden of . convincing the factfinder of his guilt.’ To this end, the reasonable-doubt standard is indispensable, for it ‘impresses on the trier of fact the necessity of reaching a subjective state of certitude of the facts in issue.’ Dorsen & Rezneck, In Re Gault and the Future of Juvenile Law, 1 Family Law Quarterly, No. 4, pp. 1, 26 (1967). “Moreover, use of the reasonable-doubt standard is indispensable to command the respect and confidence of the community in applications of the criminal law. It is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned. . . .” (emphasis supplied) 397 U.S. at 364, 90 S.Ct. at 1072. Further, the late Mr. Justice Harlan in his concurring opinion in Winship wrote: “. . . Although the phrases ‘preponderance of the evidence’ and ‘proof beyond a reasonable doubt’ are quantitatively imprecise, they do communicate to the finder of fact different notions concerning the degree of confidence he is expected to have in the correctness of his factual conclusions.” 397 U.S. at 370, 90 S.Ct. at 1076 (concurring opinion). And the majority opinion rejected the suggestion that there was only a “tenuous difference” between the reasonable-doubt and preponderance standards. “. . . In this very case, the trial judge’s ability to distinguish between the two standards enabled him to make a finding of guilt that he conceded he might not have made under the standard of proof beyond a reasonable doubt. Indeed, the trial judge’s action evidences the accuracy of the observation of commentators that ‘the preponderance test is susceptible to the misinterpretation that it calls on the trier of fact merely to perform an abstract weighing of the evidence in order to determine which side has produced the greater quantum, without regard to its effect in convincing his mind of the truth of the proposition asserted.’ Dorsen & Rezneck, supra, at 26-27.” 397 U.S. at 367-368, 90 S.Ct. at 1074. The majority opinion noted that In Re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967) decided that, although the Fourteenth Amendment does not require that the adjudicatory stage of a juvenile delinquency proceeding conform with all the requirements of a criminal trial or even of the usual administrative proceeding, the due process clause does require application during such stage of “the essentials of due process and fair treatment.” The court concluded that the constitutional safeguard of proof beyond a reasonable doubt was as much required in such proceedings as those safeguards applied in Gault• — notice of charges, right to counsel, rights of confrontation and examination, and the privilege against self-incrimination. The appellant urges that the holding in Winship compels the application of the reasonable-doubt standard to revocation of probation cases. It, at least, logically follows. To hold that adult probationers are to be denied due process under the correctional rhetoric of in-loco parentis or for other reasons while juveniles are receiving due process would be, in my opinion, an arbitrary distinction and would raise serious equal protection issues as well as due process considerations. When all the legal niceties are laid aside, a proceeding to revoke probation involves the right of an individual to continue at liberty or to be imprisoned. It involves the possibility of a deprivation of liberty just as much as original criminal action or juvenile delinquency proceeding. The fact-finding process is just as adverse as in other proceedings where the accused is afforded due process rights including the reasonable-doubt standard. In Note, 1971 Wis.L.Rev. 648, 657, it is written: “. . . At numerous other steps in the criminal procedure where liberty is threatened, the Constitution has been construed to guarantee due process. This is always the case at the original trial. Revocation of probation is not merely a reconsideration of the old charges with a new sentence. It is the imposing of an old sentence due to new allegations. The chance that these new allegations may be wrong is just as great as the chance that the original charges were wrong. The chance for error or arbitrary justice is no less great the second time and ‘liberty’ no less valuable.” It has been held in this state that the result of a hearing to revoke probation is not a “conviction” but a finding upon which the trial court might exercise its discretion by revoking or continuing probation. And as noted earlier, this court has. frequently said that revocation hearings are not trials in the constitutional sense. This same type of reasoning was advanced in Winship in support of the claim that there had been no deprivation of due process and that the reasonable-doubt standard of proof was not required in juvenile proceedings. It found favor with the New York Court of Appeals but was expressly rejected by the United States Supreme Court who noted that labels and good intentions do not obviate the need for criminal due process safeguards in juvenile courts where the possible loss of liberty is involved. Certainly the use of the reasonable-doubt standard in Texas revocation of probation proceedings need not necessarily disturb the earlier Texas decisions nor have any real effect on the flexibility or speed of the revocation hearing at which the fact-finding takes place. I venture to say that most trial judges in Texas use the reasonable-doubt standard in revocation proceedings- anyway, whether stated in their orders of revocation or not. It is the burden of proof that most criminal trial judges are accustomed to applying. See Article 38.03, supra. I would hold that the constitutional safeguard of proof beyond a reasonable doubt as a matter of due process and fundamental fairness is required in Texas revocation of probation proceedings along with the right to counsel, speedy trial, etc. When one assesses the consequences of an erroneous factual determination in a revocation of probation proceeding in which the probationer is accused of violating a probationary condition, I think it must be concluded that while the consequences are not altogether identical to those in a criminal trial or those in a juvenile delinquency proceeding, the differences will not support a distinction in the standard of proof. The reasonable-doubt standard provides concrete substance for the presumption of innocence that surely prevails in revocation hearings. Cf. In Re Winship, supra, 397 U.S. at 363, 90 S.Ct. 1068, 25 L.Ed.2d 368. The majority characterizes my conclusion as logically inconsistent, and judicially unsound which is their privilege. I am perfectly willing to allow my conclusion to stand the test of time. The majority does not seem to have the same confidence. Although rejecting the reasonable-doubt standard, the majority fails to inform the bench and bar what standard should be applied in revocation proceedings and how the instant case met that standard. This is indeed regrettable. I am not impressed by the majority’s mere recitation that revocation proceedings are not trials in the constitutional sense, the judge is the sole trier of the facts, the only question on appeal is abuse of discretion, that the court did not have to grant probation in the first place as if all this somehow properly determines the proper burden of proof in revocation hearings. “It is one of the misfortunes of the law that ideas become encysted in phrases and thereafter for a long time cease to provoke further analysis.” Hyde v. United States, 225 U.S. 347, 391, 32 S.Ct. 793, 811, 56 L.Ed. 1114 (1912) (Holmes, J., dissenting). And it concerns me that in rejecting the reasonable-doubt standard and in failing to fix any other standard the majority would take into consideration the fear factor that the able trial judges of this state would be less likely to utilize probation. I have more confidence in our trial judges than that. Just how taking this fear factor into consideration commits the majority to the continued viability of our probation laws, but leaves all others with a different viewpoint uncommitted is a question for one to ponder. And should fear of what someone will do or not do govern this court’s determination of whether the constitution and laws of the United States and this state require? I should hope not. I am aware, of course, of the recent 4-3 holding in Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972), that Winship does not constitutionally require that a trial judge find a confession voluntary beyond a reasonable doubt before admitting it into evidence following a Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), hearing. There the court upheld the Illinois court’s use of the “by a preponderance of the evidence” standard. States were left free, however, to adopt a higher standard and many have already done so. The court noted the petitioner had offered nothing to suggest that admissibility rulings have been unreliable or otherwise wanting in quality because not based on some higher standard than the preponderance standard. I do not read Lego v. Twomey as limiting or undermining Winship or calling for a different result than I have reached. We are not here dealing with the burden of proof on an admissibility ruling and far different values are involved. Surprisingly there have been few cases where the issue here presented has been urged and considered. In State v. Leighty, 5 Wash.App. 30, 485 P.2d 91 (1971), the defendant did raise the same issue and relied upon Winship. The Washington Supreme Court rejected the argument outright without discussion and cited cases decided prior to Winship to the effect that “ . [a] 11 that is required is that the evidence and facts be such as to reasonably satisfy the court that the probationer is ‘violating the terms of his probation, . . . ’” 485 P.2d at 92. Such holding without any in-depth consideration of Winship is not persuasive as far as I am concerned. Prior to Winship a number of courts made similar decisions as to the burden of proof. And since Winship other courts have reached the same result rejecting the reasonable-doubt standard without mention of Winship. The Illinois courts have consistently held that the burden of proof in their revocation proceedings is by a preponderance of the evidence. None of the cases considered Winship. It is also true that the American Bar Association Project on Standards for Criminal Justice, Standards Relating to Probation § 5.4(a) at 65-67 (Approved Draft 1970), provides that the prosecution “ . should have the burden of establishing the occurrence of the violation by a preponderance of the evidence. ...” Here again this standard was adopted prior to and without consideration of Winship. Further, it is significant to me that such standards also recommend that a revocation proceeding based solely upon commission of another crime ordinarily should not be initiated prior to the disposition of that charge. See § 5.3 id. This means that the penal offense which forms the basis of the revocation will have first been disposed of in a court of competent jurisdiction in a trial where the burden of proof is beyond a reasonable doubt. This is, of course, not the practice or rule in Texas. See Footnote No. 9 hereof. And it is to be observed that a new criminal offense is typically the most frequent and serious way in which probationary conditions can be violated. This may well have had a bearing on the adoption prior to Win-ship of a lesser burden of proof than reasonable doubt by such standards. Those who would espouse the preponderance of the evidence standard would do well to consider what the late Mr. Justice Harlan said in his concurring opinion in Winship: “When one makes such an assessment, the reason for different standards of proof in civil as opposed to criminal litigation becomes apparent. In a civil suit between two private parties for money damages, for example, we view it as no more serious in general for there to be an erroneous verdict in the defendant’s favor than for there to be an erroneous verdict in the plaintiff’s favor. A preponderance of the evidence standard therefore seems peculiarly appropriate for, as explained most sensibly, it simply requires the trier of fact ‘to believe that the existence of a fact is more probable than its nonexistence before [he] may find in favor of the party who has the burden to persuade the [judge] of the fact’s existence.’ “In a criminal case, on the other hand, we do not view the social disutility of convicting an innocent man as equivalent to the disutility of acquitting someone who is guilty. . . . ” Then he added that the requirement of proof beyond a reasonable doubt is “bottomed on a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free. . . . ” Those who would urge the adoption of a preponderance-of-evidence standard, to paraphrase Mr. Justice Harlan, must be prepared to defend the view that it is no more serious in general to continue a probationer on probation than to revoke probation causing him imprisonment and depriving him of his liberty. See also Mr. Justice Brennan’s dissent, Lego v. Twomey, supra. Further, even in deportation proceedings, the Supreme Court has rejected the preponderance standard and ruled the Government must support its allegations with “clear, unequivocal, and convincing evidence.” Woodby v. Immigration and Naturalization Service, 385 U.S. 276, 285, 87 S.Ct. 483, 487, 17 L.Ed.2d 362 (1966). The court noted that deportation is not tantamount to a criminal conviction. The court found it could lead to “drastic deprivations” and that it was impermissible for a person to be “banished from [his] country upon no higher degree of proof that applies in a negligence case.” The revocation of probation involves more than “drastic deprivations.” For the reasons stated above, I would reverse this cause for the failure of the trial court to apply the proper standard of proof —that of reasonable doubt. Appellant also urges that regardless of the standard of proof utilized, the evidence is insufficient to show that he failed to “avoid persons or places of disreputable or harmful character” in violation of his probation. The amended motion to revoke alleged the disreputable or harmful persons were Jerry Mitchell, Bernie Prachyl and Marion Harper, and the disreputable or harmful place was “611 South Dallas Street, Ennis, Ellis County, Texas.” The record reflects that neither Prachyl or Harper had criminal records or that appellant had personal knowledge that either used marihuana, etc. Mitchell had been convicted of possession of marihuana, but at the time of Mitchell’s conviction in Ellis County appellant was in the Army in El Paso or Viet Nam. Further, he knew Mitchell only by name and had never even spoken to him. When the arrest was made, appellant was in the kitchen of the premises eating a piece of cake. None of the named individuals was in the same room and no marihuana was found there or on appellant’s person. The majority expresses doubt that the evidence is sufficient to show that he knew the three individuals named in the pleadings were of disreputable or harmful character as required by Jackson v. State, 464 S.W.2d 153 (Tex.Cr.App.1971); Steed v. State, 467 S.W.2d 460 (Tex.Cr.App.1971) and Shortnacy v. State, 474 S.W.2d 713 (Tex.Cr.App.1972). I agree. The remaining question is whether the evidence shows that the place in question was of disreputable and harmful character. The motion to revoke alleged “611 South Dallas Street in Ennis” while the proof showed that the premises in question were 61U/2 South Dallas Street, Ennis, a garage apartment occupied by Bernie Prachyl. The evidence, in my opinion, is insufficient to reflect that these particular living quarters bore a bad reputation and that such reputation was known to the appellant and that he did not avoid the same. The majority concludes that since appellant admitted smoking marihuana in Viet Nam, had been convicted of possession of marihuana, he should have somehow detected the odor of marihuana the officers claimed was present in the other room and should have known at that moment the place was harmful to him (since he was on probation) and should have departed before the arrival of the police. I cannot conclude that such evidence was sufficient to reflect a violation of the probationary condition alleged regardless of the standard of proof used. Appellant also advances the contention that condition of probation allegedly violated was “indefinite and uncertain.” The majority expressly recognizes such contention but, in affirming the conviction, fails to answer the contention. We are left to wonder at their conclusion, if any. The American Bar Association Project on Standards for Criminal Justice, Standards Relating to Probation § 3.2(b), provides that probationary conditions “should not be so vague or ambiguous as to give no real guidance.” This suggests the impropriety of imposing conditions which achieve such a level of generality as to be of no particular value. All such conditions should be explicit primarily as an aid to the offender in increasing his understanding of what is expected of him. In this same connection, I do note, in passing, that the judgment entered simply reflects: “Imposition of sentence suspended. Defendant placed on probation for said time in accordance with the provisions of Article 42.12 of the Texas Code of Criminal Procedure.” No conditions of probation were set out in the judgment nor is there to be found a separate order granting probation or any other instrument or entry setting forth the probationary conditions. The first mention of any probationary condition imposed is found in the motion to revoke. When a defendant is granted probation there are no automatic conditions thereby imposed. The trial judge must decide what conditions are to be imposed. Article 42.12, § 6, Vernon’s Ann.C.C.P. And this is true whether the trial judge grants probation, as in the instant case, or whether probation is recommended by the jury. In the latter situation, the trial judge is limited to those conditions suggested in the statute, but he is certainly not required to impose all of them. This court has repeatedly held it incumbent upon the trial judge to incorporate in his order or judgment granting probation the conditions upon which the accused was being released “ . . .so that the accused and the authorities may know, with certainty, what those conditions are.” Ex parte Pittman, 157 Tex.Cr.R. 301, 248 S.W.2d 159, 165 (1952) , In addition to the absence of anything in the record to show what conditions, if any, were imposed by the trial judge, the record fails to reflect a compliance with § 6 of Art. 42.12, supra, which requires the clerk to furnish a copy of the terms and conditions to the probationer and note the delivery of the same upon the docket of the court. See McShan v. State, 458 S.W.2d 78 (Tex.Cr.App.1970). For the reasons stated, I would reverse this conviction finding an abuse of discretion. . We call attention to that part of the American Bar Association Project on Standards for Criminal Justice, Standards Relating to Probation, (Sec. 5.4(a) (iii) (Approved Draft 1970), which suggests that the “establishment of the [revocation] violation by the government [be] by a preponderance of the evidence." (Emphasis added) . The judgment stated: “Imposition of sentence suspended. Defendant placed on probation for said time in accordance with the provisions of Art. 42.12 of the Texas Code of Criminal Procedure.” . See Ex parte Pittman, 157 Tex.Cr.R. 301, 248 S.W.2d 159. . Mitchell v. State, Tex.Cr.App., 482 S.W.2d 221 (1972). Where the accused pleads guilty to the commission of a felony, the state still must present other evidence to support the conviction where trial is before the court. Article 1.15, V.A.C.C.P.; Edwards v. State, Tex.Cr.App., 463 S.W.2d 733. . Hill v. State, supra. In a criminal trial ten days must be afforded under Article 26.04, V.A.C.C.P. . e. g., Farmer v. State, Tex.Cr.App., 475 S.W.2d 753; Hulsey v. State, supra. . e. g., Hulsey v. State, supra; Dunn v. State, supra. . e. g., Barnes v. State, Tex.Cr.App., 467 S.W.2d 437; Dunn v. State, supra. . Cafeteria & Restaurant Workers Union, Local 473 v. McElroy, 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961). . It should he noted that the court in Winship was very careful to discuss the fact that requiring the reasonable doubt standard would not affect the informality or flexibility of the juvenile hearing. . United States v. Nagelberg, 413 F.2d 708 (2d Cir. 1970) ; cert. denied 396 U.S. 1010, 90 S.Ct. 569, 24 L.Ed.2d 502 (1970). . United States v. Lauchli, 427 F.2d 258 (7th Cir. 1970), cert. denied, 400 U.S. 868, 91 S.Ct. 111, 27 L.Ed.2d 108 (1970). See also Arciniega v. Freeman, 404 U.S. 4, 92 S.Ct. 22, 30 L.Ed.2d 126 (1971). . Wozencraft v. State, 388 S.W.2d 426 (Tex.Cr.App.1965); Campbell v. State, 456 S.W.2d 918, 922 (Tex.Cr.App.1970); Jackson v. State, 464 S.W.2d 153 (Tex.Cr.App.1971). See also United States v. Taylor, 449 F.2d 117 (9th Cir. 1971). . Zane v. State, 420 S.W.2d 953 (Tex.Cr.App.1967); Campbell v. State, supra note 1; Perry v. State, 459 S.W.2d 865 (Tex.Cr.App.1970); Hulsey v. State, 447 S.W.2d 165 (Tex.Cr.App.1969). . Wilson v. State, 156 Tex.Cr.R. 228, 240 S.W.2d 774 (1951) ; Leija v. State, 167 Tex.Cr.R. 300, 320 S.W.2d 3 (1958); Hulsey v. State, supra note 2; and cases there cited. . Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963) ; Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956). See Hoffman v. State, 404 P.2d 644 (Alaska 1965); Williams v. Commonwealth, 350 Mass. 732, 216 N.E.2d 779 (1966); Blea v. Cox, 75 N.M. 265, 403 P.2d 701 (1965). See also this writer's original dissent in Crawford v. State, 435 S.W.2d 148, 150 (Tex.Cr.App.1968). Cf. Baxstrom v. Herold, 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620 (1966). . Art. 42.12, Vernon’s Ann.C.C.P.; Ex parte Williams, 414 S.W.2d 472 (Tex.Cr.App.1967) ; Mempa v. Rhay, supra. Mempa holding as to the right to counsel at probation revocation proceedings applies retroactively. McConnell v. Rhay, supra; Ex parte McDonald, 469 S.W.2d 173 (Tex.Cr.App.1971). See also Crawford v. State, supra; Eiland v. State, 437 S.W.2d 551 (Tex.Cr.App.1969); Ex parte Fletcher, 442 S.W.2d 705 (Tex.Cr.App.1969); Ex parte Fuller, 435 S.W.2d 515 (Tex.Cr.App.1969); Ex parte Buffington, 439 S.W.2d 345 (Tex.Cr.App.1969); Ex parte Bird, 457 S.W.2d 559 (Tex.Cr.App.1970). . See also Santana v. State, 431 S.W.2d 558 (Tex.Civ.App. — Amarillo 1968), rev’d 444 S.W.2d 614 (Tex.1969), vacated and remanded for reconsideration in light of Winship, 397 U.S. 596, 90 S.Ct. 1350, 25 L.Ed.2d 594 (1970) (per curiam), dism’d with prejudice on remand 457 S.W.2d 275 (Tex.1970) (per curiam). . In Winship, the Supreme Court said: "The same considerations that demand extreme caution in factfinding to protect the innocent adult apply as well to the innocent child.” 397 U.S. at 365, 90 S.Ct. at 1073. Cf. Note, 1971 Wis.L.Rev. 648, 654-55. . Dunn v. State, 159 Tex.Cr.R. 520, 265 S.W.2d 589 (1954); Soliz v. State, 171 Tex.Cr.R. 376, 350 S.W.2d 566 (Tex.Cr.App.1961) ; McDonald v. State, 393 S.W.2d 914 (Tex.Cr.App.1965). . Under Texas procedure when a probationer is accused of having violated his probationary conditions by committing a penal offense, he is not entitled to require that prior to revocation there be a trial and conviction in a court of competent jurisdiction for the offense which forms the basis of the revocation where the burden of proof would be beyond a reasonable doubt. Dunn v. State, supra note 7; Ex parte Bruinsma, 164 Tex.Cr.R. 358, 298 S.W.2d 838 (1957), cert. den. sub nom., Bruinsma v. Ellis, 354 U.S. 927, 77 S.Ct. 1386, 1 L.Ed.2d 1439; Gorman v. State, 166 Tex.Cr.R. 633, 317 S.W.2d 744 (Tex.Cr.App.1958) ; Hulsey v. State, supra note 2. This was a requirement of the former Suspended Sentence Daw (Art. 776-781, Vernon’s Ann.C.C.P., 1925), but not of the Adult Probation Law. (Art. 42.12, Vernon’s Ann.C.C.P.). The fact that an offense has never been formally filed, or if filed, the indictment or other accusatory pleadings have been dismissed, or the fact that the probationer has been charged and acquitted of such offense, before or after the revocation, does not prevent the use of such as the basis for revocation of probation. And such probationer is not entitled to a jury trial to determine if his probation should be revoked. Art. 42.12, § 8, supra; Hulsey v. State, supra note 2; Dunn v. State, supra note 7. Further, probation may be revoked for violation of any penal offense; it is not restricted to a violation of a felony or a misdemeanor involving moral turpitude. Jackson v. State, 165 Tex.Cr.R. 380, 307 S.W.2d 809 (1957). Revocation proceedings are often characterized by their informality, relaxation of rules of admissibility of evidence, absence of jury, etc. If we add to these factors a lesser burden of proof than reasonable doubt, we lay the groundwork for abuse of such proceedings. Can it really be said that due process, under these circumstances, does not require before deprivation of liberty a reasonable-doubt standard? And if applicable to revocations based on a violation of probationary conditions prohibiting commission of penal offenses, should it not be applicable to all other alleged violations which can just as easily result in deprivation of liberty? . See Footnote No. 1 of Lego v. Twomey, supra. While the burden of proof on such admissibility ruling does not appear to have been squarely decided in this state, it has been discussed. See Hill v. State, 429 S.W.2d 481 at 487-488 (Tex.Cr.App.1968) ; Nash v. State, 477 S.W.2d 557 (Tex.Cr.App.1972). In Nash, the trial judge used the reasonable-doubt standard as most Texas judges do. . e. g., Manning v. United States, 161 F.2d 827, 829 (5th Cir. 1947) ; United States v. Bryant, 431 F.2d 425 (5th Cir. 1970) ; United States v. Langley, 438 F.2d 91 (5th Cir. 1970) ; United States v. D’Amato, 429 F.2d 1284 (3rd Cir. 1970) ; Reinmuth v. State, 163 Neb. 724, 80 N.W.2d 874 (1957) ; People v. Valle, 7 Misc.2d 125, 164 N.Y.S.2d 67 (Ct.Spec.Sess.1957) ; United States v. Nagelberg, 413 F.2d 708 (2nd Cir. 1970), cert. den. 396 U.S. 1010, 90 S.Ct. 569, 24 L.Ed.2d 502 (1970). . Dickson v. State, 124 Ga.App. 406, 184 S.E.2d 37 (1971) ; Smith v. State, 11 Md.App. 317, 273 A.2d 626 (1971) ; Raper v. State, 462 S.W.2d 261 (Tenn.Cr.App.1970; United States v. Lauchli, 427 F.2d 258 (7th Cir. 1970), cert. den. 400 U.S. 868, 91 S.Ct. 111, 27 L.Ed.2d 108 (1970). It is true that writ of certiorari was denied in United States v. Dauchli, supra, after the date of 'Winship, but “[djenial of certiorari, as has frequently been explained, imports nothing as to the merits of the case. All this means is that, for whatever reason, there-was not four members of the Court who wished to hear the case.” Wright, Federal Courts § 108 at 495 (1970). In Brown v. Allen, 344 U.S. 443, 491-492, 73 S.Ct. 397, 439, 97 L.Ed. 469 (1953), the court wrote: “Thirty years ago the Court rather sharply reminded the Bar not to draw strength for lower court opinions from the fact that they were left unreviewed here. ‘The denial of a writ of certiorari imports no expression of opinion upon the merits of the case, as the bar has been told many times.’ United States v. Carver, 260 U.S. 482, 490, 43 S.Ct. 181, 182, 67 L.Ed. 361.” (Emphasis supplied) See Maryland v. Baltimore Radio Show, 338 U.S. 912, 917-919, 70 S.Ct. 252, 94 L.Ed. 562 (1950) (J. Frankfurter’s opinion on denial of certiorari). . People v. Majerus, 271 N.E.2d 380 (Ill.App. 1971) ; People v. Griffin, 270 N.E.2d 444 (Ill.App.1971) ; People v. Dawes, 270 N.E.2d 214 (Ill.App.1971) ; People v. Latham, 270 N.E.2d 563 (Ill.App.1971) ; People v. Hardnett, 270 N.E.2d 864 (Ill.App.1971) ; People v. Cook, 53 Ill.App.2d 454, 202 N.E.2d 674 (1964). . Accord, e. g., McDonald v. State, 442 S.W.2d 386 (Tex.Cr.App.1969) ; Stover v. State, 365 S.W.2d 808 (Tex.Cr.App.1963) ; Glenn v. State, 168 Tex.Cr.R. 312, 327 S.W.2d 763 (1959) ; McBee v. State, 166 Tex.Cr.R. 562, 316 S.W.2d 748 (1958). See also Walls v. State, 161 Tex.Cr.R. 1, 273 S.W.2d 875 (1954).

sw2d_483/html/0481-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Jerry Dean MITCHELL, Appellant, v. The STATE of Texas, Appellee. No. 44792. Court of Criminal Appeals of Texas. May 3, 1972. Rehearing Denied June 28, 1972. Robert M. Jones, Dallas, Forrester Hancock, Waxahachie, for appellant. Ward P. Casey, County Atty., Waxa-hachie, Jim D. Vollers, State’s Atty., and Robert A. Huttash, Asst. State’s Atty., Austin, for the State. OPINION MORRISON, Judge. This is an appeal from a revocation of probation. The revocation of probation proceedings against appellants Jerry Dean Mitchell and Doyle Gene Kelly, Tex.Cr.App., 483 S.W.2d 467, (1972), this day decided, were held together; however, their cases will be considered separately on appeal because of the different fact situations involved. Appellant was convicted of possession of marihuana on January 6, 1970, assessed an eight (8) year sentence and placed on probation. Among the terms of probation was a provision that he not violate the laws of this or any other State or the Federal Government. Subsequently, the State filed a motion to revoke probation alleging appellant violated “his probation in that [he] did then and there unlawfully and willfully possess a narcotic drug, to-wit: marihuana.” On February 14, 1971, three Ellis County Deputy Sheriffs executed a search warrant based on information from an unidentified informant. Appellant was at the garage apartment in question, together with ten other young people. One officer testified that he found an unsmoked marihuana cigarette stuffed between the two cushions of the couch nearest where appellant was seated on the couch, a partially burned marihuana stub in an ashtray nearby, and a baggie of marihuana under a bed across the room. He further testified that the appellant, when arrested, appeared to be under the influence of marihuana. Appellant and others present testified that no marihuana was smoked that evening and that they knew nothing of the marihuana found in the apartment. In appellant’s brief, filed in the trial court, he asserts two contentions which are, substantially, that the trial court erred in refusing to compel identification of the informant and that evidence was insufficient to support the revocation. Appellant does not elaborate on these claims nor does he cite any cases in support of his contentions. Consequently, his brief is not in. compliance with Article 40.09, Sec. 9, Vernon’s Ann.C.C.P., and presents nothing for review. Appellant’s supplementary brief, filed in this Court but not in the trial court, raises no questions which we feel require discussion “in the interests of justice” under Article 40.09, Sec. 13, V.A.C.C.P. We note that appellant’s reliance on Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639; Culmore v. State, Tex.Cr.App., 447 S.W.2d 915; and Kinkle v. State, Tex.Cr.App., 474 S.W.2d 704, among others, is misplaced. Those cases involved actual trials on the merits of the charges. Such is not the case here. This is a revocation of probation proceeding. See our opinion in Kelly v. State, supra, for a full discussion on the nature of a revocation of probation proceeding. There is no abuse of discretion. The judgment is affirmed. ONION, Presiding Judge (concurring). I concur in the result reached by the majority in this cause simply because I cannot find in the record before this court where this appellant was ever granted probation. Certainly one who has been convicted but who has never been granted probation cannot complain if the court “revokes probation” and imposes sentence. The judgment entered on January 6, 1970 is entirely silent as to probation. There is no separate order of probation, and there are no other instruments or entries in the record reflecting that the appellant was placed on probation, and setting forth the conditions with which he was expected, if he was, to comply. The first indication that the appellant may have received probation is found in the State’s motion to revoke. It is from this instrument that the majority has taken the wording of the probationary condition allegedly violated. There is no order that this was a condition imposed by the court as is incumbent upon the court to enter, McDonald v. State, 442 S.W.2d 386 (Tex.Cr.App.1969), and the cases there cited, and nothing to reflect the clerk served a copy of the conditions on the appellant and noted delivery on the minutes of the court as required by Article 42.12, § 6, Vernon’s Ann.C.C.P. For the reasons stated, I concur. If, on the other hand, the granting of probation and the condition of probation allegedly violated can somehow be inferred, I would dissent to the affirmance of this conviction on the ground that the trial court failed to apply the proper standard of proof in revoking probation. See my dissenting opinion in Kelly v. State, 483 S.W.2d 467. For the reasons stated, I concur.

sw2d_483/html/0483-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Bobby Joe CARTER, Appellant, v. The STATE of Texas, Appellee. No. 44983. Court of Criminal Appeals of Texas. June 7, 1972. John Cutler, Houston, for appellant. Carol S. Vance, Dist. Atty., James C. Brough, Calvin Botley and James A. Moseley, Asst. Dist. Attys., Houston, and Jim D. Vollers, State’s Atty., Austin, for the State. OPINION ODOM, Judge. This appeal is taken from a conviction for the offense of unlawfully carrying a prohibited weapon in a place where alcoholic beverages are sold and consumed. Punishment was assessed by the court at two years. Appellant contends that the trial court erred in denying his plea of “autrefois acquit”. In the case at bar, we do not have before us the transcription of the court reporter’s notes of the prior proceedings, upon which this claim is based. The record does contain the indictment and judgment from the prior proceeding as well as some excerpts from the testimony of the appellant and two witnesses. These excerpts show that: (1) on August 23, 1970, appellant entered the Blue Flame Lounge in Houston with a pistol in his possession; (2) Freeman Smith had approached appellant in the lounge and told him that he wanted to see appellant “outside about something he had said about his son”; (3) Freeman Smith then departed; (4) appellant pulled his pistol and immediately followed Smith; (5) that witnesses inside the lounge heard a gunshot; (6) appellant was indicted for the murder of Smith; and (7) a jury acquitted appellant of the murder charge. In support of his contention, appellant relies on Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (19 — ). His reliance is misplaced. In Ashe, the accused had been acquitted of committing the armed robbery of one of six poker players. The court held that the doctrine of collateral estoppel prevented a second trial for the robbery of another player in that game. The court reasoned that the sole issue in dispute in the first trial was whether the accused was one of the robbers. The issue of identity having been resolved by the jury against the state, the state was es-topped from relitigating that issue at the second trial. In the instant case, the identity of appellant and his possession of the pistol in the lounge were not in issue in the first trial. Therefore, these issues were not determined adversely to the state’s position in the case at bar. Cf. Hutchings v. State, Tex.Cr.App., 466 S.W.2d 584 (Onion, P. J., concurring). That appellant possessed the pistol in question on premises licensed to sell intoxicating beverages, and apparently used that pistol to shoot another, from which incident a murder indictment resulted, does not constitute identical offenses but rather separate and distinct offenses. Benard v. State, 481 S.W.2d 427; McMillan v. State, Tex.Cr.App., 468 S.W.2d 444. There being no reversible error, the judgment is affirmed.

sw2d_483/html/0485-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Viola Augusta Kuehn WISHARD et vir, Appellants, v. Gustave Frederick KUEHN et al., Appellees. No. 15928. Court of Civil Appeals of Texas, Houston (1st Dist.). June 29, 1972. Davidson, Gray & Brimble, Michael T. Brimble, Houston, for appellants. Turner & White, Joe E. Turner, Houston, for appellees. COLEMAN, Justice. This is an appeal from a judgment entered in a partition suit. The questions to be determined are (1) the effect to be given to the judgment of the Court of Civil Appeals rendered on a prior appeal in this case, and (2) whether the trial court erred in denying appellants a jury trial. This suit was instituted by certain children of Gustave G. Kuehn and Mary Jane Kuehn to partition a certain tract of land deeded to their children by Mr. and Mrs, Kuehn. The land was divided into nine tracts, and each child was given a life estate in one of these tracts for a period of twenty-five years, at the end of which period a full fee simple title would vest. A provision was included in the deed authorizing a conveyance from the grantees to either of the other grantees. One of the grantees died intestate and another executed a conveyance of her interest in the property to another grantee and subsequently died prior to the twenty-five year period. The ownership of these interests was the disputed issue on the first trial of the case. The judgment entered at that trial was appealed to the Court of Civil Appeals for the 14th District of Texas, and was by that court affirmed in part and in part reversed and remanded. Kuehn v. Wishard, 452 S.W.2d 5 (Tex.Civ.App.— Houston [14th] 1970, writ ref., n. r. e.). The mandate to the Court of Civil Appeals to the trial court provided: “ . . . that part of the judgment, and that part only, insofar as it divests any of the eight surviving brothers or sisters of Anna Kallina Kuehn of an undivided one-eighth fee interest in surface Tract No. 9 and an undivided one-eighth fee interest in that mineral estate previously conveyed to Frances Kallina Kuehn by the source deed, be reversed and the cause remanded for further proceedings in accordance with the opinion of this court. It is further ordered that the remaining portion of the trial court judgment be severed and that such remaining part of the judgment of the court below be affirmed.” The deed from Gustave G. Kuehn and wife, Mary Jane Kuehn (referred to as the “source deed”) conveyed Share No. 9 to Frances Kallina Kuehn. Frances Kallina Kuehn conveyed this share to Viola Kuehn Wishard prior to the end of the twenty-five year period provided in the source deed as being the time the fee simple title would vest. At the first trial the court submitted issues to the jury on the intention of the grantors. Based on the jury’s answers the court rendered judgment vesting title to Share No. 9 in Viola Kuehn Wishard. This portion of the judgment was reversed by the Court of Civil Appeals. In its opinion in Kuehn v. Wishard, supra, the court held that the construction of the deed was a matter of law for the court; that the intention of the grantors in the source deed is expressed in, and may be obtained from, that instrument; that the interest in Tract No. 9 granted by the source deed to Frances Kallina Kuehn was a life estate subject to being enlarged into a fee simple estate upon the expiration of twenty-five years; that the “nature of the estate conveyed — a life estate — made such interest during the twenty-five year period subject to the life of the grantee”; and that the conveyance by Frances Kallina Kuehn was of her life estate only and terminated on her death. The court held that on the death of Frances Kallina Kuehn title to Tract 9 vested in her eight surviving brothers and sisters, and that the trial court erred in vesting title in Viola Kuehn Wishard. The court remanded the case because partition was prayed for and the question of whether the tract was susceptible of partition in kind was a fact issue for a jury. The action of the Court of Civil Appeals on the questions above mentioned was the basis of its decision in the case. The refusal of a writ of error with the notation “no reversible error” necessarily implies that the Supreme Court approved the holding of the Court of Civil Appeals on those questions. After remand the judge of the 55th District Court called the case for trial. At that time the counsel for appellants demanded a jury trial. A proper request had previously been made and the jury fee paid. At that time the court advised counsel that in view of the agreement between the parties that Tract 9 was not susceptible of partition in kind and should be sold and the proceeds of the sale divided, there were no issues of fact for a jury by reason of the decision of the Court of Civil Appeals in the previous appeal of the case. The motion that a jury be empaneled in the case was thereupon refused. Appellants’ contention that the trial court erred in refusing them a jury trial can not be sustained. The opinion of the Court of Civil Appeals determined all issues made by the pleadings except the question of whether the land was susceptible of partition in kind, and this issue was settled by agreement of the parties. The plaintiffs offered into evidence the source deed and certain requests for admissions and the answers thereto. They then rested. Certain stipulations were read into the record. The attorney for Mrs. Wishard was permitted to make a bill of exceptions to the court’s refusal to permit a jury trial. The evidence offered to support his bill was, by agreement, taken from the transcript of the testimony given on the previous trial. All parties then rested. The pleadings of the parties were not amended after the first trial. The answer of Mrs. Wishard does not set up any of the various statutes of limitation except in a special exception, which does not appear to have been presented to the court for a ruling. Appellants contend that the source deed was ambiguous, and that there were issues of fact raised by the testimony admitted on the Bill of Exceptions as to the circumstances surrounding the execution of the source deed, as to the issue of limitations. With the exception of the question of limitations, these matters were presented on the first appeal of this case, and were finally decided by the action of the Supreme Court in denying the application for writ of error. The decision on the questions of law so determined were binding on the trial court and on this court as the law of the case. Furr’s, Inc. v. United Specialty Advertising Company, 385 S.W.2d 456 (Tex.Civ.App. — El Paso 1964, writ ref’d, n. r. e.); Elliott v. Moffett, 165 S.W.2d 911 (Tex.Civ.App. — Texarkana 1942, writ ref., w. o. m.); Reed v. James, 113 S.W.2d 580 (Tex.Civ.App. — San Antonio 1938, writ dism’d); Publix Theatres Corporation v. Carpenter, 56 S.W.2d 248 (Tex.Civ.App. — Dallas 1932, writ dism’d); Brooks v. Zorn, 53 S.W.2d 99 (Tex.Civ.App. — Beaumont 1932, aff’d Tex.Com.App., 83 S.W.2d 949); Maxcy v. Norsworthy, 49 S.W.2d 885 (Tex.Civ.App.— Galveston, writ dism’d); Sutherland v. Friedenbloom, 200 S.W. 1099 (Tex.Civ.App. — El Paso 1918, writ ref.). In White, Smith & Baldwin v. Downs, 40 Tex. 225 (1874), the court said: “But if this is the same case as that formerly before the court, it is a misnomer to call the opinion and a simple judgment of remand for a new trial res judi-cata. The opinion delivered may properly control the lower court, and ordinarily should do so, and would undoubtedly, on the same facts, be entitled to great weight on a second appeal to this court. But the opinion or reasoning for the judgment is no part of it, and the judgment itself is not final between the parties, and therefore is not conclusive.” In Crouch v. Shields, 385 S.W.2d 580 (Tex.Civ.App. — Dallas 1964, writ ref’d, n. r. e.), the court said: “By his seventh and last point appellant contends that he was denied the right of trial by jury. Appellant did request a jury and paid the jury fee. However, the trial judge found, as a matter of law, that no issue of fact was presented in this record. We have carefully reviewed the verified pleadings as well as the statement of acts in its entirety and agree with the trial court’s finding that no issue of fact was presented and therefore appellant has not been prejudiced by a denial of a jury...." An issue on limitation title was not raised by the pleading. Appellants would not have been entitled to the submission of such an issue to a jury. Texas Employers’ Ins. Ass’n v. Patterson, 144 Tex. 573, 192 S.W.2d 255 (1946); Rule 277, Texas Rules of Civil Procedure. A review of the record discloses no issue of fact to be determined by a jury. The action of the trial court in denying the request for a jury trial was not error requiring a reversal of the case. On the previous appeal the Court of Civil Appeals held that “there is no violation of the rule against perpetuities in the source deed.” This deed was the common source of title for all parties. The portion of the judgment of the trial court which was affirmed rested on the title derived from that deed. We consider that the judgment is res adjudicata as to the validity of the deed. Affirmed.

sw2d_483/html/0488-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Estelle LEGATE v. BITUMINOUS FIRE & MARINE INSURANCE COMPANY. No. 7363. Court of Civil Appeals of Texas, Beaumont. June 7, 1972. Stephenson & Thompson, Orange, for appellant. Mehaffy, Weber, Keith & Gonsoulin, Beaumont, for appellee. KEITH, Justice. The appeal is from a summary judgment entered in favor of the defendant in a workmen’s compensation proceeding. Plaintiff below sought recovery of death benefits because of the death of her husband from asbestosis, the recovery being sought under the provisions of the occupational disease sections of the Act, §§ 25 and 26, Art. 8306, Vernon’s Ann.Civ.St. It was established, as a matter of law, by the summary judgment proof: (a) deceased had been an asbestos worker for many years before he retired in January of 1964 when he began drawing his Social Security benefits at age 62; (b) during April and May, 1965, he resumed his work as an asbestos worker and was last employed in covered employment on May 17, 1965; (c) he first experienced symptoms of asbestosis in November, 1969, when a spot was found on one of his lungs; (d) he was hospitalized and died on February 13, 1970; (e) his widow learned for the first time that the cause of his death might have been asbestosis during November, 1970; and (f) the claim for compensation was filed with the Industrial Accident Board in January, 1971. It was established as a matter of law that Legate did not have incapacity before November, 1969. Defendant’s motion for summary judgment incorporated two reasons for its being sustained: (a) the incapacity or death of the decedent did not occur within three years after the last injurious exposure to such disease as required by § 25, Art. 8306, V.A.C.S.; and (b) plaintiff did not file the claim for compensation within six months after the death of her husband nor did she show good cause, as a matter of law, in failing to so file such claim within the six-month period required by § 4a, Art. 8307, V.A.C.S. The court entered the judgment in favor of defendant without reciting the ground relied upon. While we have grave doubt as to the sufficiency of plaintiff’s single point upon appeal, we nevertheless consider the same because of the liberality of the rules governing briefs in this court. Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478, 482 (1943). Being convinced that the trial court’s action must be sustained under the provisions of § 25, Art. 8306, V.A.C.S., we forego a discussion of the alternative ground presenting the good cause question. The occupational disease amendment to the Workmen’s Compensation Law under which plaintiff proceeds in this case, § 25, Art. 8306, V.A.C.S., affords coverage for asbestosis only when . . incapacity or death results within three (3) years in the case of . asbestosis after the last injurious exposure to such disease in such employment, . . . ” The widow and an adult son of the deceased both gave testimony as to decedent’s last employment, which employment was more than three years before any evidence of incapacity appeared. The treating physician, who gave testimony by deposition, did not refer as to any illness or incapacity within the three-year period before decedent became ill. Indeed, as we read the plaintiff’s brief upon appeal, no contention is made that the illness manifested itself by any symptom during that period. Instead, plaintiff asserts that since asbestosis is an insidious disease, it is “almost impossible for the average medical practitioner to diagnose short of biopsy and pathological studies.” Further, “Mr. Legate died with it [asbestosis], never knowing he had it, and his widow filed a claim promptly upon being advised that this was the cause of her husband’s death.” From this premise it is argued: “It is difficult to believe that any law would require of those affected by it that a claim be filed before anyone had knowledge of the facts necessary to make such claim.” The statute creating the cause of action is clear and unambiguous and does not require any interpretation upon our part. Clearly, plaintiff was required to show that the disease manifested itself by causing either incapacity or death within three years after the last injurious exposure in order to recover. In this summary judgment proceeding defendant was required to establish as a matter of law that plaintiff could not recover under the statute. Gibbs v. General Motors Corporation, 450 S.W.2d 827, 828 (Tex.Sup.1970). Plaintiff cites to us Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949) and United States v. Reid, 5th Cir. 1958, 251 F.2d 691. Urie involved the Federal Employers’ Liability Act and the Boiler Inspection Act, while Reid involved the Federal Tort Claims Act. Neither contains the language found in § 25, Art. 8306, V.A.C.S., quoted previously. In each of the cited cases, the statute of limitations was involved. Such is not our case — instead, the statute authorized a recovery only if incapacity or death resulted from the last injurious exposure within three years. We find neither case to be in point. In seeking to recover in this case, plaintiff must of necessity rely entirely upon the occupational disease sections of the statute, which both create and measure that right. Rogers v. Traders & General Ins. Co., 135 Tex. 149, 139 S.W.2d 784, 785, 128 A.L.R. 1305 (1940). When we measure the right against the statute, it is apparent that no cause of action existed under the summary judgment proof in this case. Plaintiff had a right to recover under the statute if incapacity or death resulted within three years after the last injurious exposure. The conclusive evidence showing that neither contingency ever came about, she had no cause of action. But plaintiff urges upon us the doctrine of “liberal” construction of the statute so as to permit a recovery in the teeth of the very act under which she proceeds. She cites to us the annotation found in 11 A.L.R.2d 277, 300 (appended to Urie, supra), as authorizing such action to permit a recovery in this instance. This court is already committed to the liberal construction of the occupational disease statute providing coverage for the employee whose incapacity or death is caused by asbestosis. Aetna Casualty & Surety Company v. Jennusa, 469 S.W.2d 423, 427 (Tex.Civ.App., Beaumont, 1971, no writ). However, we were not then considering the provision involved in this appeal. The answer to the contention of plaintiff as advanced is to be found in Second Injury Fund v. Keaton, 162 Tex. 250, 345 S.W.2d 711, 714 (1961), where the court said: "[W]e are not permitted to give a liberal construction where the law is expressed in plain and unambiguous language as here. We are not to look to the consequences of our action here in limiting the application of the statute to the exact words of the Act. Johnson v. Darr, 114 Tex. 516, 272 S.W. 1098.” (emphasis in original) Justice Garwood in Texas Employers’ Insurance Ass’n v. Etheredge, 154 Tex. 1, 272 S.W.2d 869, 873 (1954), had this to say: “Sec. 25 [of Article 8306, V.A.C.S.], denies compensation where the incapacity first arises three years or more after the ‘last injurious exposure * * * in such employment’.” We are not permitted, in the guise of interpretation, to rewrite the legislative enactment. Plaintiff’s contention raised in this case, was also raised in the appropriate place — -the Legislature of the State of Texas. The 62nd Legislature repealed §§ 25, 26 and 27 of Art. 8306, and amended § 20 so as to include occupational diseases within the term “Injury” and “Personal Injury.” Acts 1971, 62nd Leg., p. 2539, ch. 834, § 1, effective August 30, 1971. The parties are in agreement that the provisions of Section 3 of the 1971 Act operate to keep the prior law in effect as to all cases, including this one, wherein the alleged incapacity and death occurred prior to the effective date of amended § 20, supra. Being required to follow and apply the law as it existed at the time of the onset of decedent’s incapacity — and not the law adopted by the legislature thereafter — we must and do affirm the judgment of the trial court. Affirmed.

sw2d_483/html/0490-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

In the Matter of the MARRIAGE of Wilma Saunders GREER and Royce Steven Greer. No. 8249. Court of Civil Appeals of Texas, Amarillo. May 30, 1972. Rehearing Denied July 31, 1972. Key, Carr, Evans & Fouts, Donald M. Hunt, Lubbock, for appellant. Huffaker & Green, Gerald Huffaker, Tahoka, for appellee. ELLIS, Chief Justice. The wife-appellant in a divorce action has brought this appeal challenging that portion of the judgment dealing with the division of the community property of the marriage. Reversed and remanded. The suit was filed by Wilma Saunders Greer against her husband, Royce Steven Greer, appellee herein, seeking divorce, custody and support of their minor child and division of the community property. The trial was to the court without a jury on July 19, 1971. Judgment was entered granting the divorce, awarding the custody of the child to the wife, ordering support and dividing the community property. The wife-appellant has predicated her appeal upon seven points of error directed at the court’s action in regard to the division of the community property. The husband-ap-pellee has responded with ten counterpoints. The appellant and appellee were married on November 11, 1968. On October 9, 1968, preceding the marriage, the appellee’s father was killed in an accident. At the time of his father’s death the appellee was enlisted in the navy. As the sole heir of his deceased father, the appellee inherited certain separate property, including farm land and personal property consisting of farming equipment and substantial checking and savings accounts. On December 21, 1968, the appellee secured an early release from the military service, whereupon he proceeded to take over and operate the farm which he had inherited prior to the marriage. In addition, he leased other farm lands, and during the marriage there was certain income produced from his separate property along with other community income. There is no evidence that the appellant owned any separate property. The evidence regarding the status of the property at the beginning of the marriage relationship, the property acquired during the marriage, as well as the property on hand upon dissolution of the marriage is, in most essential respects, undisputed. The appellee’s separate real estate is not involved in this appeal. According to the accounting records of the appellee, at the time of the marriage, or shortly thereafter, the appellee had on hand cash or liquid assets, as his separate property, the net sum of $40,412.82. The assets claimed as appel-lee’s separate property included checking and savings accounts deposited in certain named banks and various other items of separate personal property listed and identified as assets belonging to his separate estate. The total sum of all these assets was $55,261.59, from which there was deducted the federal estate taxes, state inheritance taxes and attorney’s fees, aggregating the sum of $14,848.77, leaving the net sum of $40,412.82 claimed as the assets of his separate estate at or shortly after the date of the marriage. Appellee’s accounting also includes a detailed statement of the liquid assets on hand at the end of June, 1971, a short time before the dissolution of the marriage, aggregating the sum of $64,160.03. This total sum included the cash on hand, expenditures upon the 1971 crop which had been planted, the purchase of various assets, including a lot in Post, Texas, and farm equipment added. The $40,412.82, representing the total value of the assets claimed as appellee’s separate property at the beginning of the marriage relationship, was then deducted from the $64,160.03, representing the aggregate value of the assets at the time of dissolution of the marriage, leaving the sum of $23,747.21 as the total value of the community assets acquired during the marriage. From this total sum of the value of community assets was deducted the calculated depreciation reserve in the sum of $7,349.-56 for the tax years 1969 and 1970, the estimated income tax liability for 1970 income carried over in the amount of $5,596.31 and certain attorney’s fees owed in the sum of $400, leaving net community assets of $10,401.34 to be divided between the parties. Separate funds as well as community income were deposited in the same bank accounts, and the funds were used to acquire the properties and assets on hand at the time of the dissolution of the marriage. The court filed its original findings of fact and conclusions of law, and, pursuant to due request, filed additional findings of fact. Among the findings of fact, the court found that the total value of the community property of the parties is the sum of $10,401.34, and that such amount is in accordance with the method of accounting used by the appellee, which method the court specifically found to be proper and correct. The evidence shows that appellee who prepared the accounting records was a graduate of the School of Business Administration of Texas Tech University with a major in accounting. The court further found that the appellant was entitled to receive, as her interest in the community estate, the sum of $5,000 in cash, a 1969 model Chevrolet Camaro automobile, which was appellee’s separate property, and the appellee was awarded the remainder of the community property. Also, appellee was required to pay certain attorney’s fees and assume all community indebtedness including the estimated income taxes on the 1970 carryover into 1971. Additionally, the court found that in making the division of the community property it had fully considered all of the equities as between the parties and the fairness and justness incident to such division as to each of the parties. The statutory provision governing the court’s action in dividing the estate of the parties is Section 3.63 of the Family Code, V.T.C.A. (formerly art. 4638, Vernon’s Annotated Texas Statutes) which provides : L “In a decree of divorce or annulment the court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.” Section 5.02 of the Family Code (formerly part of Section 1, art. 4619, V. A.T.S.) provides: “Property possessed by either spouse during or on dissolution of marriage is presumed to be community property.” The unambiguous language of Section 5.02 creates a rebuttable presumption that all property possessed by a husband and wife when their marriage is dissolved is community property. Further, it is the general rule that in order to overcome this presumption, a spouse must trace and clearly identify the property claimed as separate property. Tarver v. Tarver, 394 S.W.2d 780 (Tex.Sup.1965); Kirtley v. Kirtley, 417 S.W.2d 847 (Tex.Civ.App. — Texarkana 1967, writ dism’d). The appellant insists that appellee has not properly traced his separate property. The appellee contends that the accounting made by the trial court is a standard and recognized accounting procedure. Under the accounting used by appellee the amount of community property to be divided was determined by a showing of the assets on hand at or shortly after the date of the marriage, all of which were separate property of appellee, and a showing of all assets on hand at a date shortly before the divorce, with the net amount of the increase in total assets during the period of the marriage representing the value of the community property to be divided. A similar method of accounting as between two estates was disapproved in Tarver. In that case the party charged with the burden of tracing contended that he had sufficiently traced the property because he had proved: (1) the amount, character and value of the prior estate; (2) that the husband used the entire estate in his business, selling the property and investing and mixing the proceeds as his own; (3) that he acquired no property or income from any other source ; and (4) the amount, character and value of the property on hand at the time of the divorce. The Supreme Court held that the above described “before and after” purported tracing procedure did not discharge the burden of tracing and upheld the finding of the trial court that the party had failed to trace any fund, assets or income. Under the above holding, it is our opinion that the burden of tracing imposed upon the appellee was not met by the accounting procedure used. The appellee has cited various cases (all decided prior to Tarver v. Tarver) which he insists support his contention regarding the accounting for the separate property, including Farrow v. Farrow, 238 S.W.2d 255 (Tex.Civ.App. — Austin 1951, no writ); Hartman v. Hartman, 253 S.W.2d 480 (Tex.Civ.App. — Austin 1952, no writ); and Barrington v. Barrington, 290 S.W.2d 297 (Tex.Civ.App. — Texarkana 1956, no writ). In Farrow, the result would be properly characterized as an allowable claim for reimbursement to a separate estate from the community estate rather than the tracing of separate funds into the items of property presumed to be community upon the dissolution of the marriage. In Hartman, the court made no attempt to trace the husband’s separate funds, but, by reason of equitable considerations, allowed the husband reimbursement from the assets on hand at the time of the divorce. In Barrington, it was held that since there were no community profits left to be commingled, the community presumption was not applicable. Thus, cases involving a spouse’s cause of action based upon a claim for reimbursement out of the community estate rather than upon an attempted tracing of the separate property, or where, under the facts, no commingling or community presumption existed, would not be authoritative or controlling in the disposition of this cause. In connection with the tracing requirement, see Stanley v. Stanley, 294 S.W.2d 132 (Tex.Civ.App. — -Amarillo 1956, writ ref’d n. r. e.), which required strict tracing contrary to the more liberal trend indicated in the above cited cases relied upon by appellee, and consistent with the later holding by the Supreme Court in Tarver v. Tarver. In this case, the appellant insists that the trial court failed to apply the presumption that all property purchased after marriage was community. Also, appellant argues that the court failed to require the appellee to trace the property claimed as separate property, and consequently, the presumption is unrebutted that all property purchased after marriage is presumed as a matter of law to be community. Further, the appellant presents a chart listing in various categories the assets acquired after marriage of the total value of $40,006.07. In arriving at this total, appellant used, for the most part, the valuations shown in ap-pellee’s accounting and insists that this property of such value must be presumed to be community since under appellee’s method of accounting no attempt was made to trace the purchase of any of the assets with separate property. In appellant’s first point of error, it is contended that the trial court abused its discretion in failing to award the appellant at least $20,000, such sum being approximately one-half of the total value of the property acquired after marriage from commingled funds, together with community reimbursements. Appellee joins issue with the appellant’s first point by asserting that the trial court did not abuse its discretion in awarding the appellant $5,000 in cash together with the automobile, and that the trial court correctly held that the total value of the community property was $10,401.34, on the basis of the accounting method employed. In appellant’s second and third points of error, the contention is made that there was no evidence or factually insufficient evidence to support the trial court’s finding that appellant was entitled to only an award of $5,000 and the automobile, insisting that the total value of the community property was over $40,000. The appellee argues that the evidence is sufficient to support the court’s award of $5,000 and the automobile. In the fourth and fifth points of error, the appellant asserts that there was no evidence or factually insufficient evidence to support the court’s finding that the lot in Post, Texas, was worth $1,500 and claims that the undisputed evidence was that the fair market cost of the lot was $2,750, and that there had been no change in its value. In reply to points four and five, appellee insists that the evidence is sufficient to support the trial court’s finding that the lot was worth only $1,500, and that the trial court did not commit reversible error in making such finding since the record shows that the lot was assigned the value of $2,750 in the appellee’s accounting. In points six and seven the appellant claims that the trial court erred in finding that appellee spent only $949 to improve his separate property when undisputed admissions from the appellee show a total expenditure of $1,749, and any other finding is supported by no evidence or factually insufficient evidence. Appellee contends that the evidence is sufficient to support the court’s finding that $949 was used to improve ap-pellee’s separate property, that such finding is not reversible since all sums used for such improvements were included in the appellee’s overall accounting, and further that there is no evidence or insufficient evidence to show that any sum so used for improvement of appellee’s separate property resulted in any enhancement in the value of such separate property. Additionally, appellee asserts that there is no reversible error in the judgment of the trial court since the court made the finding that the division of the property, as set out in the judgment, was fair, just and equitable and that appellant has not attacked such finding by any point of error submitted in appellant’s brief submitted in this appeal. All of the points and counterpoints are, in effect, directly, or in an ancillary manner, related to the fundamental question of the court’s abuse of discretion in the division of the community property. In this particular situation a basic matter for determination is whether the court’s finding that the value of the community property is $10,401.34 can be justified. In view of our holding that the accounting used by appellee was of the same general type as that rejected in Tarver v. Tarver because it did not meet the burden of tracing, the presumption prevails, albeit rebut-table, that all of the assets on hand at the time of dissolution of the marriage is community property. Thus, under the accounting submitted by appellee, absent tracing, the presumption prevails that the total sum of the community assets was $64,160.03, less the depreciation reserve of $7,349.56, the estimated income tax obligation of $5,596,31, and the unpaid attorney’s fee in the sum of $400, leaving a net community estate of $50,814.16. It is here recognized that this sum includes all of the commingled assets, separate and community, which, absent tracing, are presumed to be community until such presumption is rebutted by competent evidence. Although the appellee’s accounting evidence discloses the dates of a portion of the expenditures for certain items, but not all, other than the item “money deposited in 1971” listed on the summary sheet of the accounting, no dates are shown as to the receipts of income from separate property which would serve to establish when the alleged commingling of his separate funds and income from separate property began. We note further that the appellee testified that the 1971 government crop payment checks would total approximately $21,000; however, we find no indication in the accounting or elsewhere in the record that any part of such crop payments had been received, or included in the receipts or valuation of the “Liquid Assets on hand.” Also, the “Crop Expense on 1971 Crop” in the sum of $15,426.59 was shown in the accounting as an item “to be added in” the “Liquid Assets on hand” as of the end of June, 1971. Additionally, such item was shown as one of the items of “known expenditures” in the summary portion of the appellee’s accounting. It is indicated in the record that the valuation of the property was considered on a liquidation basis as of the date of the trial (July 19, 1971). One of the items of indebtedness shown in the record was the estimated income tax liability, as of the date of trial, on 1970 carryover in the sum of $5,596.31. This amount was deducted from the assets to be considered. The accounting does not include any specific value assigned to the 1971 growing crop and the anticipated government crop payments in the amount of $21,000, while the estimated income taxes on 1970 carryover was deducted from the total assets and thereby reduced the net community assets to such extent. An examination of the record discloses that the only evidence regarding the 1971 growing crop was appellee’s testimony to the effect that the crop was poor and that he would be happy to “be bailed out” for the $15,000 expenses accounted for as an expenditure. We do not regard such testimony as more than a conjecture and therefore should not be considered as evidence of probative force regarding the value of the 1971 growing crop. In this case, we deem it appropriate to test the judgment appealed from on the basis of evidentiary support for the court’s findings as to the value of the community property to be divided. In this connection, the court expressly found that “the approximate value of the 1971 government crop payments is the sum of $21,000.” Also, the court made the following finding: “In arriving at the award to the petitioner for her interest in the community property of the parties, the court took into consideration the 1971 crops which had just been planted, the expense and work incident to such crops, their then condition, the work and expense incident to the cultivation and harvesting thereof and the probable yield thereof together with the testimony concerning the government crop payment but did not deem it necessary to determine what particular percentage or proportion thereof the petitioner would be entitled to receive in arriving at the court’s finding as to the property to be awarded to her.” In connection with the above finding, the record discloses no evidence as to the probable yield of the 1971 crop or as to the amount of expenses “incident to the cultivation and harvesting thereof” other than the “crop expenses” incurred prior to the end of June, 1971. Thus, it is apparent that there is an absence of evidence of probative force to support the finding with respect to the significant matters of probable yield, value of community interest in 1971 government payments, harvesting expenses and the work involved, all of which bear upon the ultimate conclusion reached by the court regarding the 1971 crop. Although it is stated in appellant’s brief that she is making no claim for any interest in the growing crops, the trial court, however, made the specific finding that it did take the 1971 crop into consideration in making its division of the community property. Thus, we cannot disregard the court’s express finding in our review of the judgment appealed from and the basis therefor. In the absence of evidentiary support for the court’s finding regarding its consideration of the 1971. crop and government crop payments in connection with the division of the community property, it is obvious that the finding regarding the valuation of the total community property would be affected thereby. Also, it is apparent that the omission of the value of the growing crop and government crop payments as of the date of trial from the total assets acquired after marriage, when the court considered same in connection with its finding as to the value of the community property to be divided, is not justified. As to appellant’s point of error regarding the value of the lot in Post, Texas, since it has been shown that appellee included in his accounting the sum of $2,750, representing the original cost of the lot, we deem it immaterial that the court found the value of the lot to be $1,500. Appellant’s points of error four and five are overruled. Also, we overrule appellant’s points of error six and seven complaining of the court’s finding that the sum of $949 was spent to improve appellee’s separate property, for the reason that there is a lack of evidence in the record as to any enhancement of the value of the appellee’s separate property. The measure of recovery where community expenditures have been made on separate property is not the amount expended but the amount that such expenditures have enhanced the value of the separate property. Burton v. Bell, 380 S.W.2d 561 (Tex.Sup.1964); Manning v. Benham, 359 S.W.2d 927 (Tex.Civ.App.— Houston 1962, writ ref’d n. r. e.); Fulwiler v. Fulwiler, 419 S.W.2d 251 (Tex.Civ.App. — Eastland 1965, no writ). Also, the burden as to proof of enhancement is upon the appellant. Edsall v. Edsall, 240 S.W.2d 424 (Tex.Civ.App. — Eastland 1951, no writ). In appellee’s counterpoint ten he insists thUt the judgment should stand since the court found that the division of the property was fair and equitable and appellant has not attacked such finding by a point of error contending such division is unjust and unfair. The appellant’s point of error regarding the court’s alleged abuse of discretion in dividing the property has been fully briefed. Abuse of discretion in the division of property encompasses, by its very nature, those essential matters relating to fair and equitable settlement between the parties. Eaton v. Eaton, 226 S.W.2d 644 (Tex.Civ.App. — Galveston 1950, no writ) ; Allen v. Allen, 363 S.W.2d 312 (Tex.Civ.App. — Houston 1962, no writ); Guerra v. Guerra, 362 S.W.2d 421 (Tex.Civ.App. — Austin 1962, no writ). In the case of Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21, 23 (1923), the Supreme Court of Texas expressed the applicable rule in the following language: “. . . (T)he court pronouncing a decree of divorce is invested with wide discretion in disposing of any and all property of the parties, separate or community, and that its action, in the exercise of such discretion, should be corrected on appeal only where an abuse of discretion is shown in that the disposition made of some property is manifestly unjust and unfair.” (emphasis added) Thus, it appears that abuse of discretion is equated with unjust and unfair disposition of the property. Our courts have recognized that briefing rules are to be liberally construed in an effort to ascertain the real basis of the appeal. Manney & Co. v. Texas Reserve Life Ins. Co., 407 S.W.2d 345 (Tex.Civ.App. — Dallas 1965, no writ); Edwards v. Parker, 438 S.W.2d 141 (Tex.Civ.App. — Dallas 1969, no writ); Rules 418, 422, Texas Rules of Civil Procedure. We overrule appellee’s counterpoint ten. In view of our holding that the evidence does not sustain the trial court’s finding as to the value of the community property, which is a basic determination upon which to predicate the court’s division of such community property, the appellant’s third point is sustained to the extent .that the evidence is factually insufficient to support the court’s finding with regard to the amount of property which should be awarded to the appellant. Since it appears that the development of additional facts as to such valuation would be in the interest of justice, including the possibility of further tracing which might conceivably rebut the community presumption as to some portions of the property and to such extent prevent forfeiture of the separate estate, we do not pass upon the question of abuse of discretion raised in appellant’s first point. Also, since, for the most part, appellant based her claim on appellee’s accounting and values, in view of our holding that further evidence should be developed with respect to the value of the community estate, it is not necessary that we specifically pass upon appellant’s second point. We have determined that, under the present status of the evidence as to the basic matter of the value of the community estate to be divided, it would not be proper that we reform the trial court’s judgment or render judgment in this cause, and that the rights of the parties should not be foreclosed under the present state of the record. Accordingly, the judgment of the trial court is reversed and the cause is remanded for a new trial. ON MOTIONS FOR REHEARING Both the appellee and appellant have submitted their respective motions for rehearing in this cause. In appellee’s motion, among other matters, the request was made that this court’s opinion b'e clarified as to whether the judgment of the trial court was reversed and remanded in its entirety or only as to the portion of the judgment dealing with the division of the community property of the marriage. Since the appeal challenged only that portion of the judgment relating to the division of the community property, it was not our intention to reverse any portion of the judgment pertaining to the divorce, child custody and support. Since neither party has assigned error with respect to the trial court’s judgment relating to matters other than the division of community property and to clarify the effect of our original opinion, we hereby amend such opinion to the extent that we affirm the trial court’s judgment concerning the granting of the divorce, awarding the custody and providing for the support of the minor child; however, the judgment is reversed and the cause is remanded for further proceedings solely upon the matter of the division of the community property. Blair v. Blair, 105 S.W.2d 331, 332 (Tex.Civ.App. — Waco 1937, no writ); Jackson v. Jackson, 251 S.W. 520, 521 (Tex.Civ.App. — Galveston 1923, no writ). We have considered appellee’s other grounds set out in his motion for rehearing, and for the reasons set out in our original opinion, we overrule such motion except to the extent above stated. Also we have reviewed the various points set out in appellant’s motion for rehearing. After due consideration of the motion, we have determined that for the reasons stated in our original opinion, the same should be and is hereby overruled.

sw2d_483/html/0499-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Joan D. GASKINS et vir, Appellants, v. Lehmann L. DUKE, Appellee. No. 15937. Court of Civil Appeals of Texas, Houston (1st Dist.). July 6, 1972. Raeburn Norris, Houston, for appellants. John Lohmann, III, Jarrold A. Glazer, Houston, for appellee. PEDEN, Justice. Plaintiffs appeal from the granting of a summary judgment in favor of the defendant in a suit on a check. Plaintiffs’ petition alleged that on or about November 16, 1970 the defendant had executed and delivered to them his check for $1000, thereby promising to pay that amount to their order. That defendant has failed to pay the check when it was presented for payment and still refuses to do so. Also that plaintiffs are the owners of the check and have agreed to pay a reasonable attorney’s fee of $500 for filing this suit. The plaintiffs prayed for judgment for $1000 plus an attorney’s fee of $500. A copy of the check appears to be attached to the petition as an exhibit. It bears a notation “Escrow money” and another, “Payment Stopped.” Defendant’s original answer consisted of a general denial plus a denial that any consideration was given for the check. In his motion for summary judgment the defendant stated as his grounds that the plaintiffs’ cause of action is based on a check and that there is no issue of fact raised by it that would give the plaintiffs any right of recovery. That the check is merely a written order of the defendant to make a payment and is executory in nature. In his affidavit in support of his motion for summary judgment the defendant stated that he gave the $1000 check on November 16, 1970 payable to the plaintiffs, that he “did stop payment on this check because of the failure of any consideration running from Joan and Jerry Gaskins” and that there is no contract or paper of any kind in existence which binds or otherwise forces him to honor this check. Plaintiff Joan Gaskins filed an affidavit in opposition to the defendant’s motion for summary judgment. In it she related that on November 16, 1970 the defendant contracted with her husband and with her to buy their business, known as Briargrove Tropical Fish, and delivered his check for $1000 as escrow money on a total purchase price of $5000. That the plaintiffs carried out their part of the contract, which was both oral and written on the check as shown by an attached exhibit. Further, that as consideration for the check the defendant took possession of the business; after operating it for a few days he told the affiant that his wife would not let him pay the balance of $4000 and he gave the business back to the affiant. That under the terms of the contract the defendant forfeited the $1000 and caused the plaintiffs extensive other damages. The exhibit attached to the affidavit purports to be a copy of both sides of the check. In addition to the endorsements of the plaintiffs, there appears on the back of the purported copy this notation: “Escrow money on Briargrove Tropical Fish 142 Briargrove Shopping Center Houston, Texas Balance 4,000.00.” The trial court’s judgment recites that the pleadings, depositions, admissions and affidavits on file show an absence of any genuine issue of material fact. The appellee’s position on this appeal is that the appellants’ cause of action is based solely on non-payment of a check, but an ordinary check is simply a written order by a depositor to his bank, is thus executory in nature and the drawer may revoke it or stop payment on it at any time before it is paid or otherwise accepted by the drawee bank provided it has not passed into the hands of a holder in due course. Vernon’s Texas Business and Commerce Code, § 3.802(a) (2) provides, in part, that unless otherwise agreed, where an instrument is taken for an underlying obligation, if the instrument is dishonored, an action may be maintained on either the instrument or the obligation. We find no Texas cases construing this comparatively recent (1967) change in Texas law, but the language of the statute is not ambiguous. The Appellate Division, New York Supreme Court, held in Mansion Carpets, Inc. v. Marinoff, 24 A.D.2d 947, 265 N.Y.S.2d 298 (1965) under a like provision of the Uniform Commercial Code, that as between the original parties payment by check is conditional and if the check is dishonored an action may be maintained on either the instrument or the obligation. The summary judgment evidence does not establish any of the defendant’s defenses to the check as a matter of law, so the judgment cannot be affirmed. Gibbs v. General Motors, 450 S.W.2d 827 (Tex.1970). Reversed and remanded.

sw2d_483/html/0500-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

UTICA MUTUAL INSURANCE COMPANY, Appellant, v. Lois Lola JACOBS, Appellee. No. 625. Court of Civil Appeals of Texas, Houston (14th Dist.). June 21, 1972. Chilton Bryan, Lowell T. Cage, Law Offices of Chilton Bryan, Houston, for appellant. Robert E. Ballard, W. James Kronzer, Brown, Kronzer, Abraham, Watkins & Steely, Houston, for appellee. SAM D. JOHNSON, Justice. Workman’s compensation case brought by Lois Jacobs, appellee, against Utica Mutual Insurance Company, appellant. Utica Mutual Insurance Company had in effect a policy of workman’s compensation insurance with plaintiff’s employer, Blalock Nursing Home. On August 22, 1968, Lois Jacobs was an employee of Blalock Nursing Home as a Licensed Vocational Nurse. On such date she allegedly injured her back while aiding a nurse’s aid and helper in lifting a patient. The trial court, upon jury findings that Lois Jacobs was injured while working within the scope and course of her employment which occasioned temporary total incapacity from August 22, 1968, to August 19, 1971, and permanent partial incapacity from and after August’ 20, 1971, rendered judgment in favor of plaintiff ap-pellee for $18,131.55. The record reflects that on August 22, 1968, plaintiff experienced a sharp pain in her low back and down her left leg while attempting to lift a patient from her chair and into her bed at the nursing home. The pain being such, she left her job early that day and went to Dr. Wylie, who is the house doctor for Blalock Nursing Home. Dr. Wylie treated her for a strained back and later recommended she see Dr. Veggeberg, an orthopedic surgeon. Dr. Veggeberg prescribed physiotherapy and medications for several months without significant success. In October of 1968, plaintiff, at the request of the defendant Utica Mutual Insurance Company, went to Dr. William Price for both an examination and treatment. This was for one visit only. In January of 1969, plaintiff’s attorney sent her to see Dr. Barnes, who for a period of time did much the same as the doctors before him. Much later in the year Dr. Barnes had a myelogram run on plaintiff’s back. Both Dr. Barnes and Dr. Lemak, the radiologist responsible for giving the myelogram, upon reviewing of the x-rays, suspected a defect to the lower spine. Surgery was thereafter performed whereupon it was confirmed that the last two or lower disc spaces were herniated causing pressure on the spine. Corrective action was taken, but to date has alleviated only a portion of plaintiff’s pain. Mrs. Jacobs did attempt to work at other nursing homes, but was either unable to continue because of her pain or unable to obtain employment because of the medical history concerning her back. Utica Mutual Insurance Company has appealed urging numerous points of error. Points 1, 7, 8, 9 and 10 assert accumulation of error and improper jury argument. Point 2 asserts error in submitting certain special issues (6 and 10) and in refusing defendant’s requested issues (A and B). Point 3 asserts error in the court’s refusal to submit certain requested defensive issues (C through H). Point 4 asserts error in allowing Dr. Barnes to testify as to his charges and the reasonableness of his and other charges. Point 6 asserts error in allowing the plaintiff to testify as to why she was allegedly turned down for jobs subsequent to the injury while disallowing defendant the right to counter with testimony of Jean Williford, director of nurses at Blalock Nursing Home. Points S, 11, 12 and 13 assert error in rendering judgment on the jury’s verdict because there was no evidence to support the findings of the jury, and in overruling defendant’s motions for instructed verdicts and judgment notwithstanding the verdict. In appellant’s first group, points of error 1, 7, 8, 9 and 10, it is asserted that plaintiff’s counsel, in their closing arguments to the jury, argued improperly by advising the jury of the effect of their answers to special issues, argued outside the evidentiary record and argued in a prejudicial manner; and if singularly not considered error, then cumulatively such constitutes reversible error. Appellant makes reference to the 99 grounds contained in its amended motion for new trial but presents specifically, in its brief, only a limited number of these. Only those brought forward by points of error will be considered. Tex.R.Civ.P. 324, 418; Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887 (1960). Appellant first places great emphasis upon Smerke v. Office Equipment Co., 138 Tex. 236, 158 S.W.2d 302 (1941). The “presumed harm” concept of this case, however, is no longer viable. Aultman v. Dallas Railway & Terminal Co., 152 Tex. 509, 260 S.W.2d 596 (1953). The rule now is that “Before a judgment is reversed because of argument of counsel two things must appear: The argument must be improper, and it must be such as to satisfy the reviewing court that it was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case.” Aultman v. Dallas Railway & Terminal Co., supra, p. 599; Goforth v. Alvey, 153 Tex. 449, 271 S.W.2d 404 (1954). The Supreme Court, in Otis Elevator Company v. Wood, 436 S.W.2d 324 (Tex.Sup.1968), defined improper jury argument as one of two types, curable or incurable. When the harmful effect of the argument can be eliminated by the trial judge’s instruction to the jury to disregard what was just heard, it is curable. It is rendered harmless by the instruction. In such instance the objection must be promptly made, and an instruction requested or the error is waived. The second type of improper argument, incurable, is occasioned if it is so inflammatory that its harmful or acutely prejudicial nature could not be eliminated by such instructions. Failure to object in such case does not constitute waiver. To determine whether a particular error or accumulation of errors was reasonably calculated to cause and probably did cause the rendition of an improper judgment is to be obtained from the entire record in the case. Gomez Leon v. State, 426 S.W.2d 562 (Tex.Sup.1968). We therefore look to the entire record in making inquiry whether any “. . . juror of ordinary intelligence could have been persuaded by that argument to agree to a verdict contrary to that to which he would have agreed but for such argument.” Goforth v. Alvey, supra, 271 S.W.2d p. 404. Bearing in mind the foregoing, we look to the instances of alleged impropriety in counsel for the plaintiff’s jury argument. In one, defendant’s counsel was referred to as a “fisherman” casting to “catch one member of this jury” so that the case would have to be tried again. The trial judge overruled objection to such argument. In another, plaintiff’s counsel stated, “How concerned is Utica Mutual about this case P We have not seen any of their representatives down here. They give little concern to this matter”. In response to objection the court responded “Stick to the facts, Counsel.” In another instance, and in connection with a particular special issue, counsel stated “The insurance company wouldn’t even give her the benefit of the date that she has manifest hardship.” Objection to such argument was sustained and the trial judge directed, “Strike it out”. No request for additional instruction was made. In another instance counsel stated that the insurance company would "... have never operated on her. They would never had paid for the operation. They would have closed their eyes to it.” Objection was here sustained by the court and again no request for jury instruction was made. In another instance counsel stated “ . . . don’t turn your back on this woman in need. Open your heart for a little compassion — ”. Objection to this line of argument was sustained and in response to request for instruction the court stated “The jury has been instructed already, and they will carry that instruction into the jury-room.” In another instance counsel argued that if there were one doctor who would fault plaintiff’s physician the jury would have heard from him. Objection was here overruled. The instant case was hotly contested on every issue by able and vigorous counsel. The plaintiff was put to her proof on every element necessary to her recovery. There was no “lump sum” or “manifest hardship” stipulation. Defendant took the position that there was no injury to plaintiff’s back. It was characterized by the defendant as at most a limited back strain. Defendant’s counsel made repeated reference to the myelogram test and its allegedly uncertain and unreliable results and alluded to youth and inexperience on the part of plaintiff’s physician. Defendant took the position that the operation was not called for, even though plaintiff’s doctor felt it was necessary and testified that surgery did, in fact, reveal herniated discs in plaintiff’s low back. This is a part of the background against which we must view the alleged improprieties in counsel’s closing argument. First, we are of the opinion that some of the argument is justified as a proper inference from the record; it is not improper. Other portions are of a “curable” type. Transcontinental Bus System, Inc. v. Scirratt, 376 S.W.2d 56 (Tex.Civ.App.— Tyler 1964, writ ref’d n. r. e.). Most of the curable type were corrected by instruction from the court. As to any remaining portion, any “ . . . inference that the trial judge regarded the argument as proper was not strong enough to constitute harmful error.” Otis Elevator Company v. Wood, supra, 436 S.W.2d p. 333. Taken all together we are of the opinion that any remaining error in the argument did not constitute such a denial of the right of appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case. Rule 434, Tex.R.Civ.P. Appellant makes one additional reference to jury argument which falls outside what has been heretofore stated. It concerns the statement by counsel for the plaintiff that "... even if she obtains total benefits, the maximum the law allows is $35 a week for 401 weeks”. Alleging error, appellant cites Sisk v. Glens Falls Indemnity Company, 310 S.W.2d 118 (Tex.Civ.App. — Houston 1958, writ ref’d n. r. e.); and Cooper v. Argonaut Insurance Co., 430 S.W.2d 35 (Tex.Civ.App. — Dallas 1968, writ ref’d n. r. e.). In both of these cases “lump sum” had been stipulated. In the instant case there had been no stipulation and in addition the jury already had been informed, upon the reading of plaintiff’s original petition, that the plaintiff was seeking $35.00 per week for a period not exceeding 401 weeks. The words of Justice Pope, speaking for the San Antonio Court of Civil Appeals are appropriate here: “ . we are of the opinion that the argument did no more than tell the jury what was already before it without objection, and what it already knew, or would learn by the simple arithmetic involved.” Texas Employers’ Insurance Association v. Hadley, 289 S.W.2d 809, 812 (Tex.Civ.App. — San Antonio 1956, no writ). Appellant’s points of error relative to improper jury argument are overruled. Appellant’s next point of error relates to the submission of special issue number 6 and, predicated thereon, special issue number 10. These issues and the court’s definition of partial incapacity, were as follows : SPECIAL ISSUE NO. 6 Do you find from a preponderance of the evidence that such injury was or will be a producing cause of any partial incapacity ? Answer “We do” or “We do not”. SPECIAL ISSUE NO. 10 Find from a preponderance of the evidence the reduction in plaintiff’s average weekly earning capacity during such partial incapacity. Answer by stating in dollars and cents the difference between her average weekly wage before the injury and her average weekly earning capacity during such partial incapacity. By the term “partial incapacity”, as used in this charge is meant that an employee by reason of an injury sustained in the course of his employment is only able to perform a part of the usual tasks of a workman or is only able to perform labor of a less remunerative class than he performed prior to his injury, whereby he suffers a depreciation or reduction in his earning capacity. Defendant’s requested special issue A, and predicated thereon, special issue B, were as follows: SPECIAL ISSUE NO. A What do you find from a preponderance of the evidence to be the average weekly earning capacity if any, of plaintiff, Lois Lola Jacobs, during the period of her partial incapacity, if any you have found ? Answer by stating the amount, if any, in dollars and cents. SPECIAL ISSUE NO. B Find from a preponderance of the evidence the average daily wage which Lois Jacobs earned during the year immediately preceding her injury. Answer in dollars and cents. Appellant argues that the court’s submission, in view of Vernon’s Tex.Rev.Civ.Stat. Ann. art. 8306, sec. 11 (1969), the Workmen’s Compensation Statute, was improper, prejudicial, constitutes a comment on the evidence and a misplacement of the burden of proof. As we understand appellant’s contention it is that, under the court’s charge as submitted, the jury finding of partial incapacity compelled a finding of reduction in earning capacity, thus improperly commenting on the weight of the evidence and improperly placing the burden of proof upon the defendant. In support of such position appellant cites Texas Employers’ Insurance Association v. Swaim, 278 S.W.2d 600 (Tex.Civ.App. — Amarillo 1954, writ ref’d n. r. e.) ; Employers Reinsurance Corp. v. Wagner, 250 S.W.2d 420 (Tex.Civ.App. — Galveston 1952, writ ref’d n. r. e.); and Gonzales v. Texas Employers’ Insurance Ass’n, 419 S.W.2d 203 (Tex.Civ.App. — Austin 1967, no writ). The definition of “partial incapacity”, as set out in the court’s charge above, has been said to be in the preferred form when the phrase “whereby he suffers a depreciation or reduction in his earning capacity” is preceded by a comma. So stated, the quoted phrase gives adjectival reference to the entire definition of “partial incapacity”. Employers Reinsurance Corporation v. Holland, 162 Tex. 394, 347 S.W.2d 605 (1961); compare, Indemnity Insurance Co. of North America v. Craik, 162 Tex. 260, 346 S.W.2d 830 (1961). We hold that in view of the correctly submitted definition of “partial incapacity” the issues submitted by the court were not improper. Appellant’s second point of error is overruled. The next point asserts error in the trial court’s refusal to submit appellant’s requested issues C through H which alleged the tender of employment by Blalock Nursing Home and the refusal of such employment by the plaintiff. The Act (Tex.Rev.Civ.Stat.Ann. art. 8306, sec. 12a (1917)) provides that if an injured employee refuses employment procured for him which is reasonably suited to his incapacity and physical condition, he shall not be entitled to compensation during the period of refusal. We believe the denial of the requested issues was proper under any one of several theories. First, we hold this to be a matter constituting an avoidance or affirmative defense. Tex.R.Civ.P. 94. It was not specifically plead or set forth affirmatively. Secondly, even though this issue be construed as tried by consent (and we do not so hold) no request for a trial amendment to the pleadings was made by the defendant. Tex.R.Civ.P. 67; Harkey v. Texas Employers’ Ins. Ass’n, 146 Tex. 504, 208 S.W.2d 919 (1948). Third, the testimony relative to the purported offer of reemployment arose during an earlier trial of this same case and appears, as described by the witness, as “. . . a nebulous situation”. In a part of her testimony the witness stated “I have an opening today. I might not have it tomorrow” and “Until she came through the regular channels and procedures, I can’t offer her anything . . .”. This we construe as substantially less than that contemplated by the statute, that is an unqualified tender of employment. Lastly, the employment was not shown to be reasonably suited to the plaintiff’s incapacity and physical condition. See Texas Employers’ Insurance Ass’n v. Walker, 298 S.W.2d 643 (Tex.Civ.App. — Fort Worth 1957, writ ref’d n. r. e.). Appellant’s third point of error is overruled. Argument is next made that the trial court erred in allowing Dr. Barnes to testify concerning his medical charges and the necessity therefor, as well as the reasonableness of his, other doctors and the hospital’s charges and in submitting issues on these matters, such charges not first being submitted to and passed on by the Industrial Accident Board. Appellant did not properly preserve assignment of error in this connection and may not expand upon those which were preserved at this juncture. Even if this were not so it has been held that recovery may be made for medical or hospital expenses incurred after the Board award, but before the trial, without first presenting the claim to the Industrial Accident Board. Transport Insurance Company v. Polk, 400 S.W.2d 881, 883 (Tex.Sup.1966). This point of error is overruled. Appellant’s remaining points of error have been carefully considered. We are of the opinion that the jurisprudence of this state is weighted against them by previous decisions and they are each overruled. The judgment of the trial court is affirmed.

sw2d_483/html/0506-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

AUTOBUSES INTERNACIONALES S DE R.L., LTD., et al., Appellants, v. EL CONTINENTAL PUBLISHING COMPANY et al., Appellees. No. 6233. Court of Civil Appeals of Texas, El Paso. June 21, 1972. Rehearing Denied Aug. 2, 1972. Fred J. Morton, Holvey Williams, Joseph L. Dunigan, El Paso, for appellants. Mayfield, Broaddus & Perrenot, Francis C. Broaddus, Jr., Richard B. Perrenot, El Paso, for appellees. OPINION WARD, Justice. This is an appeal by the plaintiffs below from the granting of a summary judgment in favor of the defendants. We reverse and remand the case for trial. The plaintiffs are a Mexican bus company and Dr. Manuel Garciagodoy, who is the owner and manager of the company. The defendants are three Mexican language newspapers, which are circulated in El Paso, together with Apolinar Ochoa and Ricardo Ahumada, who are employed in various capacities by two of the newspaper companies. The bus company is a common carrier and is engaged in the international bus business of transporting passengers for hire between Juarez, Chihuahua, Mexico, and El Paso, Texas. The fares charged by the bus company for its routes in the United States are set by the Interstate Commerce Commission, and the fares are established by a similar agency of the Mexican Government as to all routes in Mexico. The plaintiffs alleged in their final petition that on or about October 12, 1967, the two individual defendants, Ochoa and Ahu-mada, as representatives for the newspapers, contacted the plaintiff, Dr. Manuel Garciagodoy, in El Paso, and demanded that he and his bus company pay to the defendants the sum of $100,000.00 or that they would initiate a newspaper campaign against the plaintiffs that would ruin them financially and would run the bus company out of business. The plaintiffs refused to comply with the alleged threat. It was alleged that the newspapers immediately printed a series of false, defamatory and libelous articles which were circulated by the defendants in El Paso mainly to the effect that the bus company had raised its fares without notice and contrary to law; that the company was notorious for having raised its fares in the past without permission until the transit authorities had had to intervene; that labor organizations in Mexico were preparing a boycott of the company; and that various officials had declared the raises in fares a mockery of Mexican law. Other articles in the series were to the effect that the company had doubled its fares without authority and it was alleged that they were calculated to manufacture and incite an effective boycott of the bus line by the traveling public. One publication was to the effect that though the Mexican authorities had been notified of the illegal raises that no one cared and implied that the plaintiffs were so influential with the authorities as to have corrupted them to fail to do that which their official duties required them to do. A total of some ten articles were published over a period of nine months by the defendants and these are not disputed. The plaintiffs alleged that the defendant Ochoa was offered an opportunity to ride the busses and observe the fact that correct rates were being charged; that the plaintiff Garciagodoy had written the defendant newspapers and explained the truth of the operations and had submitted explanations and rebuttals for them to publish, all of which had been refused. The plaintiffs alleged that these were immaterial to the defendants who had conspired to put the plaintiffs out of business and they were acting with knowledge of the falsity or with reckless disregard of whether the publications were true or not. Additional allegations were to the effect that as a result of the false statements a partial boycott of the bus line was effectuated; that a substantial loss of income was suffered; and that various other actual, special and exemplary damages were sustained. The defendants denied any conspiracy or extortion attempt though they admitted the publication of the ten newspaper articles. However, with respect to the articles, the defendants denied that they were false or libelous. They further answered that the publications were fair, true and impartial accounts of official proceedings and were reasonable and fair comments on matters of public concern published for general information and were privileged as provided for in Sections 1 and 4 of Art. 5432, Vernon’s Ann.Civ.St. The defendants affirmatively denied the existence of actual malice in the publications and asserted their constitutional defenses as established by the recent United States Supreme Court decisions. After numerous depositions, interrogatories and other discovery procedures had been completed, the defendants filed various motions for summary judgment. They first filed a motion for summary judgment in part on the issue of the alleged conspiracy to extort money from the plaintiffs which was first denied by the trial Court. Thereafter, the defendants filed a motion for summary judgment in part on the issue of libel, specifically urging the absence of actual malice. Following a hearing on this motion, the trial Court entered a summary judgment for the defendants as to any cause of action for libel. Thereafter, the defendants filed a motion for summary judgment on the entire case, including therein a renewal of their previously denied motion for summary judgment in part on the alleged conspiracy to extort money. The trial Court then withdrew its previous order which had denied the defendants’ motion for summary judgment on the extortion conspiracy and rendered final judgment for the defendants on the entire case. By whatever name is involved, we are inclined to agree with the defendants in their statement that essentially the case for the plaintiffs is one of libel either with or without a conspiracy. We assume for our present purposes that the matter under discussion in the newspaper articles concern a public figure and a matter of public or general interest. It therefore follows that an indispensable element of the plaintiffs’ case on final trial is actual malice and to recover the plaintiffs must prove not only that the publication was false but that it was made with knowledge of its falsity or with reckless disregard of whether it was false or not. Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971); New York Times Company v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, 95 A.L.R.2d 1412 (1964); El Paso Times, Inc. v. Trexler, 447 S.W.2d 403 (Tex.1969). In assuming the summary judgment burden in the present case, the defendants rely on testimony of the reporters who took part in the preparation of the articles, testimony of the editors who reviewed the articles and that of various witnesses who were the sources of the articles. From the defendants’ viewpoint, this testimony shows that the articles were written by experienced reporters from reliable sources, reviewed by experienced editors with belief that the articles were true and correct, that the people who furnished the statements to the reporters made them based on their own knowledge, and that the articles as printed accurately reported their statements to the reporters. Regardless of this, at this pretrial stage, we must accept as true all evidence which tends to support the position of the plaintiffs. From the plaintiffs’ evidence we therefore assume that there was a preconceived plan of extortionists to secure the $100,000.00 by threat of blackmail, failing which a campaign was conducted to destroy the business by libelous articles. The plaintiffs offered testimony that all of the articles were false, that the errors of the articles were repeatedly pointed out to the defendants from the beginning when the defendant Ochoa refused Garciagodoy’s offer to ride the bus and see for himself. At that time he is alleged to have stated that he didn’t care. Without commenting further, we state that a review of the evidence offered by the plaintiffs establishes a more vicious attack made with the required recklessness or knowledge of falsity than that which passed constitutional scrutiny in Goldwater v. Ginzburg, 414 F.2d 324 (2nd Cir. 1969, cert. denied), 396 U.S. 1049, 90 S.Ct. 701, 24 L.Ed.2d 695 (1970). Weaker evidence was sufficient to raise a material issue of fact as to the existence or non-existence of malice in the recent summary judgment case of Glenn v. Gidel et al., 477 S.W.2d 331 (Tex.Civ.App. — Amarillo (1972, no writ). Under this view, the extortion attempt or conspiracy to extort is considered as part of the cause of action for libel. It is certainly admissible, together with any evidence that may be present of negligence, ill will, bias, spite or prejudice for the purpose of establishing by cumulation, the fact of the defendants’ recklessness or of their knowledge of falsity. Goldwater v. Ginz-burg, supra. The separate attempt by means of summary judgment to eliminate this portion of the plaintiffs’ cause of action from that concerning libel was also error. The summary judgment rendered by the trial Court is reversed and the cause is remanded for trial on the merits. ON MOTION FOR REHEARING In the motion for rehearing filed by the appellees, complaint is made that the Court of Civil Appeals erred in concluding as a fact that the fares charged by the bus company for its routes in the United States are set by the Interstate Commerce Commission because the Interstate Commerce Commission is totally without jurisdiction to regulate the bus company or control its rates. The Appellants in their brief asserted that new rates were charged passengers as they entered the United States, “which United States laws required by virtue of rates set by the Interstate Commerce Commission. In truth and in fact, the company complied at all times with the rates set by the I.C.C. in the United States —”. Not only did the appellees permit this statement to go unchallenged, but they compounded the error by asserting in their own brief that “the Plaintiff bus company holds a Certificate from the Interstate Commerce Commission”. A purported copy of the Certificate of Public Convenience and Necessity granted by the Interstate Commerce Commission is then referred to by Appellees, and it is found in the transcript at the page designated. The statements made by the appellants in their brief not having been challenged, they were and are accepted as correct by this Court. Rule 419 Texas Rules of Civil Procedure. The motion for rehearing is overruled.

sw2d_483/html/0510-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Oliver WARD, Appellant, v. David NAVA, Appellee. No. 646. Court of Civil Appeals of Texas, Houston (14th Dist.). June 28, 1972. Rehearing Denied Aug. 2, 1972. Larry D. Thompson, Lorance & Thompson, Houston, for appellant. Jerry J. Hamilton, Campbell & Lilly, Houston, for appellee. SAM D. JOHNSON, Justice. This was a suit for personal injuries brought by David Nava against Oliver Ward. Default judgment was granted for the plaintiff. The instant appeal by the defendant is from such judgment. On June 10, 1971, plaintiff filed his original petition in the District Court of Harris County claiming damages for personal injuries in the sum of $50,000. Such damages were allegedly sustained by the plaintiff when he was walking across a street and was struck by an automobile driven by the defendant. Two citations were issued which were not served. The third citation, however, was issued and duly returned with a notation indicating that the defendant had been personally served on October 21, 1971, by Deputy Constable Brown. Thereafter, on Monday one week following the Monday next after 20 days from date of service of citation and petition, default judgment was entered against the defendant. The trial court’s judgment recites that it was upon the hearing of evidence that damages in ■ the sum of $25,000 were determined. On December 2, 1971, the 10th day following entry of judgment, a “Motion to Set Aside Default Judgment and for New Trial” was filed by the defendant. Such motion was thereafter amended on December 13, 1971. Attached to the unsworn amended motion was an affidavit which was as follows: My name is Oliver Ward. I am married to Cherry Ward and have three children, ages 12, 9, and 7. We reside at 3822 Chickering Street. I am employed .by Sears as a basement stock man. I have a tenth grade education. On January 29, 1971, at about 10:00 in the evening I was in an automobile-pedestrian accident in the middle of a block on Jensen Drive which occurred when a fellow named David Nava who had been drinking heavily ran across the street in front of my car. I tried to avoid the accident but was not able to do so. The accident was solely the fault and responsibility and was caused by the acts of David Nava and not myself. I understand that I have been sued by David Nava in Cause No. 874,229 and that a default judgment has been entered against me in the 152nd District Court. I further understand that the citation in-dicáis that I was served personally on or about October 21, 1971. This is not true. No sheriff or constable has ever served any papers of any kind on me personally in this case. I first learned that there was a lawsuit when someone called me on Friday, November 19, 1971, and asked about the lawsuit. I do not remember the person’s name who made this call. That weekend I looked to see if there were any suit papers at my house and on Sunday I found a petition. I do not know how this petition got in my house. I asked my wife and she had never been served with it and I am certain that I was not served with it. Most likely, it was left in my mailbox and my kids brought in the petition with the mail and no one ever showed it to me. I intended to take it to my insurance agent on November 22, but forgot and left it at home and finally took it to him on November 23, 1971. It was only through inadvertence and mistake that these papers were not turned over to my insurance agent and an answer filed on my behalf. It certainly was not intentional that I did not have an answer to this lawsuit filed since the accident Was certainly not my fault. Had I known that these papers had been left at my house sooner I would have taken some action immediately but no one ever showed them to me and I did not know there was any reason to look for the suit papers until someone called me about it as I indicated. Further, had I been served properly by the sheriff I most certainly would have turned the papers immediately over to my insurance agent and an answer would have been filed on time. In fact, had the sheriff served me properly or had I known about the suit papers being at my house earlier, an answer would have been filed before the answer date but it was for these reasons and not because of any conscious indifference that there was no answer on file. Plaintiff responded to the foregoing affidavit and to defendant’s motion. The trial court thereafter denied defendant’s motion and it is from such action that the defendant perfects the instant appeal. The defendant urges a single point of error which asserts that the trial court erred in failing to grant a new trial (a) because his motion alleged and proved facts showing a meritorious defense, (b) because his failure to timely file an answer was not intentional or the result of conscious indifference but was the result of a mistake or accident, and (c) because the motion was filed and heard at a time when the granting of such motion would occasion no delay or cause injury to the plaintiff. The plaintiff responds (a) that although the motion of the defendant alleges that he has a meritorious defense, the affidavit in support thereof fails to set up facts which set up a meritorious defense and only draws inferences and conclusions, and (b) that defendant’s efforts to show that the failure to answer was not due to indifference or by intent was sought to be established by impeaching the return — and that defendant’s impeachment evidence fails to establish a lack of service. The instant case is one where the defaulting defendant has a “much less onerous” burden in that this is not a bill of review proceeding; it is rather a direct appeal from the judgment sought to be set aside. For purposes of this opinion it will be assumed that the defendant’s motion showed that his failure to answer was not intentional or the result of conscious indifference, but was due to accident or mistake. In speaking of Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124 (Tex.Commn.App. 1939, opinion adopted) Justice Calvert, in speaking for our Supreme Court, stated “This does not mean that the motion should be granted if it merely alleges that the defendant ‘has a meritorious defense.’ The motion must allege facts which in law would constitute a defense to the cause of action asserted by the plaintiff, and must be supported by affidavits or other evidence proving prima facie that the defendant has such meritorious defense.” Ivy v. Carrell, 407 S.W.2d 212, 214 (Tex.Sup.1966). In the instant case the only part of defendant’s affidavit which is directed.toward any defense at all to plaintiff’s cause of action is the second quoted paragraph. We hold it to be insufficient factually. We think it apparent that the affidavit, taken in its most favorable light, is but an allegation of conclusions. Ivy v. Carrell, supra. There is an even more compelling consideration. Emphasized again is the fact that the only evidence of any nature which was presented in the trial court by the defendant, other than his unsworn motion, was his own single affidavit. The essential thrust of defendant’s affidavit is to impeach the service of Deputy Constable Brown. Citing Sanders v. Harder, 148 Tex. 593, 227 S.W.2d 206 (1950), the defendant would attempt to supply the necessary corroborating facts and circumstances from his own affidavit. The Supreme Court there stated (p. 209): “Were the denials of service by petitioners the only evidence before the court, then no issue should have been submitted to the jury, for, as held by the Court of Civil Appeals, the return of a sheriff on a citation may not be impeached by the uncorroborated testimony of the party or parties shown by the return to have been served. Gatlin v. Dibrell, 74 Tex. 36, 11 S.W. 908; Harrison v. Sharpe, Tex.Civ.App., 210 S.W. 731, error refused. But it is not required that the corroborating evidence be direct. It may be wholly circumstantial.” The defendant is faced with the rule that a citation may not be impeached by the uncorroborated testimony of a single witness. Cortimiglia v. Miller, 326 S.W.2d 278 (Tex.Civ.App. — Houston 1959, no writ); Sgitcovich v. Oldfield, 220 S.W.2d 724 (Tex.Civ.App. — Galveston 1949, writ ref’d); Leibowitz v. San Juan State Bank, 409 S.W.2d 586 (Tex.Civ.App. — Corpus Christi 1966, no writ). He therefore attempts to supply corroboration by the facts and circumstances asserted in his own affidavit. This we believe to be prohibited for it presents no more than what has long been condemned “an oath against an oath”. The defendant may not seek the necessary corroboration from his own affidavit. Defendant’s point of error is overruled and the judgment of the trial court is affirmed.

sw2d_483/html/0513-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

The CITY OF HOUSTON, Appellant, v. Carol Ann CASH, a Minor, et al., Appellees. No. 15875. Court of Civil Appeals of Texas, Houston (1st Dist.). June 8, 1972. Rehearing Denied July 20, 1972. William A. Olson, City Atty., Willard E. Dollahon, Senior Asst. City Atty.; Houston, for appellant. Brown, Kronzer, Abraham, Watkins & Steely, Houston, W, James Kronzer, Houston, of counsel, for appellees. BELL, Chief Justice. This is an appeal from a judgment for $20,000 in favor of Carol Ann Cash and for $3500 in favor of her father for medical expenses. Carol Ann was injured when she fell from a 12-inch water pipe maintained by appellant across a drainage ditch. She was injured when she fell and hit jagged rocks and concrete that were submerged in the water below her. In response to issues submitted the jury answered in substance as follows : Issue One. The City knew or should have known the pipe and its immediate surrounding area were frequented and played in by children. Issue Two. The City knew or should have known the pipe and its immediate surrounding area involved an unreasonable risk of serious bodily harm to children. Issue Three. Carol Ann did not actually realize and appreciate the full nature and extent of the danger that she would fall from the pipe to the rocks and debris below. Issue Four. The utility of eliminating the danger concerning the pipe was slight as compared to the possibility of injury resulting therefrom. Issue Five. The City was negligent in failing to erect a preventative or safety device on the pipe. Issue Six. Failed to find such failure was a proximate cause of the occurrence. Issue Seven. Failed to find Carol Ann actually realized and fully appreciated the full nature and extent of the danger that she would fall from the pipe to the rocks and debris below. Issue Nine. Failed to find Carol Ann was negligent in attempting to cross the pipe. The City’s motion to disregard the jury’s answers to Issues 1, 2, 3 and 4 and render judgment in its favor was overruled. The trial court granted appellees’ motion to disregard the jury’s answer to Issue 6 and render judgment for appellees. In determining whether the trial court’s action as to each motion was correct we must determine whether there was any evidence of probative force to support the jury’s answers to the issues attacked by the respective motions to disregard. In determining this we view only the evidence that is favorable to a particular answer and if it may be concluded from such evidentiary facts that reasonable minds could answer as did the jury, then there is evidence of probative force to support the answer and it must stand. If the reasonable mind could not make such answer, there is no evidence to support it and it, on proper motion, should be disregarded. This test is so well established we need not cite authorities. The accident happened the afternoon of December 3, 1967 when Carol Ann was just past her eleventh birthday. It occurred at a drainage ditch near the intersection of Chimney Rock Street and Kinglet Road in southwest Houston. The bridge crosses Kinglet. The area is residential in nature. Children cross the bridge over the ditch going to and from school. They also play in the area around where the accident happened. There is usually water in the ditch though its depth varies from time to time. There are rocks and debris in the water. The large rocks are sometimes submerged and cannot be seen. There seem to be no rocks or debris visible on the banks that would be dangerous if someone fell on them from the water pipe. On the south side of the bridge, and close to it, is the water pipe. It was aluminum in color. It was wrapped with some kind of material. It is about eight or nine feet above the water where the fall occurred. On either end near the top of the drainage ditch bank, it runs through a concrete slab. The pipe goes through the slabs near their top. The slabs slant gradually to the water’s edge. A person can easily get on the pipe from the top of the bank by sliding or walking on one of the slabs. There was no safety device of any kind to prevent one from getting on the pipe. In the record are various pictures and verbal descriptions of devices that could be used at relatively small expense, from which one could well conclude such devices would be effective to keep children such as Carol Ann from getting on the pipe. There was no warning of the dangerous conditions existing beneath the water and there is evidence they were not visible. To the north of the bridge are a gas line not belonging to the City and a sewer line belonging to the City. The height of the sewer line is not shown but from pictures it would appear to be closer to the water than the water line. On each end of it is an “alligator guard.” Such guards are about five feet long. They consist of two pieces of metal that seem welded together at the top with steel saw-like teeth running longitudinally along the top. The two steel plates slant from the top and the bottom of each plate fits near the edge of the pipe on each side. These guards are placed longitudinally along the pipe. The pictures and testimony show that the guard, at one end, is placed so near a low concrete pier that a person such as Carol Ann can step from the pier to a point on the pipe in front of the guard toward the water. On the other side one such as Carol Ann who had walked the sewer pipe can, as she approaches the other guard easily jump to the bank ahead of' the guard. Carol Ann testified she had seen other children playing on the pipes on other occasions. She had never been on the pipes before. She and her friend Sheila had walked on the sewer pipe a short while before her attempt to cross the water pipe. They had gotten on it by stepping from the pier to a point on the pipe just in front of the alligator guard. Sheila walked across the water pipe ahead of Carol Ann. Carol Ann did not try to walk on the water pipe. She straddled it and was scooting across it. She stated she sought to cross in this manner because she thought it would be an easier way to cross. She denied she crossed in this fashion because she was afraid of falling if she walked. She also denied she had any fear at all of falling from the pipe. In a deposition she had testified she had a fear of falling if she walked. She further testified she did not see the large rocks beneath the pipe or know of them. They were apparently submerged and hidden. At a point above the water Carol Ann fell and severely injured herself on the submerged and hidden rocks. As previously stated, there was evidence to show several other types of guards that could have been economically installed that would prevent a child such as Carol Ann from gaining access to the pipe. Some had been in use by the City beginning as early as 1940. In fact it would appear from the evidence that an alligator guard four or five feet long, if properly placed, would be effective to prevent a child from getting on the water pipe and scooting across it. The evidence showed, however, that an alligator guard could not be placed on the water pipe because of the wrapping. The City alludes to certain testimony that it urges would support the conclusion that even if a proper safety device had been installed an adventuresome child might (and the City in its brief uses the word “might”) try to circumvent it and this would present another danger. Too, the City urges since the alligator guard was circumvented it might be concluded she would circumvent other safety devices. Part of the testimony of some witnesses for the City is quoted in appellant’s brief which it contends would support a conclusion that even if a safety device were erected Carol Ann might have gotten around it. A City engineer testified the length of the alligator guards (four or five feet long) was such that “you couldn’t very well step over them” to get on the pipe and it would take a feat of gymnastics to crawl over them and not get scuffed up. A professor of mechanical engineering at the University of Houston testified that it is possible that if there were a safety device on a pipe and an adventuresome child would try to go around or through it, she would subject herself to a greater danger than if there were no safety device at all. At another point, however, he testified if the child tried to go over, under or otherwise try to get on the other side it would not necessarily be more dangerous than if there had been no safety device. He did say the presence of a safety device might possibly expose the child to a second danger. Where the testimony in the record gives rise to no more than a surmise or suspicion as to the existence of the fact sought to be proved, there is in legal contemplation no evidence. Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059; Gulf, Colorado & Santa Fe Railway Co. v. Deen, 158 Tex. 466, 312 S.W.2d 933; Dallas Railway & Terminal Co. v. Jarvis, 153 Tex. 384, 270 S.W.2d 205. We are of the view that the court correctly disregarded the answer to Issue No. 6. An analysis of the material testimony, which we have fully set out, raises no more than a mere surmise or suspicion that had a proper safety device been properly erected on the pipe Carol Ann would have circumvented it and gotten on the pipe. To conclude that she would have would be purely speculative. Next appellant urges that the court erred in not disregarding the answers to Issues 1, 2, 3 and 4. First, it contends Carol Ann admitted that she straddled the pipe and scooted across it because she was afraid to walk on it “because it was so high and everything.” It is observed that this was deposition testimony. At trial when Carol Ann was a witness she repudiated such testimony and testified she straddled the pipe and scooted across because it was easier. She made no judicial admission. It was for the jury to pass on which version given by her was correct. United States Fidelity & Guaranty Co. v. Carr, 242 S.W.2d 224 (Tex.Civ.App.-San Antonio), writ ref.; Pacific Fire Insurance Co. v. Donald, 148 Tex. 277, 224 S.W.2d 204. Appellant asserts the attractive nuisance doctrine does not apply because the undisputed evidence shows the water pipe “as well as the surrounding area generally” were completely visible, open and obvious with no hidden or latent danger being involved. We think there can be no question that appellant knew or should have known that the pipe and its immediate surrounding area were frequented and played in by children. This being true and there being nothing to prevent access and no warning of no right of access, there was an implied invitation to children to come on the premises. Eaton v. R. B. George Investments, 152 Tex. 523, 260 S.W.2d 587. Appellant, therefore, owed a duty to children such as Carol Ann not to subject them to unreasonable risk of serious bodily injury from dangerous conditions on the premises of which it knew or should have known. The evidence we have stated shows an unguarded 12-inch pipe crossing the drainage ditch at a height of eight or nine feet. There was evidence showing there were large jagged rocks or chunks of concrete submerged by water at times, as they were on December 3, 1967. The real risk of injury was not being on the pipe, but in falling on the hidden rocks. There was no warning of the danger. The evidence supports the jury’s finding that appellant knew or should have known the pipe and its immediate surrounding area involved an unreasonable risk of serious bodily harm to children. We further conclude there was evidence to support the finding that because of her tender age she did not actually realize and appreciate the full nature and extent of the danger that she would fall from the pipe to the rocks and debris below. All of the conditions taken together created the real danger of serious bodily injury and were not open and obvious as our previous statement of the evidence demonstrates. Finally, appellant asserts error in the refusal of the court to submit its requested issues asking if the failure of the parents to warn Carol Ann of playing on pipes such as the one in question was negligence, and if such negligence, if any, was a proximate cause. There was no error in this regard. A party wishing submission of its issue must present the issue in substantially correct form. Rule 279, Texas Rules of Civil Procedure. Even if the issue was raised the requested issue was not in substantially correct form. It constituted a comment on the evidence in that it assumed the “parents” had not warned the child. Mrs. Cash testified she had never seen the pipe before and did not know it was there or the conditions surrounding it. She did know generally there were pipes in the neighborhood. She had not warned Carol Ann about walking on pipes. She did not believe Mr. Cash had. This is all of the testimony on warning. Mr. Cash did not testify. The evidence does not establish as a matter of law that Mr. Cash had not warned. The issue assumes a material fact not proven, that is, that both parents had failed to warn. We need not discuss appellees’ cross points. Affirmed.

sw2d_483/html/0517-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Ralph W. SAMFORD, Individually and as Next Friend of Danny L. Samford, Appellant, v. R. R. DUFF, Appellee. No. 683. Court of Civil Appeals of Texas, Corpus Christi. May 25, 1972. Rehearing Denied July 31, 1972. William H. Berry, Jr., Corpus Christi, for appellant. Dyer, Redford, Burnett, Wray, Woolsey & Dunham, James W. Wray, Jr., Corpus Christi, for appellee. OPINION BISSETT, Justice. This is a personal injury case arising out of an automobile collision at a street intersection controlled by a traffic signal light. The two vehicles involved in the collision approached the intersection from directions at right angles to each other. Mrs. Mary E. Samford, the mother of plaintiffs, was killed in the accident and Danny Samford was injured therein. Suit was instituted to recover damages for the wrongful death of plaintiffs’ mother and for personal injuries sustained by Danny L. Sam-ford. Trial was to a jury. In answer to special issues, the jury found R. R. Duff, defendant-appellee, guilty of negligence proximately causing the accident (a) in failing to keep a proper lookout, (b) in failing to make proper application of brakes, (c) in failing to turn to the right before the occurrence in question, and (d) in entering the intersection when the traffic signal light facing him was red. The jury also found by their answer to special issue 13 that Danny L. Samford failed to keep a proper lookout, and by their answer to special issue 14, that such failure was a proximate cause of the occurrence in question. After the return of the verdict, a take nothing judgment was entered. Plaintiffs have timely perfected an appeal to this Court. We reverse and render. Appellants, by their first and second points of error, assert that there is no evidence to support the submission of or the jury’s answers to special issues 13 and 14 and that the trial court erred in refusing to disregard the jury’s answers to those issues. In passing on such points, “we may consider only that evidence, if any, which, viewed in its most favorable light, supports the jury findings, and we must disregard all evidence which would lead to a contrary result,”. Biggers v. Continental Bus System, 157 Tex. 351, 303 S.W.2d 359, 363 (1957). Furthermore, we may not consider or give weight to any other jury finding. Enloe v. Barfield, 422 S.W.2d 905 (Tex.Sup.1967). The collision in question occurred in the City of Corpus Christi at the intersection of Santa Fe and Elizabeth Streets. At that intersection, Santa Fe is a three-lane, one-way street that carries southbound traffic; Elizabeth is a two-way street that carries both eastbound and westbound traffic. The width of each street is 39 feet. The traffic at the intersection is controlled by a three-color traffic stop and go signal light, which was working properly at the time of the accident. The collision occurred on November 6, 1967. The streets were dry. Danny Sam-ford, a minor, was driving a Volkswagen west in the north lane of Elizabeth Street, and R. R. Duff, an adult, was driving a Chevrolet south in the center lane of Santa Fe Street when the car then being driven by Duff struck the right front fender area of the car then being driven by Danny. The point of impact was fixed at 14 feet east of a projection of the west curb line of Santa Fe and 19 feet north of a projection of the south curb line of Elizabeth. At the point of impact, the Samford car had penetrated 25 feet west into the intersection and the Duff car had penetrated 20 feet south into the intersection. Both cars were moving at 20-30 miles per hour, neither was speeding, and neither laid down any tire skid marks prior to the point of collision. The force of the impact caused Mrs. Mary E. Samford, appellants’ mother and a passenger in the Volkswagen, to be thrown out of the car; she struck her head on the curb and died about 45 minutes later. Danny Samford sustained bodily injuries. In addition to the drivers of the respective vehicles involved, there were two other eyewitnesses to the accident, Mr. Charles Gambs and Mr. William Gilkey. Mr. Gambs testified that immediately preceding the collision he was stopped in the east lane of Santa Fe near the north curb line of that street, waiting for the red light facing southbound traffic in that street to change to green. While he was stopped, the Duff vehicle passed him on his right, entered the intersection and struck the Samford automobile. He stated that the light for southbound traffic on Santa Fe was red at the time Duff entered the intersection and was also red when he (Gambs) looked at the light immediately following the collision. Mr. Gilkey stated that he was driving west on Elizabeth Street when he witnessed the accident. He was approaching Santa Fe when he saw the Duff vehicle strike the Samford automobile. He said that the light was green when the Samford car entered the intersection. Officer David L. Pugh, of the Corpus Christi Police Department, talked to Danny, Gilkey, Gambs and Duff at the scene of the accident. He stated that Danny said the light was green when he entered the intersection. Gilkey told him that the light from Danny’s direction could have been yellow but Gilkey did not say “as a fact” that the light was yellow. Gambs told him that he (Gambs) had a red light when Danny entered the intersection. Mr. Duff, the appellee, said that as he approached the intersection he passed a stopped vehicle (the Gambs’ car) to his left near the north curb line of Santa Fe. He first saw the Samford car through the windshield of Gambs’ car when he was about even with that car and as he was passing it. He also testified that the traffic light on Santa Fe was green when he entered the intersection. Danny Samford said that he first observed a traffic control signal light at the intersection of Elizabeth and Santa Fe Streets when he (while proceeding west on Elizabeth Street) stopped at the stop sign on Third Street, a block away. He did not notice the color of the light at that time. After checking the traffic, he then drove on towards Santa Fe. He first observed the color of the light when he was from 10 to 60 feet east of the intersection. He said that it was green at that time and was green when he entered the intersection. He denied that he ever told anyone that the light was yellow. He further testified that he looked to his right just before he entered the intersection and saw an automobile (later determined to be the Gambs’ car) that was stopped on Santa Fe, but he did not see the Duff vehicle until just before the collision and after it had entered the intersection. He was aware of the sequence of light changes at the intersection (green to yellow to red to green), and that when the light was green for Elizabeth Street traffic, the light would thereafter change from green to yellow to red for traffic on that street, and that during the process of changing, the light for Santa Fe Street traffic would change from red to green without the yellow signal. When the red light was exhibited for southbound traffic on Santa Fe, the light was then either green or yellow for traffic on Elizabeth, and vice versa. It is well settled that although a person is not required to anticipate negligent or unlawful conduct on the part of another, he is not entitled to close his eyes to that which is plainly visible to a person of ordinary prudence similarly situated. Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273 (1958); DeWinne v. Allen, 154 Tex. 316, 277 S.W.2d 95 (1955). Nevertheless, the mere fact that an automobile driver is favored at an intersection with the right of way resulting from the fact that a green light is facing him does not relieve him from all duty and responsibility and does not exonerate him from blame if there is a vehicle already in the intersection, or if there is approaching him on the intersecting street another vehicle, in view, the driver of which, either because of high speed, failure to slow down, or obvious inattention, is manifestly unable to stop. If those conditions prevail, so long as the driver who is favored by the right of way still has it within his power to stop or otherwise take evasive action, he must do so. He cannot rush out into the path of danger merely because the right of way is wifh him. Skyline Cab Co. v. Bradley, 325 S.W.2d 176 (Tex.Civ.App. — Houston 1959, writ ref’d n. r. e.) ; Checker Cab Co. v. Wagner, 199 S.W.2d 791 (Tex.Civ.App.— El Paso 1946, n. w. h.). The burden is on the defendant, if he will escape liability for his own negligent conduct or acts, to both plead and prove the defenses of contributory negligence. MacDonald v. Skinner, 347 S.W.2d 950 (Tex.Civ.App. — El Paso 1961, writ dism’d); Jaynes v. Lee, 306 S.W.2d 182 (Tex.Civ.App. — Texarkana 1957, n. w. h.). There is no presumption that a person is guilty of contributory negligence simply because an accident occurred. Socony-Vacuum Oil Co. v. Lambert, 180 S.W.2d 456 (Tex.Civ.App. — Amarillo 1944, n. w. h.) ; Polasek v. Quinius, 438 S.W.2d 828, 838 (Tex.Civ.App. — Austin 1969, writ ref’d n. r. e.). “It is held that contributory negligence is not established by evidence which is equally consistent with the exercise of care by plaintiff, or where the inference of due care is just as reasonable as is the inference of the absence thereof.” Jordan v. City of Lubbock, 88 S.W.2d 560 (Tex.Civ.App. — Amarillo 1935, writ dism’d); Dewhurst v. South Texas Rendering Co., 232 S.W.2d 135 (Tex.Civ.App. —San Antonio 1950, writ ref’d n. r. e.). The evidence reveals that Danny Sam-ford did not see the Duff car until after it had already entered the intersection and at a time when the collision was assured. There is no evidence as to the distance or time element that Danny Samford, from his position on Elizabeth Street, could have observed the Duff car as it approached the intersection. The physical facts with respect to the land adjacent to the east of Santa Fe Street lying to the north of the intersection when viewed from the northeast corner of the intersection (occupied by Danny Samford) were not established. The area lying immediately east of that part of Santa Fe traversed by Duff could have been open terrain and easily visible to a driver proceeding west on Elizabeth, or that section of Santa Fe could have been obstructed by some object; the record is silent in this respect. The jury convicted Danny Samford of contributory negligence in failing to keep a proper lookout merely because he did not see the Duff car coming towards him, without any evidence as to the distance when he could have first seen that vehicle as it proceeded south on Santa Fe. One fact that stands out in this case is that Danny Samford, under the provisions of Article 6701d, Sec. 33, Vernon’s Ann.Civ.St., irrespective of whether the light for Elizabeth Street was green or yellow, had the right of way at the time of the occurrence in question, and while this circumstance did not, of itself, excuse him from keeping a proper lookout for traffic on the intersecting street, his presence in the intersection at that time cannot be taken as any indicia of negligence in this case. Even if it be found that Danny entered the intersection on a yellow light, it would not convict him of failure to keep a proper lookout. The statute does not prohibit a motorist from entering the intersection on a steady yellow light. The purpose of the steady yellow light is to warn the approaching driver that the red light will be exhibited forthwith when he shall give up his right of way, not to warn him that a driver on the intersecting street will crash the red light. There is no evidence with respect to the length of time that the yellow light was exhibited during the process of changing from green to red for the Elizabeth Street traffic. Under the facts and circumstances presented by the record, any inference that the light might have been changing from green to yellow on Elizabeth Street when Danny entered the intersection is immaterial on the issue of contributory negligence. The testimony of Duff that the traffic light was green on Santa Fe when he entered the intersection did not create a disputed fact issue that prevents our holding that there is no evidence that Danny failed to keep a proper lookout. Such testimony simply raised the issue of the color of the light facing Duff as he entered the intersection. That issue was submitted to the jury and was answered unfavorably to Duff. We do not consider that issue or the jury’s answer thereto in passing upon appellants’ contributory negligence issues presented in this appeal. The cases of Mills v. Thomas, 435 S.W.2d 593 (Tex.Civ.App. — Tyler 1968, writ ref’d n. r. e.) and Burton v. Chandler, 304 S.W.2d 170 (Tex.Civ.App. — Austin 1957, writ ref’d n. r. e.), are authority for our holding that there is no evidence that Danny Samford failed to keep a proper lookout. Both were street intersection collision cases involving automobiles travelling at right angles to each other, where both the plaintiff and the defendant, respectively, testified that the traffic light was green as he entered the intersection. In each case, the trial court disregarded the jury’s finding that the plaintiff failed to keep a proper lookout. Judgment was entered for plaintiff. In each instance, the Court of Civil Appeals affirmed the trial court and held that there was no evidence that the plaintiff failed to keep a proper lookout. The well established law of this State is that proximate cause includes two essential elements, (a) foreseeability and (b) cause in fact, both of which must be shown to exist. Baumler v. Hazelwood, 162 Tex. 361, 347 S.W.2d 560 (1961). In order to sustain a jury finding that the failure of plaintiff to keep a proper lookout was a proximate cause of the collision, it must have been foreseeable by him in time for him to have avoided the accident, and but for such failure the collision would not have occurred. Hopson v. Gulf Oil Corp., 150 Tex. 1, 237 S.W.2d 352 (1951); Salcido v. Bates, 436 S.W.2d 934 (Tex.Civ.App.—Corpus Christi 1968, writ ref’d n. r e.); Ussery v. Ewell Hodges, Inc., 417 S.W.2d 332 (Tex.Civ.App.—Tyler 1967, writ ref’d n. r. e.). A motorist who enters a street intersection on a green light has a right to assume that another motorist who, at the same time, approaches the intersection from an intersecting street on a red light will stop and will not enter the intersection in disobedience to the red signal. Perkins v. Hale, 396 S.W.2d 149 (Tex.Civ.App.—Tyler 1965, writ ref’d, n. r. e.); Cox v. City of Amarillo, 391 S.W.2d 494 (Tex.Civ.App.—Amarillo 1965, writ ref’d n. r. e.). Such motorist is entitled to indulge in that assumption until he sees or should see that the other vehicle on the intersecting street has not obeyed or is not going to obey the stop signal. Seinsheimer v. Burkhart, 132 Tex. 336, 122 S.W.2d 1063 (1939). With respect to a collision in a street intersection that is controlled by a traffic signal light, the failure to keep a proper lookout is a proximate cause of the accident only if such lookout would have revealed something that would have alerted the driver of the vehicle to the danger of a collision at a time and under such circumstances that he could take evasive action that would have prevented - the collision. Thornton v. Campise, 459 S.W.2d 455 (Tex.Civ.App.—Houston 14th, 1970, writ ref’d n. r. e.); Padilla v. Chambers, 464 S.W.2d 417 (Tex.Civ.App.—El Paso 1971, n. w. h.) ; Taylor v. Brooks, 392 S.W.2d 878 (Tex.Civ.App.—Waco 1965, writ ref’d n. r. e.) ; Thompson v. Gray, 219 S.W.2d 831 (Tex.Civ.App.—Galveston 1949, writ ref’d n. r. e.). Whether there was negligence on the part of Danny L. Samford proximately causing the collision depends upon whether the evidence supports a finding that he failed to see something that he should have seen which would have alerted him to the danger that was developing which could have been avoided by him, considering the reaction time, distance and speed factors present. There is no direct evidence as to when Danny Samford could or should have seen the Duff car before it entered the intersection. Duff did not see the Samford car until he was about to enter the intersection. Duff himself testified that there was nothing that he could do after he saw the Samford car that would have prevented the accident. Danny said that he did not see the Duff car until “it started to hit”. The jury, if it desired, was at liberty to disregard Danny’s testimony in that respect, but to do so would not be evidence that the exact opposite of what he said was true. There must be some circumstance supporting the finding that a situation opposite to that depicted by the witness actually existed. R. T. Herrin Petroleum Transport Co. v. Proctor, 161 Tex. 222, 338 S.W.2d 422 (1960). We understand that appellee was not required to discharge his burden of proof on the issue of proximate cause of Danny’s negligence, if any, by direct evidence. He could discharge that burden by circumstantial evidence, but to do so there must be facts in evidence from which the jury could have inferred that Danny could and should have seen the Duff automobile when it was far enough away for him to have been able to avert the collision. The evidence in this case includes too many variables and leaves too many unknown factors to constitute circumstances from which the jury could have inferred facts as to when Danny should have been alerted to danger. Ea,ch vehicle was travelling 29 to 44 feet per second at the time each entered the intersection. It is recognized as a matter of law that the time required for a normal driver to react to danger is three-fourths of a second. Murphy v. Whitehurst, 300 S.W.2d 758 (Tex.Civ.App.—San Antonio 1957, writ ref’d n. r. e.); Thornton v. Campise, supra; Dent v. Falvey, 371 S.W.2d 63 (Tex.Civ.App.—Beaumont 1963, n. w. h.). At a speed of 20 m. p h., assuming that Danny saw the Duff vehicle at the same instant that Duff saw his car, Danny in ¾ths of a second, would have travelled 22.75 feet into the intersection before he could have commenced any evasive action; at 30 m. p. h., he would have trav-elled 33 feet in ¾⅛ 0f a secon(j an¿ the collision would have taken place before the termination of his reaction time. Danny Samford owed no duty to Duff to anticipate Duff’s unlawful and negligent conduct. Minugh v. Royal Crown Bottling Company, 267 S.W.2d 861 (Tex.Civ.App.—San Antonio 1954, writ ref’d); Strange v. Colvin, 429 S.W.2d 954 (Tex.Civ.App.—Austin 1968, n. w. h.); Smalley v. McMurray, 427 S.W.2d 118 (Tex.Civ.App.—Eastland 1968, n. w. h.). Under the facts in evidence, had Danny actually observed the Duff car as it was proceeding along Santa Fe, precautionary action on his part was not required. The Duff automobile was being driven at a reasonable and safe rate of speed, in a careful manner, and was under control of the driver. There was nothing about the manner in which Duff was operating his car that should have alerted Danny to any careless or negligent driving or should have warned him that Duff would ignore the red light. Danny was under no duty to take any evasive action until after Duff entered the intersection or after it became apparent that he was not going to obey the stop signal. Once it is shown that Duff had run the red light or it was obvious that he was going to do so, it must also be shown that Danny still had sufficient time to do something that would have avoided the accident, and in the absence of such time, he is not guilty of negligence proximately causing the collision. In the instant case, Danny Samford did not have sufficient time to do anything to avoid the accident. The collision was proximately caused by the several acts of negligence on the part of Duff, not by the failure of Danny Samford to keep a proper lookout. The failure to keep a proper lookout can only be a proximate cause where “the keeping of it would have presented the unfortunate occurrence”. Texas & P. Ry. Co. v. Shoemaker, 98 Tex. 451, 84 S.W. 1049 (1905) ; Salcido v. Bates, supra. Assuming that Danny did not keep a proper lookout, as found by the jury, the evidence does not meet the requirements of foreseeability or causation in fact on his part. Even if Danny had kept a proper lookout, under the record before us, he would not have been put on notice that Duff would disregard the red light and fail to yield the right of way until after the Duff car entered the intersection, when it was then too late for him to do anything. Accordingly, appellants’ first and second points are sustained. Since we have sustained appellants’ “no evidence” points, we are not required to consider their third and fourth points of error, wherein they claim that the jury’s answers to special issues 13 and 14 are so contrary to the great weight and preponderance of the evidence as to be clearly wrong. However, we deem it in the best interest of all parties to dispose of these points in this opinion. Appellants’ third and fourth points are “factual insufficiency of the evidence” points, and to be effective on appeal, must be raised in a motion for new trial. Smith v. Texas Pipeline Company, 455 S.W.2d 346 (Tex.Civ.App.—Corpus Christi 1970, writ ref’d n. r. e.); Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex.Law Rev. 361, 365. In an appeal from a judgment rendered upon the verdict returned by a jury, a point of error on appeal must be germane to an assignment of error contained in the motion for new trial. Rules 374, 418, Texas Rules of Civil Procedure; Smith v. Davis, 453 S.W.2d 340 (Tex.Civ.App.—Fort Worth 1970, writ ref’d n. r. e.) ; Pioneer Finance & Thrift Corporation v. Adams, 426 S.W.2d 317 (Tex.Civ.App.—Eastland 1968, writ ref’d n. r. e.) ; Nixon v. Nixon, 348 S.W.2d 438 (Tex.Civ.App.—Houston 1961, writ dism’d). The only assignments of error in appellants’ motion for new trial complaining that the evidence is factually insufficient to support the jury’s answers to special issues 13 and 14 are Assignments IV and VII. Assignment IV reads as follows: “IV. The Court erred in overruling the Motion of Plaintiffs to disregard the jury’s issue (answer) to Special Issue No. 13 and to enter Judgment for Plaintiffs for the reason that the jury’s answers were so against the overwhelming weight of the evidence as to be manifestly unjust.” The identical language of Assignment IV is repeated in Assignment VII except that the words “Special Issue No. 14” are substituted for “Special Issue No. 13”. The error complained of in each of Assignments IV and VII in appellants’ motion for new trial is that the court erred in overruling plaintiffs’ motion to disregard the jury’s answer to the enumerated special issue, not that the evidence is factually insufficient to support such answers. The complaints lodged by Assignments IV and VII constitute “no evidence” assignments; they are not “factually insufficient evidence” assignments. C. & R. Transport, Inc. v. Campbell, 406 S.W.2d 191 (Tex.Sup. 1966); Garza v. Alviar, 395 S.W.2d 821 (Tex.Sup.1951); Travelers Insurance Company v. Williams, 378 S.W.2d 110 (Tex.Civ.App.—Amarillo 1964, writ ref’d n. r. e.); Shelton v. Ector, 364 S.W.2d 425 (Tex.Civ.App.—Dallas 1963, n. w. h.). Appellants’ third and fourth points of error on appeal are not germane to any assignment of error contained in the motion for new trial and for that reason must be overruled. Appellants’ points on factually insufficient evidence, not having been raised in the - trial court in their motion for new trial, have been waived. They cannot be raised for the first time in the appellate court. Therefore, appellants’ third and fourth points are overruled. Appellee, in its cross assignment 1, asserts that the case should not be reversed and rendered because the trial court erred in overruling his objections to the court’s charge for failure to submit an issue of contributory negligence and the related proximate cause issue inquiring into whether Danny Samford entered the intersection on a red light. The trial court submitted special issue 5 that inquired into whether Duff entered the intersection when the traffic signal light facing him was red. The jury answered in the affirmative and by their answer to special issue 6 found that such action was a proximate cause of the collision. The trial court, without objection by appellee, also submitted special issue 10 that inquired into whether Danny Samford entered the intersection when the light facing him was amber. The jury answered in the negative. The light could not have been red for the traffic on both streets at the same time. If it was red for Duff when he entered the intersection, it could only be green or amber for Danny Samford when he entered it. The trial court is required to submit the controlling issues made by the pleadings and the evidence. Rule 279, T. R.C.P.; Bourque v. Towers, 399 S.W.2d 222 (Tex.Civ.App. — Beaumont 1966, writ ref’d, n. r. e.). However, the trial court is given broad discretion in framing and submitting the issues and is not required to submit issues that are unnecessary or evi-dentiary; neither is it required to submit various phases or different shades of material issues submitted. Dallas Railway & Terminal Co. v. Straughan, 254 S.W.2d 882 (Tex.Civ.App. — Amarillo 1952, n. w. h.). It is our opinion that the trial court fairly submitted the controlling issues raised by the pleadings and the evidence. Appellee’s cross assignment 1 is overruled. The jury awarded damages in the total sum of $26,683.35. Included therein was $5,000.00 to Ralph W. Samford and $10,000.00 to Danny Samford, respectively, as compensation for their pecuniary loss sustained by reason of the death of their mother, and $8,000.00 for the conscious physical pain and mental anguish suffered by Mrs. Samford before her death. Appel-lee attacks these awards by appropriate cross assignments. By cross assignments 2 and 3, appellee contends that this case should not be reversed and rendered because of the error of the trial court in overruling his objections to special issue 17, which permitted Ralph W. Samford and Danny Samford to each recover damages for “personal services, advice, counsel and personal care which would have been contributed to him by his mother”, and in refusing to submit appellee’s requested special instructions as set out in appellee’s objection to the court’s charge to the jury. Special issue 17, together with the answers thereto by the jury, reads: “SPECIAL ISSUE NO. 17 What sum of money, if any, if paid now in cash, do you find from a preponderance of the evidence would fairly and reasonably compensate the following named children of Mrs. Mary E. Sam-ford for their pecuniary loss, if any, resulting from her death ? You may consider the following elements and none other: Care, maintenance, support, service, education, advice, counsel and contributions of pecuniary value that such children would in reasonable probability have received from her during her lifetime had she lived. Answer in dollars and cents, if any, with respect to each: Answer: Ralph W. Samford $5,000.00 Danny L. Samford $10,000.00” The trial court did not err in refusing to instruct the jury in regard to special issue 17 as requested by appellee in his objections to the court’s charge because appellee never made a proper request for any such special instructions and therefore waived the same. Rule 273, T.R.C.P., specifically requires that instructions requested must be made separately and apart from the party’s objections to the court’s charge. Appellee did not comply with the rule. T J Service Co. v. United States Fidelity & Guaranty Co., 472 S.W.2d 168 (Tex.Civ.App. — Corpus Christi 1971, writ ref’d n. r. e.); Cudmore v. Richardson-Merrell, Inc., 398 S.W.2d 640 (Tex.Civ.App. — Dallas 1965, writ ref’d n. r. e.); McDonald, Texas Civil Practice, Vol. 3, § 12.34.1, pp. 428-430. We, therefore, consider special issue 17 as though no request was made for special instructions. Under this record we do not think the issue is subject to the objections made. Any recovery was expressly limited to “pecuniary loss, if any”, resulting from Mrs. Sam-ford’s death. “Pecuniary loss” is the loss of something the value of which is ordinarily capable of being estimated in money. Simpson v. Barham, 292 S.W.2d 874 (Tex.Civ.App. — Amarillo 1956, n. w. h.). Appellants, in their petition, alleged that each had sustained pecuniary loss in an alleged sum of money “which represents the loss of his mother’s maintenance, support, services, education, advice, counsel and contributions of pecuniary value that he would in reasonable probability have received from her during his lifetime had she lived”. No exceptions were levelled at appellants’ pleading. In Galveston, H. & S. A. Ry. Co. v. Worthy, 87 Tex. 459, 29 S.W. 376 (1895), the Supreme Court said that while the wife and children of the deceased could not recover for the loss of the society of the father and husband, it indicated that, under proper pleadings in a wrongful death action, they could recover money damages for the loss of advice and counsel. In this case, we do have such pleadings. At the time of Mrs. Samford’s death Ralph W. Samford was 26 years of age and Danny L. Samford was 17 years of age. Ralph had then completed two years of college and was working towards a degree in accounting. He intended to get a masters degree. Danny was a junior in high school and planned to go to college and work towards a doctorate in either biology or chemistry. At the time of trial, Ralph was enrolled at the University of Texas and Danny was enrolled at Del Mar College, Corpus Christi. Evidence was introduced that Mrs. Samford contributed money and furnished items of a monetary value to the support, maintenance and well being of each of her boys; she advised and counseled with them on numerous occasions; she borrowed money to pay for Ralph’s tuition and books while he was attending Del Mar College; she expressed an intention to educate both boys. There was ample evidence that Ralph W. Sam-ford, even though he was then an adult, had a right to expect contributions of a pecuniary value from his mother. There is also sufficient evidence that Danny L. Samford had a right to expect contributions of a pecuniary value from his mother not only during his minority, but also after he reached his majority. Allen v. Riedel, 425 S.W.2d 665 (Tex.Civ.App. — Eastland 1968, n. w. h.); Texas & N. O. R. Co. v. Sterling, 154 S.W.2d 966 (Tex.Civ.App.— Beaumont 1941, writ ref’d w. o. m.) ; Houston Gas & Fuel Co. v. Perry, 55 S.W.2d 901 (Tex.Civ.App. — Galveston 1932, reformed and affirmed in 127 Tex. 102, 91 S.W.2d 1052). The form of special issue 17 together with the special instruction contained therein is in exact accordance with that recommended in § 12.02, Texas Pattern Jury Charges. We find no reversible error in connection with the submission of that issue. Rule 434, T.R.C.P. The trial court properly overruled appellee’s objections to the submission of that issue. Ap-pellee’s cross assignments 2 and 3 are overruled. Appellee further contends in his cross assignment 4 that the damages found by the jury in the sum of $5,000.00 for Ralph W. Samford and in the sum of $10,000.00 for Danny L. Samford for their pecuniary loss sustained by them as a result of their mother’s death are so contrary to the overwhelming weight and preponderance of the evidence as to be manifestly unjust. We do not agree. Mrs. Samford was 51 years of age at the time of her death. She was earning $3,328.00 per year with a reasonable expectation of being raised immediately to $4,160.00 per annum. She was in good health. She was frugal about what she spent on herself and got along very well with her two sons. She was most interested in the welfare of her boys. It is undisputed that both Ralph and Danny looked to their mother for counsel, guidance, advice, services, and financial aid and assistance. We have already noted some of the pecuniary contributions that were made by Mrs. Samford to her boys. The cost of a college education is a material fact that is relevant to a child’s (minor or adult) recovery of money damages for the wrongful death of his parent. The jury had before it the testimony of Dr. Jasman, the Registrar at Del Mar College. He stated that the average cost for nine months in college, including tuition, fees, books, room and board, varied from about $2,000.00 at the University of Texas to about $3,000.00 at S.M.U. At Del Mar College, the cost was estimated to be $816.-00 for the same period. The cost at Texas A & I University was placed at about $1,200.00 per year. Both Danny and Ralph expressed an intention to graduate from the University of Texas. Appellee argues that neither Ralph nor Danny could expect to receive contributions of the reasonable value of $5,000.00 and $10,000.00, respectively, from their mother had she lived for the reason that she could not have made contributions in such amounts out of the money earned by her. The record shows that Mrs. Samford borrowed money to assist Ralph in completing two years of college. The measure of the pecuniary loss sustained by Ralph and Danny does not end with consideration of only direct financial contributions that their mother made to them during her lifetime. They also lost pecuniary benefits such as their mother’s care, counsel, guidance, service and attention in ministering to their various wants, needs and necessities. In addition to fairly well defined amounts of money contributed by Mrs. Samford, we are also dealing with intangibles, which have value in addition to the expected financial contributions. It is also difficult to estimate in money the value of such intangibles. The law has entrusted that duty to the trier of facts in a death case. It is true that the awards made to Ralph and Danny, under the facts in evidence, are substantial, but the question here before us is one peculiarly within the province of the jury. Exact ascertainment is obviously impossible. The difficulties of proof in such matters are well known, but the judgment of the jury should prevail unless it appears that the verdict is influenced by prejudice and is not the result of honest convictions. Here, there is no claim or proof that the jury was activated by bias, prejudice, passion or other improper motive; certainly the amount of the awards above does not show any such improper motive. It was said by our Supreme Court in Missouri Pacific Ry. Co. v. Lehmberg, 75 Tex. 61, 12 S.W. 838 (1889): “ . . . Every parent and husband has for his wife and children a pecuniary value beyond the amount of his earnings by his labor or vocation We do not think that appellee has shown that the awards made to Ralph W. Samford and Danny L. Samford for the pecuniary loss sustained by reason of the death of their mother are so against the great weight and preponderance of the evidence as to be manifestly unjust under the doctrine announced in In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1952). The cases of City of Austin v. Selter, 415 S.W.2d 489 (Tex.Civ.App. — Austin 1967, writ ref’d n. r. e.), and Texas Consolidated Transportation Co. v. Eubanks, 340 S.W.2d 830 (Tex.Civ.App. — Waco 1960, writ ref’d n. r. e.) are persuasive. In the Eubanks case, the deceased (husband and father of plaintiffs) was earning $9,076.86 per an-num when he was killed; he was in his 63rd year at the time of his death; the jury awarded $125,000.00 to his surviving wife and $37,500.00 to his surviving 13 year old daughter. The total award amounted to almost eighteen times the annual earnings of the deceased. The case was affirmed. We are of opinion that the facts in the case now before us are certainly as strong as the facts of the Eu-banks case, and that under all the facts and circumstances the awards made by the jury in this case are supported by ample evidence. Appellee’s cross assignment 4 is overruled. We next consider appellee’s cross assignment 5, wherein he asserts that there is no evidence to support the jury’s finding of $8,000.00 for Mrs. Samford’s conscious pain and mental anguish suffered by her before her death, and his cross assignment 6, wherein he contends that such a finding is so contrary to the overwhelming weight and preponderance of the evidence as to be manifestly unjust. In our opinion there is ample evidence that permitted the jury to draw the inference that Mrs. Samford suffered conscious pain during the short time that she lived after the accident. It is true that she did not say anything to anyone following the accident, but Mr. Gambs assumed she was conscious; he saw her blink her eyes. Danny L. Samford testified that his mother was moaning and sounded like she was trying to talk, that he felt she was conscious, and that she suffered pain. Officer Pugh said that Mrs. Samford was groaning and writhing on the pavement and that he thought she was conscious at the scene of the accident. Mrs. Samford was taken to a hospital about fifteen minutes after the collision where she was attended by Dr. Lemke. She died about thirty minutes afterwards. The doctor said: “I believe she had pain”. Appellee called Dr. Lewis, who testified that while he thought the brain damage sustained by Mrs. Samford was so severe that she did not experience pain, he could not totally eliminate that possibility. He would not state absolutely or unequi-vocably that she did not suffer pain. We hold there was sufficient and competent evidence to go to the jury on the issue of damages for conscious pain and suffering. City of Austin v. Selter, supra; Mitchell v. Akers, 401 S.W.2d 907 (Tex.Civ.App.— Dallas 1966, writ ref’d n. r. e.); Davis Transport, Inc. v. Bolstad, 295 S.W.2d 941 (Tex.Civ.App. — Galveston 1956, n. w. h.). Appellee’s cross assignments 5 and No. 6 are overruled. The judgment of the trial court is reversed and judgment is here rendered for appellants in the sum of $26,683.35, together with interest thereon at the rate of six per cent per annum from and after June 15, 1971, the date of entry of judgment by the trial court.

sw2d_483/html/0530-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellant, v. Patricia J. BUTLER et al., Appellees. No. 653. Court of Civil Appeals of Texas, Houston (14th Dist.). June 28, 1972. Rehearing Denied Aug. 2, 1972. John D. Gilpin, Fulbright, Crooker & Ja-worski, Houston, for appellant. John M. O’Quinn, Dale Friend, Frank Abraham, Brown, Kronzer, Abraham, Watkins & Steely, Houston, for appellees. TUNKS, Chief Justice. Texas Employers’ Insurance Association, as a workmen’s compensation carrier, has appealed from a judgment awarding a widow and surviving children death benefits. The decedent, Billy Joe Butler, was an employee of Dow Chemical Company where he was the operator of a dioxane plant. The plaintiffs alleged that he sustained an accidental injury in the course of his employment in that he inhaled dioxane gas and that such injury was a producing cause of his death. The jury found such injury and cause and the trial court rendered judgment for the survivors on that verdict. The entire appeal is based upon the insurer’s contention that certain declarations made by the decedent concerning his injury, as to which declarations testimony was admitted by the trial court, did not constitute valid evidence as to the truth of the matters stated therein. The appellant insurer argues that unless those declarations be given such evidentiary effect there is no evidence showing- that the decedent sustained the alleged accidental injury or, alternatively, that the evidence on such issue is factually insufficient to support the jury’s findings thereon. It should be noted that the appellant does not contend by this appeal that the case should be reversed and remanded because the trial court’s erroneous admission of evidence of the decedent’s declarations prejudicially influenced the jury to find in favor of the plaintiffs. On January 21, 1969, Billy Joe Butler was the operator of a dioxane plant for Dow Chemical Company. His normal work shift was from 7:00 A.M. to 3:00 P. M. On the day in question, however, he was requested to and did work overtime. When he left home in the morning to go to work he was apparently in good health. At about 5:00 P.M. he called his shift foreman by telephone and complained of illness. The shift foreman went to see him and talked to him. The foreman testified that Butler’s face “looked flush and pale and looked like he just didn’t feel good at that time”. He took Butler to a clinic for treatment. The foreman made an entry in his log book, a record kept by him as an incident of his employment. That record, received in evidence without objection or limitation, recited: “Butler got sick and went to Industrial Medicine about 6:00 o’clock. He seemed to think E-Column OH vapors caused it. Nurse called, said he was okay, but they would keep him about two hours.” The fact that this record was received in evidence without objection does not, however, eliminate the necessity of determining whether it was hearsay. Hearsay, even if it is received as evidence without objection, is no evidence at all and will not sustain a fact finding. Knapik v. Edison Bros., Inc., 313 S.W.2d 335 (Tex.Civ.App. —Waco 1958, writ ref’d). At the clinic Butler was examined by a doctor and was kept for two hours for observation. He was then sent home in a company owned car. On the way to his home he became violently ill and began vomiting blood. His driver took him back to the clinic. From there he was sent to Community Hospital in Freeport. He continued to vomit blood. At abut 1:00 A.M. on January 23, emergency surgery was done. He was found to be bleeding profusely from the membrane in the wall of his stomach. The surgery procedures did not succeed in stopping his bleeding and later in the morning he died. In addition to the statement made by Butler to his foreman that his illness was caused by exposure to dioxane gas, as referred to in the foreman’s log book, he made similar statements to the personnel at the clinic and the hospital, to his wife and to his father-in-law. He repeatedly and consistently maintained his contention as to the onset- of his illness from the time he became ill until his death. After Butler was sent to the clinic for treatment his foreman sent another opera tor to inspect the dioxane plant. That era ployee testified that he did not find any leak. He admitted, however, that there were some gas odors in the area where Butler had been working. He also said that he did not particularly inspect the overhead column from which Butler had said the gas came. (The term “E-Column OH” in the foreman’s log refers to such overhead column.) The evidence showed that Butler once had a duodenal ulcer, but it had healed and was not the cause of his bleeding. Also in 1957, he sustained injuries in an automobile wreck which necessitated the removal of a part of his stomach. For several years prior to his death, however, his only difficulty in those respects was occasional indigestion for which he took anti-acid medicine. The evidence did not require a finding that his death was from natural causes. Rather, his medical history suggested a preexisting condition of his stomach which made it unusually susceptible to injury. Butler was working alone in the dioxane plant at the time of his alleged injury. Dioxane gas may escape without being seen. It has a recognizable odor. It has a toxic capacity, but rarely has been known to produce death of humans. It is not the contention of the plaintiffs in this case that the gas alone was the cause of Butler’s death. Their contention is that the intake of the gas irritated his previously weakened stomach wall and caused the bleeding from which he died. The plaintiffs’ theory as to the cause of Butler’s death was supported by the testimony of Dr. Joseph A. Jachimcyzk, a medical doctor specializing in pathology. He testified that some of Butler’s symptoms, as shown by the hospital records and the autopsy report, which were in evidence, were those which would result from exposure to dioxane gas. In answer to a hypothetical question, which was based on assumption of the facts shown in hospital records and autopsy report and upon the assumption that Butler had been exposed to dioxane gas, the doctor expressed the opinion that the gas had irritated the wall of Butler’s stomach and caused its fatal bleeding. The contention of the appellant is that there is no evidence that Butler sustained an injury in the course of his employment for Dow except his own statements to that effect, that such statements by him are hearsay, do not come within the res gestae exception to the hearsay rule, and do not constitute valid evidence of the truth of the matters recited in such statements. The principal authorities upon which the appellant relies in support of its contention are Hartford Accident and Indemnity Company v. Hale, 400 S.W.2d 310 (Tex.Sup.1966) and Truck Insurance Exchange v. Michling, 364 S.W.2d 172 (Tex.Sup.1963). In those cases it was held that for a statement to be admissible as res gestae there must be independent proof of the occurrence of the exciting event which made the statement a spontaneous one. The facts of this case quite clearly distinguish it from the Hale and Michling cases. Those, too, were suits for workmen’s compensation death benefits. There was evidence that the decedents had visible signs of physical injury. To prevail the plaintiffs were required to prove that the decedents had sustained those injuries in the course of their employment. There was no evidence that the decedents had sustained their injuries in such course of their employment independent of the statements themselves. Here Butler went to work in apparent good health. While admittedly on his employer’s premises and performing the duties of his job, he became ill. That illness was evidenced not only by his statements as to his physical condition (see 1 C. McCormick & R. Ray, Texas Evidence sec. 832 (2d ed. 1956), but also by testimony as to his physical appearance. The onset of his illness was sudden and dramatic. It continued with little remission until it produced his death. It is apparent that his death was caused by a sudden deterioration of the walls of his stomach. He had previously had injury and surgery to his stomach but it had been comparatively trouble free for several years. The very suddenness with which illness developed and progressed to produce his death is indicative of the fact that it was brought on by some external agent. This indication is corroborated by proven facts. Dioxane gas has the capacity to injure the stomach walls. The plant of which he was operator processed dioxane gas. Though the worker who followed him on the job testified that he found no gas leak, he did not exclude the possibility of such leak in the overhead tower and said that the odor of gas was present. A medical expert testified that the signs and symptoms shown in the medical record were consistent with the intake of dioxane gas. Those physical facts constitute evidence, independent of Butler’s statements, that he sustained an injury while on his job. They distinguish this'case from the Hale and Michling cases. Butler’s statement to his foreman, made at the time his illness began, was admissible as res gestae. See Texas Employers Ins. Ass’n v. Noel, 269 S.W.2d 835 (Tex.Civ.App. — Fort Worth 1954, writ ref’d n. r. e.); Atkinson v. United States Fidelity & Guaranty Co., 235 S.W.2d 509 (Tex.Civ.App. — San Antonio 1950, writ ref’d n. r. e.); Texas Employers Ins. Ass’n v. Shifflette, 91 S.W.2d 787 (Tex.Civ.App. — Dallas 1936, writ dism’d) — all of which cases were discussed in the Michling opinion, were distinguished and their holdings apparently approved. See also Pacific Employers Indemnity Company v. Aguirre, 431 S.W.2d 33 (Tex.Civ.App. — Waco 1968, writ ref’d n. r. e.). There is further basis for the holding that there was not only some evidence, but sufficient evidence, to support the jury’s finding of injury. The excerpt from the foreman’s log book which is quoted above was admissible as a business record. The appellant correctly takes the position that the part of the hospital record consisting of the history given by Butler is not admissible as proof of the truth of the matters stated therein. Such history was admissible only as explanation of a witness’ opinion and its admission was properly so limited in this case. Travelers Insurance Company v. Smith, 448 S.W.2d 541 (Tex.Civ.App. — El Paso 1969, writ ref’d n. r. e.). The history portion of the hospital record did not meet the requirement of Tex.Rev.Civ.Stat.Ann. art. 3737e, sec. 1(b) (1969) because Butler, the one with personal knowledge of the facts recited, and the one who furnished the information on the basis of which that entry was made, was not an employee or representative of the hospital. The facts are different, however, as to the foreman’s log. It was authenticated by the testimony of- its custodian as a business record of Dow Chemical Company. Butler, having personal knowledge of the facts and acting in the course of his duties as an employee of Dow, transmitted to his foreman the information on the basis of which the entry was made. The fact that a participant in the making of a duly, authentic business record is a party to the law suit does not make the record inadmissible as evidence. The evidence was sufficient, legally and factually, to support the jury’s verdict and the trial court’s judgment thereon. Affirmed.

sw2d_483/html/0535-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Benny J. DAVIS, Appellant, v. Eddie L. WINNINGHAM, Jr., et al., Appellees. No. 8285. Court of Civil Appeals of Texas, Amarillo. June 12, 1972. Rehearing Denied July 31, 1972. Henry T. Ray, Amarillo, for appellant. Boyd A. Knudtson, Amarillo, for appel-lees. REYNOLDS, Justice. By this appeal, appellant Benny Joe Davis questions the propriety of the trial court’s dismissal of his petition to set aside a judgment of adoption entered eight months previously, and presents three points of error to that effect. Affirmed. Eight months after the trial court had entered judgment granting leave to Edmond Lawrence Winningham, Jr., to adopt, and effecting the adoption of, the three year old natural son of appellant Benny Joe Davis and his former wife, Frieda Winningham, then the wife of petitioner Winningham, appellant Benny Joe Davis filed his petition to set aside the judgment of adoption. The petition was filed in, and under the same number of, the original adoption proceedings. The pleading contains allegations that Davis never consented to the adoption; that the decree of adoption was procured by fraud and upon false and perjured testimony; that the court’s findings contained in the decree of adoption that the minor child is a proper subject for adoption, and that Davis voluntarily abandoned and deserted the minor child and has not contributed substantially to his support for more than two years, were based upon false and perjured testimony; that the witnesses who could and would have testified adversely to the adoption were prevented from testifying by duress brought by appellees; that the court lacked necessary jurisdiction because of the fraud perpetrated by appellees; and that it would be in the best interest of the minor child to vacate the decree of adoption because the natural mother had abandoned the child to various other persons, and the child was not receiving the proper supervision and care. Eddie L. Winningham, Jr., and Frieda Winningham Prouse, who are appellees here, were cited as defendants. They answered with a general denial, special exceptions, and two pleas styled “PLEA IN ABATEMENT” and “PLEA TO THE JURISDICTION,” in which the finality of the decree of adoption, lack of jurisdiction of the court to set aside a final judgment, immateriality of issues pleaded, res judica-ta, and collateral attack were raised as defensive matters. Such was the state of the pleadings when the cause came on for a hearing. The file of the adoption proceeding was introduced before the court and revealed, among the prerequisite findings authorizing the adoption, findings that appellant had filed his answer to the adoption proceedings, had appeared in person and with counsel, and had contested the adoption. The record further shows that appellant gave notice of appeal, but appeal was not perfected and the decree of adoption became final. Following the introduction of the file of the adoption proceedings, appellees urged their defensive pleas to appellant’s petition to set aside the final judgment. Appellant replied, and offered to present testimony proving, that false and perjured testimony was responsible for the entry of the adoption decree because recently discovered evidence was that appellees kept from the court the facts that they were having problems and their marriage was about to be severed, and the secreting of this information led the court to the granting of the adoption. Without hearing testimony, the trial court granted appellees’ pleas and entered judgment dismissing appellant’s petition. Appellant did not preserve the offered testimony for review. The decree of adoption attacked is not void. The trial court had jurisdiction of the parties and the subject matter and the power to render the judgment entered. Rule 329b(5), Texas Rules of Civil Procedure, prescribes that judgments shall become final after the expiration of thirty (3Ü) days after rendition in the absence of a motion for new trial, and cannot be set aside except by bill of review for sufficient cause filed within the time allowed by law. While the pleadings of the parties are not models of clarity, we consider appellant’s petition to be in the nature of a bill of review and appellees’ pleadings to constitute a plea in bar. A bill of review is an equitable proceeding designed to prevent manifest injustice. Before a bill of review may be invoked to set aside a final judgment, a litigant must allege and prove sufficient cause, one of the elemental essentials of which is that he was prevented from making a meritorious defense by the fraud, accident or wrongful act of the other party. Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996 (1950). In the attempt to meet this requirement, appellant pleaded fraud by appellees in the nature of false and perjured testimony to procure the decree of adoption, and urged in the trial court and on this appeal that this is the type of fraud that will entitle appellant to the equitable relief sought. Fraud is either extrinsic or intrinsic in its relation to attacks on final judgments, and only that extrinsic fraud which denies a losing litigant the opportunity to fully litigate his rights or defenses upon the trial will justify relief from a final judgment. Alexander v. Hagedorn, supra. To that end, the extrinsic fraud must be collateral to the matter tried and not something which actually or potentially was in issue in the trial. Crouch v. McGaw, 134 Tex. 633, 138 S.W.2d 94 (1940). Conversely, intrinsic fraud is inherent in the matter considered and determined in the trial. False testimony and any fraudulent matter that was presented and considered in rendering the judgment attacked constitutes intrinsic fraud which is not a ground, in an independent suit brought to vacate a final judgment, that authorizes the setting aside of a final decree. Crouch v. McGaw, supra; Alexander v. Hagedorn, supra. Here, the pleadings are clear that only intrinsic fraud is alleged and urged as the ground upon which the final judgment of adoption should be set aside. The decree of adoption which has become final cannot be set aside for the intrinsic fraud alleged. In passing on the sufficiency of a petition, the court may take into consideration the record in the original case, and the facts disclosed thereby conflicting with the averments in the petition will control. 34 Tex.Jur.2d Judgments § 244. This record establishes that appellant and his counsel were present and had full opportunity to refute the testimony now pleaded to be false and perjured, and to present whatever defense appellant had to the adoption proceedings. At most the evidence asserted to be recently discovered exposing appellees’ alleged perjury is impeachment evidence which is insufficient to reopen a final judgment. The fraud alleged was in relation to matters that were not only potentially but actually in issue and controverted in the original proceeding. The alleged concealment through perjury by appellees of any defense available to appellant cannot be a ground for setting aside the final judgment. Kelly v. Wright, 144 Tex. 114, 188 S.W.2d 983 (1945). If final judgments could be set aside upon a pleading that false and perjured testimony was given at the trial, there would be no finality to judgments since it always can be contended that there was perjury in any conflicting testimony given. A claim of manifest injustice produced by false testimony must yield to the consideration for the finality of judgments. Considering the bill of review pleadings in connection with the record in the original proceedings, it is clear that appellant’s petition was deficient in failing to allege facts constituting extrinsic fraud rather than the intrinsic fraud pleaded, and the trial court was correct in sustaining appel-lees’ plea in bar. Appellant’s points of error are overruled. The judgment of the trial court is affirmed.

sw2d_483/html/0538-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Jackie SIEGMUND et vir, Appellants, v. George H. BEARD, Appellee. No. 11948. Court of Civil Appeals of Texas, Austin. July 12, 1972. Rehearing Denied Aug. 2, 1972. John B. Henderson, Jr., Cameron, for appellants. John A. Black, Jr., Bellaire, for appellee. PHILLIPS, Chief Justice. Appellee brought suit against Appellants to recover title to 173.5 acres of land that he had previously conveyed to Appellants. He also sued for an accounting for the profits resulting from Appellants’ use and occupancy of the land as for the reasonable rental value thereof. In response to a jury verdict, judgment was rendered for Appellee. We affirm. Appellee gave Appellants a real estate listing on the land in question in April, 1964. Appellee agreed to pay a 10% commission to Appellants for their services as real estate agents. Several months later, Appellants secured a contract of sale with one Bill Hailey in the amount of $26,000. Appellee agreed to pay Appellants 10% of the purchase price as a commission at the time of closing. The purchaser deposited $500 with Appellants as earnest money. A title insurance policy was sought from the Milam County Abstract Company and the attorney who examined the title for the Abstract Company discovered a defect in one of the two tracts of land that comprised the total acreage covered by the contract of sale. According to this contract, Appellee had thirty days from the time of the notification of this title defect to cure it. Appellants assisted Appellee in an attempt to cure the defect. The parties were unable to cure the defect (which was attributable to an outstanding one-fifth interest in one of the two tracts involved). Appellant A1 Siegmund returned the earnest money to the prospective purchaser and the contract of sale was terminated. It is undisputed that the attorney for the proposed purchaser threatened to sue for the land and that such threat was communicated to the Appellee. After the above-mentioned contract fell through, Appellant A1 Siegmund made further efforts to sell the property for Appel-lee and, on one occasion, even prepared a contract of sale for another prospect, however the transaction never materialized. According to Appellee’s testimony, Appellants informed Appellee that he was about to lose his land to Bill Hailey, the party with whom Appellee had entered into the contract first mentioned above. Appel-lee further testified that Appellants recommended that he should convey the land to them and that they would continue to attempt to clear the title, sell the land, pay themselves their commission and any other expenses of sale and remit the remainder of the proceeds from the sale to Appellee. Accordingly, two contracts of sale were drawn up covering the two tracts of land and were recorded. Two days later two deeds were drawn and executed reflecting Appellee as seller and Mrs. Jackie Sieg-mund as purchaser. The total consideration for the two tracts of land was $2,600 or the same amount as the 10% commission attributable to a sale for $26,000. It is not clear from the record why Appellee owed a commission on a sale that was never consummated, however, in April of 1964, Appellee had signed an instrument acknowledging that he owed Appellants a commission of $2,600 and in this same instrument gave Appellants an exclusive right to sell the property. Since nothing had been done by Appellants to sell the property by March, 1968, Appellee consulted an attorney after which it was decided that a demand should be made for a return of the property. The attorney sent Appellants a letter demanding return of the property. Shortly thereafter Appellee filed this suit. Pursuant to trial, the jury found that Appellee had conveyed the property in question to Jackie Siegmund in accordance with an agreement by the Siegmunds to clear the title defect, to sell the property and pay the proceeds of the sale to Appel-lee less the commission and taxes paid. The jury also found that prior to the execution of the contracts of sale from Appel-lee to Mrs. Siegmund a confidential relationship existed between Appellee and the Siegmunds, apart from the agreement made the basis of this suit. The jury also found that Mrs. Siegmund was not entitled to be reimbursed for any amounts of money expended by her in making reasonable improvements to the property. Appellants are before us on nine points of error. The first four points relate to whether or not there was a fiduciary relationship or a relationship of special trust and confidence between the parties such as might support the theory of a constructive trust having been imposed upon the land in question. Inasmuch as we need not reach this theory to decide the case, we will not discuss these points further. Under their points five and six, which we overrule, Appellants complain of the finding of the jury that Appellee conveyed the property in question to Jackie Siegmund pursuant to an agreement by the Siegmunds to clear up the title defect, sell the property and pay the proceeds of sale to Appellee less commission and taxes paid by Appellants, is without support in the evidence and contrary to the overwhelming weight and preponderance of the evidence. We cannot agree with this contention and hold that in addition to there being sufficient evidence before the jury to uphold the contract theory, that the evidence is overwhelming in favor of such theory. Appellee is a bus driver of very limited education. It also appears that in addition to having become involved with several lady friends, he had creditors pressing him for payment of certain debts that he had incurred. Thus the jury could well have believed that it was entirely illogical for Appellee to sell property valued, at least, at $26,000 for $2,600 (the exact amount of the commission allegedly owed) leaving nothing over and above to satisfy these debts. A much more logical theory, apparently believed by the jury, was that Appel-lee conveyed the property to the Sieg-munds under the agreement he claims to have made. His intention could .well have been to “buy time” with his creditors. This theory also comports with the testimony that he had told several persons he had sold the land to Jackie Siegmund. Testimony of the Siegmunds that they had spent money on the property in belief that the land belonged to them, while evidence in behalf of their position, would certainly not be controlling. Additional evidence that the land, in equity, belonged to Appel-lee was that the Siegmunds mailed Appel-lee certain delay rentals from the land retaining only the postage necessary for the mailing. Appellee’s petition (in addition to pleading a confidential relationship and a relationship of trust between the parties) pleaded the breach of the contract and asks that the land be returned. The statute of frauds was not pleaded by Appellants and was never raised in the trial of this case, consequently cannot be asserted against the contract here. Tex.R.Civ.P. 94, First Nat’l Bank in Dallas v. Zimmerman, 442 S.W.2d 674 (Tex.1969). Rescission of this contract and the return of the land were warranted when the Appellants put themselves in a position where they had either abandoned the contract, were unable to perform or refused to perform the contract. See 13 Tex.Jur.2d Contracts, Right to Rescind for Breach of Contract, sec. 333 and cases there cited. We also overrule points seven, eight and nine which object to the finding of the jury that Mrs. Siegmund expended no funds in making reasonable improvements to the property after Mrs. Siegmund had taken possession of it. Appellants argue that this finding is without support in the evidence, contrary to the overwhelming weight and preponderance of the evidence and so unreasonable that it is clearly the result of passion, prejudice or some other improper factor. Of the many expenditures testified to by Mrs. Siegmund, many of which she asserted were paid for by check, not one was proved by checks introduced into evidence. All of the testimony as to the work done by others on the house and premises in question was introduced by the oral testimony of Mrs. Siegmund. Evidently the jury chose not to believe her. With respect to the taxes and attorney’s fees for which Appellants seek reimbursement, there is no proof of the amounts paid and no issue thereon was submitted to the jury. The question of reimbursement for the $2,600 commission described earlier in this opinion was not raised by any of the pleadings nor by any motions after judgment and is not properly before this Court on appeal. The judgment of the trial court is affirmed. Affirmed.

sw2d_483/html/0541-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

DAY & ZIMMERMANN, INC., et al., Appellants, v. Clifton S. STRICKLAND et ux., et al., Appellees. No. 8042. Court of Civil Appeals of Texas, Texarkana. June 13, 1972. Rehearing Denied July 25, 1972. John D. Raffaelli, Raffaelli, Hawkins & Carter, Howard Waldrop, Atchley, Russell, Hutchinson & Waldrop, Texarkana, for appellants. Cahill Hitt, Hitt & Pesek, Texarkana, Larry Starr, Kenley, Boyland, Hawthorn, Starr & Coghlan, Longview, for appellees. RAY, Justice. This is an explosion case. Appellees Clifton S. Strickland and wife, Margaret Strickland (plaintiffs) brought suit against Phoenix Insurance Company under a homeowner’s insurance policy for claimed damages to appellees’ house resulting from an explosion on August 14, 1968. Phoenix Insurance Company (also an appellant) brought in Day & Zimmermann, Inc., (the principal appellant) as a third-party defendant, claiming that the damage, if any, to appellees’ house was the result of the negligence of Day & Zimmermann, Inc., in setting off excessive explosives at its plant. The jury rendered a verdict in favor of the Stricklands against Phoenix Insurance Company and Day & Zimmermann, Inc., and in favor of Phoenix against Day & Zimmermann, Inc. The trial court entered its judgment accordingly, awarding the Stricklands damages in the sum of $7,300.-00. Day & Zimmermann, Inc., presents thirty-three points of error for consideration by this court. Phoenix Insurance Company presents four points of error in the event that Day & Zimmermann, Inc., is successful in reversing the judgment of the trial court by pointing out that, if there is no evidence to support the finding of the jury or the evidence is insufficient to support the findings of the jury against Day & Zimmermann, Inc., then the same holding would apply as between the Stricklands and Phoenix Insurance Company. The explosion pertinent to this case occurred at Lone Star Ordnance Plant on August 14, 1968. On this occasion, appel-lees lived approximately seven and one-half miles from the place of the explosion. Appellee Clifton Strickland testified that his house was in good condition prior to August 14th, 1968, and that he observed no cracks in the house when he was painting it shortly before the explosion. The detonation occurred on Wednesday night and the Strickland family left town on Friday, returning the following Monday. Cracks in the .outside wall were discovered on Monday when they were brought to Strickland’s attention by his neighbor, Henry Forbes. Appellee Strickland testified that the water from his well near his home was good prior to August 14, 1968, and that after that date the water was muddy. Several homeowners (some of whom were neighbors of the Stricklands) testified during the trial that prior to the explosion on the night of August 14 there were no cracks or damages to their homes but that afterwards they noticed cracks and damages. Some of these witnesses also testified that prior to August 14 the water in their wells was good, and after the explosion the water was muddy. The testimony established that at least 3,-915 lbs. of “Comp B” explosive material had been placed on a “burning bed” and ignited prior to the explosion. Ordinarily, the material would burn, but on occasions it has been known to explode rather than burn. On this occasion, a portion of the material had burned and then the explosion occurred. The controversy revolved around the issue of whether or not the unexplained detonation of the explosive material caused the damage to the Strickland house. Appellant Day & Zimmermann, Inc., undertook to prove that the detonation of the explosives on this particular occasion did not cause any damage to the Strickland house. In the course of making such proof, Day & Zimmermann offered its Exhibit No. 23, which was identified by Wayne O. Ursenbach (appellants’ expert witness) as being the original of the report he wrote summarizing the findings and test results of an ordnance team that had made tests at eighteen arsenals located over the United States. Included in the arsenals studied were Red River Arsenal and Lone Star Arsenal, located in Bowie County, Texas. One of the purposes of the study was to determine what effect, if any, the detonation of explosives at the various arsenals would have on the structures in the surrounding area, as well as its effect on people living in the area near the ammunition plants. The group was endeavoring to determine the upper limits of quantities of explosives that could be destroyed, both from the standpoint of not damaging any structures or premises, and keeping the psychological disturbance of the people to a minimum. The tests in Bowie County were made in 1956 and in April 1957. Three members of the team, Donald T. Bailey, Robert R. Dolley and D. M. Jack-man, made the tests in Bowie County. Wayne O. Ursenbach was the project supervisor, but he was not in Bowie County when the tests were made. The three members of the team doing the testing would supply the information from the tests to Ursenbach, and at the end of the tests Ursenbach wrote a report summarizing the findings at Red River Arsenal and Lone Star Arsenal, which was offered as Day & Zimmermann, Inc.’s, Exhibit No. 23. The report also included a general discussion of the effect of air blasts and ground shock as determined by the investigations at all of the eighteen arsenals. Also included in the report was an analysis of the information obtained from the other sixteen arsenals. The tests made by the investigating team were made at the direction of Mr. Ursenbach from his office in Salt Lake City, Utah. When Exhibit 23 was offered by Day & Zimmermann as evidence under the provisions of Article 3737e, Vernon’s Ann.Tex.Rev.Civ.Stats., the court refused to admit the same in evidence after objection by appellees. Appellant Day & Zimmermann, Inc., complains of the trial court’s ruling to the introduction of its Exhibit 23 as its first point of error. This case presents a narrow issue of admissibility of evidence under Article 3737e (1951) familiarly referred to as the “business records exception” to the hearsay rule. A thorough search of the cases does not reveal one which has decided the exact question presented here. The' following elements were presented to the trial court for its consideration in admitting Exhibit 23: 1. The original report compiled by Wayne O. Ursenbach; 2. The testimony of Ursenbach that he. prepared the report; 3. The testimony of Donald T. Bailey that he helped conduct some of the tests and forwarded the results of the tests to Ursenbach to be included in the report; 4. The tests were made in 1956 and 1957; 5. The report bears the date of December 30, 1957; 6. The report was prepared by the Explosives Research Group at the University of Utah at the request of the Chief of Ordnance of the U. S. Army; 7. The report was admittedly a sum-marization of the data or a reduction of the data furnished to Ursenbach by the survey team in the field. The following elements of evidence and testimony were absent: 1. The original tapes and records which were used in preparing the report (Exhibit 23). We have concluded that third-party defendant’s Exhibit No. 23 was not admissible in evidence and that the trial court properly excluded it for the-reason that it is not a memorandum or record of an act, event or condition. The report itself is hearsay, spawned and based upon hearsay. The original tapes and memoranda prepared in the field tests constitute the “memorandum or record of an act, event or condition” as contemplated by Article 3737e, and while that information itself is hearsay, it may be admitted into evidence as a- business record under Article 3737e which provides a statutory exemption for such records from the hearsay rule. However, in order for such a business record to be admitted into evidence it is necessary for the judge to find: “(a) It was made in the regular course of business; “(b) It was the regular course of that business for an employee or representative of such business with personal knowledge of such act, event or condition to make such memorandum or record or to transmit information thereof to be included in such memorandum or record; “(c) It was made at or near the time of the act, event or condition or reasonably soon thereafter.” Article 3737e further provides that the identity and mode of preparation of the memorandum or record as a business record may be proved by the testimony of one of the following: 1. The entrant, 2. The custodian, or; 3. Other qualified witness even though he may not have personal knowledge as to the various items or contents of such memorandum or record. In Railroad Commission of Texas v. Southern Pacific Company, 468 S.W.2d 125 (Tex.Civ.App. Austin 1971, writ ref’d, n. r. e.), the court stated: “The Supreme Court held in 1969 that a tabulated schedule or summary of voluminous records may be admitted, in the discretion of the trial court, to expedite trial and aid of the trier of fact, but that this rule assumes that the records themselves are admissible. Cooper Petroleum Company v. LaGloria Oil and Gas Co., 436 S.W.2d 889 (Tex.Sup.1969). The summaries tend to prove nothing except the contents of the records themselves and standing alone the tabulations, or summaries, are hearsay and have no probative value.” Essentially, the court held that it was error for the trial court to admit into evidence the exhibits of the railroad company under the “business records exception” when the original documents upon which the exhibits (summaries) were based were not introduced. The railroad offered the testimony of its witness who was an expert in cost analysis for the railroad. The expert expounded upon his conclusions and opinions based upon his investigations of the records of the company. The court held that such testimony was inadmissible, and stated: “Assuming for purposes of further examination of the evidence, that Boud-reaux was qualified as an expert in making cost analyses for the railroad, if his opinions and conclusions were based substantially on agency records and central accounting records of the railroad, the records being hearsay as to the Commission should have been introduced as business records under the exception accorded by Article 3737e. Without introduction of the records, the opinions expressed as an expert are based almost entirely on hearsay. Although Boud-reaux testified that he frequently visited Elsa (a railroad station) and personally observed the agent at work, his report (exhibits 13, 16 and 18) admittedly was based largely upon records at the station and central accounting records of the railroad as found in the computer sheets. He noted discrepancies between the agency records and the central accounting records which he corrected for his report. Boudreaux’s summary of train stops (exhibit 15) was taken entirely from exhibit 21, the abstract of the electronically kept records which we have held were not admitted in evidence as required by Article 3737e as an exception to the hearsay rule. Hearsay will not become relevant and substantial merely because it is offered through an expert witness if the facts are not known to the witness or proved to be true.” We have reviewed the opinion of the Texas Supreme Court in Loper v. Andrews, 404 S.W.2d 300 (Tex.Sup.1966) and do not think the case to be applicable. There the court held that the statute providing for reception in evidence of entries made in the regular course of business does not render hospital entries admissible without exception, but the statute does so only in those instances where it can be said that the diagnosis in the hospital record records a condition resting in reasonable certainty. There the opinion of the physician was an entry in the hospital record which was sought to be introduced into evidence under the business records exception to the hearsay rule. In the case presently under consideration, the original business records were not offered into evidence, and therefore no question has been presented as to the admissibility of an expert opinion recorded in the entries of the testing team. In Sherwin-Williams Company v. The Perry Company, 424 S.W.2d 940 (Tex.Civ.App. Austin 1968); 431 S.W.2d 310 (Tex.Sup.1968), the Court of Civil Appeals held that the testimony of plaintiff’s employee and head of plaintiff’s accounting firm, based on prior examination of the employee’s books and records as to the number of diving boards returned by customers and to the cost of returned boards, was inadmissible hearsay where the books were not produced in court. There was no showing that they had been kept in such manner as to make them admissible, and neither employee nor accountant had had any business connection with plaintiff at the time most of the entries were made. We hold that because the records made by the field testing teams were not introduced into evidence, the report summarizing such data was not admissible. Further, the report contained the opinions of Mr. Ursenbach, based upon evidence that had not been made available to appel-lee Strickland for cross-examination purposes. If the data and records that are introduced are complicated or voluminous, an expert who has examined them may testify as to his calculations, summaries or conclusions to aid the court or jury to understand them. The testimony of the expert relative to his calculations, summaries or conclusions about records or data not introduced into evidence makes such testimony double-hearsay, since the data or records are hearsay until properly admitted as business records under Art. 3737e. Sherwin-Williams Company v. Perry, supra; Cross v. Houston Belt & Terminal Ry. Co., 351 S.W.2d 84 (Tex.Civ.App. Houston 1961, writ ref’d n. r. e.) ; Texas Brewing Company v. Walters, 43 S.W. 548 (Tex.Civ.App.1897, no writ); 19 A.L.R.3rd 1008, 11 A.L.R.3rd 1377, 21 A.L.R.2d 773. See also Lewis, Savings & Loan Commissioner v. Southmore Savings Ass’n, 15 Tex.Sup. Court Journal p. 268 (April 8, 1972). The first point of appellant Day & Zimmermann, Inc., is overruled. The second point of error presented by Day & Zimmermann, Inc., complains of the trial court’s refusal to let its witness, Johnny Moore, an architect, testify to anything he observed, or to any opinion he formed from what he observed, about the condition of appellees’ house when the witness examined the same at a time when neither appellee nor appellees’ attorney was present. We have concluded that the trial court did not abuse its discretion in refusing to let Moore testify under the circumstances. Moore had already examined the house once, both inside and out, when ap-pellees and their attorney were present. Appellees need not voluntarily submit their property to unlimited inspections. Rule 167, Texas Rules of Civil Procedure, “Discovery and Production of Documents and Things for Inspection, Copying, or Photographing”, provides a method for the court to “order any party to permit entry upon designated land or other property in his possession or control for the purpose of inspecting, measuring, surveying or photographing the property or any designated object or operation thereon which may be material to any matter involved in the action.” Appellant Day & Zimmermann, Inc., did not make application for a court order to allow Johnny Moore to further inspect appellees’ dwelling, nor did it seek the voluntary permission of appellees to further inspect the house. Since appellant had no further authority to inspect the house, either voluntarily given by appellees or court ordered, it cannot now complain of the court’s refusal to let its witness testify about the information he gained through the unauthorized inspection. One of the purposes of Rule 167 is to protect a party from undue annoyance, embarrassment, oppression or expense. See General Commentary, 2 Vernon’s Texas Rules, Annotated 146. The law does not condone such an unauthorized inspection when the inspection in all probability could have been obtained through lawful means by making application to the court for an inspection order pursuant to Rule 167, Tex.R.Civ.P. Mr. Moore was no more than a trespasser on appellees’ property at the time he made the unauthorized inspection, and the courts of this state will not admit testimony obtained through the back door when there is provided a lawful method of entry through the front door. Furthermore, it was admitted in appellant’s brief that the proposed testimony of Mr. Moore would have been cumulative to that of appellant’s witnesses Lacy and Stone. Day & Zimmermann, Inc.’s, third and fourth points of error complain of the trial court’s failure to instruct a verdict in its favor and failure to grant its motion for judgment non obstante veredicto, respectively. Appellant contends there was no evidence showing that it was guilty of any negligence in burning the powder which exploded on August 14, 1968, and that no evidence was introduced to support the findings of the jury to special issues numbered 6 through 10, wherein Day & Zim-mermann, Inc., was found guilty of negligence which was the proximate cause of the damage to the appellees’ house. In considering the “no evidence” points, the evidence must be viewed in the light most favorable to the verdict and disregard that which is opposed or contrary to it. Stafford v. Thornton, 420 S.W.2d 153 (Tex.Civ.App. Amarillo 1967, writ ref’d, n. r. e.). The evidence shows that composition B material is frequently burned, rather than detonated. However, if the material is more than three inches in diameter it is detonated in a hole covered with dirt. According to the testimony of appellant’s employee Jack L. Wright, burning ground superintendent, the material in question was forwarded to the disposal area with a tag showing that it was to be detonated. However, the materials were placed on a burning bed above ground and ignited and thereafter exploded. Appellee Clifton Strickland testified that, “It was a terrific explosion, made a terrible racket.” He further stated that the explosion “felt like it just picked the bed up and just slammed it back to the floor.” Mrs. Roy M. Fomby, whose house was damaged, testified that, “It was a bad explosion,” and that the explosion was different from the routine explosion that she normally heard. Several houses in the Strickland neighborhood were found to be damaged following the explosion. Appellee Strickland had recently painted his house and did not see any cracks in the brick walls of his dwelling prior to the detonation in question. The cracks and damage to appellees’ house were found shortly after the explosion on August 14, 1968. There was testimony that water wells in the vicinity became muddy immediately following the detonation. Donald T. Bailey, a witness for appellant, testified that wind direction and cloud cover are important factors in the amount of damage that can be caused by an explosion. There was testimony that a cloud cover existed on the night of the explosion, and that sometimes an atmospheric inversion accompanies a cloud cover. Further, that if an atmospheric inversion exists, it will intensify the shock wave from the explosion and occasionally the shock wave frequency will be the same as the resonant frequency of a dwelling. When this occurs, the residence will sustain a greater vibration and the damage to the house will be increased. While there was no direct testimony that such an inversion existed on this occasion, or that the shock wave was of the same resonant frequency as that of the house, there was testimony that appellant Day & Zimmermann, Inc., had failed to check the atmospheric conditions prior to the burning of the composition B material on this particular night. Mr. Bailey further testified that the conditions were less than ideal for burning the explosive material on the night in question. Robert Lacy, another of appellant’s witnesses, testified that it would be strange for a five-year old house that had no cracks or damage to it, to suddenly, overnight, have cracks and damage. Jack L. Wright testified that “standard operating procedure” required that no more than 81 pounds of comp. B be detonated at one time. Witnesses Bailey and Wayne O. Ursen-bach agreed that if an explosion caused damage outside the Lone Star Ordnance Plant it would be from an unreasonable, excessive charge, or “a lot bigger charge than was safe to be used at that time.” In answer to special issues Nos. 6 and 7, the jury found that Day & Zimmermann, Inc., ignited an excessive quantity of explosive material on its burning pad on August 14, 1968, and that this act was a proximate cause of the damage to the Strickland house. In answer to special issues Nos. 8, 9, and 10, the jury found that Day & Zimmer-mann, Inc., failed to ascertain that proper atmospheric conditions existed for the detonation of the explosive material on the night of August 14, 1968; and that such act was negligence, and was the proximate cause of the damage to the Strickland house. It is now well settled that the Texas courts have rejected the doctrine of absolute liability espoused by Rylands v. Fletcher, 3 Law Rep. House of Lords 330, in explosion and blasting cases. Less well-settled is the rejection of the eviden-tiary rule concerning the doctrine of res ipsa loquitur in explosion and blasting cases. In Kelly v. McKay, 149 Tex. 343, 233 S.W.2d 121 (1950), the Texas Supreme Court took the view that it was unnecessary for it to decide the applicability of the res ipsa loquitur doctrine, because there was some evidence offered by the plaintiffs which would reasonably sustain a judgment in their favor, without the aid of the rule of res ipsa loquitur, and, therefore, the trial court had erroneously instructed a verdict for the defendant in a caliche pit blasting case. In Universal Atlas Cement Company v. Oswald, 138 Tex. 159, 157 S.W.2d 636 (Tex.Sup.1941), the court held that the doctrine of res ipsa loquitur was not applicable, although it is to be noted that the holding was made upon the ground that the plaintiff had gone further than alleging generally that the defendant set off the blast and that the damages proximately resulted therefrom, and had alleged specific acts of negligence. The court was of the opinion that, consequently, res ipsa loquitur was not in the case While we see no good reason why the doctrine of res ipsa loquitur should not be applied in blasting and explosion cases, it is not necessary for us to decide that question in this case, because this suit was not tried on the theory that res ipsa loquitur applied, nor was the case tried on the theory of absolute liability. The question here presented is whether there was any evidence presented to the jury from which they could conclude that Day & Zimmermann, Inc., had acted negligently in the disposal of 3,915 lbs. of composition B explosive material. Our review of the voluminous record in this case leads us to believe there was evidence of negligence on the part of this appellant, and that the jury was justified in reaching its verdict. Day & Zimmermann, Inc., knew that composition B material was a dangerous substance, that on occasions it would detonate while in the process of burning, and that standard operating procedure required that no more than 81 pounds of the material be detonated at one time (then under soil cover). It also knew that if the atmospheric conditions were unfavorable the material would be more likely to detonate than if the wind were calm. Another known fact was that it was safer to detonate the material underground rather than on the surface, since detonation was always conducted with a soil cover over the explosive material. The rejection slip accompanying the material in question indicated that the material was to be detonated rather than burned. Appellant Day & Zimmermann, Inc., disregarded the rejection slip and proceeded to burn the material without checking the atmospheric conditions, when the wind was blowing and “under conditions less than ideal.” While there was testimony that Day & Zimmer-mann, Inc., had followed the usual and customary procedure for burning the material and that 3,915 lbs. of the material was not an excessive amount to burn at one time, the jury chose to believe that appellant had acted negligently in burning the materials without checking the atmospheric conditions and that the amount which was ignited and subsequently exploded was excessive under the less than ideal conditions. Appellant offered no satisfactory explanation of why it failed to follow the instructions on the rejection slip, indicating that the material was to be detonated rather than burned, other than Jack Wright could make the final decision on whether to burn or detonate the waste ammunition material. Neither did appellant offer any satisfactory explanation of why it failed to check the atmospheric conditions when it knew that the material was more likely to detonate when the atmospheric conditions were unfavorable and that the likelihood of damage to property outside the confines of the plant premises would be enhanced if the atmospheric conditions were unfavorable. We believe there was testimony which might fairly be interpreted as indicating that the burning of 3,915 lbs. of composition B explosive material was, under the attendant circumstances, dangerous to and calculated to injure appellees’ property. The evidence was such that the jury might well conclude that Day & Zimmermann, Inc., was negligent in burning the 3,915 lbs. of explosive material on the occasion in question, rather than detonating it in 81 pound lots under a soil cover in compliance with the terms of the rejection slip and standard operating procedure, or waiting until the conditions for the burning of the material were ideal. 20 A.L.R.2d 1372, 1394, 1399, 1400. Our examination of the record leads us to the conclusion that evidence existed from which the jury could conclude that the blast of August 14, 1968, caused damage to appellees’ house. The testimony shows that the house was in good condition just previous to the explosion, and that cracks were discovered in the house shortly following the explosion. Other houses in the neighborhood developed cracks following the detonation. The earth tremors attendant to the explosion were more intense than usual. Water wells in the vicinity that had previously been clear were muddy following the demolition. Lacy testified that it would be strange for a five-year old house that had no cracks or damage to it, to suddenly, overnight, have cracks and damage. In Weaver v. Benson, 152 Tex. 50, 254 S.W.2d 95 (1952), which was a suit for cracks in a wall allegedly caused by nearby blasting operations, the court stated through Justice Garwood: “Doubtless the fact of even an atomic blast plus the bare fact that the crack exists is not evidence that the latter is due to the former, since obviously cracks in walls occur more often than not for reasons other than blasts. But where there are additional circumstances in evidence tending' to date the crack as coincident with the blast, the result may well be different. Surely if there were eyewitness testimony that the crack never existed before the blast and was noted for the first time the day after the blast, the degree of force of the blast — its ability to have caused the crack — would be at least a circumstance to fortify or weaken the inference from the date of origin that the crack was caused by the blast .... In blast-damage cases, the fact that causation is so often impossible of proof, except through circumstantial evidence, justifies a rather liberal attitude in judging the relevance of a particular circumstance.” The jury found that an excessive amount of explosive material was detonated on this occasion and there is ample evidence to sustain the finding. We therefore believe that the testimony relative to the attendant circumstances of the terrific explosion and cracks being found in appellees’ house shortly following the explosion, which were not there before the explosion, constituted sufficient evidence from which the jury could conclude that the blast was the cause of the damage to the house owned by appellee. Weaver v. Benson, supra; Kelly v. McKay, supra; Universal Atlas Cement Company v. Oswald, supra; Stafford v. Thornton, supra; and Pelphrey v. Diver, 348 S.W.2d 453 (Tex.Civ.App. Austin 1961, writ ref’d, n. r. e.). Points of error 3 and 4 of appellant Day & Zimmermann, Inc., are overruled. It is an understatement to say that each of the issues presented in this case was hotly contested. The case was well developed by both sides and the jury chose to believe the testimony elicited by appellees and the evidence they presented rather than the opinions of the experts produced by appellant Day & Zimmermann, Inc. When all the evidence is considered, we are of the opinion there was sufficient evidence to support the jury finding appellant Day & Zimmermann, Inc., was negligent in igniting an excessive amount of explosives and that such negligence was a proximate cause of the damages to appellees’ house. We have examined the other points of error presented by Day & Zimmermann, Inc., and find them without merit in view of what we have already said. Appellant strongly urges that the damage to appel-lees’ house, or at least some of the damage, resulted from settling, cracking, bulging, shrinkage or expansion of foundations, walls, floors, ceilings, roof structures, walks or drives that did not result from the explosion. Suffice it to say that if the house were calculated to stand indefinitely, though held together by a single strand of silk, and appellant negligently caused the house to fall apart by initiating an excessive blast, it would not mitigate the damages if the strand failed to hold. The question is whether the damage that was caused was initiated by the negligence of the appellant. The jury concluded, and we hold that the evidence was adequate to sustain the verdict, that the house was in good condition prior to the blast, and that whatever damage was caused was the result of the negligent intensive explosion of August 14, 1968. We further hold that the trial court properly charged the jury and correctly overruled appellant’s objections to the charge. Finding no error in the actions of the trial court and the findings of the jury, we respectfully overrule the remainder of the points of error presented by appellant Day & Zimmermann, Inc. We further overrule the points of error presented by appellant, Phoenix Insurance Company. The judgment entered by the trial court is accordingly affirmed and the costs are taxed against Day & Zimmer-mann, Inc. DAVIS, J., not participating.

sw2d_483/html/0551-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

HARLINGEN HOME HEALTH AGENCY, INC., et al., Appellants, v. Dr. Rodney R. DIEMER, Appellee. No. 658. Court of Civil Appeals of Texas, Houston (14th Dist.). July 5, 1972. D. Graham Moore, Keeney, Atkins, Simon & Moore, Houston, for appellants. David T. Harvin, Vinson, Elkins, Searls & Smith, Houston, for appellee. SAM D. JOHNSON, Justice. Summary judgment case. Dr. Rodney R. Diemer, appellee here, brought suit against Harlingen Home Health Agency, Harris County Home Health Agency, Frederick P. Holloway and Harris H. Johnston, Jr., to recover $15,000.00 due on four promissory notes. To appellee’s petition were attached copies of the notes sued upon. These notes, originally held by Texas National Bank of Commerce of Houston, had been assigned to appellee. Appel-lee alleged current ownership of the notes and appellants’ execution, delivery and dishonor, to all of which appellants’ only reply was a general denial. On November 18, 1971, appellee filed his motion for summary judgment with proper supporting affidavit. The hearing thereon was scheduled for November 29, 1971. Appellants failed to answer at the scheduled hearing, however. In his brief appel-lee asserts that “After being shown a receipt for service indicating that Defendants had been notified on November 18, 1971, of the date and place of the hearing on the motion (Tr. 11), the trial court proceeded to consider the motion.” The reference is to page 11 of the transcript, a copy of the trial court’s docket sheet, which indicates a notation by the court “Receipt for service on 11/18/71”. It was under such circumstances that the court heard and granted appellee’s motion for summary judgment on November 29, 1971. Subsequent to the granting of appellee’s motion for summary judgment a hearing was set for December 6, 1971, then reset for the next day, December 7, 1971. Just what kind of hearing this was is the subject of dispute. Appellee asserts that it was a hearing on the entry of judgment. Appellants take the position that it was a hearing on the motion for summary judgment itself. In any event, at such hearing appellants offered to the court a response to the motion for summary judgment along with an affidavit of appellant Johnston. These documents notwithstanding, the trial court on such date signed the written judgment awarding appellee $15,000 recovery on the notes and $1,500 attorney’s fees. Appellants now complain to this Court that their sworn answer to the motion for summary judgment and Johnston’s affidavit raise issues of material fact and that the trial court’s “granting plaintiff’s motion for summary judgment after the filing” of the above instruments was error (emphasis added). Rule 74, Tex.R.Civ.P. provides that pleadings are to be filed with the clerk of the court, except that the judge may permit the papers to be filed with him, whereupon he is to note the filing date and time on the documents and deliver them to the clerk. Appellants assert that their sworn answer to the motion for summary judgment and the supporting affidavit “were properly on file on the date of the (December 7) hearing” (parenthesis added). The record, however, does not corroborate that assertion. Neither instrument bears any indication that it was filed with the judge, and neither bears a filing date or recitation that it was filed with the court clerk. It is true that filing is effected by the conveyance of an instrument to the clerk of the court and his acceptance of it for record. Maddux v. Booth, 108 S.W.2d 329 (Tex.Civ.App. — Amarillo 1937, no writ). The file mark is a memorandum of the filing and is evidence of filing. Consolidated Furniture Company v. Kelly, 366 S.W.2d 922 (Tex.Sup.1963). Its omission does not destroy the efficiency of a document officially received for filing. McDonald, Texas Civil Practice, sec. 5.20 (1970). However, in the instant case we do not believe it can be concluded that appellants’ instruments were received for filing. First, no file mark appears and the record does not support the contention that appellants’ answer and affidavit were filed. They do not appear to have been filed even to this date. Second, if appellants’ contention is accepted that December 7, 1971, was the date set for a supplemental hearing on the motion for summary judgment, it would not appear that the tendered instruments would have been timely filed. Rule 63, Tex.R. Civ.P. No leave of the trial court is shown to have been asked for or obtained. Every implication is quite to the contrary. Third, the trial court’s docket sheet contains the only notation of the December 7, 1971 hearing and it recites “Judgment entered per decree.” Such wording leads to the conclusion that judgment was entered that same day in accordance with the earlier granting of the motion for summary judgment. In other words, such notation by the judge of the trial court supports ap-pellee’s contention that the hearing was on the entry of judgment. Even if otherwise, there is no hint in the wording that filing of any instrument was attempted, permitted or made. Lastly, the court’s signed judgment notes that the court considered, “Plaintiff’s Original Petition, the Motion for Summary Judgment, the sworn affidavit of Dr. Rodney R. Diemernn support of same . . .”. No reference to appellants’ answer and affidavit is to be found. The burden devolves upon an attorney to insure that what he wishes filed is in fact filed. This Court can consider only what is properly a matter of record, and the unfiled pleading and affidavit are not proper elements of the record before us. In such posture the only documents "before the trial court (and before this Court now) were plaintiff’s petition, defendants’ general denial, and plaintiff’s motion for summary judgment and supporting affidavit. A general denial, of course, is insufficient to create a fact issue and defeat a motion for summary judgment. Kellum v. Pacific National Fire Ins. Company, 360 S.W.2d 538 (Tex.Civ.App. — Dallas 1962, writ ref’d n. r. e.). The trial court was obligated to consider only the record as it appeared at the time of the hearing on the motion for summary judgment. Tex.R.Civ.P. 166-A(c); Botello v. Misener-Collins Company, 462 S.W.2d 100 (Tex.Civ.App. — San Antonio 1970), aff’d 469 S.W.2d 793 (Tex.Sup.1971). The record before this Court on appeal is the same as it was on November 29, 1971, the date the trial court originally heard and granted plaintiff’s motion for summary judgment. Inasmuch as appellee has shown that no material fact issue existed and that he was entitled to judgment as a matter of law, the trial court’s granting appellee’s motion for summary judgment was without error and the summary judgment for appellee is affirmed.

sw2d_483/html/0553-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

L. L. McGUIRE, Appellant, v. Mrs. Beatrice J. DAVIS et al., Appellees. No. 5139. Court of Civil Appeals of Texas, Waco. July 20, 1972. Rehearing Denied Aug. 10, 1972. L. L. McGuire, pro se. Samuel R. Bonney, Dallas, for appellees. OPINION JAMES, Justice. This is an appeal from a summary judgment. We reverse and remand the case to the trial court for trial on the merits. Plaintiff-Appellant L. L. McGuire owns a 35 acre tract which adjoins a 31.77 acre tract owned by Defendant-Appellee Mrs. Gladys M. Davis, both of which tracts abut upon U. S. Highway 67 in Ellis County, Texas. The McGuire tract and the Davis tract came from a common source of title. When McGuire purchased his tract, restrictive covenants were recited in his deed which purported to cover not only the McGuire tract, but also the tract which would later be the Davis tract. These covenants restricted the subject property to farming, grazing, and residential purposes to a depth of 400 feet from U. S. Highway 67. McGuire’s deed is dated April 13, 1955, and was filed for record April 16, 1955, in the Deed Records of Ellis County, Texas. The deed from the common grantor to Mrs. Davis’s predecessor in title conveying the Davis tract expressly recited that it was made subject to "any and all easements, restrictions, covenants, conditions, and reservations of record, if any, applicable to the herein conveyed property or any part thereof.” This deed is dated March 11, 1957, and was filed for record March 14, 1957, in the Deed Records of Ellis County, Texas. A commercial billboard sign was erected on the Davis tract in March, 1971, within the 400 feet restrictive area, without McGuire’s permission. McGuire filed suit on or about April 14, 1971, and in his Fourth Amended Original Petition (his current pleadings at the time of the trial court’s judgment), he made as Defendants the Ap-pellee Mrs. Gladys M. Davis and other parties not necessary to enumerate, as well as the Dallas Outdoor Sign Company (who erected the sign) and its partners. By his pleadings Plaintiff-Appellant McGuire prayed for a declaratory judgment holding the restrictive covenants to be valid and legal, and for a mandatory injunction compelling Defendants to remove the sign. The Defendants all filed general denials. The sign stayed up on the Davis tract for about five months, until on or about September 28, 1971, when it was removed therefrom. After the sign was removed, Defendants moved for a summary judgment, contending in effect that since the sign had been removed, that there was no longer any jus-ticiable controversy, and therefore the relief sought by McGuire was moot. McGuire served Appellee Mrs. Davis with written interrogatories, among which were questions numbers 11, 12, and 13, wherein he asked Mrs. Davis if she claimed the restrictive covenants were invalid, and if not, by what right did she have the sign in question erected; and in the event she claimed the restrictions were invalid, for what reason she claimed them invalid. Mrs. Davis refused to answer these three interrogatories on the ground that these questions were now moot. McGuire filed a motion to have the trial court compel Mrs. Davis to answer these questions, which motion the trial court denied. In other words, Mrs. Davis was not compelled to answer these questions, and she did not answer them. The trial court then granted the Defendants’ motion for summary judgment, and thereafter entered a final judgment that Plaintiff McGuire take nothing, and taxed the costs against him. McGuire appeals on three points of error, the first point contending the trial court erred in granting the Defendant-Ap-pellees’ motion for summary judgment, because there is a real and bona fide controversy between the parties. We sustain this contention. Summary judgment is proper only when there is no genuine issue as to any material fact and when the moving party is entitled to judgment as a matter of law. The burden of proof is upon the movant, and all doubts as to the existence of a genuine issue as to a material fact are resolved against him. The evidence must be viewed in the light most favorable to the party opposing the motion. If the motion involves the credibility of affiants or deponents, or the weight of the showings or a mere ground of inference, the motion should not be granted. All conflicts in the evidence are disregarded, and the evidence which tends to support the position of the opposing party is taken as true. Rule 166-A, Texas Rules of Civil Procedure; Great American Reserve Insurance Company v. San Antonio Plumbing Supply Co. (Sup.Ct.1965) 391 S.W.2d 41. In the case at bar, Plaintiff-Appellant McGuire set up in his pleadings his restrictive covenants, asserted their validity as applied to the Davis tract, prayed for a declaratory judgment establishing their validity, alleged a violation thereof by erection of the sign, and asked for a mandatory injunction requiring Defendants to remove the sign. The Defendants by filing general denials thereto put all these allegations and contentions of Plaintiff in issue. A general denial in this instance puts the adverse party (here the Plaintiff-Appellant McGuire) in the position of having to prove every material fact of his cause of action. Rule 92, TRCP; Boswell v. Handley (Sup.Ct.1965) 397 S.W.2d 213; Alexander v. Houston Oil Field Material Co. (Tyler CA 1965) 386 S.W.2d 540, error refused NRE. Let us now turn to the Uniform Declaratory Judgments Act in order to evaluate the relief McGuire was entitled to litigate. The pertinent portions of Article 2524 — 1 Vernon’s Ann.Tex.St, known as the Uniform Declaratory Judgments Act, are as follows: “Section 1. Courts of record within their respective jurisdictions shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed. (emphasis supplied) “Section 2. Any person interested under a deed, will, written contract, or other writings constituting a contract, * * * may have determined any question of construction or validity arising under the instrument * * * and obtain a declaration of rights, status, or other legal relations thereunder. “Section 3. A contract may be construed either before or after there has been a breach thereof.” (emphasis supplied). To entitle a party to declaratory judgment relief, our Supreme Court has held that (a) there shall be a real controversy (sometimes called a “justiciable controversy”) between the parties, which (b) will be actually determined by the judicial declaration sought. Board of Water Engineers v. City of San Antonio (Sup.Ct.1955) 283 S.W.2d 722. In the case at bar, a very real controversy existed between the parties. Plaintiff-Appellant alleges that his tract with the improvements thereon is worth in excess of $40,000.00 as a residence homestead; and if the restrictive covenants in question were removed, that his property would be greatly lessened in value. The Defendants at least had constructive notice of these restrictions (by virtue of their recordation) at the time the sign in question was erected, and may have had actual knowledge thereof. If the restrictions are valid, as they appear to be from the record, then the erection of the sign and keeping it up for five months was an overt violation thereof. The taking down of the sign under stress of litigation coupled with Defendant-Appel-lee Mrs. Davis’s refusal to answer whether or not she claimed the restrictions were invalid (in response to the interrogatories) constituted eloquent testimony to the continued existence of a justiciable controversy. Plaintiff-Appellant McGuire is entitled to his day in court which will accomplish a judicial ascertainment of the problem to which he now seeks an answer, to wit, whether the restrictive covenants in question are valid or invalid. We accordingly reverse and remand the cause to the trial court for trial on the merits, and tax the costs of this appeal against the Defendants. Rule 131, TRCP. Reversed and remanded.