author: BBAIR, J.

text:
    OGDEN et al. v. JONES et al.
    No. 7557.
    Court of Civil Appeals of Texas. Austin.
    March 11, 1931.
    Rehearing Denied April 1, 1931.
    Shropshire & Adkins, of Brady, and Oritz & Woodward, of Coleman, for appellants, Wilkinson & Wilkinson, of Brownwood, for appellees.
   BBAIR, J.

Appellants, Mrs. Mary Ogden joined by her husband E. L. Ogden, and her children of a former marriage with H. P. Roddie, deceased, sued W. D. Jordan, Ira Mayhew, and A. L. Mayhew, hereinafter called defendants, and the city of Brady and its officials, hereinafter called the city, in trespass to try title to recover the south half of block 58 of Fulcher’s addition to the city. All defendants disclaimed as to any land sued for except as to a 50-foot strip running east and west entirely across and near the north boundary of the block which they alleged had been dedicated to the city as a public street by H. P. Roddie during his life time; and the defendants further plead: (a) that they had purchased a part of block 58 from the appellants with an apparent or visible way of ingress and egress over the land remaining in appellants, which right of way passed to them under the term “appurtenances,” as used in the deed of conveyance and as essential and necessary to the use of the part conveyed; and (b) that such apparent easement or visible way of ingress and egress was impliedly granted to them over the land remaining in appellants as reasonably necessary to the enjoyment of the part conveyed.

On a trial to the court without a jury appellants were awarded the fee-simple title to the part of block 58 sued for, subject, however, to a perpetual “appurtenant right or easement,” in favor of defendants as a way of ingress and egress over a 20-foot strip running east and west entirely across the block, and about the center of 50-foot strip described. The trial court also held that the evidence di-d not establish a dedication of the 50-foot strip described as a public street by H. P. Roddie during his lifetime, and that neither the pleadings nor evidence showed any estoppel in favor of the city with respect to its dedication as a public street. Hence this appeal.

Appellants'contend that the undisputed evidence shows no part of block 58 retained by them to be subject to the perpetual appurtenant right or easement in favor of defendants as a way of egrfess and ingress wer the 20-foot strip awarded them by the trial court. By cross-assignments of error, the city and the defendants contend that the trial court erred in holding that the evidence did not establish a dedication of the 50-foot strip as a public street by H. P. Roddie during his lifetime.

In 1920, H. P. Roddie, deceased, purchased the south half of said block 58, and it became thereafter the community property of himself and his wife, now Mrs. Ogden, and their business homestead. In dimensions this property was 250 feet north and south and 466 feet east and west, and was bounded on the south by Brady creek and on the east by the pld Brownwood road, and on the west by ¡Bridge street, and on the north by a 30-foot strip of land claimed by the Gulf, Colorado & Santa Fé Railway Company, lying immediately south of its tracks and yards, which had been used as a public road or-street for a .number of-years, and was so used until some -time afterwards, when the railroad company either leased or sold a part of said 30-foot .strip to Cox Produce Company, and another part to the defendants Mayhew Produce Com-pany, on which they erected business buildings as shown by the following map: '

In February, 1928, appellants sold and conveyed by warranty deed to one of the May-hews, who in turn either sold or formed a partnership with the other above-named defendants, the east 200 feet of block 58, marked on the map “Mayhew,” and on the north end of this 200-foot strip defendants constructed a produce house and ice plant, which also covered the 30-foot strip leased or purchased by them from the -railroad company, and which is marked on the map “Mayhew Produce Company.” Prior to these transactions, in 1920, H. P. Roddie negotiated with the city of Brady and the railroad company, seeking to close the 30-foot strip as a street, and to open as a public street in lieu thereof the 50-foot strip in question, which is marked on the map in broken black lines, and which runs east and west across block 58 from Bridge street to the old Brownwood road. An ordinance closing the 30-foot street as a street and accepting the 50 foot strip as a street was prepared by Boddie and the attorney for the railroad company, and was passed by the city council, conditioned that Boddie execute a deed to the city conveying the 50-foot strip. Thereafter, between April 1920, and Boddie’s death in the fall of 1920, Boddie constructed a bridge or culvert leading from Bridge street to this 50-foot strip. He also employed parties to grub small shrubbery from the 50-foot strip, and it was marked off as indicated on the map. The city’s grader, according to some witnesses, also marked this street by making slight ditches on the side. Boddie then commenced to construct a business building- on the 30-foot strip which had formerly been the street, and on the northwest corner of block 58. He died while the foundation to this building was under construction, and nothing further was ever done with respect to that structure. After Boddie’s death block 58 was set aside to Mrs. Boddie, now Mrs. Ogden, as the homestead of herself and her children by Boddie. The city thereafter paved Bridge street and assessed against the Boddie estate its proportion of the cost thereof, including the cost against the alleged 50-foot street in question. The city never did any other work on said 50-foot street, nor recognized it as a street in any manner. Boddie’s sons, appellants here, thereafter constructed a building, marked “Boddy Produce Co.” on the map, which covered all of the 50-foot strip except 17 feet on the south and for the entire length of the building. The defendants also constructed a platform for their produce house on the 50-foot strip, and a cooling system for their ice plant was constructed entirely within this 50-foot strip, as shown by the small square on the map. The deed from appellants to Mayhew made no mention of the street as traversing the 200-foot strip conveyed, nor was any way reserved over, the part not conveyed by appellants’ deed. The defendants testified that there was a visible traveled road across the property, represented by the red broken lines on the map running east and west entirely across same when they purchased the 200-foot strip from appellants, and that they would not have purchased but for that fact. Mrs. Ogden testified that she told the Mayhew, to whom she deeded the 200 feet and with whom she made the trade, that the 50-foot strip was not a street, and that the city had no claim to it, and that he in substance told her she was within her rights in the premises. The evidence shows that at the time of this conveyance there was a traveled way used by the public as shown by the red broken lines on the map, running east and west across this block, which was about 12 or 15 feet wide.

The evidence further shows that, at the time defendants purchased the 200-foot strip from appellants, there were no improvements on same; that at that time the 60-foot old Brownwood road, which was and is now a public road, was in existence; that the 30-foot road just south of the railway company’s property was open and remained so until defendants built their produce house on same; and that just north of this 30-foot road and across the spur track shown on the map was a 70-foot roadway built and maintained by the railroad company, and this afforded defendants a way of egress and ingress to their property.

Upon this evidence, and with respect to the right of way or easement claimed by defendants, the trial court found as follows:

“3. The court* finds that at the time the plaintiff, Mrs. Ogden, sold the east 200 feet of said block 58 to Ira Mayhew, that there then was a traveled and used road or passage way across said block from north Bridge street eastward to what is shown on the pla't filed herein as the Brady-Brownwood road. And that said passage way or road has continued to be used by the public and specially by Mayhews and their patrons up to the present time.
“4. That while at present Mayhews have outlet from their property and building into the City of Brady by going on to the railroad right of way at the northwest corner of their property and thence west on the private prop-, erty of the railway company to Bridge Street, or by going eastward from their property on to what is shown on the plat as Old Brown-wood Boad which road is now closed northward and thence on to the private property of the railway company westward to Bridge Street, and also by going south over Old Brownwood Boad, crossing át a ford on Brady Creek.
“5. That the access or outlet across the railway property is permissive only and might be denied by the railway company at any time, and that the route via Old Brownwood Boad and crossing Brady Creek is a bad and a considerable part of the time practically impassable crossing.
“6. That the route used and traveled by the Mayhews, their partners and customers in reaching their place of - business from the town of Brady and surrounding country to at least the extent of 75% is the road way or passage way across the property of the plaintiffs which was in use at the time the plaintiff sold Mayhew said property, and has been in constant use since said time. The equrt further finds that said latter route is now- the only practicable route and at the time of the sale of the property by the plaintiff Mrs. Boddie to Ira Mayhew was the only practicable route from said property into the business part of the town of Brady.”

There is no basis in the preceding evidence for the award to defendants of the 20-foot “appurtenant or easement” as a way of ingress and egress over the part of block 58 remaining in the appellants. The deed of conveyance contained no such reservations, and such a way cannot be sustained as an implied reservation of way by necessity, because, at the time the defendants purchased the 200 feet from appellants, there were other ways of ingress and egress to it, particularly the old Brownwood road which was a public road. The fact that the old Brownwood road became practically impassable when it rained, on account of crossing Brady creek, ½ not material, because it was and is a public road and may be bridged or improved so as to be passable at all times. The finding of the trial court that the way of iijgress and egress oyer the 30-foot strip and across the spur track into the 70-foot right of way maintained by the railway company was merely permissive may not have support in the evidence. The evidence in this regard merely shows that, before the defendants placed any improvements on the 200-foot strip purchased from appellants, they also purchased the 30-foot strip from the railroad company with an apparent way over the spur track to the 70-foot right of way maintained by the railroad company. This presents the same state of facts as regards the conveyance by appellants to the defendants, and certainly, if the apparent and visible way in one instance was per- ' missive only, it should have been so held in the other instance. So the rule relied upon by appellants, to the effect that the law presumes that one will not sell land to another without a way of access to it, is not applicable because defendants had at least two ways of access to the property conveyed to them by appellants at the time they purchased, and another way was added when they purchased the 30-foot strip from the railroad company before they constructed any building or used the 200-foot strip purchased from appellants for any purpose.. It is true that the Supreme Court has recognized the rule known as the one of a.right of way by necessity where one conveys land to another completely surrounded by land which he retains, but they have never recognized or extended the rule so as to impose implied reservations of a way of necessity across a' part of land which is not described in the deed merely because a way across such land not described affords a more practical or convenient way. In fact the Supreme Court specifically held to the contrary in the case of the State v. Black Brothers, 116 Tex. 626, 297 S. W. 213, 217, 53 A. B. R. 1181, as follows:

“However, one of the latest expressions of this court, in refusing to recognize a claim of implied reservation by a grantor, was in an opinion of Mr. Justice Gaines, in which he used this significant language:
“ ‘There is much that commends them to favorable considération in the remarks upon this question of Chief Justice Ryan, of the Supreme Court of Wisconsin: “We may say, however, in passing, that it is always safest to let written contracts speak for themselves. This rule is often relaxed with doubtful expediency. Parties ought to make their own contracts complete. Alienations of land are or ought to be grave and deliberate transactions. Every conveyance should contain ‘the certainty of the thing granted to the full •extent of the grant. What may be expressed enlarging or restricting the grant in particular cases should not be left to implication. It is often difficult, as the cases show, to determine what shall be implied in conveyances by way of grant or reservation of easement; what parties who might have spoken shall be held to intend by their silence. And because ‘a deed shall be construed most strongly against the grantor,’ this view applies with great force against' implied reservations in the servient estate conveyed by the owner of the dominant estate. Indeed, it is remarkable that the doctrine of implied grant of easement in the land of the grantor once rested very much on the principle that the grantor should not be heard to derogate from his grant (How-ton v. Erearson, 8 Term Reports, 50); and yet the same doctrine has been extended to implied reservations to the grantor in what he conveys in direct derogation of his grant. On principle, therefore, we should be disinclined to enlarge or limit estates granted by implication of law further than a general current of decisions might oblige us.” Dillman v. Hoffman, 38 Wis. 573. Sellers v. Texas Central R. Co., 81 Tex. 460, 461, 17 S. W. 32 [13 L. R. A. 657].”

This decision is also contrary to the contention of the defendants that the way across the land not conveyed by appellants passed as an implied grant under the general clause “appurtenances thereto belonging,” as contained in the deed. In fact, the decisions are uniform in holding that nothing will pass by the térm “appurtenances,” except such land as is indispensable to the use and enjoyment of the property conveyed.

With respect to the cross-assignment of error that the court erred in finding and concluding that the 50-foot strip was not dedicated as a public street by H. P. Roddie during his lifetime, we think the evidence clearly sustains that conclusion. It is true that negotiations were started looking to the opening of the 50-foot strip as a public street. An ordinance was passed by the city council closing the 30-foot strip and authorizing or accepting the 50-foot strip as a public street, but conditioned that H. P. Roddie make a deed to the city conveying the 50-foot strip, which he never did. It is also true that about the time these negotiations were started in 1920 some work was done with respect to marking the street and grading it, but that after that time the city never in any manner recognized it as a public street, nor did any of tbe parties- involved in this litigation ever recognize it as a public street. The appellants constructed a building covering all of the 50-foot street, except about IT feet at its west end. The defendants constructed their platform, extending same 15 feet out into this 50-foot strip, and also constructed their cooling plant entirely within this strip, and leaving only a part of it to the south of the cooling plant. The city assessed the improvements on Bridge street against the Roddies’ property, including this 50-foot strip; thus it is shown that none of the parties at interest ever recognized the 50-foot strip as a street. No fact was pleaded or proved by the city which would estop the appellants from setting up the fact that the street had not been dedicated by H. P. Roddie during his lifetime; nor did the defendants plead or prove any fact which would estop the Roddies from setting up the fact that they had not dedicated this street to the public. One of the defendants testifiéd that he examined the record and saw the condition of it, which necessarily included the fact that the city had passed the ordinance closing the 30-foot street and accepted the 50-foot street only upon condition that H. P. Roddie would execute to it a deed conveying the 50-foot strip.

From what has been said we reverse the judgment of the trial court awarding to the defendants a 20-foot appurtenant right or easement over the portion of block 58 retained by appellants, and here render judgment for appellants for title and possession of the entire portion of block 58 retained by them.

Reversed and rendered in favor of appellants.


source: Caselaw Access Project

author: DUNKLIN, J.

license: Public Domain

text:
    SCHEBESTA v. STEWART.
    No. 12381.
    Court of Civil Appeals of Texas. Fort Worth.
    Nov. 22, 1930.
    Rehearing Denied December 20, 1930.

      P. Walter Brown, of Port Worth, for appellant.
    Baskin, Eastus & Greines, of Fort Worth, for appellee.
   DUNKLIN, J.

' Charles J. Schebesta, as defendant, has appealed from a judgment rendered against him in favor of Z: G. Stewart, as plaintiff, for the sum of $10,150 for commission claimed by plaintiff as a broker in procuring a purchaser for a tract of 406 acres of land owned by the defendant and situated in Tarrant county about one mile southeast of Birdville.

The uncontroverted proof showed that the defendant employed the plaintiff to negotiate a sale of the land and agreed to pay him as commission all over and above $125 an acre that he should realize for the land; that the defendant sold the land for $150 an acre to J. P. Stalcup. The judgment rendered in plaintiff’s favor was for $25 an acre, that being the excess over and above $125 an acre realized by the defendant.

The following are the issues submitted to the jury with their findings thereon:

“I instruct you that ‘producing cause’ as that term is used in this charge, means any act or series of acts set -in motion, by the efforts of which, continuing in an unbroken chain of cause and effect from their inception, was produced the result or thing done,
“1. Were the acts of Stewart the producing cause of the sale of the farm in question, as shown by the evidence in this case? Answer : Yes.
. “2. If you have answered No. 1 ‘No,’ then do not answer No. 2, but if you have answered it ‘Yes’, then answer: At the time Schebesta made the deed to Stalcup, did Schebesta know that Stewart was the producing cause, if he was, of that sale of the farm? Answer: Yes.
“3. Did the plaintiff agree to accept the rights and benefits to be obtained by him under the agreement marked as defendant’s exhibit No. 5, being dated the 16th day of July, 1928, as full payment of sums claimed by him to be due him, arising out of the sale by Schebesta of the farm in question? Answer: No.
“4. Did Stewart, prior to the delivery of the deed by Schebesta to Stalcup, state in substance that he would riot claim any commissions out of such conveyance by Schebesta? Answer: No.
“5. Did Schebesta, at the time he delivered the deed to Stalcup, believe that Stewart would not claim any commission in connection with such sale? Answer: No.”

After the trial of the case before the jury had proceeded for about a half day, the court excused one of the jurors and the trial judge proceeded with the remaining eleven, all of whom signed the verdict.

Two assignments of error are presented, one to the action of the court in excusing the juror and the other to the. trial of the case before the remaining eleven. The bill of exception taken to those rulings contains the following recitals: “Carl N. Chambers received a telegram stating that his father was dangerously ill, near Tulsa, Oklahoma, advising him to come at once if he wished to see his father alive. This telegram was exhibited to the judge, and it appearing to the court that the said juror was then and there physically ill, trembling, eyes and nose running, pulling his hair, his voice hoarse, and there-, by rendered physically unable to sit further as a juror in this cause, the judge over the objection of the defendant Charles J. Sche-besta excused said juror from further service, and the attorney of said Charles J. Sche-besta further excepted and objected to the proceeding of the trial with eleven (11) men, which objection was by the court overruled, and the defendant Schebesta was forced to proceed with the trial with the remaining (11) .jurors.”

Article 5, § 13, of the Constitution of Texas, contains this provision: “When pending the trial of any case, one or more jurors, not exceeding three, may die, or he disabled from sitting, the remainder of the jury shall have .the power to render the verdict.”

Article 2204, Rev. Civ. Statutes of 1925, reads as follows: “Pending a trial of a civil -case in the district court, where one or more jurors may die or be disabled from sitting, if there be as many as nine of the jurors remaining, those remaining may render and return a verdict; but in such case thé verdict must be signed by each juror rendering it.”

In H. & T. C. Ry. Co. v. Waller, 56 Tex. 337, it was held that: “A juror is not ‘disabled from sitting’ within the meaning of the constitution by mere distress of mind. Such distress, caused by information of sickness in his family, calling for his presence at home, might be a sufficient cause for suspending the progress of the trial, if in the judgment of the court the emergency required such a course. But this is not the character of disability which the constitution classes side by side \with death. If a juror becomes so sick as to be unable to sit longer, he is plainly disabled from sitting. Ray v. State, 4 Tex. App. 454. If by reason of some casualty or otherwise he is physically prostrated, so as to be wholly incapable of sitting as a juror, or loses his mental powers, so as to become insane or idiotic, then too he would be disabled from acting as a juror.”

In the case of Ray v. State, 4 Tex. App. 455, it is said: ‘ “The discharge or retention •of the juror was a matter addressed to the •sound discretion of the court, and the explanatory statement of the judge to the bill of ex•ceptions shows that that discretion was not only not abused, but that it was exercised with all necessary caution.”

In Barker v. Ash, 194 S. W. 465, 467, by .the Dallas Court of Civil Appeals, in which a writ of error was refused, it. appears that a juror was excused after he had received a message that his child was dangerously in and about to die. The bill of exception taken to the action of the trial judge in excusing the juror recited that: “In the judgment of the court, the intelligence received was so serious as to disable and disqualify the juror from a fair consideration of the case.”

In disposing of the assignment of error to that -ruling, the court had this to say: “That the juror was disabled to continue in considering the verdict we cannot for a moment doubt, for his mind, under the circumstances, would be so absorbed by thinking of his sick child that'he could not possibly give the case that attention contemplated by the law, and the court did not err in discharging him. Routledge v. Elmendorf, 54 Tex. Civ. App. 174, 116 S. W. 160.”

Appellant has cited also the case of Jackson v. Coats & Sons (Tex. Civ. App.) 43 S. W. 24, in which it is held that the county court was without authority to discharge one of the jurors after the trial had begun, but, as shown in the opinion there rendered, that decision was based on the fact that section 17, article 5, of the Constitution provides that a jury in the county court shall consist of 6 men, with no px-ovision made for verdicts to be rendered by a less number than 6; and in the same opinion it is pointed out that section 13 of the same article provides that in the district court a verdict may be rendered by a less number than 12 men under certain circumstances.

Another authority cited by appellant, Zarate v. Villareal (Tex. Civ. App.) 155 S. W. 328, 334. has no material bearing upon the question under discussion.

It will he noted that in the case at bar the trial judge found that the “juror was then and there physically ill, trembling, eyes and nose running, pulling his hair, his voice hoarse, and thereby rendered physically unable to sit further as a juror.” Under the facts so found, there was no error in excusing the juror, and, therefore, the assignment of error now under discussion will be overruled.

The testimony showed that, after plaintiff was employed by the defendant to find a purchaser for the land, he first offered the property to G. A. Teague, who was anxious to buy, but was unable to furnish the cash consideration, and in order to consummate- the purchase he made several efforts to interest other parties to go 'in with him in the purchase, and finally succeeded in inducing C. B. Burkhart and Homer Baughman to join him in the purchase, all of whom then began negotiating with the defendant, and the negotiations finally culminated in an agreement to purchase the property. They employed J. F. Stalcup to take the deed in his name and then transfer the property to O. B. Burkhart to be held for the use 'and benefit of himself, Teague, and Baughman. The deed from the defendant to Staleup recited a cash consideration paid of $4,500 and the assumption of a great many lien notes outstanding against the property. Burkhart furnished the cash consideration recited in the Staleup deed, and the deed to him from Staleup recited that he took the property subject to the outstanding liens; there being no contract of assumption of those liens. Staleup was paid a consideration of $100 by Burkhart for the part so taken by him in the transaction, with the full understanding that he was to have no interest whatever in the property.

Contemporaneously with the negotiations leading up to the sale of the property, the plaintiff, who held a lease on 18 acres of land near the land in controversy, on which he was operating a gravel pit, entered into an agreement with Teague, Baughman, and Burkhart to transfer his lease on the 18 acres, together with some machinery he was using to mine gravel thereon, and also certain contracts he had to furnish gravel to other persons in consideration of the agreement of those parties to employ him for a stipulated wage for work in the business of mining gravel from the land purchased. .

The evidence showed that the 406 acres in controversy were purchased for the purpose of mining gravel therefrom, and that prior to the conveyance from Staleup to Burkhart a written agreement was made by and between Staleup as party of the first part and Burk-hart and Baughman of the second part that the first party would convey the land to parties of the second part, and the second parties agreed to advance the cash consideration to be paid to defendant recited in the latter’s deed to Staleup. In that contract Staleup further agreed, among other things, to procure an assignment to second parties by Z. (1. Stewart of mining contract held by him from one J. (5. Brownfield in connection with a gravel pit, which the evidence showed to be on the 18 acres held by Stewart under lease from Brownfield, together with an assignment of all machinery and assets owned and used by Stewart in working that gravel pit; and Staleup further agreed to procure Teague’s ratification of that assignment by Stewart and also his assignment of any interest which he (Teague) might have in the same venture. In that agreement it was further stipulated that Stewart and Teague should be employed 'by Burkhart and Baugh-man in the operation of a gravel pit on the 406 acres at stated salaries for each for stipulated periods and subject to termination on stated conditions; and that, in addition to the salary to be paid to Stewart, he was also to be paid $1,000 as a further consideration for his assignment noted above. There was a further stipulation that neither Stewart nor Teague should have any authority to make any contracts in connection with the mining operations by parties of the second part, except such as should be first approved by Burk-hart and Baughman. That contract was executed by Staleup, Burkhart, and Baughman only, and neither Stewart nor Teague was a party to it. The date of its execution was July 16, 1928, while the deed from Staleup to Burkhart was executed three days later, to wit, July 19, 1928; and in that deed the prior contract was not referred to or in any manner made a part of the consideration of the conveyance; the only consideration recited in the deed being a cash consideration of $4,-500 paid by Burkhart, coupled with a further stipulation that the conveyance was made subject to the incumbrances then outstanding against the land, with no stipulation for Burkhart’s assumption of those debts against the land.

In defendant’s answer, that written contract was made the basis of a separate defense to the effect that there was an agreement between Stewart, Teague, Burkhart, and Baughman to have defendant make the deed to Burkhart for' the benefit of all four of the persons named who would thereafter operate the gravel business jointly and for their joint benefit, using the 406 acres and that acquired from Stewart and Teague all together for the prosecution of that venture; and that, by reason of the fact that he was a party to that agreement, Stewart is precluded from a recovery of the commission sued for in this case. And in support of that defense defendant introduced the written contract noted above between Staleup, Burkhart, and Baughman. Under the circumstances just stated, defendant is in no position to complain of the submission of that defense, the purport of which was embodied in special issue No. 3; and hence the assignment of error to the submission of that issue, based on the contention that it was an immaterial issue, is overruled.

According to the testimony of Stewart, corroborated by that of other witnesses, his agreement to assign to the purchasers of the 406 acres in the event of such purchase was separate and distinct from the agreement to purchase, nor did that testimony in any manner contradict or vary the terms of the preliminary written agreement of purchase and sale made between Staleup, Burkhart, and Baughman, three days prior to the deed from Staleup to Burkhart. It follows, therefore, that there is no merit in the assignment to the admission of testimony of plaintiff' to the effect that his agreement to assign to the purchasers of the 406 acres his lease on the 18 acres from Thompson with his machinery used on that lease, in consideration that Burkhart and Baughman would employ him in their gravel business for a stated salary, and payment to him of $1,000 additional was no part of the executed contract of purchase and sale of the 406 acres made the basis of his suit, the ground of objection urged to that testimony being that it “called for a conclusion of the witness and that the transaction inquired about was evidenced by a contract in writing.” Fidelity Union Fire Ins. Co. v. McDonald (Tex. Civ. App.) 249 S. W. 538. .

Error has been assigned to the action of the court in permitting J. F. Stalcup and G. A. Teague to testify as witnesses for plaintiff after being placed under rule by the court. The bills of exception taken by defendant to those rulings recite his objections to the testimony, which were, in substance, that during a recess in the trial Mr. Greines had had the court reporter to read to him in the presence and hearing of those witnesses some of the testimony theretofore given in the ease. The bills show that when those objections were urged, and before any rulings thereon, Mr. Greines and the court reporter both testified under oath to the effect that the court reporter had failed to understand some answer of one of the witnesses, and in order to get his notes straight he had requested Mr. Greines’ assistance in supplying the omission, and to that end he invited Mr. Greines to go out in the hall where some of the testimony was read over to Mr. Greines in order to give the connection with that which the reporter had failed to note; that during the reading of such testimony Teague and Stalcup were in the hall a short distance away and probably too far to understand what was said. The court further examined both those witnesses fully as to just how much they did hear, and on what points, and, after a thorough investigation of the facts, overruled the objections; and it seems quite clear to us that those rulings do not constitute- reversible error; especially since the trial judge is vested with a large discretion in the determination of the merits of such an objection. I. & G. N. Ry. Co. v. Hugen, 45 Tex. Civ. App. 326, 100 S. W. 1000; M., K. & T. Ry. Co. v. Pacheco (Tex. Civ. App.) 185 S. W. 1051, and decisions there cited; Dowdy v. Furtner (Tex. Civ. App.) 198 S. W. 647, 649; Stout v. Myers (Tex. Civ. App.) 242 S. W. 1109, 1111; Dunnagan v. Lackey (Tex. Civ. App.) 283 S. W. 927.

The witness Stalcup testified that Teague wanted the deed made to Stalcup because he (Teague) could not hold property in his own name. Objection was made to that testimony on the ground: “Because it was a conversation between two witnesses in this cause when Sehebesta, the defendant, was not present.” Error has been assigned to that ruling. It is a sufficient answer to this to say that the bill does not show that the defendant was not present at the time. Furthermore, the testimony of Stalcup embodied in the statement of facts was that the defendant was present when Teague made the same statement, and other witnesses testified to the same effect, and also that the defendant likewise consented to that agreement in order to avoid payment of a commission to plaintiff for making the sale. Moreover, we believe that plaintiff was entitled to show that the sale was made to Burkhart through Stalcup as an intermediary, even though defendant was not apprised of that fact, provided that he could show that he was the procuring cause of the sale.

Complaint is made of the refusal of the trial court to submit to the jury certain issues requested by defendant inquiring whether or not the deed to Stalcup and the deed from him to Burkhart were both made for the purpose of conveying to plaintiff Stewart, jointly with Baughman, Burkhart, and Teague, title to an undivided interest in the 406 acres of land. But in appellant’s brief no evidence is pointed out tending to support a finding in the affirmative on that issue. Indeed, as pointed out already in this opinion, the testimony introduced was sufficient to conclusively refute such a finding. In appellant’s brief it is contended that one of the issues so requested was sufficient to present a plea of estoppel -against plaintiff to claim the commission, without pointing out which of the issues presented that defense, and in our opinion none of them was based solely upon a desired primary finding that Stalcup was a joint purchaser with Burkhart, Baughman, and Teague; and none of those requested issues present any issue as to whether or not the defendant was misled by the arrangements so made to purchase the property by having the deed first made to Stalcup and a conveyance from Stalcup to Burkhart.

Error has been assigned to the definition of “producing cause,” as given in the court’s charge. Upon the trial of the case defendant made this objection to the definition so given: “The words, ‘producing cause’ instead of ‘procuring cause’ are used because it does not imply an (a?) continued sequence unbroken by any new and independent intervening cause, and a definition of such cause.”

Appellant has cited the following from the opinion in Robertson & Mueller v. Holden (Tex. Com. App.) 1 S.W.(2d) 570: “Proximate cause is that cause which in a natural and continued sequence, unbroken by any new independent cause, produces an event, and without which that event would not have occurred, and to be the proximate cause of an event it must have been reasonably anticipated by a person of ordinary prudence that the injury or some similar injury would occur. There may be more than one proximate cause of an event.” That definition was given in a suit for damages resulting from alleged negligence which was claimed to be the proximate cause ,of the injury sustained, and manifestly some portions of the definition have no application here.

In Rio Bravo Oil Co. v. Matthews (Tex. Civ. App.) 20 S.W.(2d) 342, 347, which was a case of like character to the one last cited, it was said that terms “proximate cause,” “producing cause,” and “procuring cause” are all in legal effect the same. In that opinion it was further said: “We do not think the court erred in refusing to define the term ‘natural and continued sequence.’ These are ordinary words of simple meaning, and under the holding of the Commission of Appeals, expressly approved by the Supreme Court, in Robertson & Mueller v. Holden, 1 S.W.(2d) 570, the court was not required to define this term.”

In each of those cases it was held that, upon objection made thereto, the court should have included in his instruction the element of new and independent cause with a proper explanation of the meaning thereof.

But appellant has pointed out no testimony in this case to support a finding that there was any intervening cause between the efforts first begun by the plaintiff to sell the property and the final consummation of the sale. Indeed the testimony conclusively refuted such a contention. And, hence, there was no basis for a charge submitting the issue of any intervening cause which broke the sequence of plaintiff’s efforts to consummate the sale. Furthermore, the charge given was a substantial copy of the one given and approved in Custer v. Thaxton (Tex. Civ. App.) 287 S. W. 528, which, like the present suit was for recovery of a broker’s commission for sale of property. This assignment is therefore overruled.

The alleged newly discovered testimony of W. J. Blair was made as one of the grounds urged for a new trial. Blair’s affidavit, attached to the motion, was to the effect that on or about April 1, 1928, Teague suggested to affiant that he had an opportunity to purchase the land in controversy with the re-, quest that affiant look it over with a view of going in with him (Teague) to buy it. That Teague further told him that the land belonged to a man living near Ennis who had a nephew by the name of Lewis White; that White had shown Teague the property and was to get a commission of $10,000 for selling it, and proposed to affiant to take over the property in affiant’s name, Teague to furnish $5,000 for the cash payment and affiant to execute notes for the deferred payments; that a deed was made out to affiant in accordance with that agreement and placed in escrow to await the raising of the cash consideration by Teague, but the trade finally failed to consummation by reason of Teague’s failure so to do. That during all of those negotiations Teague never told affiant that Stewart was in any way interested in the transaction, but on the contrary informed him that Lewis White was the one who had shown him the property and was to receive a commission if the trade went through; that during all of those negotiations White claimed to be assisting Teague in trying to raise the cash payment, and claimed that he was entitled • to a commission ; that after those negotiations were finally abandoned Teague told him that Staleup had bought the property; that Teague was going to.operate the gravel pit; that, during the time that affiant was checking gravel in the pit, plaintiff came out and worked as foreman in the pit, but never at any time claimed that he was entitled to any commission for the sale to Staleup.

Defendant’s affidavit was likewise attached to the motion, and in that affidavit he stated that he did not know before the trial of any alleged representations by Teague to Blair.

The affidavit so made by defendant was the only showing offered to excuse his failure to procure the testimony of Blair on the trial of the ease, and we believe that it was insufficient to show diligence in that respect; especially since the evidence without controversy was that a deed was executed by the defendant to Blair in the first instance; that the defendant well knew that Teague was the one who negotiated that sale; that the deed was put up in escrow awaiting the payment of the cash consideration and was finally taken down for failure to raise the money. Those facts were sufficient to suggest to defendant, in the exercise of due diligence that he interviewed Blair for the purpose of learning .through him whether or not Teague had made any’representations along the lines related in Blair’s affidavit. Furthermore, the newly discovered testimony of Blair was in part mere hearsay, in part negative only, and in part would be admissible only for the purpose of impeaching or discrediting the testimony given in the case by Teague, which ordinarily is not a sufficient showing for a new trial on account of such evidence.

We conclude that the court did not abuse his discretion in refusing to grant a new trial on the ground of newly discovered evidence. St. Louis, B. & O. Ry. Co. v. Cole (Tex. Com. App.) 14 S.W.(2d) 1024, 1025; Parks v. M. K. & T. Ry. Co. (Tex. Civ. App.) 19 S.W.(2d) 373, 377; Bradley v. T. & P. Ry. Co. (Tex. Com. App.) 1 S.W.(2d) 861, 865; Ferguson v. Jackson (Tex. Civ. App.) 248 S. W. 66, 67; Allen v. Camaros (Tex. Civ. App.) 247 S. W. 333.

For the reasons noted, all assignments of error are overruled, and the judgment is affirmed.


author: RANDOLPH, J.

text:
    JACKSON et al. v. NOEL.
    No. 3635.
    Court of Civil Appeals of Texas. Amarillo.
    April 1, 1931.
    Rehearing Denied April 15, 1931.
    Willis, .Studer & Studer, of Pampa, for appellants.
    Cook, Smith, Teed, Sturgeon & Wade, of Pampa, for appellee.
   RANDOLPH, J.

This suit was filed by appellee, J. L. Noel, a resident taxpaying citizen of Gray county, Tex., as plaintiff, in the district court of Gray county, against appellants, Tom Jackson, an individual, S. D. Stennis, county judge of Gray county, John R. White, Lewis O. Cox, H. G. McCleskey, and M. M. Newman, as county commissioners, Mable Davis, county treasurer, Ray Wilson, auditor, and Charlie Thut, county clerk, seeking to have declared as being null and void a certain contract made by the appellant Tom Jackson with appellant Lewis O. Cox, as county commissioner of Gray county, and the commissioners’ court of Gray county, alleging that in January, 1931, Lewis O. Cox, as county commissioner, entered into a contract with appellant Jackson by which said Jackson agreed to furnish certain road material for public roads in Gray county for a price of $3 for each yard of gravel and material, to be paid for by Gray county; further, that the price agreed upon was greatly in excess of $2,000; that the material was furnished by said Jackson, and that Jackson claimed he had furnished 1,280 yards of earth, sand, and dirt at the price agreed upon, which amounted to $3,840; that in reality the said Jackson did not furnish the amount that he claimed. Further, plaintiff alleged that the reasonable price thereof should not have been more than $1.25 per yard, and that the material furnished was of no value to the county, and that the contract was fraudulently made and was not bona fide; that Lewis O. Cox, as county commissioner, did not lawfully bind Gray county by said contract; that the contract called for the expenditure of more than $2,000, and was illegal because it was not let to competitive bidders and the county did not have a certified cheek deposited for 5 per cent, of the amount, and that the contract was therefore void. He further alleged that Jackson did not give a bond as required by law; that Jackson had filed with the auditor his claim for $3,840; that the commissioners’ court proposed to meet immediately, and was threatening to approve the claim of'said Jackson unless restrained; and that said Jackson would collect same from the county and it would be lost to Gray county and its citizens and taxpayers unless such action was restrained, etc.

It is not necessary to discuss the defendants’ answer.

On trial on the merits, all parties announced ready, and the trial was had before the court without the intervention of a jury, and the trial court rendered judgment granting the injunction as prayed for by the plaintiff, and appeal was therefrom taken to this court.

The appellants attack the judgment of the trial court upon the following grounds: (1; That article 2368, Revised Civil Statutes, did not apply to the contract here in question because it was not a contract that necessarily called for and required the expenditure of the funds of the county in excess of $2,000 at the time the contract was made; (2) That said article did not apply because the uncontradieted evidence shows conclusively that the contract was one that Tom Jackson was to supervise the work and to receive installments of $3 per cubic yard for the work, and that his work was one that called for experience of the construction and called for expert services and expert selection of material and expert construction of the road; (3) that said article is not applicable to the contract in question because subdivision 6 of article 2351 of the Revised Civil Statutes gives the commissioners’ court general control over all road and chapter 3, title 118 (articles 6717-6789), makes it the duty of the commissioners’ court to place gravel, earth, and stone or other necessary material to repair or maintain such public road and pay the owner fair and just compensation therefor as may be agreed upon between (him and the commissioners’ court, which article was passed later than article 2368 and therefore supersedes it; (4) that said article 2368 did not apply because the evidence shows that the commissioners’ court had constituted Lewis O. Cox, one of the county commissioners, as overseer or supervisor over the road, and he was authorized to expend the money for repairs of the road under and by virtue of article 6739 of said statutes, under the control of the commissioners’ court, subject only to report to the court and to the provisions of articles 6740 and 6741, also that article 6751 gives the commissioners’ court authority to purchase or hire all necessary teams and labor to repair the road; (5) article 6753 of the said statutes gives the commissioners’ court the discretion as to whether or not they deemed best to advertise for bids on improving a road, and also provides that, in case of conflict, the provisions of chapter 3 should apply as against general laws.

Article 2368 is as follows: “No commissioners.court shall make a contract calling for or requiring the expenditure or payment of two thousand dollars or more out of any fund or funds of any county or subdivision of any county, without first submitting such proposed contract to competitive bids. Notice of the time and place when and where such contract will be let shall be published in such county or subdivision once a week for four weeks prior to the time set for letting such contract, and a certified check for five percent of the amount of the bid shall he required to be filed with each bid, and said contract shall be let to the lowest and best responsible bidder upon said contract and said bidder shall be required to give a good and sufficient bond in the full amount of the contract price executed by some surety company authorized to do business in this State. If there is no newspaper published in such county or subdivision, then notice of the letting of such contract shall he given by causing notice thereof to be' posted at the courthouse door of such county for four weeks prior to the time of letting such contract. Provided, that in case of public calamity, where it'becomes necessary to act at once to appropriate money to relieve the necessities of citizens or to preserve the property of the county or subdivision, this provision may be waived. All contracts made by or with said court calling for or requiring the expenditure of any amount of money less than two thousand dollars and exceeding five hundred dollars shall be let by competitive bids at a regular term of court, except in case of urgent necessity or public calamity. The provisions of this article shall not apply to any work done under the direct supervision of the county commissioners and paid for by the day. A contract made by the commissioners’ court without complying with the terms of this article shall be void, and shall not be enforceable in any court of this State, and the performance of same and the payment of any money thereunder may be enjoined by any citizen of the county or subdivision. This law shall be cumulative of this title.”

The contract mad§ by the commissioners’ court with Jackson through Cox, one of its commissioners, was for the hauling of material and for the spreading of same on the road. The record does not disclose that any contract was made with reference to the placing of such material upon any special number of yards of road, and no number of yards of gravel or caliche or other material was contracted for; hence it cannot be said that the making of the contract called for the expenditure of the sum of $2,000 or more. In other words, it was such a contract for the delivery of material that work could be stopped at any time.

That the contract now before this court is not controlled by article 2368, R. C. S. See Gulf Bitulithic Co. v. Nueces County (Tex. Com. App.) 11 S.W.(2d) 305.

For the reason that the evidence fails to disclose that the contract as made with Jackson necessarily amounted to the sum. of’$2,000, and for the reason that the commissioners’ court, when having county road work done under its supervision, was not limited to such sum in the repair of the road of the county and that they had the option as to whether such work should be submitted to competitive bidders, we reverse the judgment of the trial court, and remand the cause for another trial.


author: HICKMAN, C. J.

text:
    COMMERCIAL STANDARD INS. CO. v. LEE.
    No. 824.
    Court of Civil Appeals of Texas. Eastland.
    March 20, 1931.
    Rehearing Denied April 17, 1931.
    See, also, Commercial Standard Ins. Co. v. Bessent, 37 S.W.(2d) 789.
    Touchstone, Wight, Gormley & Price, of Dallas, for appellant.
    Thomas J. Coffee, of Big Spring, for ap-pellee.
   HICKMAN, C. J.

The appeal is from a judgment in favor of appellee against appellant on a theft insurance policy covering a Chevrolet automobile. In its answer appellant pleaded as a defense the failure of appellee to furnish proof of loss in accordance with the terms of the policy. To this defense appellee pleaded a waiver of the provisions of the policy by appellant. Upon the trial of the cause, practically all of the evidence offered was on the question of waiver. Appellant offered no evidence. Upon the answer of the jury to a special issue in favor of appellee on the question of waiver, judgment was rendered for $450, divided ratably between appellee and a mortgagee, W. R. King, who was made party to the suit.

In its brief appellant presents eleven propositions for reversal. The first ten propositions claim that error was committed by the trial court in admitting evidence offered on the question of waiver of proof of loss. The sufficiency of the evidence to support the finding of the jury on the question of waiver is not challenged, but the telegrams and correspondence passing between the parties, and those between the company and its local agent at Big Spring were sought to be excluded as evidence. We do not find it necessary to write a lengthy opinion setting out all these bills of exceptions. Appellant’s contentions are clearly met by the counter propositions of appellee and the authorities relied upon. No cause of, action was based upon these telegrams and letters, as such, but they were offered as circumstances on the issue of waiver. The various letters and telegrams relate to the same subject-matter, and were sent or written in answer to prior telegrams and letters from appellee or appellant’s local agent in Big Spring. We considered this exact question in the case of Hutson v. Clark, 3 S.W.(2d) 484, citing the authorities in support of the conclusion that the best evidence rule has no application to a telegram sent as an immediate reply to a telegram' sent by the opposite party to the same address from which the reply telegram came concerning the same subject-matter as that contained in the original telegram. The rules relied on by us in that case and the authorities there cited afford sufficient reasons for overruling the first ten propositions. Additional authorities and reasons are pointed out in appellee’s brief.

The eleventh proposition complains of the alleged failure of the trial court’s charge to instruct the jury on the burden of proof. The issue objected to began in the following language: “Do you find from a preponderance of the evidence? * * * ”

No discussion of that question is necessary. Upon the authority of Davis v. Morrison (Tex. Civ. App.) 14 S.W.(2d) 296, and authorities there cited, and 3 Tex. Jur. p. 1268, § 886, we hold that the form of the issue rendered unnecessary any further charge on the burden of proof.

The judgment of the trial court will be affirmed.


text:
    COMMERCIAL STANDARD INS. CO. v. BESSENT.
    No. 825.
    Court of Civil Appeals of Texas. Eastland.
    March 20, 1931.
    Rehearing Denied April 17, 1931.

      Touchstone, Wight, Gormley & Price, of Dallas, for appellant.
    Thomas J. Coffee, of Big Spring, for appel-lee.
   HICKMAN, C. J.

This ease is similar to the case of Commercial Standard Insurance Company v. Harold Lee, 37 S.W.(2d) 789, this day decided by this court. Here, as there, the suit was upon an automobile theft insurance policy, and recovery was in favor of appellee and the mortgagee, W. R. King, who was made a party defendant. All of the questions presented, in this case are disposed of by the opinion in that ease except propositions 1, 2, and 13, which we shall consider.

One of the special defenses pleaded by appellant was a provision of the policy terminating it in the event of a change in ownership of the automobile. Proposition No. 1 presents the question that, the evidence having shown that appellee gave the car to his wife prior to the theft, the court should have granted its motion for an instructed" Verdict. This-proposition, if sustained, must be sustained on the ground that the undisputed evidence es-tablished_ a gift prior to the alleged theft. The evidence on the issue was supplied wholly by Mrs. Mildred Bessent, former wife of ap-pellee. The portion of her testimony which most strongly supports appellant’s contention was as follows: “Mr. Bessent, on the 15th or 16th of December, just gave me the keys to the car and told me he was leaving and turned the car over to me. 1-Ie gave me the keys. I took it to be a fact that he was through with it and it was mine.”

The evidence further discloses that, after the present suit was instituted, a settlement agreement was had between appellee and his wife, and their marriage ties were dissolved through a divorce proceeding. In this settle'ment agreement appellee transferred to his wife his interest in this cause of action, then pending. We do not think the facts testified to are sufficient to justify the conclusion, as a matter of law, that title to this car was transferred to Mrs. Bessent prior to the theft. The act of the husband in giving her the keys and turning over the car to her does not establish a transfer of title. Her testimony to the effect that she took it to be a fact that appellee was through with the ear and that it was hers was a mere conclusion. The most that this evidence did was to raise an issue of fact on the question of gift. We do not hold that it had that much- probative force, but do hold that it had no more than that, and clearly did not require or authorize the giving of a peremptory instruction.

The second proposition presents the question that a peremptory instruction should have been given because the cause of action was transferred by appellant to his wife after suit was filed, but prior to the trial of the cause, for which reason appellant no longer ¡had any interest in the case, and, his wife not being a party to the suit, no right of recovery was shown. We cannot sustain this proposition. This question was considered by this court in the ease of West Texas Utilities Co. v. Nunnally, 10 S.W.(2d) 391, in which we held that an assignee acquiring a claim pen-dente lite could continue the litigation in the assignor’s name, and that a judgment rendered in such action would constitute a complete bar to a suit on the same claim by the assignee. That opinion reviews and cites the authorities, rendering it unnecessary for further citation here.

Appellant’s thirteenth proposition complains of the action of the trial court in refusing to give a peremptory instruction in its favor on the following ground: A provision in the policy was to the effect that, if any; of the notes representing the indebtedness on the automobile should be delinquent for a period of twenty days, this policy should be void as to the interest of the insured, but not as to the interest of the mortgagee. The claim is made that the evidence established a default on the part of appellee for a period of over twenty days, for which reason a peremptory instruction should have been given. The evidence is not set out in appellant’s brief, and we do not find any evidence in the record sufficient to have warranted the giving of a peremptory instruction, even though the provision of the policy visited the consequences of a default upon the mortgagee the same as upon the mortgagor. Clearly no peremptory instruction should have been given when, under the very terms of the provision pleaded, the mortgagee’s interest was not affected by the default. If appellant had desired to present this question as applied to the mortgagor, Bessent, a special issue should have been requested. ’ By failing to do so it waived the defense. Ormsby v. Ratcliffe, 117 Tex. 242, 1 S.W.(2d) 1084.

The judgment of the trial court will be affirmed.


author: CONNER, O. J.

text:
    MORGAN et al. v. MAUNDERS et ux.
    No. 12387.
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 6, 1930.
    Rehearing Denied Feb. 7, 1931.

      Thomas, Prank & Grady, of Dallas, and Duther Hoffman, of Wichita Palls, for appellants.
    Bullington, Boone, Humphrey & King and Walsh & Smith, all' of Wichita Palls, for ap-pellees.
   CONNER, O. J.

This suit was instituted by John Maunders and wife, Edith Maunders, against Russell Morgan and the Trinity Portland Cement Company, hereinafter referred to as cement company, to recover damages resulting from injuries received by the wife in a collision occurring at the intersection of Ninth and Grace streets in the city of Wichita Falls. Russell Morgan, as an employee of the cement company, of Dallas, Tex., was driving one of its trucks and traveling north on Grace street, and Mrs. Maunders was traveling west on Ninth street. The plaintiffs alleged that Mrs. Maunders approached and entered the intersection of said streets while driving at a lawful rate of speed and in a lawful manner, and that Russell Morgan approached said intersection at an unlawful, excessive,- and negligent rate of speed, and ran his car in front of plaintiffs’ car, striking it, turning it over, and throwing her out on the pavement and seriously injuring her. The plaintiff's alleged a number of specific acts of negli-. gence on the part of Russell Morgan, such as .excessive rate of speed; violation of the speed law of the state and of the city of Wichita Palls; violation of the ordinance of the city of Wichita Palls which gave plaintiff the right of way at said intersection; failure to have his car under control; failure to have lights and brakes; and failure to keep a lookout and to stop or attempt to stop his car, etc.

It was further alleged that Morgan was at the time of the collision in the employ of the cement company and using and driving the automobile in furtherance of the business of said company.

The cement company and Morgan filed separate answers and, among other pleas, filed a general denial, plea of contributory negligence, unavoidable accident, and a special denial that Morgan was at the time engaged in the prosecution of the cement company’s business.

The case was submitted to a jury. The charge defined the terms “negligence,” “contributory negligence,” “proximate cause,” and “preponderance of the evidence,” and propounded some 30 interrogatories in addition-to some 15 special issues requested and given in behalf of the defendant.

The jury returned a verdict in favor of plaintiffs on all material issues of liability presented in the petition and gave negative answers to the special defensive issues requested by the defendants, and returned a verdict in favor of plaintiffs for the sum of $35,000. Upon the verdict so returned, the court rendered judgment in plaintiffs’ favor for $20,000; the court having ruled that the verdict was excessive to the extent of $15,000. The motion for new' trial was overruled, and defendants have appealed from the judgment so rendered.

The transcript before us covers some 315 pages; the statement of facts some 51 pages; and appellants in presenting their complaints of the proceedings below set forth 229 assignments of error. We have given the record before us as careful a consideration as we have been able to do, and have concluded that the judgment below must be reversed for reasons hereinafter given. Therefore, in accordance with the rule stated in. Texas Jurisprudence, vol. 3, p. 1014, we will not consider all of the questions presented, but only such as we deem prejudicial and such as we deem may become useful to the further disposition of the case.

Appellants will be hereinafter referred to as defendants. In defendants’ bill of exception No. 53, it appears that a Mrs. M'yers, among others, appeared on the scene soon after the accident, and while Russell Morgan was testifying as a witness for himself, plaintiffs’ counsel was permitted to ask him the following questions:

“Q. Did you have a conversation with Mrs. Myers there (at the scene of the accident) that night? A. I had a little, yes.
“Q. What was it? A. She said ‘you were driving awful fast.’ ”

The statement of the witness was excluded as against the cement company but admitted as against Morgan, on the ground that it was a part of the res gestee. The statement was probably not objectionable on the ground that it was not a part of the res gestae inasmuch as the bill shows that the court stated: “It was right at the time.” The statement evidently conflicted with the evidence of witness Morgan as to the rate of speed at which he was traveling. But the statement seems objectionable on the ground that it was in the nature of a conclusion of the witness. and indefinite in its character. As said in the case of Panhandle & S. F. Ry. Co. v. Laird (Tex. Civ. App.) 224 S. W. 305, 308: “The expression of mere thought or feeling engendered by a certain occurrence or fact does not form a sufficiently substantial connecting link between the fact and the subsequent statement of an eye witness about it to make that statement admissible in evidence as part of the res geste.”

Nor do we approve the statement of counsel in argument to' the jury that the numerous issues in the court’s charge embodying the plaintiffs’ material allegations of liability should be answered “yes, yes, yes,” and that the 20 issues that defendants had requested and which were submitted should be answered by the jury “no, no, no seventeen times no.” As it seems to. us, the tendency of the argument was in effect to inform the jury that to so answer the issues would entitle the plaintiffs to a recovery.

Among other witnesses testifying in behalf of defendants was one Rama Oakes, who, during the course of his examination, testified that there was a boy talking to him near the scene of the accident and at the time thereof. One of plaintiffs’ counsel in his argument to the jury made the following statement : “I brought to this court everything to show you the whole truth; where is that boy’s companion; I never heard of him until yesterday. I never saw him (Rama Oakes) until he got on the witness stand. Where is that boy’s companion.” Then, turning to counsel for the defendants, he stated: “You dug him up, then why didn’t you dig up the other boy, if you wanted the whole truth laid out on the witness stand. I have a right to criticize. Why didn’t you dig him up? If he had (the boy) testified in favor of the defendants, they would have dug him up.”

We think this argument was certainly objectionable and not supported by the evidence in the case, and highly prejudicial- and inflammatory.

In the ease of Metropolitan St. Ry. Co. v. Roberts (Tex. Civ. App.) 142 S. W. 44, 46, the language complained of was: “Don’t you imagine if I had the names of the balance of those witnesses, and I could have them here, that sqme of them would tell things a little different from what the 5 or 6 brought here told? * * * Of course, I know if some of the balance of those witnesses would corroborate some of the witnesses here who have said that the automobile ran into that street car and tried to bust up that street car, I know that they would have them here.” It was held that the remarks quoted constituted error, and the court said:

“It was also improper for counsel to tell the jury they had ‘the right to consider, under the law, the fact that they have not brought them (witnesses) here is a very strong reason to believe that some of the witnesses would testify adversely to what some of them say.’ That the street car company did not bring more of the persons who were on the street car at the time of the accident to testify in the ease was not a question for legitimate comment before the jury, and what they might have sworn to was mere conjecture. There is no reason shown by the record why. the street car company should or should not, have had them present.”

In the case of Floyd v. Fidelity Union Casualty Co. (Tex. Com. App.) 24 S.W.(2d) 363, 365, the court said: “Arguments must be confined to evidence admitted by the court. If objections to improper evidence are to be commented on, it would be better for attorneys to permit without objection, the introduction of all sorts of improper evidence against their clients than be subjected to the criticism of attempting to conceal the real truth from the jury.”

The evidence sharply conflicted on the issue of whether Morgan was at the time on a mission for his codefendant, the cement company. As a necessary part of their case, the plaintiffs alleged that at the time of the collision Morgan was in the employ of the cement company, using and driving the automobile in furtherance of its business. The burden was undoubtedly upon plaintiffs to establish these allegations by a preponder-' anee of the evidence, and we do not approve the remarks of one of counsel for plaintiffs in addressing the jury, shown by defendants’ bill of exception No. 58.' It there appears that counsel for plaintiff, directing his remarks to the jury, said: “Read the charge from beginning to end and find burden of proof, find it, my good friend from Dallas (referring to Hr. D. A. Frank, one of the defendants’ counsel) who has traveled in every state and seen more cases than I ever saw; has read more reports than I have ever seen or ever will see — where is your charge on burden of proof? He promised it to you didn’t he?”

The court’s charge contains no instruction on the burden of proof, and, under the circumstances, we think the argument was subject to the objection of the defendants that its tendency was to lead the jury to believe that there was no burden upon the plaintiffs to establish their case, in that it tended to obscure a fair and impartial consideration of the court’s definition of “preponderance of evidence.”

Nor do we approve the reference of counsel, in argument for plaintiffs, to' Dr. Powers, their chief witness, as to the extent of her injuries, as having graduated from a Catholic school, and a further statement in the argument that the “plaintiff (Mrs. Maunders) would not be able to attend her Methodist Church.” Arguments of the character have been frequently condemned. See Motley v. Lawrence (Tex. Civ. App.) 283 S. W. 699, 701; Trachtenberg v. Castillo (Tex. Civ. App.) 257 S. W. 657; Busse v. White, 302 Mo. 672, 259 S. W. 458; Moss v. Sanger Bros., 75 Tex. 321, 12 S. W. 619.

Appellees’ answer to the several propositions complaining of the argument mentioned is in a general way to the effect that the exceptions were not taken openly, nor the attention of counsel for plaintiffs called thereto, and that no request was made for the jury to be instructed to disregard the argument, and further that no prejudice appears. It appears that prior to the argument, counsel for the defendants stated to the court that they desired not to interrupt counsel for plaintiffs, but would nevertheless make such objections to the argument as they thought proper and have the objections noted by the stenographer, and that this was done without interruption of the argument and without request for an instruction that the argument be disregarded. The court, however, approved the bills of exception. In the case of Emberlin v. Wichita Falls Ry. Co., 284 S. W. 539, it was said by the Commission of Appeals that: “The rules for the district courts provide that in arguments to the jury ‘counsel shall be required to confine the argument strictly to the evidence and to the arguments of opposing counsel,’ and that ‘the court will not be required to wait for objections to be made when the rules as to arguments are violated.’ When counsel violates this rule, he does so at his peril. The litigants are entitled to a fair and impartial trial, and, should it appear that by reason of the violation of this rule the rights of the losing party have been prejudiced, it is the duty of the trial court to grant a new trial.”

In the ease of Behringer v. S. P. Coaches, 13 S.W.(2d) 334, it was said, by section A of the Commission of Appeals, quoting from the headnotes, that: “Trial judge had authority, if not duty, in case of improper argument of counsel to jury, to act with or without objection, exception, or request of opposing counsel.” In the same case it was held that objection with respect to improper argument need not be communicated to counsel using it in order to invoke a ruling by the trial judge, since attorneys using improper argument assume the risk.

In the case of Floyd v. Fidelity Union Casualty Co., 24 S.W.(2d) 363, it was said by Section B of our Commission of Appeals, quoting from the headnotes, that: “Improper argument injecting into the case matters de-hors record that are inflammatory, and "calculated to prejudice rights of losing party before jury, may, in proper case, be complained of on appeal, although objection was urged for first time in motion for new trial.”

Appellants also complain of misconduct of the jury, made grounds for their motion for a new trial. The jury were summoned and testified before the court. The juror W. A. Faubion testified: “In the deliberation of the jury before they reached any amount which they finally all agreed on to give the plaintiffs, someone mentioned that they had an idea that the company carried insurance on their trucks and cars. * * * That was about all that was said about the company carrying insurance on its cars. It was just mentioned, and that was all. * * * There was one man said he had a sick wife. ⅞ * * I do not know who he was. I do not know his name. * * * It is a fact that I have a sick wife myself, who has some sort of female trouble. I guess it is true that she is affected somewhat in the same way that Mrs. Maunders is, something like that. My wife has been afflicted in that way for several years. * * * There was nothing said about that when I was being examined here as a prospective juror. I did not let the condition of my wife affect me in my decision of the case. It did not have any influence on me. I did not tell anyone about it.”

J. F. Bobo testified: “I heard some discussion during the time we were trying to arrive at the amount of damages that we would give as to any insurance company being involved in the case. I do not know whether I can tell just what was said about that, anyhow, some of the jurors spoke up and said something about whether the Trinity Portland Cement Company was carrying insurance. And some of the others said that they expected that they were, that a company that size would be apt to carry insurance. But no one knew how much it would be or anything like that. That discussion was had while the jury was deliberating as to the amount that they would give, it was before they decided what they would give. * * * They did not know how much the attorneys for the plaintiff would get, hut someone' said that they usually get 50-50. I would not he positive as to who said that but my best recollection is that it was Mr. Hicks said that. He said something about it, I think. * * * I guess that you could say that it was talked generally amongst the men. Most all of us said something about it. They said they would probably get one-half of it, one-half of what they would get, the attorneys would. * * * After that discussion took place, some of the low men raised their figures. I did raise mine. * * * As to whether or not in raising the amount of my verdict, I took into consideration anything that was said about insurance or attorneys’ fees, or anybody’s wife suffering, well that would he a hard question for me to answer. If I understand the law I was given, I could not have considered that in the amount that I would want to give her. I would answer that, ‘No, that I did not consider that.’ It was the other jurymen that led me to raise my amount. * * * I heard one of the jurors say something about his wife being in a similar condition as Mrs. Maunders. This juror was Mr. Hicks. He said that his wife had been suffering for several years with something like Mrs. Maunders had. * * * He said he knew a little something about how a woman suffered, that his wife had for several years. * * * As to whether or not some of the jurors announced that Mrs. Maunders probably would not live more tharf one or two years, well, it was talked. Some of them said that she might not live over six or seven years. * * It was Mr. Fiske, I believe, "that said that he would not have his wife go through what Mrs. Maunders was going through for $100,000.00.”

J. S. Grimmage testified: “They spoke about the insurance, but it was not discussed. They said that that was not any of our business. One fellow asked if they were carrying insurance, and he said that was none of our business. The foreman of the jury said that. He said that it was not any of our business whether they carried insurance or not. After the attorneys’ fees was mentioned and after the insurance was mentioned and the sick wife, and after the addition and division, I raised my amount from $10,000.00 to $35,000.00. We had quite a scramble over the amount. We passed that up two or three times. Those things which we have mentioned and which I have mentioned occurred before the amount of $35,000.00 was reached. * * * When the insurance was mentioned the foreman said that we would not take that into consideration. * * I believe that there was something said by one of the jurors as to the condition of his wife. He said that if it was his wife, he would not have it done for $40,000.00.”

Juror J. C. Rogers testified: “There might have been something said there about insurance but not before all the questions had been answered,' nothing that would have affected a man anyway. * * * I could not even tell you what was said about insurance. * * * I do not remember the insurance matter being mentioned.”

The foreman, R. R. Fiske, testified: “There was no discussion about the defendants carrying public insurance on the car that figured in the accident. I recall that someone made the statement, he wondered if there was any insurance, if he carried any insurance, and I told them that that did not matter, that that was none of our business. * * * The question of the insurance and attorneys' fees was raised and mentioned before we reached the amount of their verdict.”

D. S. Taylor testified: “There was something said about an insurance company or public liability insurance,, while the jury was deliberating. I heard the statement about that. I think that it was said so that the other jurors could have heard it if they had been listening.”

The jurors Goodwin, Stewart, and Rtppey also testified that they heard remarks about the insurance. The juror Johnson testified that he recalled that there was some mention made by one of the jurors of an insurance company carrying liability insurance on the car of defendant. That one juror said, “I wonder if they carry insurance.” Another said, “If they do, it looks as though they would have an insurance attorney up here.” Another one said, “Well, yoh cannot tell, that might be an insurance attorney out there now.” That he spoke up and said: “Well, it doesn’t seem to me that that is any of our business, we have got to reach a verdict through the testimony that we have heard on the witness stand. And it absolutely stopped the conversation about the insurance. There was not any more said about it.” He further testified: “At the time that these mentions were made of the insurance and of the insurance company and what the attorneys would get out of it, we had then answered all of the questions except the question with respect to the amount of the verdict. * * * The amount that I originally decided that the plaintiff ought to have was $20,€00.00. That was as low a figure as I ever considered. It was my first idea. There were some jurors that were lower than my estimate. * * * It was after the discussion of and the mention of the insurance and attorneys’ fees that the low men raised their figures to the $35,000.00. That was the last thing that we did. We signed the verdict and walked out.”

The juror Kostas testified: “I stated that I had a sick wife myself. She has been sick over a year. Xou know that a person needs somebody to take care of them, and it does not cost less than five dollars a day. * * *, My own experience with my own sick wife was not considered by me while I was considering the case.”

G. P. Rippey testified: “I did hear something with regard to the condition of some of the wives. One juror said that his wife was a very nervous woman. * * * I believe that toe mentioned that he thought it would he worth $100,000.00 from his own experience with his own wife. I believe it was that he said that he would not have her in that condition for $100,000.00. I am not sure whether that statement was made before we reached the amount of $35,000.00 or after. If it was before, it may be true that some of the lower jurors after hearing that statement raised their original amounts up to $35,000.00.”

There are other minor complaints of the proceedings in the jury room not deem-er material, and which will therefore not be discussed. It should be added also that while it is true, as appellees insist, that all of the jurors finally testified that they were not influenced by the statements we have above detailed and that on the hearing the trial judge is vested with the power of passing upon the weight to be given to the testimony, yet we think that enough has been said to show that the statements during the deliberations of the jury relating to insurance, attorneys’ fees, and of the juror detailing the condition of his wife, were all improper and of a tendency to influence the jury in naming the amount of the plaintiffs’ damages. Our rules and decisions undoubtedly contemplate that the verdict shall rest upon the law as given in the court’s instructions and the evidence which they have been permitted to hear. All other extraneous matter of a prejudicial character must be excludeil. In the case of M., K. & T. Ry. Co. v. Hannig, 91 Tex. 347, 43 S. W. 508, 509, Mr. Justice Gaines said: “The true rule is that in such a case, in order to hold that the error does not require a reversal of the judgment, it ought clearly to appear that no injury could have resulted from the admission of the evidence.”

In the case of Houston & T. C. R. Co. v. Gray, 105 Tex. 42, 143 S. W. 606, where the matter of attorneys’ fees was discussed, in a personal injury case, Chief Justice Brown said: “If the evidence taken by the trial judge left it reasonably doubtful as to the effect the statement had upon the amount of the verdict of the jury, we would feel inclined to exercise our authority and set it •aside.”

The evidence in the case shows that Mrs. Maunders suffered no broken bones, her injuries, according to the testimony of the doctor, being of a nervous character, resulting in a disabling female trouble. The verdict wa* eoncededly large, excessive in the judgment of the trial court in the amount of $15,000. And, whatever may be said in justification or excuse, we think that the arguments of counsel we have discussed and the proceedings in the jury room were of a character to require the trial judge to have granted appellants’ motion for rehearing. In the ease of Moore v. Ivey, 277 S. W. 106, by section A of the Commission of Appeals, it is said, quoting from the headnotes, that: “When misconduct of jury is once shown, and there is a reasonable doubt as to its effect, that doubt must be resolved against verdict.” And again quoting from the headnotes: ‘‘If, upon a consideration of the whole of the pertinent record, it is reasonably doubtful whether improper conduct' of jury affected amount of verdict or decision of any other material issue, verdict should be set aside by trial judge; and, if a new trial is not granted, there is an abuse of discretion by trial judge, and reversal becomes duty of appellate court.”

In Southern Traction Co. v. Wilson, 251 S. W. 1104, by Section B of the Commission of Appeals, it is said, quoting from the head-notes : “Any verdict of a jury is excessive, where it is agreed to by a juror who bases it in part on improper evidence received in the jury room.” And again: “If, from the evidence taken by the trial judge on the hearing of a motion for new trial, on the ground of misconduct of the jury, it is reasonably doubtful as to whether a juror was influenced to any extent in arriving at his verdict by discussion of improper evidence in the jury room, the verdict must be set aside.”

The case of Houston, etc., Co. v. Gray, 105 Tex. 42, 143 S. W. 606, was cited with approval in the later case of Bell v. Blackwell, 283 S. W. 765, by Section B of the Commission of Appeals, where it is said, quoting from the headnotes:

“Error requires reversal, if there .is any reasonable doubt of its harmful effect, unless it affirmatively appears from record that error was harmless.
“Since error requires reversal if there is any reasonable do.ubt of harmful effect, finding of actual prejudice is not necessary to authorize reversal.”

These are strong expressions of our highest court, and undoubtedly furnish the proper guide for our action.

We conclude that the failure of the trial judge to grant appellant’s motion for rehearing constitutes reversible error.

In view of a new trial, we think we should add that appellants presented objection to the form of the issues presented to the jury.

Issue No. 1 reads as follows:' “Find from a preponderance of the evidence whether or not the plaintiff, Mrs. Edith Maunders,'and the defendant Russell Morgan, approached the intersection of Ninth Street and Grace Street in Wichita Falls, Texas, on or about January 22, 1929, in automobiles at approximately the same time.”

Issue No. 2 reads: “Find from a preponderance of the' evidence whether the defendant Russell Morgan operated or drove a motor vehicle upon the public highway within the corporate limits of the City of Wichita Falls, Texas, at a greater rate of speed than twenty miles per hour at the time of the collision, if any, between the plaintiffs’ car and the defendants’ car.”

The remaining issues, adapted to the several grounds of negligence alleged by the plaintiffs, are in the same form. We are not prepared to approve the form in which the issues were submitted. It is not clear, we think, that they are free from objection. It is to be noted that the issues are in the imperative mood and may be said to apply to a negative as well as to an affirmative answer, and perhaps tend to obscure in the minds of the jurors untrained in technical forms, the essential rule that the burden was upon the plaintiffs to establish the material issues presented in their petition by a preponderance of the evidence. A better form, we think, would be: “Do you find from the preponderance of the evidence that,” etc.

In such form, with the approved definition of “preponderance of the evidence” as given by the court in mind, we think it would be unnecessary to give, as urged by appellants, a separate charge on the “burden of proof,” appropriately applied to the issues.

Other questions, including the action of the court in refusing the peremptory instruction on the ground that the undisputed evidence showed that Morgan was on a mission of his own, will no.t he discussed or determined, inasmuch as they may not again arise upon another trial.

For reasons, stated, the judgment of the trial court will be reversed, and the cause remanded.

On Motion for Rehearing.

Counsel for appellees complain very earnestly of our action in considering certain bills of exception alleged to be insufficient, in that they fail to negative supposible facts that will justify the rulings complained of, citing Vincent v. Bell (Tex. Civ. App.) 22 S.W.(2d) 753; Thompson v. Caldwell (Tex. Civ. App.) 22 S. W.(2d) 720; and Houston, E. & W. T. Ry. Co. v. Sherman (Tex. Civ. App.) 10 S.W.(2d) 243, 244. We think a close reading of these cases will disclose distinctions from the case we have before us. It is true that reference is made in one or more of them to rulings on the part of some of our courts of appeal, to the effect that a bill of exception must negative every fact or circumstance that would justify the ruling of the court complained of in the bill, but as to the complaints mentioned, we take occasion to say that in view of the nature of the subject and of the requirements of our statute relating thereto, this court is not inclined to apply in every case the presumption indulged by the decisions of other Courts of Civil Appeals, above cited in behalf of appellees.

In the case of Whitaker v. Gee, 61 Tex. 218, our Supreme Court held that: “To entitle a party to the revision of the ruling of a court below in regard to the admission or rejection of evidence, the matter must be so presented by bill of exceptions filed in proper time as to enable this court to fully understand and know all facts on which the correctness or incorrectness of the ruling depends.”

In Rogers v. Richards, 8 N. M. 658, 47 P. 719, it is said that a bill of exception should embrace, among other things, all the evidence necessary to an understanding of the exceptions and a review thereof.

Article 2237, Rev. Civ. Statutes of 1925, relating to bills of exceptions, so far as pertinent, reads as follows:

“1. No particular form of words shall be required in a bill of exception; but the objection to the ruling or action of the court shall be stated with such circumstances, or so much of the evidence as may be necessary to explain, and no more, and the whole as briefly as possible. * * *
“5. The party taking a bill of exception shall reduce the same to writing and present it to the judge for his allowance and signature.
“6; The judge shall submit such bill to the adverse party or his counsel, if in attendance on the court, and if found to be correct, the judge shall sign it without delay and file it with the clerk.”

Let us suppose, for the purpose of an illustration only, that the transcript on appeal discloses error assigned and duly urged, to the effect that counsel for appellee during the trial before a jury made a statement or argument before the court that on its face is manifestly violative of some rule of law or established practice, and of a character presumptively prejudicial to the legal rights pleaded by appellant; and suppose it further appears from a bill of exception in due form that the objectional statement or argument was duly excepted to at the time upon proper grounds and that the objection was overruled, and that the bill has been duly signed and approved without change or explanation by both the trial court and offending counsel as contemplated by the statute.

Under such circumstances, should the reviewing court be required to presume ‘the existence of some possible fact or state of attending circumstances that would render the objectionable matter without prejudicial effect? As stated, we are not inclined to think so.

In Bell v. Blackwell, 283 S. W. 765, bisection B of our Commission of Appeals, it was held, in substance, that if error appears, harmful effect will be presumed and the judgment reversed unless it affirmatively appears otherwise. This ease has been expressly approved several times by our Supreme Court. See Parker v. Bailey (Tex. Com. App.) 15 S. W.(2d) 1033; Floyd v. Fidelity Union Casualty Co. (Tex. Com. App.) 24 S.W.(2d) 363. In such eases the reviewing court is not required to search the record to rebut the presumption. The burden of doing this rests upon the ap-pellee. The offending counsel and the judge who made the ruling complained of must be held to have full knowledge of the circumstances, if any, that will justify the ruling or render it harmless. They also are naturally interested in supporting the ruling and have the final word in the preparation of the bill of exception. The statute specifically requires that .“the objection to the ruling or action of the court shall be stated with such circumstances, or so much of the evidence as may be necessary to explain” the ruling. If the complaining counsel fails to embody such circumstances, the offending counsel is given an opportunity by the statute to make or suggest the proper correction. In event of his failure to do so from any cause, the judge, as a condition of his approval, may require the inclusion of -the necessary matter or add it in an explanatory note to the bill. The bill thus brings the whole subject before the reviewing- court for determination without the necessity of resorting to mere presumptions that may or may not be well founded.

It seems to us the statute contemplates this, and that such a preparation of a bill is best calculated to avoid miscarriages of justice. If it be argued that the complaining counsel is unwilling to accept his bill as amended by opposing counsel or court, the statute gives him the right to a bystander’s bill. But every lawyer of experience knows that this remedy is of very questionable benefit. It often is of impossible procurement and resort thereto rarely made with well-founded hope of success. If in any case it be permissible to entertain the inference that the opposing counsel and judge would be influenced to encourage, permit, or favor the omission of necessary explanatory matter to avoid criticism or a reversal of the judgment, no more effective course can be adopted to bring about such results than to approve the bill without explanation, if the court of review is required to adhere to -the rule of presumption now insisted upon in behalf of appellee and indicated by the decisions above cited by his counsel. It seems to us that in view of the requirements of our statute, the nature of the subject and of the duties of an appellate court, if a bill of exception, duly signed and approved by the trial judge and otherwise unobjectionable, is presented for review without explanation, the presumption should be indulged that the court did his duty in approving the bill and that there was no modifying or justifying explanation to be made. We are not unmindful of the rule of decision to the effect that all presumptions are in favor of the trial court’s action. But this rule we think is of proper application only where the matter objected to, as presented in the bill, is not plainly objectionable, and hence in need of explanation in order to make manifest the error and its prejudicial character. Where, however, as already indicated, the error and prejudicial character prima facie appears, the rule of decision referred to should be applied, not to the judge’s action in overruling the objection, but to his act in signing the bill without the necessary explanation.

However, in view of a press of other questions in other cases and because not thought to be of controlling importance in arriving at our final conclusion, we will not further discuss the question of -the proper application of the rule appellee now so insistently urges. We think it sufficient to further say that on original hearing we thought in some instances the bills in this case were distinguishable from those presented in -the cases cited in behalf of appellee, and in other instances that the rule as insisted upon was without application. We think it fairly apparent from a reading of our original opinion that many of ’the criticisms therein made of the proceedings below were more for the purpose of calling attention thereto on another trial than for the purpose of determining whether the error or apparent error pointed out was such as to require a reversal of the judgment.

On the whole, we continue to think that sufficient error was properly presented to require us in the interest of justice to reverse the judgment and remand the cause for another trial.

The motion for rehearing is accordingly overruled.