author: PER CURIAM.

text:
    Richard GEISSLER et al., Appellants, v. Peter COUSSOULIS and William Patrick, d/b/a Southland Cafe, and d/b/a Western Grill, Appellees.
    No. 14626.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 27, 1967.

      Sam Houston Clinton, Jr., Austin, for appellants.
    Lang, Cross, Ladon, Oppenheimer & Rosenberg, San Antonio, Jerome L. Ave-don, Fansler & Fansler, Laredo, for appel-lees.
   PER CURIAM.

This is an appeal from an order of the district court of Webb County temporarily enjoining defendants, Richard Geissler, William Geissler, Jose Vasquez, and an organization known as VIDA, appellants here, as well as all persons acting in concert with them, from engaging in certain conduct in connection with the picketing, incidental to a labor dispute, of the Southland Cafe, a business owned and operated by plaintiffs, Peter Coussoulis and William Patrick, in the City of Laredo. Specifically, the temporary injunction forbids (1) having more than two pickets at any time within SO feet of any entrance to the cafe or within 50 feet of any other picket; (2) displaying any red or black banner .in connection with the picketing; and (3) displaying .such red or black banner accompanied by use of “huelga,” the Spanish word for “strike.”

That portion of the injunction limiting the number of pickets follows the wording of Section 1(1) of Article 5154d, Vernon’s Ann.Civ.St. The evidence, while conflicting, warrants the conclusion that, on various occasions, the picketing was carried on in a manner violative of what defendants label the “numbers and distance formula” established by the statute.

Defendants first contend that the numbers and distance formula prescribed by the statute is invalid because it is unconstitutionally vague and because it is an unreasonable abridgment of the rights of freedom of expression and peaceable assembly.

We cannot agree that the numbers and distance formula must fall because of vagueness. It embodies a precise formula and does not leave it to law enforcement officers to define the conditions under which persons wishing to disseminate the facts of a labor dispute may use the -streets and sidewalks. Any person wishing to engage in picketing activities can determine, by reading the statute, exactly what is prohibited.

All parties concede that, at least since the decision in Thornhill v. State of Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940), picketing is an exercise of that freedom of expression which is protected against state abridgment by the Fourteenth Amendment to the United States Constitution, and that the validity of restraints on picketing must be weighed according to standards applicable in determining the validity of governmental interference with First Amendment freedoms. However, despite the broad and sweeping generalizations found in the Thornhill opinion, subsequent decisions make it clear that picketing may be regulated when its purposes or the manner in which it is conducted run counter to state policy in an area open to state regulation. As Mr. Justice Frankfurter has summarized the situation: “It has been amply recognized that picketing, not being the equivalent of speech as a matter of fact, is not its inevitable legal equivalent. Picketing is not beyond the control of a State if the manner in which picketing is conducted or the purpose which it seeks to effectuate gives ground for its disallowance.” Hughes v. Superior Court, etc., 339 U.S. 460, 465-466, 70 S.Ct. 718, 721, 94 L.Ed. 985 (1950).

While there has been no decision by the Supreme Court of the United States passing specifically on the power of a state to limit the number of pickets, there is no lack of dicta to the effect that such regulation may be validly imposed. Even in Thornhill, the opinion of Mr. Justice Murphy, speaking for eight members of the Court, stressed, among other things, the fact that the legislation there struck down contained no exception based on the number of pickets. 310 U. S. at p. 99, 60 S.Ct. at p. 742. It is significant that recognition of the power of the states to limit the number of pickets is often found in opinions of members of the Court who consistently supported the right to picket as an exercise of freedom of expression.

The concession that government may validly limit the number of pickets is no more than a recognition of what is a classic distinction in the theory of freedom of expression. That distinction is the one between a regulation which governs the time, place and manner of expression, and legislation which attempts to limit or control the content of discussion. No one has seriously contended that expression is constitutionally protected against restraints of the nature of what may be called “reasonable parliamentary rules.” Under any theory, speech is subject to reasonable regulations in the interest of order.

Our statute does not, as did the ordinance condemned in Thornhill, proscribe all picketing at all times and at all places. It may be, as contended by defendants, that the distance and numbers formula, as applied to some situations, would, in fact, render otiose efforts to publicize the facts of a labor dispute by picketing and thus constitute an unreasonable interference with freedom of expression. But this does not require that the statute be relegated to the limbo of unconstitutional legislation. A statute valid as to one state of facts may be invalid as to another. Nashville, C. & St. L. R. Co. v. Walters, 294 U.S. 405, 55 S.Ct. 486, 79 L.Ed. 949 (1935).

We, therefore, overrule defendants’ contention that Section 1(1) of Article 5154d .is an unreasonable impairment of the right to disseminate information concerning a labor dispute. We have carefully examined the record before us and find nothing to justify the conclusion that, as applied to the facts of this case, the regulation operates as an unconstitutional abridgment of the right of freedom of expression. The physical facts here are such that two pickets can be stationed at every entrance to the cafe without violating the statute, so that the dissatisfied employees can communicate their message to all persons who attempt to enter the restaurant, be they prospective customers, employees or suppliers.

Defendants take special exception to the legislative imposition of a limitation on the number of pickets, apparently espousing the desirability of a judicial determination, on a case-by-case basis, of what is a reasonable number under the circumstances. We are, of course, not concerned with the wisdom of the legislative decision to formulate a precise, objective standard, but it may be pointed out that the labor movement was less than enthusiastic concerning the results of judicial regulation of labor disputes on a case-by-case basis.

What has been said above concerning the validity of a statutory limitation on the number of pickets vis-a-vis the constitutional guarantee of freedom of expression is equally applicable to defendants’ contention that such restriction is an unconstitutional interference with the right of peaceable assembly. The right to assemble peaceably is “cognate to those of free speech and free press.” De Jonge v. State of Oregon, 299 U.S. 353, 364, 57 S.Ct. 255, 260, 81 L.Ed. 278 (1937). Like the right to freedom of expression, the right of assembly “may be regulated in the interest of all; it .is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order,” although it cannot, under the guise of regulation, be denied. Hague v. C.I.O., 307 U.S. 496, 59 S.Ct. 954, 83 L. Ed. 1423 (1939). The aspects of picketing which prevent its complete identification with freedom of expression also prevent assembly from being the factual or legal equivalent of expression. If a numerical limitation on picketing is valid, then such a limitation on assemblage for the purpose of picketing must be equally valid.

Insofar as Boyd v. Deena Artware, Inc., Ky., 239. S.W.2d 86 (1951), holds that a limitation on the number of pickets is an abridgment of the right of free assembly, it appears to run counter to accepted doctrine. United Electrical, R. & M. Workers v. Baldwin, 67 F.Supp. 235 (D.C.Conn.1946); Phelps Dodge Copper Products Corp. v. Electrical, R. & M. Workers of America, 138 N.J.Eq. 3, 46 A.2d 453 (Ch. Ct. 1946, aff’d, Westinghouse Electric Corporation v. United Electrical, Radio & Machine Workers of America, etc., 139 N.J.Eq. 97, 49 A.2d 896).

The ban on the use of the red and black flag is based on the trial court’s conclusion that the display of such a banner in the City of Laredo violated the provisions of Secs. 1(2) and 3 of Article 5154d. This conclusion rests on the fact that, prior to the commencement of the strike, 80% of the customers of the Southland Cafe were visitors from the Republic of Mexico, and on testimony relating to the labor laws of Mexico.

The pertinent testimony was given by two members of the Mexican Bar, Messrs. Jose Leopoldo Lara Salinas and Gustavo Garza Guerra. They testified, in effect, that when Mexican workers wish to express their dissatisfaction with their working conditions by calling a strike, they must follow the procedures established by law. The workers prepare a petition or memorandum stating their grievances and specifying the date on which the strike will begin. This petition is transmitted to the employer through a board of conciliation and arbitration, a governmental agency. The employer has 48 hours within which to answer the petition, and the board then sets a hearing for the purpose of attempting to reconcile the differences between the parties. If the attempt at conciliation fails, then, according to Mr. Guerra, the governmental agency declares that a state of strike exists. After such declaration, work at the employer’s place of business is suspended, the business is closed, and it is illegal for any person to enter the strike-bound premises, with the exception of such person as may be designated to enter for the purpose of maintaining machinery.

The workers make known the existence of the strike by displaying a red and black flag, usually attached to the building at or near the entrances, and by picketing. Mexican labor law contains no reference to picketing or to the display of any banner. The red and black banner has been adopted by Mexican labor as the symbol signifying that a strike is in progress. The evidence in this case discloses that the banner displayed by defendants was obtained from the C.T.M. (Confederation of Mexican Workers), a Mexican labor organization.

The trial court found that the display of the banner created an “obstacle to the free ingress and egress of plaintiffs’ business in violation of Sec. 1(2) of Article 5154d * * * ” because the majority of plaintiffs’ customers “would feel that they were violating some law” if they crossed the picket line.

The statutory provision relied on by the court declares that “mass picketing,” .which is prohibited by the statute, shall include, among other things, any form of picketing in which the pickets “constitute or form any character of obstacle to the ingress to and egress from any entrance to any premises being picketed or to any other premises, either by obstructing said free ingress or egress by their persons or by the placing of vehicles or other physical obstructions.”

There is no evidence in the record to support the finding that the use of the banner constituted an obstacle to the ingress to and egress from the Southland Cafe. No one who desired to do so was physically prevented from entering the restaurant. Plaintiffs’ principal witness testified categorically that no one was physically prevented from entering the restaurant.

Perhaps the trial court felt that the display of the banner constituted a mental or psychological barrier to those desiring to enter the cafe. The simple answer to this is that the statutory provision on which plaintiffs rely clearly relates only to physical obstructions. The statute talks solely in terms of an “obstacle” formed by the person of the picket or by a vehicle or other “physical” obstruction. One of the basic purposes of maintaining a picket line is to deter those who are sympathetic to the strikers’ cause from dealing with the employer. If the picket line has the desired effect, there will be created in the minds of potential customers a disinclination to enter the strike-bound premises. If this psychological effect of a picket line is sufficient to brand it ilfegal as mass picketing, then the result of the statutory language is to prohibit all successful picketing. Such an interpretation would render the statute unconstitutional. As was said in Thornhill: “It may be that effective exercise of the means of advancing public knowledge may persuade some of those reached to refrain from entering into advantageous relations with the business establishment which is the scene of the dispute. * * * But the group in power at any moment may not impose penal sanctions on peaceful and truthful discussion of matters of public interest merely on a showing that others may thereby be persuaded to take action inconsistent with its interests.” 310 U.S. at p. 104, 60 S.Ct. at p. 745. As the Texas Supreme Court said in Ex parte Henry, 147 Tex. 315, 215 S.W.2d 588, 595 (1948): “Under the decisions of the Supreme Court * * *, picketing does not offend against the statutes merely because third parties who come to the area of the dispute may prove sympathetic to one disputant rather than to the other.”

Sec. 3 of Article 5154d makes picketing unlawful where it “is accompanied by slander, libel, or the public display or publication of oral or written mispresenta-tions.” We find nothing in the record to support the trial court’s finding that the display of the banner in this case constituted a misrepresentation.

Plaintiffs’ position is based on the theory that Mexican visitors seeing the banner in front of the cafe would assume, erroneously, that the law of Texas was the same as the law in Mexico, and that, therefore, they would mistakenly believe that the cafe was closed and that they would be suject to criminal sanctions if they crossed the picket line. Since plaintiffs’ cafe was, in fact, open for business, and since, in this country it is not a criminal act to cross a picket line, it is urged that the pickets, by displaying the banner, were misrepresenting facts. But a consideration of the evidence demonstrates that this argument is untenable.

The testimony of the experts on Mexican law clearly establishes the fact that it is the existence of the strike, rather than the means chosen by the strikers to publicize the labor dispute, which has the effect, under Mexican law, of closing the employer’s business and making entry into the employer’s premises a criminal act. The closing of the business and the prohibition of entry automatically follow as the result of the official declaration by a governmental agency that a state of strike exists. In Mexico, then, the display of a red and black banner, and the establishment of a picket line are merely means by which the-existence of the strike is made known to the public. If a strike is actually in progress, it is illegal, under Mexican law, for the employer to attempt to continue to operate his business irrespective of whether or not a banner is displayed or picketing takes place. Similarly, it is illegal for anyone to attempt to enter the strike-bound premises irrespective of whether or not a banner is displayed or picketing takes place.

The display of the banner in front of the Southland Cafe, then, misrepresented nothing. It merely made known the fact that a strike was in progress. This representation was true. It is immaterial if, as a result of this true representation, a visitor from Mexico would reach an incorrect legal conclusion. The basic assumption which underlies plaintiffs’ reasoning is that any action by the pickets which would produce in the minds of Mexican visitors the mistaken belief that the business was closed and that entry thereto was illegal would amount to a misrepresentation and, therefore, come within the interdiction of Sec. 3 of Article 5154d. If we accept this premise, the result would be that, because of the peculiarities of Mexican labor law, and because of the ignorance of the law of this country on the part of Mexican visitors, the strikers in this case would completely lose their right to make known the facts of the labor dispute. Whatever means these workers in Laredo might employ to make known to - 80% of plaintiffs’ customers the fact of the existence of the strike would, if we accept plaintiffs’ theory, lead to the same erroneous conclusions on the part of the visitor. The presence of pickets would, in Laredo as in Mexico, indicate that a strike was in progress and would, if we accept plaintiffs’ argument, be a violation of Sec. 3 because it would lead Mexican visitors to assume that plaintiffs’ business was closed. The only way that these strikers could avoid misleading Mexican visitors would be for them to make every effort to conceal from the overwhelming majority of plaintiffs’ customers the fact that the employees of the South-land Cafe were on strike.

Plaintiffs’ theory would not only result in depriving workers in Laredo of the right to make known the facts of a labor dispute, but it would compel the conclusion that plaintiffs themselves were guilty of misrepresenting the facts in this case. The evidence shows that plaintiffs placed signs on their doors announcing, in Spanish, that the cafe was open for business. Under the Mexican law, the restaurant could not be open for business if a strike was in progress. If we assume that plaintiffs’ Mexican customers were convinced that Mexican statutes controlled labor disputes in this country, the display of such signs by plaintiffs constituted a false representation that no strike was in progress.

Even if we are willing to accept the proposition that a foreign tourist’s ignorance of Texas law can result in the loss of constitutional rights by Texas workmen, there is no testimony supporting the assumption that plaintiffs’ Mexican customers believed that the restaurant was closed or that it would be illegal for them to enter. Plaintiffs, apparently in an effort to show that all Mexicans who came to Laredo believed that Mexican labor statutes are applicable in this country, asked one of their experts what the display of a red and black flag in front of a business establishment in this country would mean to him. He answered: “That there is a conflict between the factory and the production and therefore work is suspended.” The meaning of the phrase “conflict between the factory and the production” eludes us, but it is clear that this expert would conclude simply that there was a labor dispute and that “therefore work is suspended.” When we consider that this same witness defined a strike “as a temporary legal suspension of work,” it is patent that, to him, the presence of a red and black flag in front of the Southland Cafe in Laredo, Texas, would simply signify, correctly, that a strike was in progress.

There is no testimony to the effect that any person whatever refused to enter the restaurant because he thought it was closed or because he thought he would be punished if he entered. Plaintiffs’ principal witness testified that he saw some persons who started to enter but changed their minds when they saw the banner. Even if we overlook the fact that such statement was merely a conclusion on the part of the witness, it falls far short of indicating that the disinclination to enter was the result of fear of prosecution, or the mistaken belief that the cafe, despite signs on its doors announcing that it was open for business, was closed, or the fact that the potential customer, realizing that a strike was in progress and being sympathetic to the workers’ cause, decided to take his business elsewhere. Significantly, at least one of plaintiffs’ employees, a Mexican citizen who lived on the Mexican side of the Rio Grande, did not join in the strike and reported for work every day, despite the picketing and the display of the banner. He, at least, did not mistakenly believe that the cafe was closed and apparently did not believe that he would be arrested for crossing the picket line.

The use of the word “huelga” by the pickets in conjunction with the display of the banner does not justify the injunction. The right to make known the existence of a labor dispute is not limited to use of the English language. Certainly, the attempt at communication is not rendered illegal simply because effective means of communication are used. No one would contend, other than with tongue in cheek, that one of our basic liberties is restricted to the right to communicate in an ineffective manner. The most effective way to communicate the facts of a labor dispute to visitors from Mexico is by use of the Spanish language.

The judgment of the trial court is modified by striking therefrom the portion enjoining use by the pickets of a red or black banner and by striking therefrom the portion prohibiting use of a red or black banner in conjunction with use of the Spanish word “huelga.” As so modified, the judgment of the trial court is affirmed. The costs of this appeal are taxed one-half against appellants and one-half against appellees.

      . “Section 1. It shall be unlawful for any person, singly or in concert with others, to engage in picketing or any form of picking activity that shall constitute mass picketing as herein defined.
      “ ‘Mass picketing,’ as that term is used herein, shall mean any form of picketing in which:
      “1. There are more than two (2) pickets at any time within either fifty (50) feet of any entrance to the premises being picketed, or within fifty (50) feet of any other picket or pickets.”

      . The post-Thornhill decisions are discussed by Mr. Justice Frankfurter in his opinion in International Brotherhood of Teamsters Union etc. v. Vogt, 354 U.S. 284, 77 S.Ct. 1166, 1 L.Ed.2d 1347 (1957).

      . The fact that picketing, although it contains ingredients of communication, cannot be dogmatically equated with the constitutionally protected freedom of expression has been recognized by two members of the present Court who espouse the theory that First Amendment freedoms are “absolutes.” Thus, Mr. Justice Douglas, dissenting in Bakery & Pastry Drivers and Helpers Local No. 802 etc. v. Wohl, 315 U.S. 769, 776-777, 62 S.Ct. 816, 819 (1941), observed: “Picketing by an organized group is more than free speech, since it involves patrol of a particular locality and since the very presence of a picket line may induce action of one kind or another, quite irrespective of the nature of the ideas which are being disseminated. Hence these aspects of picketing make it the subject of restrictive regulation.” Mr. Justice Black has, seemingly, gone further, regarding picketing as conduct rather than speech. In his concurring opinion in Cox v. State of Louisiana, 379 U.S. 536, 577, 578, 85 S.Ct. 453, 468, 13 L.Ed.2d 471 (1965), after speaking of the validity of legislation “regulating conduct — patrolling and marching —as distinguished from speech," Mr. Justice Black observed: “Picketing, though it may be utilized to communicate ideas, is not speech, and therefore is not of itself protected by the First Amendment.” (The emphasis is Mr. Justice Black’s.)

      . Mr. Justice Reed, dissenting in Milk Wagon Drivers etc. v. Meadowmoor Dairies, 312 U.S. 287, 318-319, 61 S.Ct. 552, 567, 85 L.Ed. 836 (1941), conceded that picketing might validly be limited “to two or three individuals at a time.” See also the dissenting opinion of Mr. Justice Douglas in Vogt, supra, n. 2, 354 U.S. at p. 296, 77 S.Ct. at p. 1172.

      . . Oalvern, the Concept of the Public Eorum: Cox v. Louisiana, 1965 Sup.Ct. Rev. 1, 23.

      . Frankfurter & Greene, The Labor Injunction (1930); Sayre, Labor and the Courts, 39 Yale L.J. 682 (1930). The varying results from judicial efforts to impose numerical limitations on picketing are discussed in 1 Teller, Labor Disputes and Collective Bargaining, § 125 (1940).


source: Caselaw Access Project

author: CLAUDE WILLIAMS, Justice.

license: Public Domain

text:
    CITY OF DENISON et al., Appellants, v. JENNINGS FURNITURE COMPANY, Inc., Appellee.
    No. 17011.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 2, 1968.
    Rehearing Denied Feb. 23, 1968.

      Charles H. Gullett, Robert Doss, Deni-son, for appellants.
    Jack G. Kennedy, Sherman, for appellee.
   CLAUDE WILLIAMS, Justice.

Jennings Furniture Company, Inc. brought this action against the City of Denison, Texas and the Denison Peanut Company seeking a mandatory injunction, and in the alternative, damages allegedly sustained to its property by virtue of the construction of a building across an alley in Denison. Plaintiff alleged that its property had a fair market value of $51,530 prior to the closing of the alley by the construction of the building and that the value afterwards was only $26,530. Following jury trial a special issue verdict was returned supporting plaintiff’s theory of recovery. In answer to Special Issue No. 9 the jury found that the fair market value of plaintiff’s property prior to the construction of the building in question was $43,044. In answer to Special Issue No. 10 the jury found that the fair market value of the property following such construction was $33,218. Based upon such verdict the court denied the request for mandatory injunction for the removal of the building but awarded judgment in favor of plaintiff and against the defendant Denison Peanut Company in the sum of $9,826. Defendants appeal. We affirm the judgment.

OPINION

Appellants’ contention that the trial court’s judgment should be reversed is contained in two points of error in which it is asserted that the jury having expressly, or impliedly, agreed to be bound in advance to quotient answers to questions submitted on valuation, the trial court committed error in not granting a new trial.

In support of their contention concerning jury misconduct appellants bring forward testimony of eleven jurors (one of the jurors having died since the trial) given at the hearing of the motion for new trial.

We have carefully read and evaluated the evidence given by each of the jurors. It would serve no useful purpose to extend this opinion by reproducing the testimony of the various jurors but we content ourselves with the following summarization.

It is without dispute that when the jury arrived at that part of their deliberation of the special issue contained in the court’s main charge dealing with the amount of damages to appellee’s property the jurors generally agreed that a good way to obtain a consensus of damage figures would be to have each juror write his idea upon a piece of paper, hand it to the jury foreman, and allow him to add same and divide the result by 12. According to practically all of the jurors this procedure was followed. When the jurors had written their respective estimates of damages in answer to Special Issue No. 9 the foreman added all of the twelve figures, divided the result by 12, and found the answer to be $43,044. The same procedure was followed with reference to Special Issue No. 10 and this figure turned out to be $33,218. The foreman of the jury, as well as a number of other jurors, testified that at this point a vote was taken and that it was unanimously agreed that these two figures should be inserted as answers to Special Issues Nos. 9 and 10. A majority of the jurors testified positively that the vote on the issues themselves came after, and not before, the mathematical process which developed the figures.

As to the reason why the mathematical process was utilized in the first place, it seemed fairly obvious that the jurors were having difficulty in getting started on the proper answer to be given the two issues on damages and it was generally decided that this process would be a “fair” or “democratic” method to reach a common ground of understanding. In other words, it was decided that this would be a good method to reach a starting point.

As to the question of whether there was an express or implied agreement entered into between the jurors whereby they would be bound by the results of the quotient amount the evidence is conflicting. One or more jurors testified that there was such an agreement among the jurors which was made prior to determination of the amount. However, these jurors varied their testimony somewhat on cross-examination. The foreman of the jury, as well as the majority of the jurors, testified positively and unequivocally no such prior agreement had been entered into between the jurors which would bind them to receive and accept the results of the mathematical calculation. Each of these jurors was firm in his testimony that the initial mutual assent to follow this procedure was nothing more than an effort to get started on the eventual results and that after the figures had been ascertained it was then, and only then, that the vote was taken and that each of the jurors agreed that such would be the verdict.

The law controlling the question of improper or quotient verdicts of juries is set forth in 57 Tex.Jur.2d, § 401, pp. 33, 34, as follows:

“It is improper for jurors to agree either expressly or by implication, to assess damages * * * in terms of the result reached by adding the amounts favored by each juror and dividing the total by the number of jurors. A verdict arrived at by this method is known as a quotient verdict, and, as such, it is invalid.
“The method of computation described may be resorted to, however, where the figure arrived at is meant to serve only as a basis for further discussion, and the jurors have not agreed to be bound by the result. This is true even though the average figure is subsequently agreed on as the amount recoverable * * *.”

Prior to the adoption of Rule 327, Vernon’s Texas Rules of Civil Procedure, there was a presumption of prejudice from jury misconduct. In order to dispel any doubts about its attitude on the rule of presumption of prejudice the Supreme Court of Texas ' promulgated Rule 327, T.R.C.P., which provides :

“Where the ground of the motion is misconduct of the jury * * * the court shall hear evidence thereof from the jury or others in open court, and may grant a new trial if such misconduct proved, * * * be material, and it reasonably appears from the evidence both on the hearing of the motion and the trial of the case and from the record as a whole that injury probably resulted to the complaining party.”

The Supreme Court, in Barrington et al. v. Duncan et al., 140 Tex. 510, 169 S.W.2d 462 (1943) laid down the guidelines for proper application of this rule, in the following language:

“A reading of the above rule will disclose that its effect is to abolish the prior rule of reasonable doubt, and substitute therefor a rule which imposes upon the party asserting misconduct the burden not only of proving by a preponderance of the evidence that such misconduct occurred, but also of showing that such misconduct probably resulted in injury to him. If the evidence is conflicting on the question as to whether or not the misconduct actually occurred, the decision of the trial court either way on that question should be accepted as final. When misconduct is established, the question of injury is one of law for the reviewing court. Under the above-quoted rule both the trial and reviewing courts have the right to view the matter in the light of the entire record. By the entire record we mean the evidence heard on the motion presenting misconduct, the evidence on the main trial, and any and all other parts of the record which may throw light on the question of injury.”

In a more recent opinion our Supreme Court in State of Texas v. Wair, 351 S.W.2d 878 (1961), again stated the rule concerning judicial review of jury misconduct, as follows:

“The trial court’s refusal to grant a new trial upon an express or implied finding of no occurrence of jury misconduct is ordinarily binding on the reviewing courts and will be reversed only where a clear abuse of discretion is shown. Barrington v. Duncan, 140 Tex. 510, 169 S.W.2d 462 (1943); Maryland Casualty Co. v. Hearks, 144 Tex. 317, 190 S.W.2d 62 (1945); Saladiner v. Polanco, Tex.Civ.App., 160 S.W.2d 531 (1942, error refused); Thompson v. Railway Express Agency, Tex.Civ.App., 206 S.W.2d 134 (1947, n. r. e.); Martin v. Shell, Tex.Civ.App., 262 S.W.2d 564 (1953, no writ); Morgan v. State, Tex.Civ.App., 343 S.W.2d 738 (1961, ref., n. r. e.).”

To the same effect see Brawley v. Bowen, 387 S.W.2d 383 (Tex.Sup.1965).

Applying these established rules to the factual situation presented by this record we find no difficulty in concluding and holding that no jury misconduct occurred. The evidence adduced before the trial judge was indeed conflicting but his implied finding that no misconduct occurred is binding upon us.

Moreover, appellants have not brought forward a point of error, nor have they demonstrated in any other fashion, the existence of the second necessary element, namely, probable harm. In this connection there is no statement of facts on the merits of the case so we must presume that the evidence adduced during the trial of the case supports the answer of the jury to both Special Issues 9 and 10. In fact, appellants make no contention that the answers of the jury to the damage issues were excessive or not supported by the evidence.

We have examined the record before us, as we are required to do by the rule announced by the Supreme Court, and we resolve the question of law concerning injury by holding that no injury is apparent.

Appellants’ points of error are overruled and the judgment of the trial court is affirmed.


author: O’QUINN, Justice.

text:
    CITY OF AUSTIN, Appellant, v. Charles A. WEBSTER, Appellee.
    No. 11562.
    Court of Civil Appeals of Texas. Austin.
    Jan. 31, 1968.
    Rehearing Denied Feb. 28, 1968.
    Doren R. Eskew, City Atty., Robert L. Andrews, Jr., H. Glenn Cortez, Asst. City Attys., Austin, for appellant.
    Garey, Colbert & Kidd, Joe’ Colbert, Austin, for appellee.
   O’QUINN, Justice.

The City of Austin, a self-insurer under Article 8309e of the Texas Workmen’s Compensation Law, brings this appeal from judgment in district court awarding total and permanent compensation benefits to Charles A. Webster.

Appellee Webster filed notice of injury and claim for compensation with the Industrial Accident Board on February 15, 1966, for an injury to his back claimed to have occurred January 25, 1966, while working as an employee of the street and bridge department.

Appellant City of Austin on March 15, 1966, filed with the Board certain forms, a letter from its attorney, and two medical reports from Dr. Robert G. Farris showing results of examinations made of Webster February 3 and March 9. The City of Austin contends that based on these filings adequate admission of liability and proper demand for surgery were made.

The Board on March 21, 1966, advised the City of Austin that no action was being taken by the Board on the demand for surgical operation “since the medical evidence does not support demand for surgery according to the provisions of Board Rule 5.201.” The rule requires that the demand for surgery, by either the claimant or the insurer “shall be accompanied by a medical report setting forth that an operation will relieve the condition of the injured employee or will materially benefit him and that such operation is immediately necessary and is not ordinarily unsafe.”

In neither of his reports did Dr. Farris recommend surgery. In the first report Dr. Farris recommended that Webster remain off work and expressed a desire to re-examine the claimant “in ten days.” In the second report, dated March 9, Dr. Far-ris stated, “The patient’s physical findings are virtually nil at this time,” and made no recommendation of surgical treatment.

Payments to Webster were discontinued by the City of Austin September 16, 1966. Webster requested a hearing October 13, and on November 9 the insurer requested an additional examination by Dr. Farris.

Based on his examination of Webster on December 1, 1966, Dr. Farris reported:

“At this time the patient would be able to pass any pre-employment physical examination. He has no discernable [sic] or determinable impairment of function and I see no reason why he could not be working daily. One wonders why a healthy looking young man like this does not go out and work * * *
I am unable to make any medical diagnosis on the man at this time and have no recommendations for further diagnostic procedure or treatment.”

The Industrial Accident Board entered its award December 27, 1966, and denied the demand for surgery. Webster appealed from award of the Board and filed suit in district court January 3, 1967.

The trial court refused to permit the City of Austin to introduce evidence of the safety, advisability and probable beneficial effects of surgery upon Webster’s back. The jury found from evidence, which the City of Austin admits was sufficient, that Webster’s total incapacity was permanent. Judgment of the district court allowed credit for prior compensation payments to Webster, but allowed no credit for payment of personnel policy benefits. The judgment also expressly provided that no adjudication was made with respect to Webster’s claim for future medical aid, hospital services, nursing, chiropractic services and medicines.

Appellant City of Austin under three points of error contends (1) that evidence regarding possible beneficial effects of surgery should have been admitted, (2) that credit for personnel policy payments was improperly denied, and (3) that the court should have adjudged affirmatively that the City of Austin would not be liable for future medical and hospital services.

We consider the first point of error controlled by the holding of the Supreme Court in Truck Insurance Exchange v. Seelbach, 161 Tex. 250, 339 S.W.2d 521, and case law stemming from that decision. In the Seelbach case the Supreme Court construed the surgery sections of Article 8306 (Sections 12b and 12e), Vernon’s Ann. Civ.St., to give the Industrial Accident Board exclusive power to order or supervise an operation or to direct a medical examination for the purpose of determining the advisability of an operation. » The courts were held not to be clothed with such powers. “Where the statute directs that action be taken in a certain way,” the Court declared, “it may be performed in no other manner.” 339 S.W.2d 521, 523, col. 2.

The City of Austin contends that it complied with the steps required of it to invoke the action of the Industrial Accident Board and to lay a predicate for the introduction of evidence in trial court as to beneficial effects of surgery. While there may be some doubt that the admission of liability was sufficient, we do not find it necessary to decide this question. Assuming that all steps were timely and properly taken by the City of Austin, the Board did not order an operation and put the claimant to an election to undergo surgery or not. The Board denied the demand for surgery. Similar facts were before the Supreme Court in Garcia v. Travelers Insurance Company, 365 S.W.2d 916 (Tex.1963) in which it was held that neither the trial court nor the court of civil appeals could direct and supervise an operation. The insurer was not entitled to prove the beneficial effects of surgery.

In Houston Fire and Casualty Insurance Company v. Dieter, 409 S.W.2d 838 (Tex.1966) the Supreme Court distinguished cases in which medical testimony may be tendered asserting beneficial effects of “unperformed surgery,” as in the Seelbach and Garcia cases, from those cases in which “surgical procedures have been utilized.” In the Dieter case it was held that results of an operation were properly the subject of proof. In such case, the Court pointed out, “ * * * the trial court is not being called upon to order or supervise surgery or act in any respect as an administrative board.” 409 S.W.2d 838, 841, col. 1.

In the Dieter case the Supreme Court reviewed the problems presented in the Seelbach case, which the Court observed to be “two-fold: first, the obvious speculative element of opinion testimony as to the possible results of surgery which had not occurred and might never occur; and second, the undesirable result which was described as being ‘tantamount to applying the provisions of §§ 12b and 12e in the trial court.’ ” 409 S.W.2d 838, 840, col. 2.

The question of an operation must be decided while the case is before the Industrial Accident Board. Consolidated Underwriters v. Foster, 383 S.W.2d 829, Tex.Civ.App., Tyler, writ ref., n. r. e.; Texas Employers’ Ins. Assn. v. Ellis, 365 S.W.2d 676, Tex.Civ.App., Texarkana, writ ref., n. r. e. The inquiry at the trial of a workmen’s compensation case is the extent of incapacity of the injured employee at that time. Houston Fire and Casualty Insurance Co. v. Dieter, supra.

Assuming as we have that the City of Austin made timely and valid admissions of liability and demand for surgery before the Board, it is clear that the Board had before it no evidence that an operation would cure or improve Webster’s condition. The Board decided the question of operation, or the need for an operation, when it denied the demand for surgery. Evidence in the trial court concerning beneficial effects of an operation was inadmissible. Consolidated Underwriters v. Foster, supra; Aetna Casualty and Surety Company v. Depoister, 393 S.W.2d 822, Tex.Civ.App., Corpus Christi, writ ref., n. r. e.

It would appear that the surgery sections of Article 8306 were meant to afford an administrative means of inquiring into the advisability of an operation to cure or relieve the effects of an injury to the workman. Under this statute the Board by unanimous action may order an operation when it is advisable. We think it was not contemplated that the insurer would he permitted, by admitting liability and demanding surgery before the Board, to prove in court by “conjecture and opinion evidence” that the extent and duration of the claimant’s disability and his incapacity might be reduced through surgery, after the Board has refused to order an operation. Seelbach case, 339 S.W.2d 521, 524, col. 2.

The trial court properly excluded all evidence of the safety, advisability and probable beneficial effects of surgery upon the claimant’s back. Appellant’s first point is overruled.

Under its second point, Appellant City of Austin argues that under the trial court’s judgment credit should have been allowed the insurer for personnel policy payments made to the claimant. The judgment awarded total and permanent disability benefits and allowed credit for all workmen’s compensation payments previously made to the claimant. The judgment did not allow credit for $437.48 in personnel policy payments.

We consider this question settled by this Court in City of Austin v. Clendennen, 323 S.W.2d 158, Tex.Civ.App., Austin, writ ref., n. r. e. The second point is overruled.

Appellant complains under point three that the trial court did not affirmatively decree that the City of Austin would not as an insurer be liable in the future for medical and hospital services required to treat the injury claimed under this case. Ap-pellee confesses on appeal not to have asserted a claim for future medical expenses in this lawsuit.

Under the holding of the Supreme Court of Texas in City of Austin v. Crooks, 162 Tex. 189, 346 S.W.2d 115, we believe the provisions of section 7 of Article 8306, as it read prior to amendment in 1957, limit liability of the municipal insurer for hospital services to a period of 180 days from the date of injury. While the claimant did not seek future medical expenses, and inclusion in the trial court’s judgment of the statement that no adjudication of future expenses was made appears to have been invited by appellant in its objection to motion for judgment, we feel inclusion of the statement does not prejudice the insurer. We decline to reform the trial court’s judgment to delete the statement. The third point is overruled.

The judgment of the district court is affirmed.

Affirmed.


author: SAM D. JOHNSON, Justice.

text:
    Franzel Keyser GLOVER, Appellant, v. The CITY OF SOUTH HOUSTON, Texas, Appellee.
    No. 71.
    Court of Civil Appeals of Texas. Houston (14th. Dist.).
    Feb. 7, 1968.
    Rehearing Denied Feb. 28, 1968.

      David J. Nagle, Houston, for appellant.
    Charles B. Spicer, Jr., Pasadena, for ap-pellee.
   SAM D. JOHNSON, Justice.

The appellant, Frenzel Keyser Glover, brought this action against the City of South Houston for injuries she sustained in an automobile accident occurring at a roadway intersection in that city. At the intersection where this collision occurred, the city had located and installed a traffic control light overhead. Plaintiff alleged that at the time of the collision the traffic control light showed a green light to the appellant and no light to a car approaching on a cross street. As a result, both cars entered the intersection at about the same time and collided, injuring appellant.

Appellant alleged that the traffic light controlling the intersection where Mrs. Glover was injured was defective, that the City knew of the defect, that the City was negligent in failing to maintain, inspect, or repair the light, or alternatively, that the City was negligent in failing to warn appellant of the defect of which the City was aware.

The City answered with a plea in abatement praying for dismissal because the plaintiff’s petition stated no cause of action in that the sole basis for the suit were certain acts of negligence, all of which were concerned with defendant’s duty arising out of the installation and maintenance of a traffic light in the City of South Houston. Further, that the installation and maintenance of traffic lights by the City was solely a governmental function by reason of which the defendant had immunity and by which plaintiff is barred from any recovery or judgment against the defendant. The trial court sustained the plea in abatement and judgment was entered dismissing plaintiff’s suit, from which order appeal was duly made.

Appellant’s points of error are that the trial court erred in sustaining the appellee’s plea in abatement, in holding that the function of keeping an overhead traffic control light in operating condition was a governmental function and in entering judgment that appellant’s suit be dismissed.

It is well established that the maintenance of streets is a proprietary function. Negligence on the part of the City in the performance of this duty to maintain its streets in a reasonably safe condition renders the City liable for resulting injuries. This is true even though “the unsafe condition is caused by the improper location of a governmental function instrumentality or the failure to properly guard such instrumentality so as to render it reasonably safe.” Voigt v. City of Corpus Christi, 419 S.W.2d 445 (Tex.Civ.App.); City of Austin v. Schmedes et al., 154 Tex. 416, 279 S.W.2d 326, 52 A.L.R.2d 680; Crow v. City of San Antonio, 157 Tex. 250, 301 S.W.2d 628; City of Austin v. Daniels, 160 Tex. 628, 335 S.W.2d 753, 81 A.L.R.2d 1180; and Kling v. City of Austin, 62 S.W.2d 689 (Tex.Civ.App.), n. w. h.

It is equally established that a municipality is not liable in damages for the torts of its employees, agents or officials when performing a governmental function. City of Austin v. Daniels, supra, Luvaul v. City of Eagle Pass, Tex.Civ.App., 408 S.W.2d 149, writ ref., n. r. e. The regulation and control of traffic as well as the use of traffic control lights therefore falls in the category of a governmental function of the city. Voigt v. City of Corpus Christi, supra; citing numerous cases.

We believe that the issue presented here has been effectively determined by the recent case of Voigt v. City of Corpus Christi, supra. There a summary judgment had been given the City in a case where the plaintiff had received injuries as a result of an automobile accident caused by a similar malfunctioning or inoperative city traffic control light. Plaintiff’s petition contained no allegations of the use by the city of any means constituting a dangerous physical obstruction of the streets at the intersection where the accident happened. “The only allegations in plaintiff’s petition of the City’s negligence concerned the conduct of city in connection with the governmental function of regulation and control of traffic because the city failed to take action to protect the users of the street from the malfunctioning light in that it failed to place a policeman or other employee to direct traffic and it failed to remove or repair the traffic light before the accident happened.” Under these circumstances, the Corpus Christi Court said, “Assuming the truth of all material facts alleged, we hold that no cause of action was stated by plaintiff when confronted with defendant’s plea of governmental immunity; and even though due proof should be made of the pleaded facts, the court would be required to give an instructed verdict for defendant; hence, the summary judgment was properly rendered.”

This same reasoning is applicable to the similar fact situation presented by the case at bar. We accordingly affirm the judgment of the trial court.


author: BELL, Chief Justice.

text:
    Charles STRICKLAND, Appellant, v. Norma STRICKLAND, Appellee.
    No. 15211.
    Court of Civil Appeals of Texas. Houston (1st Dist.).
    Feb. 15, 1968.

      Markwell, Stubbs, Decker, Dalehite & Youngblood, Thomas W. Youngblood, Jr., Galveston, for appellant; Elmo M. Johnson, Galveston, of counsel.
    Henry S. Coltzer, Galveston, for appel-lee.
   BELL, Chief Justice.

This is an appeal from an order of the trial court sustaining appellee’s plea of privilege. The case was ordered transferred to El Paso County.

On March 23, 1965, in the Domestic Relations Court of Galveston County, appel-lee obtained a divorce from appellant. Ap-pellee was granted the care, custody and control of the three minor children. Appellant. the father of the children, was given “the right of reasonable visitation with said minor children,” and the decree further provided that “Defendant further shall have the right to be with and take said children with him on Saturday of each and every week, with the exception of the youngest child, which he shall have the right of visitation with, and further shall have the right to take said child with him on Saturday of each and every week commencing when said child shall reach the age of two years, all until further order of this Court.” (emphasis ours). Child support of $120.00 per month was to be paid by appellant.

On June 16, 1967, appellant in the same court and under Cause No. 519, which was the case number of the divorce suit, filed what he denominated “Defendant’s Motion for Change of Visitation Rights”. He alleged he was a resident of Galveston County but that appellee, the original plaintiff in the divorce suit, had “removed her residence and that of the three children to El Paso * * * ” He recited that he had been accorded reasonable and specific visitation privileges since the divorce. The divorce decree was made a part of the petition. There was then a prayer that “in view of the fact that * * * Norma Strickland has moved a distance of some 800 miles from Galveston” appellant “ought to be accorded specific visitation for said children with him and to have said children in his care for two months in every summer and for alternate Christmases and New Years, to allow him adequate time with said children.” There was then a prayer that ap-pellee be given “notice” of the “motion” and that “visitation” be increased.

A copy of the motion was served under direction of a “Precept to Serve”. It does not appear that any citation was issued. However, appellee filed a plea of privilege to be sued in El Paso County, the county of her residence.

Appellant filed his controverting plea, in which he asserted “to be false and untrue the allegations of Norma Strickland in that no exception to exclusive venue exists in this cause.” Appellant then alleges that “this Court on March 25, 1965, entered a decree of divorce, custody and visitation rights * * * ” Further he alleged “that by law that this Court has exclusive jurisdiction and venue on a change of visitation or enlargement of visitation rights.” (emphasis ours) The plea was sworn to by appellant’s attorney. Appellant’s “Motion for Change of Visitation Rights” was not made a part of the controverting plea by reference nor was his asserted cause of action set out in his plea. The attorney making the affidavit, after stating he was entitled to do so, asserted “that the facts, allegations and denials are true and correct.”

The court’s judgment sustaining the plea of privilege recites that the parties through their attorneys agreed to waive testimony and to submit the cause on written briefs and that the court could render judgment without additional evidence or testimony. The judgment then recites that the court had considered “the plea of privilege herein filed, and the facts as alleged herein” and that it was of the opinion that the plea of privilege should be sustained.

There is no statement of facts and there is nothing to show the introduction of any evidence. We take it from the recitals in the judgment sustaining the plea of privilege, which we have above noticed, that the court considered the allegations in the plea of privilege and the controverting affidavit. We do this because in a hearing of a plea of privilege the issues are as made by these two pleadings. So if we consider the allegations of the controverting affidavit as admitted, we still have no proof by the appellant, upon whom the burden of proof rests, establishing that his cause of action comes within any exception to the right of the defendant to be sued in the county of her residence. In fact the allegations in the controverting affidavit do not so much as state that appellant’s motion is one for change of visitation rights. It merely asserts what is conceived to be a correct rule of law. It asserts no fact but merely a legal conclusion. When a legally sufficient plea of privilege is filed, the plaintiff must by a controverting plea sufficient in itself allege a cause coming within an exception and must also prove such cause of action. A. H. Belo Corporation v. Blanton, 133 Tex. 391, 129 S.W.2d 619; Curlee Clothing Co. v. Wickliffe, 126 Tex. 573, 91 S.W.2d 677; Jefferies v. Dunklin, 131 Tex. 289, 115 S.W.2d 391; Meredith v. McClendon, 130 Tex. 527, 111 S.W.2d 1062; Corpus Christi Hardware Co. v. Farrar et ux., Tex.Civ.App., 417 S.W.2d 479, n. w. h.

While we feel the above probably sufficiently disposes of the venue question on appeal, we probably should briefly notice the contention of appellant that exclusive jurisdiction is in the court granting the divorce and fixing custody of minor children and fixing visitation rights to make any modifications of its order relating to rights of visitation as distinguished from a change of custody. This contention is made here and as a part of his controverting plea. His theory is that such court has continuing jurisdiction to the exclusion of all other courts.

We are unable to agree with appellant. No Texas case has been cited us and in our extensive research we have found none supporting this contention. There are many cases involving a discussion of a change in custody where there is language used by the court in which there is an indication there is a distinction between a change in custody and a change in visitation rights. In none of them, however, has it actually been held that the court had continuing jurisdiction to change rights of visitation.

We are of the view that a judgment in a divorce case awarding a divorce, fixing child custody and awarding visitation rights is the. same as any judgment and upon becoming final may in respect to custody and visitation rights not be modified except where there is a new suit alleging changed conditions which affect the welfare of the child. This is not true as to changes in a child support order because of Article 4639a, Vernon’s Ann.Tex.Civ. St., which gives to the court granting the divorce continuing exclusive jurisdiction over child support. We think this is the rationale of Lakey v. McCarroll, 134 Tex. 191, 134 S.W.2d 1016. While that was a case involving the matter of venue in a child custody case, it was contended that the last sentence of this article also encompassed changes in custody. The court expressly ruled otherwise and held continuing jurisdiction related to changes in child support.

A judgment in Texas becomes final thirty days after its rendition and can be set aside only by a direct attack or an equitable bill of review. Rüle 329b, Texas Rules of Civil Procedure. A final judgment is res adjudicata as between the parties thereto. We see no difference between a judgment fixing custody of children and fixing visitation rights and any other judgment in this respect. The continuing jurisdiction in the matter of child support is because of statute.

Affirmed.