author: DICE, Judge.

text:
    Jorge MALDONADO, Appellant, v. The STATE of Texas, Appellee.
    No. 41123.
    Court of Criminal Appeals of Texas.
    March 20, 1968.

      Brown, Daniels & Davila, by Frank Davila, II, San Antonio, on appeal only, for appellant.
    James E. Barlow, Dist. Atty., San Antonio, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Judge.

The conviction is for murder; the punishment, life.

Two grounds of error are urged by appellant in his amended brief filed with the clerk of the trial court.

In his first ground, appellant insists that the court erred in admitting the testimony of Attorney Fred Semaan regarding a telephone conversation between him and Mr. Semaan because an attorney-client relationship existed between them and the telephone conversation with his attorney was privileged, under the provisions of Arts. 38.06 and 38.10, Vernon’s Ann.C.C.P.

Appellant filed a motion to suppress certain evidence, including the testimony of Attorney Semaan relative to the telephone conversation, on the ground that an attorney-client relationship existed between them and such conversation was privileged.

At the hearing on the motion to suppress, it was shown that within a few days after the death of the deceased and before March 1, 1966, Attorney Fred Semaan, of the San Antonio Bar, began representing Eudocio B. Trevino, who was a suspect in the case. Trevino was the appellant’s uncle.

On March 1, 1966, appellant called Attorney Semaan in San Antonio, collect, by long distance telephone, from Monterrey, Mexico, and the two had a conversation pertaining to the death of the deceased. In the conversation appellant told Semaan that he called because Trevino (his uncle) told him to and that he had read in the paper about Montgomery (the deceased). When Semaan asked, “Did you have anything to do with it,” appellant said, “ ‘They have nothing on me, only that a button was found.’ ” When asked if it was his button, appellant said that “he planted it to mislead.” (Such statement was of an incriminating nature under the facts of the case.)

On the issue of whether an attorney-client relationship existed between the two, Semaan testified that in the telephone conversation he told appellant that he (Se-maan) was representing “his [appellant’s] uncle * * * ” and that he reiterated this “orally and in writing” when he later saw appellant in the police station in San Antonio on March 5. He also stated that in the telephone conversation “I made it a definite point to make it clear that I was not his attorney and couldn’t be, but that I was his uncle’s,” and told him “ * * * I represented his uncle and his uncle only.”

Appellant testified that on February 25 he called his uncle (Trevino) from Monterrey, Mexico, and that his uncle said “he already had a lawyer for me,” and that it was Fred Semaan and gave him his telephone number. Appellant testified that it was at his uncle’s suggestion that he called Attorney Semaan, and after Semaan said, “ ‘Well, if I am to represent you, I have to know everything,’ ” or “ ‘have to know the facts * * ” they continued the conversation. Appellant swore that at the time of the conversation he believed that Semaan was his attorney and continued to believe he was until several days later when he talked to Semaan at the police station in San Antonio.

At the conclusion of the hearing, the court overruled appellant’s motion to suppress and, over appellánt’s objection, permitted Attorney Semaan to relate the conversation in his testimony before the jury on the main trial.

We perceive no error, as a fact issue was raised as to the existence of an attorney and client relationship between appellant and Attorney Semaan. This was a question for the trial court to decide, and his ruling will not be disturbed upon this appeal. Harris v. Daugherty, 74 Tex. 1, 11 S.W. 921; Butler v. State, 117 Tex.Cr.R. 531, 36 S.W.2d 493; McGrede v. Rembert National Bank, et al. (Tex.Civ.App.), 147 S.W.2d 580.

In his second ground of error, appellant insists that the court erred in permitting the testimony of two witnesses to be read to the jury because “there was no showing that the jury disagreed as to the statement of said witnesses or that there were any particular points in dispute relative to their testimony.”

Reliance is had by appellant upon that portion of Art. 36.28, C.C.P., which provides :

“In the trial of a criminal case in a court of record, if the jury disagree as to the statement of any witness they may, upon applying to the court, have read to them from the court reporter’s notes that part of such witness testimony or the particular point in dispute, and no other * * ⅜»

While it does not appear from the record that the jury made known to the court, in their request, the particular point in dispute and that part of the testimony they desired to have read, no objection was made by appellant to the court’s action in having all of the testimony of one witness and all of the direct examination of the other read to the jury.

In the absence of any objection, appellant is in no position to complain and we would not be warranted in ordering a reversal by reason of the court’s action.

In Pugh v. State, Tex.Cr.App., 376 S.W. 2d 760, cited by appellant, objection was made to the court’s action, which was unauthorized under Art. 678, C.C.P., now Art. 36.28, C.C.P., and which distinguishes the case from the instant one.

The ground of error is overruled.

The judgment is affirmed.

ONION, J., not participating.


source: Caselaw Access Project

author: ONION, Judge.

license: Public Domain

text:
    Ernesto Pablo GALLEGOS, Appellant, v. The STATE of Texas, Appellee.
    No. 41129.
    Court of Criminal Appeals of Texas.
    March 20, 1968.

      Splawn & Maner, by, Don Reed, Lubbock, for appellant.
    Fred E. West, County Atty., Jack Layne and John Ward, Asst. County Attys., Lubbock, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

ONION, Judge.

The offense is driving an automobile upon a public highway while intoxicated; the punishment, assessed by the court upon a plea of guilty, five (5) days in the county jail and a fine of $125.00.

We find no merit in appellant’s claim that the trial court erred in accepting his plea of guilty because he did not understand the court’s admonishment of the consequences of his plea. The transcription of the court reporter’s notes, if any, are not before us, and we find nothing in the record to sustain such contention. The judgment reflects that the trial judge did admonish the appellant, though we note that it has been held that Article 26.13 (SOI), Vernon’s Ann.C.C.P., is not applicable to misdemeanors. Berliner v. State, 6 Tex. App. 181; Johnson v. State, 39 Tex.Cr.R. 625, 48 S.W. 70; Scott v. State, 29 Tex. App. 217, 15 S.W. 814.

In grounds of error #2 and :#5 appellant contends the trial court erred in accepting a plea of guilty in a misdemeanor case punishable by imprisonment without determining whether appellant (1) had counsel, (2) wanted counsel, or (3) was indigent and desired the appointment of counsel.

A formal bill of exception filed and approved by the trial judge reflects that 30 minutes prior to trial appellant employed counsel, but such action was unknown to the court, and at the trial in answer to the court’s inquiries the appellant stated he had no attorney and did not want an attorney to represent him in the matter. The court’s docket sheet further reflects that prior to trial the appellant was duly arraigned, given the warnings provided by Article 15.17, V.A.C.C.P., and thereafter orally waived the right to an attorney. There appears to be no claim that the appellant was actually indigent at the time of the trial so as to invoke the provisions of Article 26.04, V.A.C.C.P., absent a waiver. See Attorney General’s Opinion C-598. We find nothing in the record to mitigate against the finding of an intelligent and voluntary waiver of counsel.

In ground of error .#3 appellant claims that error resulted when the waiver of counsel was not reduced to writing. While a written waiver signed by the appellant would have been desirable, we know of no requirement that the right to counsel can be waived only in writing.

Appellant was arrested on July 16, 1967, and was tried on the morning of July 17, 1967. For the first time in his appellate brief filed in the trial court he advances the contention in ground of error #4 without citation of authority that he was entitled to the expiration of two entire days after service of a copy of the complaint and information before proceeding to trial, and that in absence of written waiver thereof filed among the papers of the cause, the court was not authorized to proceed to trial. We do not agree.

Article 25.04, V.A.C.C.P., provides that in misdemeanors it shall not be necessary before trial to furnish the accused with a copy of the information. Further, we do not understand appellant’s complaint to embrace the provisions of Article 27.11, V.A.C.C.P. It is observed that Articles 27.-12 and 26.03, V.A.C.C.P., have reference only to the service of the copy of an indictment, though arraignment is now required in all misdemeanors punishable by imprisonment. No claim is made that appellant was deprived of a copy of the complaint and information but only that he did not have two days in which to prepare for trial.

It is observed that appellant made no motion for continuance or any request for postponement or delay and announced ready for trial and entered his plea of guilty. Even if he had been entitled to the time he alleges, he would have waived the same by his actions. Redford v. State, 98 Tex.Cr.R. 42, 262 S.W. 766. Cf. Weir v. State, 169 Tex.Cr.R. 264, 333 S.W.2d 151; Davis v. State, 149 Tex.Cr.R. 98, 191 S.W. 2d 733. See also Article 1.14, V.A.C.C.P. We know of no requirement that such a waiver must be in writing and filed.

The judgment is affirmed.


author: BELCHER, Judge.

text:
    Jan LEDTJE, Appellant, v. The STATE of Texas, Appellee.
    No. 41005.
    Court of Criminal Appeals of Texas.
    March 20, 1968.
    Whitlow, Cole & Kilgore, by W. W. Kil-gore, Victoria, for appellant.
    Sam L. Gayle, County Atty., Edna, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Judge.

The conviction is for selling beer to a minor; the punishment was assessed at $1,000.

As ground for reversal, the appellant contends that the information upon which the appellant was tried does not allege a criminal offense.

The information contained allegations that the appellant knowingly sold beer to Dennis Simons who was then and there under the age of twenty-one (21) years. The information sufficiently charges the offense defined by Arts. 667-19, Subd. A(1) and Subd. D, and Art. 666-41, Vernon’s Ann.P.C.

In another ground relied on for reversal, the appellant contends that the trial court erred in failing to respond to his objection and in refusing to give his requested charge wherein he sought to have the jury instructed that if the state failed to prove beyond a reasonable doubt that the appellant knew that Dennis Simons was under' twenty-one years of age on the occasion in question to find him not guilty.

From an examination of the court’s, charge, it is evident that it failed to require a distinct and affirmative finding that the appellant knew that Dennis Simons at the time in question was under twenty-one years of age. Art. 36.15, Vernon’s Ann.C.C.P.; Donald v. State, Tex.Cr.App., 418 S.W.2d 818.

The disposition hereof makes it unnecessary to consider the other grounds urged as error.

For the reason pointed out, the judgment is reversed and the cause is remanded.


author: WOODLEY, Presiding Judge.

text:
    Henry Deleiano HARRIS, Appellant, v. The STATE of Texas, Appellee.
    No. 41116.
    Court of Criminal Appeals of Texas.
    March 13, 1968.
    Donald D. Koons, Dallas, on appeal only, for appellant.
    Henry Wade, Dist. Atty., Charles Caper-ton, Arch Pardue and Kerry P. FitzGerald, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

The offense is robbery; the punishment, 70 years.

Two grounds of error are set forth in appellant’s brief.

The first complains that the court permitted the state to connect him with an extraneous offense in that during the presentation of the state’s case in chief the state’s witness Ron Watson, Security Officer for the H. L. Green Store, who went to the cashier’s office in response to a call, was asked and answered:

“Q. When you got there did you have a conversation with someone?
“A. Yes, sir, the cashier in the cage told me of an incident that happened there.
“Q. We can’t go into anything she told you but what did you do as a result of this information?
“A. Well, I left our store looking for a described person that she had described trying to hold her up and I left the store going onto the Main Street side.”

There was no objection to this testimony and we find no merit in the contention that the court reversibly erred in not excluding it.

The second ground of error complains of the comments of the district attorney shown in the following portion of the cross-examination of the state’s witness Detective Boyd:

“Q. Okay. You say you were investigating another robbery in the same vicinity ?
“A. Yes, sir.
“Q. What type of robbery was this?
“A. Beer truck.
“Q. Someone held up a beer truck driver ?
“MR. CAPERTON (Counsel for the state): Now, Judge, unless they can tie this in.
“THE COURT: I don’t know whether that would be material, Mr. Fourt. (Counsel for appellant)
“MR. CAPERTON: Unless we can go into some other robberies.
“MR. FOURT: We’ll withdraw the question.
“Q. That wasn’t a robbery with a note involved, this beer truck robbery, was it?
“MR. CAPERTON: Now, Judge, we object to him going into the beer truck robbery unless we can go into another robbery.
“THE COURT: Don’t make a statement like that, go ahead.
“Q. This other one wasn’t involving a note similar to the Minyard’s robbery, was it?
“A. No, sir.”

No objection was made and there was no request for instruction to the jury or for mistrial. The trial court properly admonished counsel for the state.

Under the record, reversible error is not shown.

The judgment is affirmed.


text:
    John Torres HERNANDEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 40979.
    Court of Criminal Appeals of Texas.
    Feb. 28, 1968.
    Rehearing Denied April 10, 1968.
    Will Gray, Houston (on appeal), for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough and I. D. McMaster, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

The offense is rape; the punishment, 13 years.

The evidence shows the rape of the 4 year old girl named in the indictment, on February 28, 1966, in the home of the 17 year old appellant where the little girl and other children had been left in the •care of appellant’s mother as baby sitter.

The grounds of error relate to the admission in evidence of appellant’s statement in writing, signed within an hour after his arrest and some 35 minutes after he was •taken before a magistrate.

At the trial on July 5, 1966, the statement ■made to Officer J. E. Montero on March 1, 1966 was admitted in evidence after an extended hearing on voluntariness in the jury’s absence, the trial court “having found as a matter of law that the confession was voluntarily made by the defendant, the evidence having established beyond a reasonable doubt that the same was freely and voluntarily made,” and having further found:

“1. That the defendant was arrested by Officer Montero of the Juvenile Department of the Houston Police Department and other officers at 10:55 p. m. on March the 1st, 1966, the officers having the warrant for his arrest. That, when the defendant asked to speak with his mother, the officers granted his request and the defendant held a conversation with his mother.
“2. That the defendant was taken immediately before Judge Azios on March the 1st, 1966 and at 11:20 p. m. on that •date Judge Azios informed the defendant of the accusations made against him, that he had a right to obtain counsel, that he had a right to request and have counsel appointed to represent him if he was unable to retain counsel, that he had a right to have an examining trial, and that he could not be required to make any statement and that if he did make a statement that the statement-may be used against him.
“3. That after the defendant was warned by Judge Azios of his Constitutional Rights, that Officer Montero warned the defendant of his rights in conformity with the laws of this State, advising the defendant that he did not have to make the statement and that, if the statement was made, the same could be used in evidence against him on the trial of the case concerning which the statement was made. That Officer Mon-tero asked the defendant after talking to him some five or six minutes, if he wished to make a statement in connection with the alleged rape; that the defendant appeared, in all respects lucid, alert and mentally competent and willingly agreed to make such a statement.
“4. That thereafter, the defendant gave the confession and signed it in the presence of witnesses after the same was reduced to writing and the defendant had been given an opportunity to and did agree to the same.
“5. That the defendant at no time requested counsel to advise him from the time of his arrest to the time the statement was completed at 11:55 p. m. on March the 1st, A.D. 1966.
“6. That the defendant never gave any indication of not wishing to proceed with making the confession.
“The Court therefore finds, based on the demeanor and the manner in which the witness testified from the above facts, that the statement marked State’s Exhibit No. 1 was given by the defendant, John Torres Hernandez, freely and voluntarily without threats, improper influence, any promises, persuasion or complwsion; that the defendant was alert, lucid and mentally competent at the time the confession was made; that these findings of fact are made by the Court as a result of the hearing held in the absence of the jury and prior to any further proceedings before the jury in this cause.”

The testimony of Officer J. E. Montero, to whom the confession was made, introduced at the hearing before the court fully sustains the trial court’s findings.

The written statement offered and admitted as appellant’s voluntary confession in writing (Arts. 38.21 and 38.22 of the 1965 Code of Criminal Procedure) sets out the following warnings:

“On the first day of March, 1966, at 11:20 o’clock P.M., I was taken before Judge A. D. Azios, a magistrate at his office in Corp. #3 — Houston, Harris County, Texas, and that magistrate informed me of the accusations made against me, that I had a right to retain counsel, that I had a right to request and have counsel appointed to represent me if I was unable to retain counsel, that I had a right to have an examining trial, and that I cannot be required to make any statement and if I do make a statement, it may be used against me, and I have now been warned by Officer J. E. Montero, the person to whom I am making this statement, that I do not have to make any statement at all, and that any statement I make may be used in evidence against me on my trial for the offense concerning which the statement is made, and I am now waiving my right to counsel and do make the following voluntary statement:
“My name is John Torres Hernandez * *

The evidence before the trial court reflects that warnings were given as required by the Statutes of Texas in effect at the time and shows that any additional rights that may have been afforded appellant under Miranda v. State of Arizona, 384 U.S. 486, 86 S.Ct. 1602, 16 L.Ed.2d 724, decided after the confession was made, were waived.

The contention that the confession was inadmissible as a matter of law under the provision of Art. 15.17 Vernon’s Ann. C.C.P. is predicated upon the magistrate’s testimony before the jury wherein he testified that he did not tell appellant “that he had a right to have a lawyer appointed for him.”

Officer Montero had testified before the court, and thereafter testified before the jury, that he heard the magistrate give appellant such warning and that he himself gave such warning. Two warnings are not required under the constitutional standards established in Miranda v. State of Arizona, supra, nor under the present Texas Statutes. (See Art. 38.22 C.C.P.1965, as amended by Acts of the 60th Leg.1967, p. 1740.)

The trial judge resolved the issue of fact against appellant whose rights under Art. 38.22 C.C.P. (1965) in effect at the time of the trial were further protected by instruction in the court’s charge: “If you believe from the evidence or have a reasonable doubt that Judge A. D. Azios did not warn the defendant, ‘if you are unable to employ a lawyer, you have the right to have a lawyer appointed to represent you,’ you will not consider this statement for any purpose.”

In the absence of any objection to the court’s charge the question as to the form of the portion relating to appellant’s written statement is not before us.

The contentions that the confession was obtained in violation of the Federal Constitutional Standards established in Miranda v. State of Arizona, supra, and without complying with the Texas Statutes are overruled.

The judgment is affirmed.


author: MORRISON, Judge.

text:
    William E. BAGLEY, Appellant, v. The STATE of Texas, Appellee.
    No. 41040.
    Court of Criminal Appeals of Texas.
    March 13, 1968.
    Robert Fagan, Corpus Christi, for appellant.
    Sam L. Jones, Dist. Atty., Kenneth L. Yarbrough, Asst. Dist. Atty., Corpus Christi, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION ON APPELLANT’S MOTION FOR REHEARING

MORRISON, Judge.

Our prior opinion is withdrawn and the following substituted in lieu thereof.

The offense is murder with malice; the punishment, 35 years.

In his first ground of error, appellant contends that the allegations contained in the indictment present a material conflict and that inclusion of the word “stricking” in the indictment failed to apprise appellant of the offense with which he was charged.

The first paragraph of the indictment charged appellant and his co-indictee with causing the death of the deceased by striking him with a hammer. The second paragraph charged him with causing the death of deceased by “stricking him on the head with instruments and weapons to the Grand Jurors unknown.”

The court withdrew from the jury’s consideration the second allegation contained in the indictment thereby removing from the jury’s consideration the allegation which contained the misspelled word, and the evidence is sufficient to support a finding that the deceased was killed as alleged in the first paragraph of the indictment. Booker v. State, 124 Tex.Cr.R. 562, 63 S.W.2d 1033.

Appellant’s second ground of error is that the court’s charge did not effectively withdraw from the jury’s consideration the manner and means of the commission of the offense alleged in the second paragraph of the indictment. Since no objections to the court’s charge appear in the record such contention is not before us for review.

As his third ground of error appellant complains of the admission into evidence of a Seaman Union Book and a Landing Permit which allegedly belonged to the deceased and were admitted to show the identification of the deceased. Deputy Sheriff Burch viewed the body in the field where it was found, and later at the funeral home to which it was removed, he found the documents in question on the body of the deceased. Clearly these documents were admissible to show and did show the identity of the deceased.

Appellant contends in his fourth and sixth grounds of error that the statements he gave to the district attorney which were admitted into evidence established the guilt of his co-indictee and exculpated him. In both statements, the vol-untariness of which is not questioned on this appeal, appellant admitted participating in the fatal attack upon the deceased and sharing in the proceeds taken from the body of the deceased. Such inculpatory participation was sufficient to authorize the jury in finding appellant guilty as a principal. Williams v. State, 65 Tex.Cr.R. 193, 144 S.W. 622.

Appellant’s fifth ground of error is the court’s refusal to give a requested charge instructing the jury that they should acquit the appellant if they found that appellant’s co-indictee committed the murder without any aid from appellant.

The indictment charged appellant and Troy H. Tharp jointly with murder with malice, but the appellant was here alone on trial. In the charge, the court properly defined principals, and only authorized a conviction if the jury found beyond a reasonable doubt that the appellant was “acting either alone or jointly as a principal, as the term principal has been defined to you,” and, if they did not so believe to acquit him, or if they had a reasonable doubt as to his guilt to find him not guilty.

The charge as given adequately protected the rights of the appellant. The failure to charge the jury as the appellant here contends was not error. White v. State, Tex.Cr.App., 385 S.W.2d 397; Lopez v. State, 170 Tex.Cr.R. 208, 339 S.W. 2d 906.

Finding the evidence sufficient to support the conviction, and no reversible error appearing, the judgment is affirmed, and appellant’s motion for rehearing is overruled.


author: HIGHTOWER, Chief Justice.

text:
    CITY OF PORT ARTHUR, Appellant, v. Francis J. BADEAUX et al., Trotti & Thompson, Inc., Appellees.
    No. 6866.
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 28, 1968.
    Rehearing Denied March 20, 1968.
    George Wikoff, City Atty., Port Arthur, for appellant.
    Fuller, Fuller & McPherson, Port Arthur, Vinson, Elkins, Weems & Searls, Houston, for appellees.
   HIGHTOWER, Chief Justice.

The Badeauxs sued defendants, Trotti & Thompson and the City, alleging that defendants were jointly and severally liable to the Badeauxs for permanent damages to the Badeauxs’ residential premises in the sum of $13,100.00, being diminution in market value, in that Trotti & Thompson, pursuant to a contract with the City for construction of certain sewerage lines, did, on or about March 30, 1960, trespass upon the premises of the Badeauxs, excavate land and lay a sewerage line, resulting in loss of lateral support to the Badeauxs’ home and damages thereto. Plaintiffs’ cause of action was also based upon inverse condemnation in violation of Article 1, Section 17, of the Constitution of the State of Texas, Vernon’s Ann.St., and upon negligence. The City filed answer pleading governmental immunity and alleged that it had an easement granted by the Badeauxs for the laying of the sewerage line and that the line was layed within such easement. Trotti & Thompson filed a cross-action against the City of Port Arthur for indemnity and 50% contribution.

Trial was to a jury, which found, on instructions from the court, that in laying the sewerage line in question, the City of Port Arthur committed a trespass upon the lands of the Badeauxs. The jury also found that such trespass was a producing cause of damages to the property, and that such damage was permanent in nature. Judgment was rendered upon the jury findings that plaintiffs recover judgment against both defendants, jointly and severally, and allowing 50% contribution by each defendant against the other.

The City’s first point of error is:

The court erred in granting the Badeauxs’ motion for an instructed verdict and directing the jury to answer affirmatively to Special Issue No. 1, concerning trespass by the City upon the property of the Badeauxs, in that the easement conveyance executed by the Badeauxs to the City was not void as a matter of law because of an inadequate description, and in that there was sufficient and competent evidence of a conflicting nature to warrant submitting the issue of trespass to the jury.

Francis J. Badeaux and others, being owners and record owners of all of the land in Lot No. 2 of McHank’s Subdivision in the City of Port Arthur, Jefferson County, Texas, conveyed certain easements to the City of Port Arthur including:

(d) a strip of land 10 ft. in width abutting the north boundary of that certain easement now possessed by the city of Port Arthur, which easement so possessed is about_ft. in width and abuts the north side of the seawall of the Sabine Neches Canal, and the easement herein described and granted, will abut the toe of the embankment which is situated upon the easement now possessed by the City of Port Arthur Texas.

This instrument is dated October 18, 1947.

The north side of the seawall is found on the ground. Ten feet in width is clear. The location of the toe of the embankment on October 18, 1947 was in dispute. No easement “now possessed by the City of Port Arthur” could be found. Its shape and course and distance of any line is not in evidence. How long was this 10 foot strip? There is nothing in the description within itself or by referring to-some existing writing, data or objects on the ground by which the length or direction of the 10 foot strip may be determined at all, much less with reasonable certainty. To comply with the statute of conveyances and the statute of frauds, “the writing-must furnish within itself, or by reference to some other existing writing, the means or data by which the land to be conveyed may be identified with reasonable certainty.” Wilson v. Fisher, 144 Tex. 53, 56, 57, 188 S.W.2d 150, 152. See also, Pickett v. Bishop, 148 Tex. 207, 223 S.W.2d 222. The point of error is overruled.

A determination of the City’s second and third points of error are unnecessary to a decision in the case.

The judgment of the trial court is affirmed.


text:
    Mrs. Netha CHANTRE, Appellant, v. NATIONAL MARITIME UNION PENSION & WELFARE PLAN et al., Appellees.
    No. 6977.
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 28, 1968.

      Newton B. Schwartz, Houston, Mack H. Hannah, III, Port Arthur, for appellant.
    Mandell & Wright, Houston, for appel-lees, William L. Wood, Jr., Houston, of counsel.
   HIGHTOWER, Chief Justice.

This is an order of dismissal of appeal.

On September 25, 1967, the trial court entered an order granting defendants, National Maritime Union Pension & Welfare Plan, et al., motion for summary judgment in this case. No motion for new trial or notice of appeal was filed or given within ten days after September 25, 1967.

On October 19, 1967, attorney for appellant, plaintiff below, filed with the trial court a motion asking that the order of September 25, 1967 granting the summary judgment be withdrawn and a new order entered so as to preserve appellant’s right to appeal.

Thereafter, the trial judge re-entered the same order as of October 20, 1967, and explained his reasons for so doing by letter of October 20, 1967. This letter essentially stated that the judge was withdrawing his order validly entered on September 25, 1967 and re-entering it as of October 20, solely to “cooperate so that no one’s appellate rights will be cut off.”

Thereafter, attorney for plaintiff gave notice of appeal from the order re-entered as of October 20, and otherwise took action to perfect his appeal.

We sustain defendant’s motion to dismiss the appeal for failure to prosecute the same within ten days from the order of September 25, 1967. Rule 353, Section (a), Texas Rules of Civil Procedure. The trial judge did not have authority to extend the time for filing of plaintiff’s motion for new trial. Rule 5, Texas Rules of Civil Procedure.

In A. F. Jones & Sons v. Republic Supply Co., 151 Tex. 90, 246 S.W.2d 853, the Supreme Court held that notwithstanding any inherent jurisdiction the trial court may have, it does not have inherent authority to disregard the plain language of the Rules of Civil Procedure specifying the time limits within which motion for new trial or notices of appeal must be filed. The court held at page 855:

“The trial court certainly could not, on its own initiative, make any effective order affirming its former judgment and thereby extend the period for perfecting an appeal. The trial court’s inherent power resides only in the right of altering its former judgment and since it does not have the power on its own initiative to extend the period for appellate procedure, neither does it have the power to grant leave to file and then overrule a tardy motion for new trial, which, in effect and in actuality, goes beyond its inherent jurisdiction and beyond the scope of Rule 320 and Rule 5.”

The appeal is dismissed.


author: PER CURIAM.

text:
    L. D. THOMAS, Appellant, v. BILLINGSLEY & STRACENER, and Architects & Engineers, Appellees.
    No. 367.
    Court of Civil Appeals of Texas. Tyler.
    Feb. 29, 1968.
    Kilmer B. Corbin, Lubbock, for appellant.
    Brock, Wright, Waters & Galey, Robert C. Wright, Lubbock, for appellees.
   PER CURIAM.

Appellant appealed from a judgment rendered against him and caused transcript to be filed on the 18th day of October, 1967. No statement of facts has been filed. Texas Rules of Civil Procedure, Rule 414, requires him to file his brief within 30 days thereafter. Texas Rules of Civil Procedure, Rule 415, provides that when an appellant has failed to file his brief within the prescribed time, the court may dismiss his appeal for want of prosecution, unless good cause is shown for such failure and that appellee has not suffered material injury thereby. Appellant has filed no brief nor offered any reason for failure to do so. Appellees have filed motion to dismiss such appeal because appellant has failed to file his brief as required by Rule 414, Texas Rules of Civil Procedure. Appellant was promptly and duly notified of the filing of said motion and he has not replied thereto. For this reason alone, the cause should be dismissed.

The appellant has not made the $25.00 deposit for the filing of the record in the Court of Civil Appeals at Amarillo in which the record was originally filed, nor in this court, to which this case has been transferred. For this additional reason, the case should be dismissed for the failure of appellant to make the proper deposit for costs. Rule 388a, T.R.C.P.

For the reasons above stated, this appeal is accordingly dismissed.


author: PHILLIPS, Chief Justice.

text:
    Kenneth HASTINGS, Appellant, v. Kenneth THWEATT, Appellee.
    No. 11578.
    Court of Civil Appeals of Texas. Austin.
    Feb. 21, 1968.

      Camp, Ellett & Camp, Cameron, Carroll W. Glaser, Rockdale, for appellant.
    Don G. Humble, Ed P. Magre, Cameron, for appellee.
   PHILLIPS, Chief Justice.

Appellee, as plaintiff below, brought suit against Appellant to recover damages to Appellee’s airplane incurred while Appellant was taxiing down the runway after landing. In his petition Appellee alleged, among other things that Appellant “borrowed plaintiff’s airplane for the purpose of ‘trying it out’ in order to determine whether or not he, the defendant, desired to buy the airplane.” Trial was before the court and judgment was rendered in favor of Appellee. Appellant has duly perfected his appeal to this Court.

We affirm.

Appellant is before us on one point of error, namely, the error of the court in overruling his motion for judgment because the Appellee did not introduce or prove any evidence to show negligence on the part of the Appellant.

We overrule this point.

The damage to this airplane occurred when Appellant, after landing on the airstrip, the same airstrip that he had taken off from moments before, was taxiing the airplane down the runway when it veered off to the left, went off the runway proper onto its shoulder and struck a pile of dirt. This caused the airplane to “flip over” onto its back.

Appellee alleged specific acts of negligence on the part of the Appellant in the operation of the. aircraft, specifically plead the doctrine of Res Ipsa Loquitur, and also relied on the theory of bailment.

Appellant raised the defense of contributory negligence however, the court sitting also as the trier of the facts held against Appellant in this respect. We hold that the bailment was for the mutual benefit of both parties and that the Appellant was a bailee of the airplane and, as such, was liable for the damage. Carothers v. Moore, 183 S.W.2d 987, (Tex.Civ.App. Galveston 1944, no writ).

In Bill Bell, Inc. v. D. C. Ramsey, 284 S. W.2d 244, (Tex.Civ.App. Waco 1955, no writ), the elements of bailment were stated to be the delivery of personal property from one person to another in trust for a specific purpose and acceptance of the delivery, an express or implied contract that the trust will be carried out and the property returned to the bailor.

Thus Appellee made out a case of bailment and the judgment should be affirmed, Skrobarecek v. Raborn Chevrolet Company, 45 S.W.2d 1110, (Tex.Civ.App. San Antonio 1932, no writ).

The judgment of the trial court is affirmed.


author: BARROW, Chief Justice.

text:
    Jane RUFFO et al., Appellants, v. Charles WRIGHT et al., Appellees.
    No. 14663.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 28, 1968.
    Michael Rizik, Tinsman & Cunningham, San Antonio, for appellants.
    Clemens, Knight, Weiss & Spencer, Edward R. Finck, Jr., San Antonio, for appellees.
   BARROW, Chief Justice.

Appellants, Jane Ruffo and Lillian Ruf-fo, brought this suit to recover damages from appellees, Charles Wright and Juan Antonio Saucedo, sustained when a panel truck owned by Wright and operated by his employee, Saucedo, ran into the rear end of an automobile being operated by Mrs. Jane Ruffo and occupied also by Miss Lillian Ruffo. Judgment was rendered on a jury verdict whereby Mrs. Jane Ruffo recovered the sum of $55.00 and Miss Lillian Ruffo recovered the sum of $30.00.

Appellants assert jury misconduct by their first point, alleging that the jury reached its verdict on the two damage issues by a quotient method. An essential element to establish such jury misconduct is that the jurors must agree in advance to be bound by the average or quotient result. Houston Lumber Supply Co. v. Wockenfuss, 386 S.W.2d 330 (Tex.Civ. App.—Houston 1965, writ ref’d n. r. e.); Morgan v. State, 343 S.W.2d 738 (Tex.Civ. App.—El Paso 1961, writ ref’d n. r. e.); Western Cotton Oil Co. v. Mayes, 245 S.W.2d 280 (Tex.Civ.App.—Eastland 1951, no writ); Caraway v. Behrendt, 224 S.W. 2d 512 (Tex.Civ.App.—San Antonio 1949, no writ).

The trial judge overruled the motion for new trial and, in the absence of written findings of fact, it is presumed that he found there was no agreement in advance to be bound by the result reached by addition of the twelve suggested amounts and a division of the total by twelve. Brawley v. Bowen, 387 S.W.2d 383 (Tex.Sup.1965). Such an implied finding is fully supported by the testimony of the four jurors who testified at the hearing on motion for hew trial. In fact, their uncontradicted testimony is that there was no such agreement, but the quotient or average result was used as a starting point for the jury’s discussion of damages. This does not establish jury misconduct.

Appellants’ remaining points assert that the jury’s answers to the damage issue for each are too small and so against the great weight and preponderance of the evidence as to be manifestly unjust. The jury was instructed to take into consideration only the physical pain and mental suffering in the past and that which said party in reasonable probability would suffer in the future. As to appellant Mrs. Jane Ruffo the jury was instructed to exclude such physical pain and mental suffering which was proximately caused by a prior collision of a similar nature in November, 1963, and also any compensation for the arthritic condition which she had prior to the accident sued upon, unless same was aggravated.

This rear-end collision occurred after both vehicles were stopped for a traffic light. Appellee Wright’s panel truck, which was stopped three to four feet behind appellants’ vehicle, was not running properly and therefore Saucedo kept it idling very fast. As a result, the truck jumped forward when the clutch was released and hit appellants’ vehicle. Minor damage only was done to the rear of appellants’ vehicle and it was not knocked into the car which was only two feet in front, in fact, Miss Lillian Ruffo testified it did not move at all. Neither appellant sustained any visible injury or required any hospitalization. Each appellant complained at the trial of pain in her neck and shoulder as well as headaches.

Dr. Robert Hardy, a medical doctor specializing in neuro-surgery, testified on behalf of appellants. He had treated Mrs. Jane Ruffo for similar complaints after a rear-end collision in November, 1963, which also resulted in litigation. He saw Mrs. Ruffo on several occasions after the March, 1966, accident, the last time being on June 2, 1966. He diagnosed her condition as a strain of neck muscles with some degree of post-traumatic nervousness. He admitted that the neurological examination was normal, that she had no muscle spasm on his examinations, and that his diagnosis was based on Mrs. Ruf-fo’s subjective complaints. She had a condition of long-standing degenerative osteo-arthritis and in his opinion the accident did not aggravate this condition.

Dr. Hardy made an examination of Miss Lillian Ruffo on March 19, 1966, and although her neurological examination was normal and she had no muscle spasm, he diagnosed her condition as a musculo-ligamentous strain. This diagnosis was also based entirely upon her subjective complaints. Miss Lillian Ruffo testified that she saw Dr. Joseph Burk, a general practitioner, with an office near where she worked, on eight or nine occasions after she was examined by Dr. Hardy. Dr. Burk testified in her behalf that he found muscle spasm in the upper part of her back and diagnosed her condition as that of severe occipital neuralgia bilaterally and a severe sprain of her neck and upper back. He had not seen her since July 15, 1966. It was shown on cross-examination that he knew of this pending suit when he made his examinations and that he had treated other clients of appellants’ attorney. The X-ray examination made by Dr. Burk was negative for injury, but her complaints were consistent with a whiplash injury.

The applicable rule is stated in Adams v. Houston Belt & Terminal Ry. Co., 405 S.W.2d 838 (Tex.Civ.App. — Houston 1966, no writ), as follows: “This Court has the power to grant a new trial where the finding of the jury or the court is so against the overwhelming weight and preponderance of the evidence as to be manifestly wrong and unjust, but we are not authorized to substitute our judgment for that of the jury or the court simply because we might have reached a different conclusion on the facts.”

Matters of pain and suffering, and future pain and suffering, are necessarily speculative, and it is peculiarly within the province of the jury to resolve these matters and set the amount of such damages. Here the extent of the injury from this very minor collision is based almost entirely upon the testimony of appellants. Their credibility and the weight to be given their testimony are questions within the province of the jury. We cannot say from an examination of this record that inadequate damages were awarded either appellant or that the finding of the jury as to the amount awarded either is so against the great weight and preponderance of the evidence as to be manifestly unjust. Armstead v. Harvey, 390 S.W.2d 871 (Tex.Civ.App.—Texarkana 1965, no writ); Harbuck v. Ramos, 371 S.W.2d 912 (Tex.Civ.App.—Waco 1963, no writ); Williams v. Macatee, Inc., 371 S.W.2d 736 (Tex.Civ.App.—Fort Worth 1963, no writ); McDonald, Texas Civil Practice, § 18.15.

The judgment is affirmed.


author: GRISSOM, Chief Justice.

text:
    Ivan J. ALLEN, Appellant, v. Patsy H. RIEDEL et al., Appellees.
    No. 4194.
    Court of Civil Appeals of Texas. Eastland.
    Jan. 19, 1968.
    Rehearing Denied Feb. 16, 1968.

      Turner & Seaberry, Virgil T. Seaberry, Jr., Bill B. Hart, Eastland, for appellant.
    Thompson, Coe, Cousins & Irons, Dallas, Jack W. Frost, Eastland, for appellees.
   GRISSOM, Chief Justice.

This suit was brought under the authority of Article 4671, known as the Wrongful Death Act. On Sunday, November 7th, 1965, Dr. Albert F. Riedel and his wife and their children, of Dallas, were visiting the Ivan J. Allens on the Allen ranch in East-land County. Mrs. Allen was Dr. Riedel’s aunt. Dr. Riedel, Mr. Allen and some of the Riedel children spent the morning building deer blinds on the ranch. About 30 minutes after they returned to the Allen home for lunch, a neighbor telephoned Mr. Allen that two car loads of people were climbing over his fence and suggested that he see them. He went to investigate. Dr. Riedel went along. When they reached the trespassers, Mr. Allen suggested to Dr. Rie-del that he stay in the pickup. Mr. Allen put the trespassers off his ranch. Immediately thereafter, while Dr. Riedel was standing about 47 feet from Mr. Allen, in or near some trees and weeds, he was shot and killed by Mr. Allen. Dr. Riedel’s widow and children sued Mr. Allen for the damages they suffered as a result thereof.

A jury found that (1) Mr. Allen deliberately aimed his rifle; that (1A) he was aiming at some person; that (2) he did not intentionally fire his rifle; that (6) in carrying his rifle with the safety catch in the “off position” Mr. Allen was' guilty of negligence which (7) was a proximate cause of Dr. Riedel’s death; that (10) Mr. Allen allowed his rifle to be pointed at Dr. Riedel and that (11) this was negligence and (12) a proximate cause of Dr. Riedel’s death. The jury found the amount of damages sustained by Dr. Riedel’s four children in varying amounts, ranging from $35,000.00 for Dana Scott Riedel, the oldest, to $78,000.00 for Allison Lynn Riedel, the youngest, and that Mrs. Riedel was damaged $50,000.00.

All issues inquiring what pecuniary loss a child sustained contained the same instructions with reference to what the jury might consider. To illustrate, issue 16, the instruction in connection therewith and the answer thereto were as follows:

“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 Plaintiff, Allison Lynn Riedel for the loss sustained by her as the result of the death of her father, Albert Riedel?
In answering this issue, you are instructed that you may take into consideration only the pecuniary loss, if any, sustained by Allison Lynn Riedel, and nothing else. By the term ‘pecuniary loss’, as applied to Allison Lynn Riedel, you may take into consideration the loss of nurture, if any, care, if any, maintenance and support, if any, counsel, if any, intellectual, moral and physical training, if any, and education, if any, and pecuniary contribution she would have, in reasonable probability, received from her deceased father from the date of his death to the date of trial, and in the future.
In determining the amounts, if any, you may consider the earnings of the said Albert Riedel, his age, and the condition of his health.
Answer by stating the amount, if any, in dollars and cents.
ANSWER: $78,000.00.”

The issue, instruction and answer relative to the pecuniary loss of Mrs. Riedel were as follows:

“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 Plaintiff Patsy H. Riedel for the loss sustained by her as the result of the death of Albert Riedel ?
In answering this issue, you are instructed that you may take into consideration only the pecuniary loss, if any, sustained by Patsy Riedel. By the term ‘pecuniary loss’ as applied to the wife, is meant maintenance and support, if any, from his earnings, if any, loss of contributions, if any, care, advice and counsel, if any, that the Plaintiff Patsy Riedel would have, in reasonable probability, received from the date of Albert Riedel’s death to the date of trial and in the future, if any, from Albert Riedel had he lived.
In determining the amounts, if any, you may consider the earnings of the said Albert Riedel, his age and the condition of his health.
Answer by stating the amount, if any, in dollars and cents.
ANSWER: $50,000.00.”

The court rendered judgment on said verdict in favor of Mrs. Riedel and the children for the amounts so found, plus $1780.00 funeral expenses, aggregating $260,780.00. Mr. Allen has appealed.

Appellant’s first two points are that the court committed reversible error in excluding (1) evidence of the marital troubles of Doctor and Mrs.- Riedel and (2) evidence relative to Dr. Riedel’s character and morals. Such excluded testimony, tersely stated, was as follows:

(a) testimony by Mr. Allen that Dr. Riedel told him that his wife was unfaithful ; that she didn’t love him; that he “couldn’t make a go” of their marriage and that he came home early one day and found a naked doctor with his wife while she was wearing a red robe;

(b) testimony by Dr. Long, Mrs. Riedel’s treating psychiatrist, that she told him that she and Dr. Riedel had accused each other of “running around” with members of the opposite sex;

(c) testimony of Dr. Long that Mrs. Riedel told him her husband had accused her of infidelity with more than one man;

(d) testimony by Dr. Riedel’s treating psychiatrist, Dr. DeBolt, that Dr. Riedel told him he was involved with a young woman and concerned that it might lead to something sexual, with which subject he had experience;

(e) testimony of Dr. DeBolt that Dr. Riedel stated to him that he had found out that his wife had been unfaithful and of his reaction to that discovery;

(f) testimony by Dr. DeBolt of Dr. Riedel’s statements to him that he was having an affair with another woman; that he had accused his wife of infidelity and that he had an increase in his drinking problem;

(g) testimony by Dr. DeBolt of Dr. Riedel’s statements to him in 1965 concerning his mental turmoil, divorce and that he was not able to go back to his wife;

(h) testimony by Dr. DeBolt that Dr. Riedel told him of his affairs with other women; his belief that his wife knew about it; about striking his wife and that he contemplated divorce;

(i) testimony by Dr. DeBolt that Dr. Riedel told him that he and his wife had “traded partners” one night with another couple in a “necking episode.”

In connection with appellant’s contention that exclusion of such evidence was error and that it was reasonably calculated to cause and probably did cause rendition of an improper judgment he points out that the Riedel children, under the court’s instructions, were permitted to recover for loss of Dr. Riedel’s nurture, education and moral training, as well as loss of contributions, maintenance and support, and that Mrs. Riedel, under the instructions given, was permitted to recover for loss of maintenance and support from the doctor’s earnings, loss of contributions and loss of the care, advice and counsel which she probably would have received from Dr. Riedel had he not been killed.

Appellees were permitted to introduce evidence, over appellant’s objection that it was hearsay, that Dr. Riedel was posthumously awarded a plaque and citation for promoting a boys’ swimming contest, which citation stated his “tremendous devotion to all the youth of this community and the outstanding contributions — to his fellow man.” Appellees were permitted to introduce evidence that Dr. Riedel was conscientious, affectionate, in love with his wife, active in family affairs; that Mrs. Riedel was in love with him; that they both wanted their marriage to “work out.” Mrs. Riedel testified that their marriage was a happy, normal one and that their only real problems were (1) Dr. Riedel’s drinking and (2) petty arguments over money and she and Dr. Lewis denied that his drinking was a serious problem. Mrs. Riedel further testified to the effect that their marital problems had disappeared with the building of their last house in 1965.

Appellant says the excluded testimony would have tended to show the infidelity and lack of morals of Dr. Riedel as late as the summer and fall before his death in November, 1965; his belief of his wife’s infidelity, where and with whom; their mutual suspicions of infidelity; that Dr. Riedel had struck his wife; that Riedel’s mind was in a turmoil in the fall of 1965; that he then said he could not go back to his wife; their improper involvement with others, but, chiefly, that it would have shown the principal cause of the Riedels’ marital troubles and the extent thereof and demonstrated the likelihood of immediate divorce and termination of his support of Mrs. Riedel. The excluded evidence would have strongly bolstered Dr. Riedel’s admitted statement that he was going to divorce his wife. It is appellant’s contention that the Riedels’ marriage was on the rocks when he was killed. The excluded evidence was highly persuasive of that conclusion and it was reasonably calculated to cause the jury to reduce its findings of the value of what Mrs. Riedel and the children lost as a result of Dr. Riedel’s death. Among other things, it was calculated to cause the jury to conclude, contrary to what it evidently believed, that if Dr. Riedel had not been killed he would have soon divorced his wife and stopped supporting her and contributing to her. It was reasonably calculated to cause and probably would have caused the jury to find that her loss was much less than the $50,000.00 it found to be Mrs. Riedel’s pecuniary loss. Here, it might be remembered that the record shows that several jurors, even without the benefit of the excluded evidence, wanted to give her nothing. Appellant says the excluded evidence indicates that the Riedels’ problems were of such a serious nature that they probably would have resulted in divorce; that Dr. Riedel’s conduct, as shown by the rejected testimony, was reasonably calculated to cause the jury to place a much smaller value on, among other things, the moral training that he probably would have given his children and a much smaller value on the support and contributions that he probably would have given his wife if he had lived. It is appellant’s position that evidence relative to Dr. Riedel’s morals and his attitude, intentions and feelings toward his wife and children were relevant, material and highly persuasive of answers more favorable to appellant on the damage issues. Appellees say such evidence was not admissible because it was hearsay and that, in any event, it was cumulative. We agree with appellant’s said contentions and sustain his points one and two.

Since the jury was instructed that in determining the pecuniary loss of the children it might consider the loss of their father’s maintenance and support, care, nurture, moral training, education and contributions and that in determining the wife’s damages they might consider her loss of maintenance and support from his earnings, loss of contributions, care, advice and counsel, it necessarily follows that all the rejected testimony which reasonably tends to affect the findings of the amount of damages suffered as a result of the loss of any of said things would be relevant and material and, unless prohibited for other reasons, should have been admitted.

The statements of Dr. Riedel indicating his belief that his wife was guilty of infidelity, stating places and with whom he thought she had been unfaithful, showing his attitude and feeling toward his wife and his intention to divorce her were material in determining the amount of support, maintenance and contributions she would have received had he not been killed. The rejected testimony strongly bolstered his admitted statement that he was going to divorce his wife, which action would have terminated his maintenance, support, contributions and care of Mrs. Riedel. The exclusion of such testimony, especially when it is considered with the admitted evidence that Dr. Riedel stated, about an hour before he was shot, that he was going to divorce his wife and further, that he said while dying, that he did not want his wife called because he did not want to see her, was reasonably calculated to cause the jury to believe that he had grounds for divorce and that he would have soon obtained a divorce and quit supporting her. Such evidence was important in determining the value of said things which his wife probably would have received from him had he lived. It was reversible error to exclude said statements. They were evidence of his state of mind, his feelings toward his wife and his intention to speedily terminate his marriage and stop supporting her. It was probative of his disposition toward his wife, which has a “vital bearing upon the reasonable expectancy * * * of future assistance or support, if life continues * * the fact that such a declaration was made by the decedent, whether true or false, is compelling evidence of (his) feelings toward, and relations to (his wife). As such it is not excluded under the hearsay rule but is admissible as a verbal act.” Loetsch v. New York City Omnibus Corp., 291 N.Y. 308, 52 N.E.2d 448. See also McCormick on Evidence 465-466; Texas Employers’ Insurance Ass’n v. McDonald, Tex.Civ.App., 238 S.W.2d 817; McAfee v. Travis Gas Corp., 137 Tex. 314, 153 S.W.2d 442; VI Wigmore, Evidence, (3rd Ed.), Sec. 1790; Hooper-Holmes Bureau, Inc. v. Bunn, 5 Cir., 161 F.2d 102, and Callen v. Gill, 7 N.J. 312, 81 A.2d 495.

The court erred in excluding said testimony because it tended to show facts from which the jury probably would have concluded that appellees’ losses were, because thereof, less than they otherwise would have been. It tended to show that the said lost rights were of little value. It was so held in Miller v. Alexandria Truck Lines, Inc., 5 Cir., 273 F.2d 897, 79 A.L.R.2d 812, 818. In an annotation following that case in 79 A.L.R.2d, at page 819, it is stated that the almost universal consensus of opinion favors admission of evidence in such a case as this of the decedent’s desertion, non-support, abandonment, and the like, because it is relevant, material as affecting the amount of the plaintiff’s pecuniary loss.

The excluded testimony relative to the habits and morals of Dr. Riedel was relevant and material on the amount of money to be awarded the children for loss, among other things, of his nurture and moral training, which the jury was instructed it might consider in determining their damages.

Dr. Riedel was a patient of Dr. DeBolt’s, undergoing psychoanalysis. His attitude and feelings toward his wife, his intention to terminate his support, his mental turmoil, the cause thereof, and symptoms of his trouble related to Dr. DeBolt for the purpose of treatment were admissible as an exception to the hearsay rule.

“ — declarations of a patient to his doctor made for purposes of treatment, as to past pain, sensations, and symptoms are admissible — ” McCormick and Ray, Texas Law of Evidence, Second Edition, Vol. I, Sec. 842, p. 625.

Testimony tending to show the state of Dr. Riedel’s mind, his belief of his wife’s infidelity, his mental turmoil in 1965, his: intention to terminate his marriage and support and his entire attitude toward his wife and children was material and admissible and should not have been excluded. McCormick and Ray, Texas Law of Evidence, Second Edition, Vol. I, Chapter II, pp. 630, 631. Evidence tending to show his lack of respect for his wife and whether or not he probably would have continued to support and contribute to her throughout the remainder of his life, or to speedily terminate same, was admissible. VI Wig-more on Evidence, Sec. 1730, p. 93 (3rd Ed.); McCormick and Ray, Texas Law of Evidence, Second Edition, Vol. I, Sec. 798, pp. 593-594.

“The health and habits and like characteristics of the deceased, although in themselves not elements of damages for which a recovery may be had, are entitled to consideration when death is the basis of a suit for damages. The evidence offered with respect thereto, however, must be relevant to the issue of damages, to the amount contributed to the support of the plaintiffs, or to some other issue in the case, such as the probable duration of the life of the injured person, had he lived. Evidence as to these characteristics is also of importance in determining the damage sustained by children from the loss of nurture, care, admonition, and moral and mental training of the parent — ” 17 Tex.Jur.2d 685-6.
“Any competent evidence is admissible that tends to disclose the intention of the deceased to provide for the plaintiff if he had not succumbed to his injuries — ” 17 Tex.Jur.2d 697.

Evidence of the disposition of the deceased to assist those bringing the suit, his habits of economy and sobriety and matters calculated to affect his earnings was admissible as tending to show the plaintiff’s pecuniary loss. 17 Tex.Jur.2d, Sec. 107, p. 683. It has been held under similar circumstances that testimony is admissible of the habits and sobriety of the deceased. “The health, habits, sobriety, and the like, appear to be proper matters of inquiry * * *. [Houston & T. C.] Ry. Co. v. Cowser, 57 Tex. [293] 297, 304; [Texas Mexico] Ry. Co. v. Douglas, 73 Tex. 325, 11 S.W. 333 * * *.” Ft. Worth & D. C. Ry. Co. v. Stalcup, Tex.Civ. App., 167 S.W. 279, 286 (WR). See also 25A C.J.S. Death § 102, p. 929. Declarations of deceased showing his feelings toward the plaintiffs and tending to show that he probably would or would not have continued throughout the remainder of his life to contribute to them is admissible. Galveston, H. & S. A.-Ry. Co. v. Bonnet, Tex.Civ.App., 38 S.W. 813, 814 (WR); St. Louis, A. & T. Ry. Co. v. Johnston, 78 Tex. 542, 15 S.W. 104; Texas and P. Ry. Co. v. Riley, Tex.Civ.App., 183 S.W.2d 991, 995 (WR). Certainly, the jury was likely to find that the financial reward of a faithful, loving wife was much greater than that of the kind the rejected testimony indicated the deceased believed his wife to be. It has been held that facts such as separation may be considered in determining the amount of the wife’s loss. 25A C. J.S. Death § 102, p. 929; Peterson v. United New York Sandy Hook Pilots Ass’n, D. C, 17 F.Supp. 676; Holland v. Closs, Tex. Civ.App., 146 S.W. 671, 673. It was held in Beaumont Traction Co. v. Dilworth, Tex.Civ.App., 94 S.W. 352, 357, that in this kind of a case it was reversible error to exclude evidence that deceased had abandoned the plaintiffs, because it was material and admissible on .he amount of damages. It has also leen held that evidence that deceased was sober was admissible on the same issues. See also Peterson v. Pete-Erickson Co., 186 Minn. 583, 244 N.W. 68.

A 1966 authority on wrongful death actions, “Speiser, Recovery for Wrongful Death”, states the applicable law as follows:

“Evidence concerning the character of the decedent and his habits is also relevant in wrongful death actions, as it is helpful in determining the amount of pecuniary benefits or assistance the beneficiaries might have received from decedent.
Evidence of the character and habits of the decedent is useful in showing the following traits: general ability and capacity for labor or business; industry; intelligence; manner of living (including frugality, lavishness, sobriety, intemperance, or other personal characteristics which will be of help or assistance in securing business or business enterprises or in earning money.) (pp. 163-5)
The disposition or likelihood of a person wrongfully killed to aid or support the beneficiaries in a wrongful death action is also relevant in determining damages. Not only may affection or the absence thereof on the part of the decedent for the beneficiaries be considered, but also aid received by the latter from the former during his lifetime, or the sparsity or absence of such aid. In addition, the decedent’s state of health and general condition are important, relevant factors in determining the amount of financial assistance or other aid of a pecuniary value which the beneficiaries might have received from the decedent, (pp. 167— 9)
Obviously, the relationship between the decedent and the beneficiary or beneficiaries is a significant element in determining and fixing wrongful death damages and in ascertaining loss of probable future support or contributions. This involves: the degree of family relationship, as to whether it is espousal, filial, parental or collateral; the close ties, affection and related factors, as between the decedent and the claimant or claimants; and the factor of possible future change with respect to furnishing of support, or the like.” (p. 176).

In Austin Gaslight Co. v. Anderson, Tex.Civ.App., 262 S.W. 136 (Dis. C. J.), children sued for damages caused by the wrongful killing of their father. The court held the deceased father’s answer in his divorce case should have been admitted, saying:

“Any declaration shown to have been made by appellees’ father, or shown to have been authorized by him in his answer in this divorce proceeding, tending to throw light upon his attitude toward the future support, care, and maintenance of appellees, would be admissible in evidence for whatever it would be worth to the jury in determining the issue submitted to them as to the amount deceased would have probably contributed to their support, had he lived.”

In Citizens’ Telephone Company of Texas v. Thomas, 45 Tex.Civ.App. 20, 99 S.W. 879 (Writ ref.), a widow sued for the wrongful death of her husband. There was evidence that her relationship with her husband had not been harmonious. There was evidence of a separation which tended to be permanent. The court recognized that such evidence was admissible on the issue of the amount of damages suffered by the widow.

In Simpson v. Vineyard, Tex.Civ.App., 324 S.W.2d 276, 277, a mother sought damages for the wrongful death of her adult son. Evidence was admitted, over the objection that it was hearsay, that the son had said he supported his mother. The court affirmed the judgment, saying:

“It has * * * long been the law of Texas that declarations of persons, since deceased, made prior to the time the cause of action arose, are admissible to show his intention to support the mother or father, in an action to recover for his wrongful death. * * *
Any competent evidence is admissible which tends to disclose that the deceased provided for the plaintiff; the circumstances under which they were living; the attitude of the deceased toward his mother; the relative financial condition of the parties; the fact that the deceased was regularly and steadily employed, while plaintiff was not; and evidence of pecuniary need, in an action by a parent for the wrongful death of an adult child, may indicate a reasonable expectation of deriving benefit from the deceased if he had lived.”

In Dixie Motor Coach Corporation v. Shivers, Tex.Civ.App., 131 S.W.2d 677, 680 (Dis. C. J.), a widow recovered damages for the wrongful killing of her husband. Exclusion of letters showing her affection for another man, whom she subsequently married, was held reversible error. The court said:

“Whatever evidence tends to show the improbability of the continuance of the marriage relations, and the improbability of the continuance of rendition of services and contributions upon the part of the spouse, appears to us to be material and to bear directly upon the right of recovery and the probable amount * * (Emphasis ours.)

In Gulf, C. & S. F. Ry. Co. v. Prazak, Tex.Civ.App., 181 S.W. 711, 712, it was held reversible error to exclude evidence of the bad reputation of the deceased. The court said:

“In cases of this kind the measure of damages is limited to the pecuniary benefit which the plaintiffs would have derived from the services of the deceased child if he had not been killed; and, in determining what would have been the probable amount of such pecuniary benefit, it is proper for the proof to show, and for the jury to consider, the character and habits of the deceased child.”

In Houston & T. C. R. Co. v. White, 23 Tex.Civ.App. 280, 56 S.W. 204, 206 (Writ ref.), a suit by parents for damages caused by the wrongful death of their son, a witness testified, over the objection that it was hearsay, that deceased told his mother shortly before his death that he wanted to support her for the rest of her life. The court .said:

“This testimony was evidence of John’s desire and intention to maintain and take care of his mother as long as he lived, and, in connection with other evidence, shows that she had a good reason to expect aid of pecuniary value from him. Such testimony is not hearsay, but original evidence, expressive of a son’s affection for his mother, and of his intention to manifest it by contributing pe-cuniarily to her support and maintenance.”

Lancaster v. Magrill, Tex.Civ.App., 244 S.W. 1078, 1080 (Writ ref.), was a suit by a widow and children for damages caused “by the killing of their husband and father. Evidence was admitted, over the objection that it was hearsay, that the father intended to give one of his children a good education. The court said:

“The testimony was not subject to the objection that it was hearsay. There was no better method of determining what Magrill’s intentions were regarding his son than the declarations made by him prior to his death.”

See also Gulf, C. & S. F. R. Co. v. Ballew, Tex.Com.App., 66 S.W.2d 659 and International & G. N. Ry. Co. v. Knight, 91 Tex. 660, 45 S.W. 556. In this connection we also call attention to the following authorities and decisions: 14 A.L.R.2d 522; Mc-Million v. Wilkinson, Tex.Civ.App., 135 S.W.2d 231; City of Port Arthur v. Wallace, Tex.Civ.App., 167 S.W.2d 549, 555 (Syl. 13), affirmed 141 Tex. 201, 171 S.W. 2d 480; Casualty Ins. Co. v. Salinas, 160 Tex. 445, 333 S.W.2d 109; 90 A.L.R.2d 1056, p. 1064 ; 25A C.J.S. Death §§ 101 and 102, pp. 919 and 929; Wimberly v. City of Paterson, 75 N.J.Super. 584, 183 A.2d 691; Jensen v. Heritage Mutual Insurance Company, 23 Wis.2d 344, 127 N.W.2d 228; Sloan v. Sloan, Tex.Civ.App., 32 S.W.2d 513, 514; Pounds v. Minter, Tex.Com.App., 13 S.W.2d 351, 352; Holland v. Closs, Tex.Civ.App., 146 S.W. 671, 673; Galveston, H. & S. A. Ry. Co. v. Harris, Tex.Civ.App., 36 S.W. 776; Houston & T. C. Ry. Co. v. Cowser, 57 Tex. 293, 304 and Tex-Jersey Oil Corp. v. Beck, 157 Tex. 541, 305 S.W.2d 162, 68 A.L.R.2d 1062. It has been held that specific instances of conduct may be independently relevant and admissible as showing the belief and intention of the deceased. 32 C.J.S. Evidence § 436, pp. 49, 50; Sun Ins. Office v. Foil, 187 S.C. 183, 197 S.E. 683, 686.

We are of the opinion that said statements by Mrs. Riedel to her treating doctor were admissible as an exception to the hearsay rule and as an admission of a party contradictory of her testimony on the trial that both Doctor and Mrs. Riedel wanted their marriage to work; that their marriage was happy and normal and that their troubles had died with the building of their last house in 1965. In McCormick and Ray, Texas Law of Evidence, (Second Edition), Vol. 2, Section 1121, p. 16 it is said that

“ — it is well settled that any statement or conduct of a party which is inconsistent with the position taken by him at the trial may be given in evidence against him — ”

See also Caplan v. Caplan, 83 N.H. 318, 142 A. 121.

It is true, as stated by appellees, that not all evidence relative to the marital problems of the Riedels and the morals of Dr. Riedel was excluded. But, after most carefully studying the entire record, we are forced to the conclusion that the evidence which was admitted relative to those matters probably did little, if anything, to alleviate the harm done by such exclusion and is insufficient to affect our conclusion that the exclusion was error which was reasonably calculated to cause and probably did cause an improper judgment. See Pittman v. Baladez, 158 Tex. 372, 312 S.W.2d 210, 216. We cannot agree with appellees that Dr. Riedel’s “more recent” statement that his wife had not been unfaithful was “conclusive of Dr. Riedel’s state of mind” when he was killed. This could hardly be held conclusive of Dr. Riedel’s state of mind and intention to not continue to live with and support his wife in the face of testimony that, only about an hour before he was shot, Dr. Riedel said he was going to divorce his wife and that, while he was dying, he directed that his wife not be called, because he didn’t want to see her. The excluded testimony was so directly pertinent and material in determining Dr. Riedel’s then state of mind, attitude and intention and, therefore, the amount of damages suffered by appellees, particularly his wife, that it was likely to have materially changed the judgment. Pacific Employers Insurance Co. v. Gibson, Tex.Civ.App., 419 S.W.2d 239, 243. It strongly tended to show, regardless of the fact that it may have been to some degree cumulative, that Mrs. Riedel’s loss of the things for which she recovered damages was very little and that the Doctor, had he lived, would have soon divorced her. This is specially true of the excluded testimony by Mr. Allen that (a) Dr. Riedel told him that his wife was unfaithful; that she didn’t love him; that he “couldn’t make a go” of their marriage and that he came home early one day and found a naked doctor with his wife while she was wearing a red robe; (e) testimony of Dr. DeBolt that Dr. Riedel stated to him that he had found out that his wife had been unfaithful and his reaction to that discovery and (g) testimony by Dr. DeBolt of Dr. Riedel’s statements to him in 1965 concerning his mental turmoil, divorce and that he was not able to go back to his wife.

Appellant’s third point is that the jury failed to ascertain the “present value” of the benefits appellees would have received had Dr. Riedel lived. It is true that the record does not show the use of a discount rate to mathematically ascertain the present value, but there was evidence that the jury considered and discussed the interest the money to be awarded each ap-pellee would earn. There was evidence that the jurors discussed and considered the rising cost of living and the diminishing value of the dollar, the future, and that the damages awarded were give and take figures and the result of compromise. The inquiry as to what amount of money “if paid now in cash” would fairly and reasonably compensate each plaintiff for the loss sustained as a result of Dr. Riedel’s death was correct. Houston Belt & Terminal Ry. Co. v. Davis, Tex.Civ.App., 19 S.W. 2d 77 (Writ ref.). Although appellant did elicit a statement that the jury made no attempt to find the present value of the anticipated benefits the record does not compel that conclusion. The matters the jurors discussed in this connection were proper in determining the present value. Some of the evidence on this question involved the mental processes of the jurors and was inadmissible. We conclude that reversible error in this regard is not shown.

Appellant’s fourth point is that the court erred in not limiting recovery of the children to their minority because of the absence of proof of anticipated benefits thereafter. In 17 Tex.Jur.2d 601, it is stated that, in the absence of evidence that the children had a reasonable expectation of receiving contributions from their deceased parent after they became twenty-one, the damages recoverable must be limited to the loss sustained during minority. But, in Texas & N. O. R. Co. v. Sterling, Tex.Civ. App., 154 S.W.2d 966 (Ref. w. o. m.), it was held that the evidence was sufficient that the children had a reasonable expectation of receiving contributions after they became twenty-one and, therefore, it was not necessary for the court to limit their recovery to anticipated contributions during minority. There, the evidence merely showed that the father had been kind to his children, helped them, visited them regularly and gave them care and attention. The evidence here on that point is sufficient. We think such a limitation would have been improper. See Houston Transit Company v. Zimmerman, Tex.Civ.App., 200 S.W.2d 848 (Ref. n. r. e.). Point four is overruled.

Appellant’s fifth point presents the contention in effect that the court erred in overruling his motion for a new trial because the jury was guilty of misconduct in that some jurors told the others in the jury room of their personal experiences with the cost of a college education. The record shows that the award to each child was arrived at by adding $12,000.00 to $15,000.00 as the cost of a college education, as to which there was no evidence except that of some juror in the jury room, and rounding off the result. There was no evidence introduced on the trial of the cost of a college education. The cost found was necessarily based on the related experience of a juror. The personal experience of one or more jurors, related in the jury room, was thus used to swell each child’s recovery by $12,000.00 to $15,000.00. The rules provide that a new trial may be granted on the ground that the jury received other evidence than that which came from the witness stand. The reception of other evidence is ground for setting aside a verdict. 41 Tex.Jur.2d 107-108. Generally, a new trial should be granted when it is shown that during the jury’s deliberations a juror stated to his fellows material facts based on his personal knowledge concerning the issues to be answered and that such statements probably influenced the jury in arriving at its verdict. 41 Tex.Jur.2d 122. In Akers v. Epperson, 141 Tex. 189, 171 S.W.2d 483, 486, 156 A.L.R. 1028, the Commission of Appeals in an opinion adopted by our Supreme Court said:

“It is well settled that cases must be tried in the court room and that a juror is not permitted to become a witness during the jury’s deliberations and that it is misconduct for original evidence of material facts to be received by the jury during its deliberations. Hobrecht v. [San Antonio] & A. P. Ry. Co., Tex.Civ.App., 141 S.W. 579; Lincoln v. Stone, Tex.Com. App., 59 S.W.2d 100. Litigants’ rights are not permitted to be thus jeopardized.”

The cost of a college education was a material fact, relevant to the amount of each child’s recovery and included therein. The only evidence thereof was that of jurors who were paying it. Here, jurors did state in the jury room their personal experiences relative to the cost of a college education. Such cost was shown to have gone into the recovery of each child. There was no dispute about the fact that one or more jurors related to his fellows his personal experience with paying the cost of sending a child to college. The juror Jeffs did not deny that this happened. She simply testified on the hearing of the motion for a new trial that the one juror that she knew had a child in college “did not use a figure” that she remembered. It was undisputed that $12,000.00 to $15,000.00 was added to the recovery of each of the four children as the cost of his college education. When all relevant evidence is analyzed that is the only conclusion that can reasonably be drawn therefrom.

To show reversible error appellant is not required to demonstrate that but for the errors shown a different judgment would have been rendered. Greenman v. City of Ft. Worth, Tex.Civ.App., 308 S.W. 2d 553, 556 (Ref. n. r. e.). Considering the probable cumulative effect of said errors we are forced to the conclusion that reversible error is established. Scott v. McLennan County, Tex.Civ.App., 306 S.W.2d 943, 948 (Ref. n. r. e.); Southern Pacific Company v. Hubbard, 156 Tex. 525, 297 S.W.2d 120, 125; Scoggins v. Curtiss & Taylor, 148 Tex. 15, 219 S.W.2d 451, 452; Sproles Motor Freight Lines, Inc., v. Long, 140 Tex. 494, 168 S.W.2d 642, 645. In Texas Employers Insurance Association v. Price, Tex.Civ.App., 336 S.W.2d 304, we reversed a judgment because a juror related to his fellows his personal experience with hiring practices and stated that a man with the claimant’s injury would have great difficulty in obtaining employment. We said:

“The above evidence is undisputed. It shows that a juror related his personal experiences to the jury concerning the practice of company employers in hiring and employing workmen, and that the purpose and effect of such statements was to show that appellee was totally incapacitated. It was misconduct for the juror to relate to the other jurors his own personal experience as original evidence of material facts to be considered in their deliberation.”

Plaster v. Roper, Tex.Civ.App., 152 S.W. 2d 927 (Writ ref.), was a damage suit against a building contractor for furnishing defective workmanship and material. The foreman of the jury was in the construction business. The jury found that plaintiff’s damages was the cost of a new foundation and wall. At the request of the jury, the foreman figured the cost of building the foundation and wall; the jury then added a profit of 20% for the contractor and thus obtained the figure returned by the jury as plaintiff’s damages. This was held reversible error. In the present case, the jury arrived at the minors’ damages, in part, solely from the information given them in the jury room concerning the personal experiences of one or more jurors with the cost of a college education, and then rounded off the figures. See also Maryland Casualty Co. v. Morua, Tex.Civ.App., 180 S.W. 2d 194 (Writ ref.); Hoyler v. City of Longview, Tex.Civ.App., 129 S.W.2d 416; Wald Transfer & Storage Co. v. Randolph, Tex. Civ.App., 56 S.W.2d 197 (Writ dism.); Wallace v. Partin, Tex.Civ.App., 345 S.W. 2d 943; Southern Traction Co. v. Wilson, Tex.Com.App., 254 S.W. 1104; Moore v. Ivey, Tex.Com.App., 277 S.W. 106; Crawford v. Detering Co., 150 Tex. 140, 237 S.W. 2d 615; Atkins v. Graves, Tex.Civ.App., 367 S.W.2d 372 (Ref. n. r. e.); Parris v. Jackson, Tex.Civ.App., 338 S.W.2d 280.

Of course, we agree with appellees that the mental processes of jurors may not be probed and that they have a right to use their common knowledge and indulge in a free discussion of all the evidence introduced in the court room upon the trial. But, here there was no other evidence to discuss or use in determining the cost of a college education, which was included in each child’s recovery. Contrary to appel-lees’ contention, there was no dispute about the fact that misconduct occurred.

Appellant’s sixth point is that the court erred in admitting a citation and plaque, posthumously awarded to Dr. Riedel, at the dedication of a swim meet, which recited Dr. Riedel’s “tremendous devotion to all the youth of this community and the outstanding contributions — to his fellow man.” The author was not shown. It was hearsay. It was erroneously admitted. To some extent, it was related to the recovery of the children for their loss of Dr. Riedel’s education and moral training and it tended to refute evidence indicating his lack of morals. 24 Tex.Jur.2d 53-55; 24 Tex.Jur.2d -66; Maryland Casualty Company v. Davis, Tex. Civ.App., 181 S.W.2d 107; Deramus v. Thornton, 160 Tex. 494, 333 S.W.2d 824-831; McCormick and Ray, Texas Law of Evidence, Second Edition, Vol. 1, Section 790, page 574.

We do not believe it was established that because Mr. Allen told Dr. Riedel to stay in the pickup and he didn’t, that Dr. Riedel thereby became a trespasser; and, consequently, Mr. Allen owed him only the duty to not intentionally injure him. That point is overruled.

Appellant’s seventh point asserts error in admitting Dr. Riedel’s statement in the hospital immediately before his death, “My God, what will become of my wife and children?” We think it was admissible. We have considered appellant’s remaining points and we think they do not show reversible error. They are overruled.

We conclude that reversible error was committed by exclusion of said evidence tending to show Dr. Riedel’s state of mind, belief, attitude and intention relative to his wife and, in any event, that the cumulative effect of all the errors was reasonably calculated to cause and that it probably did cause rendition of an improper judgment.

The judgment is reversed and the cause is remanded.

ON MOTION FOR REHEARING

The appellees contend that if the action of the trial court in excluding the proffered testimony referred to in appellant’s points 1 and 2 and in admitting the testimony referred to in appellant’s point 6 was error it was harmless error within contemplation of Rule 434, Texas Rules of Civil Procedure. This case should not be reversed on these points unless it can be held that the exclusion and admission of such evidence was calculated to and probably did cause the rendition of an improper judgment.

Chief Justice Calvert in his article on the Development of Harmless Error in Texas, in Volume 31, No. 1, at page 1 of the Texas Law Review said:

“If any definite conclusion may be drawn from a review of the opinions of the Supreme Court listed above it is that the court is trying to make the provisions of Rules 434 and 503 serve a useful purpose; the court seems to be developing, slowly but surely, a policy of refusing to set aside or reverse judgments for errors of law committed during the trial unless in the sound judgment of the court the errors contributed in a substantial way to bring about an unjust result.”
“The modern concept of the problem seems generally to support the rule expressed in American Jurisprudence where it is said that ‘in order to warrant a reversal, the error complained of must have been prejudicial to the substantial rights of the appellant.’ ”

Appellant’s 1, 2 and 6 points are as follows:

“FIRST POINT:
The trial court erred in excluding evidence relating to the marital problems of the Riedels.
SECOND POINT:
The trial court erred in excluding evidence relating to the character and morals of Dr. Riedel.”
“SIXTH POINT:
The trial court erred in admitting plaintiffs’ Exhibit No. 21.”

The appellant Allen testified that the deceased Riedel discussed with him on two occasions the possibility of divorcing his wife Patsy. The first time was in 1964 at the house the doctor was living in before he built the new house. Allen said the doctor told him “he was going to divorce Patsy.” The appellant did not encourage the doctor to divorce his wife. The second time the deceased discussed with him the matter of divorcing his wife was on the day of the killing when Riedel said: “I am going to divorce Patsy.”

This testimony from Mr. Allen and other facts and circumstances in evidence disclosed that the court admitted evidence relating to the Riedels’ marital problems. The excluded testimony, about marital problems related to elements of the ultimate problem of dissolving the bonds of matrimony and were included in and cumulative of the more comprehensive problem of divorce which was properly admitted by the trial court.

The court has said in the original opinion:

“It is true, as stated by appellees, that not all evidence relative to the marital problems of the Riedels and the morals of Dr. Riedel was excluded.”

I have considered all the evidence relating to the marital problems of the Riedels and the character and morals of Dr. Riedel which were admitted and have considered the evidence which was excluded. The excluded evidence was substantially the same and cumulative of the evidence that was admitted. Points one and two should be overruled.

I would hold that appellant has failed to discharge his burden of showing that the admission in evidence of plaintiffs’ exhibit 21 caused the rendition of an improper judgment.

Appellant’s Sth point is as follows:

“The misconduct of the jury in using personal knowledge of jurors in determining answers to damage issues.”

Four of the jurors testified on appellant’s motion for a new trial. At the conclusion of such testimony, it was stipulated that all the jurors had been subpoenaed and were present and that the other eight jurors’ testimony would be generally and substantially the same as the jurors who testified.

The effect of the testimony of some of the jurors was that they related their personal experiences with regard to costs of a college education during their deliberations.

The juror, Mrs. Jeffs, testified and was asked: “Tell us whether or not any of the jurors related their personal experiences in connection with that cost?” and she answered: “I don’t remember any juror relating any personal experience. Thurman Jay is the only one that I know of that had a child in college at this time, and he did not use a figure at all that I remember.”

The original opinion states “contrary to appellees’ contention there was no dispute about the fact that misconduct occurred.” In my opinion, Mrs. Jeffs’ testimony makes an issue on misconduct.

The trial court has found that misconduct did not occur on conflicting evidence. Under such circumstances the finding is binding on this court.

I would set aside our original opinion, grant appellees’ motion for rehearing and affirm the judgment of the trial court.