author: MORRISON, Judge.

text:
    Thomas E. CADENHEAD, Appellant, v. The STATE of Texas, Appellee.
    No. 35928.
    Court of Criminal Appeals of Texas.
    June 26, 1963.

      Don Wilson, F. T. Gauen, Jr., Dallas, for appellant.
    Henry Wade, Dist. Atty., Neill English, Frank Wright and Emmett Colvin, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., of Austin, for the State.
   MORRISON, Judge.

The offense is negligent homicide in the second degree; the punishment, three years in jail.

In view of our disposition of this case, a recitation of the facts will not be necessary.

The offense was alleged to have been committed on or about the 2nd day of January, 1961.

The complaint was sworn to on September 24, 1962, and bears file mark showing it to have been filed on September 25, 1965 (an impossible date). The information is not dated, nor does it recite that it was based upon a complaint then pending. There is nothing in the record to show when it was filed other than that it also bears file mark indicating that it was filed on September 24, 1965.

A valid complaint is a prerequisite to a valid information and must be made prior to the presentment of the information. Womack v. State, 162 Tex.Cr.R. 435, 286 S. W.2d 140, and Billingslea v. State, 160 Tex.Cr.R. 244, 268 S.W.2d 668.

Assuming that the fault lies in the preparation of the transcript, we pass to other claims of error which must be sustained.

The negligent act alleged in the information was the “driving and operating a motor vehicle at a greater rate of speed than 30 miles per hour on a public street and highway there situate, said speed being unreasonable and imprudent speed under the conditions then existing having regard to the actual and potential hazards.”

The court’s charge to the jury correctly followed these allegations and required a finding of negligence in the speed appellant was driving. The prosecutor in his argument said, “Do any of these cars (pictures of which had been introduced in evidence) look like he (appellant) was going anything under 60 miles per hour? Don’t you think that was negligence?” There was nothing improper in the argument so far, but the prosecutor continued, “Don’t you think that was negligeni for Cadenhead (appellant) to drink and drive?” A prompt objection was overruled, and in this we have concluded the court fell into error. In Davis v. State, 114 Tex.Cr.R. 620, 26 S.W.2d 649, this Court said, “The state bound itself to the theory, both by its pleading and proof; of a killing with a pistol, and the charge of the court correctly followed such theory * In holding that argument that deceased had met his death by the blast from a shotgun constituted reversible error, this Court said, “The jury cannot be urged to disregard the court’s instructions * * This case is particularly applicable to the case at bar since the enactment of Article 408a, Vernon’s Ann.C.C.P., in 1959. Such article provides that the act of negligence relied upon for conviction shall be alleged. Here, the act of negligence relied upon was a violation of the speed law, and it was highly improper for the prosecutor to ask the jury to convict upon another act of negligence not set forth in the information or the charge.

Upon another trial, we assume that the mother of the deceased will not be questioned about deceased being the “sole support” of herself and her husband. Such testimony was denounced by this Court in Ainsworth v. State, 122 Tex.Cr.R. 483, 56 S.W.2d 457.

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


source: Caselaw Access Project

author: WERLEIN, Justice.

license: Public Domain

text:
    M. A. MASON, Appellant, v. Annie May MASON, a Feme Sole, et al., Appellees.
    No. 14102.
    Court of Civil Appeals of Texas. Houston.
    June 6, 1963.
    C. Mann Gregg, Texas City, for appellant.
    Sexton & Owens; Paul R. Owens,, Orange, for appellees.
   WERLEIN, Justice.

Appellant, M. A. Mason, brought this trespass-to-try title suit against appellees for title and possession of a ls/aths undivided interest in Lots 39 and 40 of Amburn Boat Basin Addition, a subdivision of a 100 acre tract out of the Thomas G. Weston Süryey in Gqlveston County, Texas. Ap-pellees filed a general denial and plea of not guilty. Appellant has appealed from the trial court’s judgment decreeing an undivided ½ interest in and to said lots to Annie May Mason, surviving widow of John C. Mason, Sr., Deceased, and an undivided ½ interest therein to each of the six surviving children of said John C. Mason, Sr., deceased, including appellant.

In appellant’s first and second Points, which are in the nature of general propositions of law, no error of the court is assigned. Upon consideration of the statement, argument and authorities under such Points, it seems that appellant is complaining that the court refused to permit him to introduce in evidence the sale contracts covering said lots (which would, he says, establish an equitable title in him) on the ground that he had not filed an abstract of title.

The court filed its findings of fact and conclusions of law, and additional findings on request of both appellant and appellees. Among other things, the court found in substance the following pertinent facts: that on July 19, 1949, appellant, M. A. Mason, and his father, J. C. Mason, Sr., now deceased, entered into a sale contract with V. C. Amburn to purchase said Lot 40, and on October 1,1949 M. A. Mason and his father, J. C. Mason, Sr., entered into a sale contract with said Amburn to purchase said Lot No. 39; that M. A. Mason did not pay any part of the purchase price of either lot, and J. C. Mason, Sr., made all of the payments with his own funds; that on November 14,1952 Amburn executed and delivered to J. C. Mason, Sr., a deed to said Lot 40, and on March 20, 1953 executed and delivered to said J. C. Mason, Sr., a deed to said Lot 39, both of which deeds were duly recorded in the Deed Records of Galveston County, Texas; that J. C. Mason, Sr., who died interstate August 31, 1957, was survived by his wife, Annie May Mason, and six children, including appellant. The court concluded that said lots were community property of J. C. Mason, Sr., and his wife, Annie May Mason, and that she was entitled to an undivided ½ interest therein, and that each of said six children, including appellant, was entitled to a ⅛ undivided interest in said lots.

In its additional findings of fact, the court found that from August 20, 1949 through May 11, 1951 most of the receipts issued by V. C. Amburn for purchase money payments on said lots were made out to J. C. Mason, Sr. and M. A. Mason; that M. A. Mason performed some work and made some minor improvements on the property in question during the latter part of 1949 and early part of 1950, and during such period he also did some shrimping and oyster-ing, using the oyster money on his car, and that J. C. Mason, Sr., sold the bait shrimp caught by himself and M. A. Mason and kept the small amount of money he so received; that the deed executed November 14, 1952 to Lot 40 was executed pursuant to the contract of sale dated July 19, 1949, and the deed executed March 20, 1953 to Lot 39 was pursuant to the contract of sale dated October 1, 1949; and that the defendants (appellees) on June 29; 1960 filed among the papers in this cause a demand upon appellant to file an abstract in writing of his claim of title (under Rule 791, R.C. P.), and that no abstract of title was ever filed by appellant pursuant to such demand, which appellees’ attorney testified he mailed to appellant’s attorneys but could not testify that it was sent by either registered or certified mail; that there is no pleading that appellant claimed equitable ownership of the lots in question and that the evidence is wholly insufficient to support a finding of equitable title in appellant; that appellant presented no evidence of common source of title with appellees, nor any evidence to connect his claimed title from the sovereignty of the soil; nor did he plead ownership of the property in question by reason of being an heir of the deceased John C. Mason, Sr.; that there is no-pleading or evidence that John C. Mason, Sr., took title to the property in question as trustee of an equitable trust for the benefit of appellant, and that appellant’s claim to title is based upon a purported oral agreement between appellant and his deceased father without any corroborating evidence thereof, the only evidence of same being that of appellant, whose testimony taken as a whole and considered with his statements in prior judicial proceedings and in his deposition, is incredible and wholly insufficient to establish any equitable title in appellant.

The trial court made no findings with respect to the demand for filing an abstract of title and appellant’s failure to do so, other than as hereinabove set out. Rule 791, Texas Rules of Civil Procedure, provides :

“After answer filed, either party may, by notice in writing, duly served on the opposite party or his attorney of record, not less than ten days before the trial of the cause, demand an abstract in writing of the claim or title to the premises in question upon which he relies.”

It is our view the evidence is insufficient to show that notice in writing demanding the filing of an abstract of appellant’s claim or title was duly served on the opposite party or his attorney of record, since there is no evidence that it was personally served, nor is there any evidence that the same was sent to appellant or either of his attorneys by registered or certified mail, as provided by Rules 21a and 21b, T. R.C.P.; nor was it shown that such notice was actually received by any of such parties.

We are of the opinion, however, that appellant has failed to show harm, since the court permitted appellant to testify fully with respect to said sales contracts, and expressly found in its findings of fact that both of said contracts of sale were entered into by appellant and his father, J. C. Mason, Sr., with V. C. Amburn for the purchase of said lots as hereinabove set out. Rule 434, T.R.C.P. The court also found that from August 20, 1949 through May 11, 1951 most of the receipts issued by V. C. Amburn for purchase money payments on said lots were made out to J. C. Mason, Sr., and M. A. Mason. The court further found however, that M. A. Mason did not pay any part of the purchase price of either lot and that J. C. Mason, Sr.,, made all of the payments with his own funds, and that the deed to Lot 40 and the deed to Lot 39 were executed and delivered by Amburn to J. C„ Mason, Sr., respectively on November 14, 1952 and March 20, 1953 pursuant to said contracts of sale dated July 19, 1949 covering Lot 40, and October 1, 1949 covering Lot 39. We have read the statement of facts and find that the court’s findings of fact are amply supported by the evidence.

Furthermore, appellant in making his bill of exceptions did not include such contracts of sale therein and the same are not contained in the record. For this reason it is impossible for this Court to determine whether the trial court erred in excluding such contracts of sale, especially since appellees objected to their admission in evidence on numerous grounds including appellant’s failure to file an abstract of title, all of which objections were sustained.

We agree with appellant that an equitable title as distinguished from a mere equitable right may be recovered under the ordinary formal averments contained in sl statutory action of trespass-to-try title without the necessity of specially pleading such equitable title. Southern Lumber Co. v. Kirby Lumber Corporation, Tex.Civ.App., 181 S.W.2d 859, ref. w. m.; Binford v. Snyder, Tex.Sup.1945, 144 Tex. 134, 189 S.W.2d 471, 474. In the instant case, however, the court found that the evidence is. wholly insufficient to support a finding of an. equitable title in appellant. Appellant testified that he never paid a nickel on the property, and the court so found. Appellant made no offer or tender to reimburse the heirs of J. C. Mason, Sr., any part of the purchase price of said lots. Southern Lum ber Co. v. Kirby Lumber Corporation, supra.

Where as in the instant case the consideration recited in a deed is not contractual, the parol evidence rule does not preclude engrafting a parol trust upon such deed in favor of a third party based upon a a prior agreement between the grantee and such third party. Jackson v. Hernandez, Tex.Sup.1955, 155 Tex. 249, 285 S.W.2d 184. In order to establish such parol trust, however, it is necessary to prove the facts giving rise thereto by clear, satisfactory and convincing evidence. East Line & R. R. R. Co. v. Garrett, 1879, 52 Tex. 133; Carl v. Settegast, Tex.Com.App.1922, 237 S.W. 238; Ratliff v. Clift, 1958, Tex.Civ. App., 312 S.W.2d 315, ref., n. r. e. In the present case there is ample evidence to support the trial court’s finding that appellant’s testimony with respect to the oral agreement with his father is incredible.

A reading of the statement of facts clearly shows that appellant made so many contradictory statements that his testimony is insufficient to- establish a parol trust or any equitable title to the lots in question. It would serve no useful purpose to enumerate the numerous contradictions in appellant’s testimony. The record shows that he made no payments whatever on the lots in question, and that the small amount of work he did between 1949 and 1951 was of little or no consequence. He did live in a tent on the property for a short period of time, which seemed to vary, according to his testimony, from eight months to two years. He then went to Guam. While he was gone his father built a house on the property. The trial court did not err in finding that appellant’s evidence was insufficient to establish an equitable title in appellant to the lots.

Appellant’s third Point assigns no error on the part of the court, and is without merit.

Judgment affirmed.


author: MASSEY, Chief Justice.

text:
    Dovie Elizabeth EUBANKS et al., Appellants, v. HUGHES ENGINEERING COMPANY, Appellee.
    No. 16408.
    Court of Civil Appeals of Texas. Fort Worth.
    June 7, 1963.
    Rehearing Denied July 5, 1963.

      Sam W. Pettigrew, Grand Prairie, and J. Alex Blakeley, Dallas, for appellants.
    Cantey, Hanger, Johnson, Scarborough & Gooch, Howard Barker and John Mc-Bryde, Fort Worth, for appellee.
   MASSEY, Chief Justice.

This is an appeal from a summary judgment granted a defendant in a suit for personal injury damages growing out of an automobile collision. Summary judgment was granted on the theory that possibility for liability to be imposed upon the defendant in a trial on the merits of the controversy was inhibited because it was beyond the power of the plaintiff to introduce admissible evidence which would establish defendant’s responsibility under the doctrine of respondeat superior. The circumstances were such that the defendant could be held liable for damages only in the event it be established that the negligence which proximately caused the automobile collision, committed by a servant of the defendant, occurred while that servant was acting within the scope and course of his employment.

Reference is here made to our opinion in Hughes Engineering Company v. Eubanks, Tex.Civ.App. 1957, 307 S.W.2d 603. Price Eubanks was plaintiff in the trial court and brought suit against Hughes Engineering Company and its servant, Tom Hill Kimbrough. The defendant Hughes Engineering Company filed a plea of privilege. Hearing in the trial court resulted in an order overruling said plea. An appeal was taken and this court reversed the order of the lower court and rendered an order which transferred the case as it existed against said defendant. Basis of our opinion, as reflected therein, was the holding that plaintiff had introduced no evidence upon the plea of privilege hearing which raised the issue of the defendant’s liability under the doctrine of respondeat superior.

Since that time the plaintiff, Price Eu-banks, became deceased. His widow and children were substituted as plaintiffs. We believe it more convenient for purposes of the opinion to speak of these plaintiffs in the singular, and as though it was the original plaintiff who was prosecuting the suit. We do so. What we say here may thus be more easily correlated with what we formerly said in 307 S.W.2d 603.

A defendant moving for summary judgment on the whole case “ ‘assumes the negative burden of showing as a matter of law that the plaintiff has no cause of action against him.’" Where the defense is in the nature of a denial, this may take the form of a showing that upon a controlling issue essential to his recovery the plaintiff would not have enough evidence to go to a jury. In such cases, consideration of minimizing time and expense in the furtherance of an efficient administration of the practice dictates that the defendant should specifically single out the element or elements of the plaintiff’s claim which he believes cannot be established, and that the plaintiff then would be required to demonstrate “ ‘only that his claim is backed by admissible evidence in those particulars * * * McDonald, Texas Civil Practice, Ch. XVII, “Judgments”, § 17.26.1, “(Summary Judgment) — B. When Summary Judgment Proper”, (I) “On the whole case”. (This text is presently found in the Pocket Parts.)

The statement is particularly applicable to the question presented on this appeal. The defendant, in moving for summary judgment, singled out the essential element of plaintiff’s case upon the matter of available admissible evidence in behalf of plaintiff to establish that defendant’s servant, Kimbrough, was acting within the scope and course of his employment at time of the collision. In support of its motion the defendant submitted two depositions of Kimbrough, one of the manager for defendant, Oscar Neal Bradford, and the statement of facts made upon the trial of the plea of privilege case containing Kim-Drough’s testimony and that of witnesses to the facts and circumstances of the collision. All this evidence has been reviewed by us. It supports the defendant’s motion for summary judgment. Indeed, thereby is cast the burden upon plaintiff to demonstrate that his claim that Kim-brough was acting within the scope and course of his employment at the material time was backed by admissible evidence, failing which a summary judgment would be properly awarded to the defendant.

It should be recognized, however, that the situation did not cast any obligation upon the plaintiff to sustain any burden of proof. It is of no significance at the summary judgment stage who carries the burden of proof on a significant issue. Tigner v. First Nat. Bank of Angleton, 1954, 153 Tex. 69, 264 S.W.2d 85.

Responding to defendant’s motion, as was plaintiff’s responsibility if he was to defeat the same, the affidavit of James S. Vecchio was filed. From it and other evidence in the aforementioned depositions is shown the fact that in connection with the prosecution of the business activities of the defendant company at the drilling site near Weatherford, Texas, Vecchio was at a level intermediate between Bradford and Kimbrough. Bradford had supervisory authority over the others, with Vecchio having directional supervision of defendant’s activities at the well site and with such authority over Kimbrough as might be necessary in the interest of the defendant.

Excerpts from Vecchio’s affidavit included the following statements: “On May 11, 1956, I took an inventory of the stock that we had on hand (at the well site) and we needed, very much, a depth line, gas detector filaments and certain data sheet on which we recorded information. On that morning of May 12, 1956, I called Neal Bradford by long distance telephone from Weatherford to Fort Worth and advised Neal of our need for these supplies. He expressed to me that he would be unable to get the supplies to me immediately and advised me to have Tom Hill Kimbrough to come into Fort Worth and pick up his car and bring the supplies back to the well site. * * * I requested Tom Hill Kimbrough to go to Fort Worth and to bring back the supplies in his automobile. * * * As stated above, on the date of the accident which, I understand, was May 12, 1956, Tom Hill Kimbrough had gone to Fort Worth upon my request to bring back the supplies which were badly needed to the job site, and he was on his way back from Fort Worth, bringing the supplies when the accident occurred.”

The affidavit of Vecchio shows, or at least raises the issue, that the defendant, through him, and also through Bradford, asserted a right or power to direct and control the action of Kimbrough in connection with the use of his automobile to transport equipment in the service of the defendant at the material time and place, — to which assertion of right or power Kimbrough made assent and upon which he acted.

In Kennedy v. American Nat. Ins. Co., 1937, 130 Tex. 155, 107 S.W.2d 364, 112 A.L.R. 916, the Commission of Appeals quoted from the case of Wesolowski v. John Hancock Mut. Life Ins. Co., 1932, 308 Pa. 117, 162 A. 166, 87 A.L.R. 783, as follows: “ ‘To hold a master legally responsible for the act of a servant who is engaged in furthering his master’s business and who while doing so negligently uses some instrumentality that carries him from place to place, it must either be proved that the master exercises actual or potential control over that instrumentality, or the use of the instrumentality at the time and place of the act complained of must be of such vital importance in furthering the business of the master that the latter’s actual or potential control of it at that time and place may reasonably be inferred.’ ”

In 52 A.L.R.2d 287, et seq., under the annotation “Employer’s liability for negligence of employee in driving his own car”, the publisher has brought forward all cases previously annotated (including the annotation following Kennedy v. American Nat. Ins. Co., supra, 112 A.L.R. at p. 920). Under § 16 on p. 339, et seq., “(Other miscellaneous uses as business or personal) Incidental benefit to employer; combined business and personal errand”, out-of-state cases are cited in which the holding was that where an employee is on a trip the purpose of which is primarily personal, then he is outside the scope and course of his employment even though he was performing acts intended to produce a business benefit for his employer. The distinction seems to be related to the purposes for which the employee was making the trip, the question thereof being whether the “business purpose” was merely incidental to the employee’s “personal purpose”.

There is no question but that a reason and occasion for Kimbrough’s trip from the well site and Weatherford, Texas, to Fort Worth and to defendant’s materiel yard (and for the placing of the items of supplies and equipment in his automobile to transport the same for use in the prosecution of defendant’s activities at the well site), and for the beginning of his return trip, was “personal”. However, in view of Vecchio’s affidavit, the quoted statements therefrom constituting admissible evidence on the material element of plaintiff’s case, the additional question is raised as to whether, incident to Kimbrough’s “personal purpose”, his transportation of the items of supplies and equipment (to deliver same to the well site because they were “badly needed”) was a “business purpose” which was other and more than merely incidental thereto. Our opinion is that this issue of fact might well control entry of a proper judgment on the merits of plaintiff’s suit.

We could well have said in our opinion on the appeal taken from the plea of privilege (307 S.W.2d 603) that the evidence in the trial court on that hearing established no more than that Kimbrough’s transportation of the items of supplies and equipment in behalf of his employer was merely incidental to his purpose to remove his automobile to Weatherford where it would be available for his personal pleasure and convenience. Vecchio was not a witness on the trial of the defendant’s plea of privilege. For purposes of the summary judgment Vecchio is to be treated as a witness, and must be presumed to stand ready to testify in behalf of the plaintiff upon a trial of the merits in the respects quoted from his affidavit. By reason thereof it affirmatively appears that plaintiff’s claim in respect to the material element of Kimbrough’s agency is backed by admissible evidence, and that plaintiff can raise an issue of fact as to whether Kim-brough’s “business purpose” was other and more than merely incidental to his “personal purpose”.

That the evidence represented by Vec-chio’s affidavit would raise the issue on trial of the merits of a case such as this, perhaps determinative of its outcome, is in accord with Restatement of the Law, Agency, p. 529, “Third Person v. Principal”, § 236, “Conduct Actuated by Dual Purpose”.

Judgment is reversed and the cause is remanded.


author: COLEMAN, Justice.

text:
    CONSOLIDATED FURNITURE COMPANY, Inc., et at., Appellants, v. Marion Lee KELLY, Appellee.
    No. 13933.
    Court of Civil Appeals of Texas. Houston.
    June 6, 1963.
    Rehearing Denied June 27, 1963.

      The Kempers, Houston, John D. Richardson, Houston, of counsel, for appellant.
    Richard H. Powell, Paul A. Tucker, Houston, for appellee.
   COLEMAN, Justice.

This is a suit for damages for personal injuries growing out of a collision between an automobile driven by appellee and a truck owned by appellant. The case was tried before a jury which found appellant guilty of acts of negligence and gross negligence and found appellee guilty of acts of contributory negligence. The jury found in favor of appellee (plaintiff in the trial court) on certain issues establishing the “discovered peril” theory of recovery. The trial court entered judgment in favor of the plaintiff for his actual damage as found by the jury.

The principal question to be determined is whether or not the evidence supports the affirmative answers returned by the jury to Special Issues Nos. 3, 4, and 5, reading:

Special Issue No. 3: “Do you find from a preponderance of the evidence that Curtis Carier Solomon, after he had discovered, if he did discover, the Plaintiff’s, Marion Lee Kelly’s, perilous position, if you have so found, realized that such Plaintiff would not in all reasonable probability be able to extricate himself from such perilous position in time to avoid injury? ⅜ ⅜ ⅜
“If you have answered Special Issue No. 3 ‘We do’, and only in that event, then answer
Special Issue No. 4: “Do you find' from a preponderance of the evidence that the said Curtis Carver Solomon,, made such discovery and had such realization, if you have so found within such time and distance as that by the exercise of ordinary care in the use of all means at his command consistent with the safety of himself, and' his vehicle, he could have avoided the collision in question? * * *
“If you have answered Special Issue No. 4 ‘We do’, and only in that event, then answer
Special Issue No. 5: “Do you find' from a preponderance of the evidence that after making such discovery and' having such realization, if you have so found, the said Curtis Carver Solomon, failed to use ordinary care in the use of all means at his command consistent with the safety of himself, and his vehicle?” •

Appellee Kelly was driving a 1949 Ford about 40 or 45 miles per hour on a concrete highway. As he was coming around a curve two, three or four blocks from the point of collision, he saw the lights of appellant’s vehicle. He testified that he “called for dimmers twice” with no response. When he was “coming pretty close,” he took his foot off the gas, and by that time he could see the bulk or outline of appellant’s van across the road, at which time he was 35 or 45 feet away from the truck. He immediately applied his brakes, sounded his horn and skidded into the truck. He testified that he was blinded “to a certain extent” by the lights ■of the truck until he was about 40 or 45 feet from it.

The defendant Solomon was driving appellant’s truck-tractor hauling a loaded furniture van. Just prior to the accident he stopped the vehicle in front of his father’s house and had begun backing slowly into his. father’s driveway. When he first saw the Kelly vehicle, it was “in that curve,” which was three or four blocks away. At that time the van was across the highway and the tractor was in the proper lane with its lights shining in the direction from which appellee was approaching. Solomon testified:

“Q When you first saw his lights in the curve, did you attempt to bring your truck across the other portion of the highway and straighten it up ?
“A No, sir, I didn’t.
“Q Did you back up any faster?
“A No, sir, not as I can remember.
“Q Just stayed at the same speed?
“A Yes, sir.
“Q Did you reach up and blow that horn with your left hand, which was to your left?
“A I can’t recall, I don’t remember.
“Q Did you blink your lights?
“A Yes, sir, I blinked my lights.
“Q You blinked your lights on the truck ?
“A - Yes, sir, I blinked my lights on the truck and I had a flashlight in one hand and I waved it to him.
Jfs ⅜ sfs ⅜ * ⅝
“Q Now, so that we don’t misunderstand each other, your blinker lights were not on—
“A Were not on.
“Q —when you were backing úp that truck ?
“A That’s right, not on.
“Q And you didn’t flash your dimmers?
“A Yes, sir, I flashed my dimmers.
“Q Did you keep flashing them as he came down or do yeu remember telling me that you didn’t flash them at all?
“A I couldn’t recall that, sir.
“Q Is it possible?
“A I was waving my flashlight. I continued hitting my dimmers because my lights was in his face.”

He also testified:

“Q Well, is that what happened? Did you just see him down the road and then follow him right into the truck, follow his headlights ?
“A As I caught the reflection of the light and he come around the curve, well, I looked up then.
“Q And you saw him coming?
“A I looked up.
“Q And he was about three or four blocks away, was he not ? I mean, that is what you said the curve was?
“A The curve was probably three or four blocks.
“Q All right. And as he got up closer to you and didn’t stop you realized that there was going to be an accident, did you not?
* * * * * *
“A No, sir, I didn’t. I had my flashlight and did everything I could do to stop him.
* * * * * *
“Q You realized at that time that if he didn’t stop that he was going to
hit you, did you not, if he didn’t see you ?
If the guy didn’t see me he was going to hit me.
Did you realize— JO
Well, naturally, he hit me. >
And you said on deposition that since you were across the highway, well, naturally he’d hit you? JO
Yes. C
And you realized that, didn’t you ? Oi
Yes, sir.” <

In response to questions by his lawyer, Solomon testified:

“Q What car was that?
“A That was Mr. Kelly’s car.
“Q All right. Approximately how far away was he when you first saw him?
“A Oh, probably — I’d say, two blocks or three. I couldn’t — I didn’t measure the deal on it.
“Q What did you do when you saw him?
“A I continued backing up and I hit my blinkers a couple of times, I was waving my flashlight and trying to attract his attention.”

He also testified that when he started backing up he cut his wheels and threw the trailer back into the driveway, which caused his lights to shine to his left, and as he continued to back and turn his wheels, the lights would shift to the right and that “they were not laying down the highway to blind no one.”

The officer investigating the collision testified that the accident occurred at 8:40 p. m. The road was approximately 20 feet wide at the point of the collision, which was not at an intersection, but at a private driveway. He testified that when he arrived the position of the tractor indicated that its lights would have been in such a. position at the time of the collision as to interfere with the vision of appellant Solomon. He testified that under the existing conditions a car going 40 miles per hour could have been stopped in 75 feet, including reaction time.

The collision happened in a rural area where there were few houses. The road was dry. At the time of the collision the tractor was on its proper side of the road and the van extended across appellee’s side-of the road and the shoulder on that side-The van was 38 feet long. No clearance lights or reflectors were located on that part of the side of the van occupying appellee’s-side of the road.

The jury, in response to the issues submitted to it, found that Solomon was not a reckless and incompetent driver; that his-failure to turn left and drive his vehicle forward into the driveway was not negligence ; that his failure to post a lookout to-warn approaching vehicles was not negligence ; that his failure to signal by “blinker turning lights” his intention to turn left, was negligence and a proximate cause of' the collision, but was not gross negligence;, that his failure to post flares was negligence- and a proximate cause of the collision and constituted gross negligence; that his-blocking of the oncoming lane of traffic was-not negligence; that his failure to speed up-the backing of his vehicle was not negligence; that his failure to pull his vehicle-forward to unblock the oncoming lane of traffic was not negligence; that his failure to sound his horn was not negligence; that he did not block traffic longer than was prudent under the circumstances; that backing the vehicle across the highway under the circumstances was not negligence;: that he did not fail to maintain a proper lookout; that he negligently failed to dim-his lights, which was a proximate cause of the. collision; that his failure to yield the right of way was a proximate cause of the collision, but was not gross negligence; that his failure to operate his vehicle entirely upon its own right-hand side of the highway was a proximate cause of the collision, but was not gross negligence; that the stopping of the vehicle upon the roadway by Solomon under the circumstances was not a proximate cause of the collision; that immediately before the collision in •question Marion Lee Kelly was not acting under an emergency not proximately caused by any act or omission of his own; that Kelly’s vision was blinded by the glare of headlights just prior to the collision; that after becoming blinded he failed to slow his car, which constituted negligence and a proximate cause of the collision; that he ■did not fail to apply his brakes immediately before the accident; that Kelly failed to beep a proper lookout which was a proximate cause of the collision; and that the •collision was not the result of an unavoidable accident.

Appellant contends that there is no •evidence that Solomon had any reason to believe that Kelly would fail to see the van and proceed on the same course without slowing down, that is, appellant contends that there is no evidence that Solomon actually realized appellee’s peril. Appellant further contends that the record is devoid of any evidence as to when Solomon discovered and realized appellee’s peril. In support of its position appellant cites Heavy Haulers, Inc. v. Precise, Tex.Civ. App., 348 S.W.2d 653, ref., n. r. e.; Safeway Stores, Inc. v. White, Tex.Sup., 348 S.W.2d 162; Texas & Pacific Railway Company v. Meeks, Tex.Civ.App., 338 S.W. 2d 169, ref., n. r. e.; Welch v. Ada Oil Company, Tex.Civ.App., 302 S.W.2d 175, ref., n. r. e.

We think it unnecessary to discuss each of these cases, since this case is governed by the rules set forth in Ford v. Panhandle & Santa Fe Ry. Co., 151 Tex. 538, 252 S.W. 2d 561, and the cases discussed therein. The evidence clearly warranted the jury in finding that Solomon realized that Kelly would fail to see the van and probably would proceed down the road until he collided with the van. Solomon knew that Kelly was unaware that the van was blocking the road when Kelly came out of the curve. He testified that when he first saw Kelly’s car, “I hit my blinkers a couple of times. I was waving my flashlight, trying to attract his attention.” Solomon knew that his headlights interfered with Kelly’s vision and that his van had no lights or reflectors to shine in Kelly’s lane of travel. He knew that he was not at a street intersection and that, since his tractor was in its proper lane of travel, an approaching driver would not expect another vehicle, or part of the same vehicle, to occupy the other lane of travel at substantially the same area of the road. Solomon saw appellee’s car for a distance of three or four blocks and knew that the driver was deflecting his lights as a signal that he wanted the tractor’s lights deflected. Solomon was an experienced truck driver and his action in continuing to wave the flashlight indicated that he knew Kelly did not see the van and was unaware of the danger he was facing. The jury could reasonably conclude that Solomon realized Kelly’s peril when he first saw him approaching, and when he failed to respond to the waving flashlight.

In Ford v. Panhandle & Santa Fe Ry. Co., supra, the court quoted with approval from Hines v. Arrant, Tex.Civ.App., 225 S.W. 767, this passage:

“ ‘It was his duty, if he discovered the appellee approaching the crossing and could reasonably infer that he would likely undertake to cross the track, to use the facilities at hand to prevent a collision, either by stopping or by lessening the speed of his train, or by giving some warning of the train’s approach. He had no right to wait until he was absolutely certain that the traveler was going into a place of danger before taking the proper steps to avoid injuring him.”1

The court also quoted this passage from Galveston, H. & S. A. Ry. Co. v. Wagner, Tex.Com.App., 298 S.W. 552: “‘In order for a person to be in peril, it is not necessary that bodily injury will certainly be suffered by him. He is in peril whenever he is pursuing a course which probably will terminate in serious bodily injury to him’ ” The court in the Ford case then said: “If no vehicle were in a position of peril until it reached a point where it was impossible to stop it short of collision, the time for acting would rarely be sufficient to impose a duty to act.”

Solomon’s testimony and actions demonstrate that he realized that unless he did something to avert it a collision would probably occur. He elected to wave his flashlight. He testified that he also “blinked his lights.” The jury well may have rejected his testimony in this particular, since it was controverted. The jury also found that Solomon was negligent in failing to dim his lights. Appellant could have both blinked his lights and dimmed his lights in a matter of seconds, and his failure to do so fully supports the jury in answering that Solomon failed to use ordinary care in the use of all means at his command to avoid the collision.

It is not necessary to determine the exact time when Solomon realized that Kelly was in a position of danger and probably would not extricate himself, if from the evidence and reasonable deductions to be drawn therefrom it can be determined that he actually realized those facts at a time and distance when he could have avoided the accident by the use of all the means at his command consistent with his own safety and that of his vehicle. It appears to us that the jury carefully and skillfully sifted the evidence in light of the instructions given them in arriving at their answers to the special issue and that their answers to all of the issues are fully supported by the evidence.

Appellant contends that the failure of the trial court to submit his specially requested issues Nos. 2, 6 through IS, 18 and 19, constituted error which was reversible under the facts of this case. We think there was no error in the failure of the court to submit the requested issues, and that in any event the error was harmless under Rule 434, T.R.C.P.

While we recognize that ordinarily the refusal to submit affirmatively issues raised by the pleading and the evidence is harmful error, the refusal to submit these issues was harmless. All of the requested issues were concerned with the question of appellee’s contributory negligence. On the issues submitted the jury returned a verdict of contributory negligence. Answers to the requested issues, therefore, could not have affected the judgment of the court. Cato v. Texas & P. Ry. Co., Tex.Com.App., 39 S.W.2d 843; Campbell v. Johnson, Tex.Com.App., 290 S.W. 526; Magnolia Petroleum Co. v. Long, 126 Tex. 195, 86 S.W.2d 450; St. Louis, S. F. & T. Ry. Co. v. Ussery, Tex.Civ.App., 259 S.W. 275, error ref.; Wortham v. Bull, Tex.Civ.App., 19 S.W.2d 211, error ref.; Havens v. Guetersloh, Tex.Civ.App., 255 S.W.2d 233, ref.,, n. r. e.; Reeves v. Southwest Flying Service, Tex.Civ.App., 258 S.W.2d 848, ref., n. r. e.; Valdez v. Yellow Cab Co., Tex.Civ.App., 260 S.W.2d 715; Ward v. Houston & North Texas Motor Freight Lines, Inc., Tex.Civ.App., 308 S.W.2d 98; Myers v. Cliff Hyde Flying Service, Inc., Tex.Civ.App., 325 S.W.2d 841.

Since the matters inquired about in the requested special issues could not have affected the thinking of the jury on the questions presented by the issues on discovered peril, the answers made by the jury to those issues would have rendered any answers the jury might have returned to the requested issues immaterial, refusal of the requested issues could not have resulted in harm to appellant. Texas & P. Ry. Co. v. Guidry, Tex.Civ.App., 9 S.W.2d 284, aff’d 280 U.S. 531, 50 S.Ct. 159, 74 L.Ed. 596; Yellow Cab Co. v. Pfeffer, Tex.Civ. App., 233 S.W.2d 964; Reed v. Beheler, Tex.Civ.App., 198 S.W.2d 625; Reddick v. Longacre, Tex.Civ.App., 228 S.W.2d 264, ref., n. r. e.; Crawford v. DeLong, Tex. Civ.App., 324 S.W.2d 25, ref., n. r. e.

Appellant by his Points of Error Nos. 17, 18 and 19 complains that the court unduly restricted their right of cross-examination in refusing to permit further examination of plaintiff as to the extent he •was blinded by the lights of the tractor. If the court erred in restricting cross-examination on this question, in view of the entire record, the error was not one which would probably have affected the verdict •and, therefore, was not a reversible error. The jury found that appellee was blinded by the lights and that his failure to reduce his speed after being blinded was negligence and a proximate cause of the accident. Valdez v. Yellow Cab Co., Tex.Civ.App., 260 S.W.2d 715; Douty v. Delta Drilling Co., Tex.Civ.App., 264 S.W.2d 164, ref., n. r. e.; Johnson v. Woods, Tex.Civ.App., 315 S.W.2d 75, ref., n. r. e.; Rule 434, T.R.C.P.

Appellant’s Assignments of Error Nos. 20 and 21 complain that the court erred in excluding a photograph which would show the angle of the curve and the relative location of the curve and the scene of the accident. In view of the other evidence and pictures introduced into evidence and the verdict of the jury, we cannot say that the exclusion of this evidence probably caused the rendition of an improper judgment. Rule 434, T.R.C.P. The trial court is afforded considerable discretion in ruling on the admissibility of photographic evidence. The picture covered an area of three miles. The witness who presented the picture did not take it. It was taken four or five years prior to the trial and the witness did not remember checking it for accuracy and testified that there might be •changes since it was taken. The scale of the picture was % of one inch equals 260 feet and the witness testified that the greater the height at which the picture was taken the straighter the angle would appear. The trial judge did not abuse his discretion in excluding the photograph. General Accident Fire and Life Assur. Corp. v. Camp, Tex.Civ.App., 348 S.W.2d 782.

Appellant has also complained that the trial court erred in admitting into evidence a docket sheet of a Justice of Peace Court reflecting that Solomon had entered a plea of guilty to a charge of failing to yield the right of way. The docket sheet was not signed by the judge, who was deceased. Appellant contended that he had not entered a plea of guilty in court.

In Cloud v. Zellers, 158 Tex. 253, 309 S.W.2d 806, the Supreme Court of Texas said:

“Neither should a reversal ordinarily be ordered where the evidence improperly admitted could have no more than an indirect and insubstantial bearing on issues which, as answered, will independently support the judgment, and the answers to such issues are well supported by other competent and relevant evidence.”

The evidence on right of way was fully developed by testimony from appellant and appellee and there was no substantial conflict. This evidence was relevant only to the question of appellant’s negligence and would not have influenced the jury in answers to other negligence issues found in favor of appellee. In view of the jury’s verdict convicting appellee of contributory negligence, the court’s action in admitting the evidence could not have harmed appellant.

Appellee’s sole basis for recovery is found in the answers made by the jury to the issues on discovered peril. The docket sheet admitted into evidence, and the photograph excluded from evidence, could have had no more than an indirect and insubstantial bearing on the discovered peril issues.

Appellant has assigned as error the action of the trial court in overruling defendant’s motion in limine to preclude argument by appellee’s counsel concerning the availability of the medical witness, Dr. Cameron, and the witness, Tom Solomon. Appellant’s Bill of Exception, as qualified by the trial judge, does not reflect error. A Bystander’s Bill prepared by appellant is not in proper form and cannot be considered. Appellee has filed a Bystander’s Bill in proper form concerning the matter complained of by appellant, which reflects that no error was committed. Bolstad v. Egleson, Tex.Civ.App., 326 S.W.2d 506, ref., n. r. e.; Rule 372 T.R.C.P.

After a careful consideration of the entire record, we are unable to say that the damages as found by the jury, and awarded by the court, are excessive.

The judgment of the trial court is affirmed.


author: DIXON, Chief Justice.

text:
    CITY OF IRVING, Texas, Appellant, v. Walter BULL et al., Appellees.
    No. 16167.
    Court of Civil Appeals of Texas. Dallas.
    May 31, 196a
    Rehearing Denied June 28, 1963.
    C. J. Taylor, Jr., City Atty., Wells & Power, Irving, for appellant.

      Wynne, McKenzie, Jaffe & Tinsley, Dallas, N. E. Grisham, Irving, for appellees.
   DIXON, Chief Justice.

This is a zoning case.

In 1953 the City of Irving passed a comprehensive zoning law. In 1961 the City passed three Ordinances, Nos. 667, 668 and 669, amending the 1953 zoning law. Walter Bull and others have brought suit asking that the three amending ordinances be declared invalid.

The trial court declared two of the amending ordinances “invalid, illegal and of no force and effect.” The third ordinance, No. 668, was upheld and declared valid. The City appeals from the judgment insofar as it declared two of the ordinances invalid. Bull and others appeal from the judgment insofar as it declares Ordinance No. 668 valid.

The City has filed a motion to dismiss as to most of the property described in the three ordinances. On October 18, 1962 the City Commission passed Ordinance No. 825 changing the use designation of all the property described in Ordinances Nos. 667, 668 and 669 except the property described in what is known as “Case No. 395”. The motion for the City will be sustained.

As a result of the dismissal of part of the appeal the only property still remaining involved in the appeal is the following:

“BEING a tract of land out of the J. C. Read Survey Abstract #1162, the same being more fully described as follows:
“BEGINNING at a point in the South line of Highway #183 at a point 208 feet West of the West line of Britain Road; THENCE Westerly 210 feet alone the South line of Highway 183 to a point for corner; THENCE South 815 feet to a point for corner; THENCE East 210 feet to a point for corner; THENCE North 217 feet to a point for corner; THENCE East 200 feet to a point for corner in the West line of Britain Road; THENCE North 210 feet to a point for corner; THENCE West 208 feet to a point for corner; THENCE North 300 feet to the point of BEGINNING.”

The above described property was rezoned by Ordinance No. 667 from a single family residence district to a light industry district.

The City in three points on appeal says that the court erred in declaring two of the ordinances invalid because the undisputed testimony shows that (1) the enactment was made after careful study and after ample testimony had been elicited before the governing body, and, further, conditions had so changed as to warrant the zoning change; (2) appellees have failed to sustain the “extraordinary” burden of showing the absence of any facts which would sustain the legislative discretion which was exercised; and (3) there were numerous changes of conditions, giving a reasonable basis for reasonable minds to differ as to the wisdom or advisability of the change, making this solely a legislative function.

Appellees argue that the two ordinances were properly declared illegal because they represented changes in zoning without the prerequisite of a change in conditions having been shown or a necessity for the zoning changes, and because the changes constituted spot zoning.

Courts take judicial notice of the population statistics disclosed by the United States census. 23 Tex.Jur.2d 60. In 1950 the population of the City of Irving according to the census was 2656. In 1960 its population was 45,985. Increases in population in a city are not conclusive evidence of changed conditions for zoning purposes. But such a phenomenal increase as the City of Irving has experienced in recent years is not to be overlooked in weighing the validity of changes in zoning. Goddard, et al. v. Stowers, et al., Tex.Civ.App., 272 S.W.2d 400.

The evidence in this case amply supports a finding that changed conditions warranted the City’s action in passing the zoning amendment. Part of the property here involved fronts on Highway No. 183, which has become a main artery- of traffic between the City of Dallas and the City of Fort Worth. Since passage of the original zoning law the highway has been changed from a comparatively narrow two lane road with one lane of traffic in each direction, to an-expressway with two lanes of traffic and a shoulder in each direction and access roads parallel to the expressway in each direction.

Nearby O’Connor Road, which was formerly a dead-end street, has been opened through and beyond Highway No. 183 into the City of Irving. There are business establishments now located on O’Connor Road. These are changes which may be taken into consideration when the validity of an amendatory ordinance is attacked. Goddard v. Stowers, supra.

Numerous witnesses testified, some expressing opinions favorable to the rezoning amendments, others in opposition. The area involved is at present unimproved. Though it has been zoned heretofore for single family dwellings, none has been built.

Britain Road intersects Highway No. 183. At one corner of the intersection there is a trailer rental company which is next door to the part of the involved property fronting on the highway. Immediately south of the trailer rental company is a lumber company fronting on Britain Road and backing nip to the property in controversy.

Part of the land in dispute fronts on Britain Road not far from the above intersection. Across Britain Road from the trailer rental company, on another corner ■of the intersection, is a service station. .South of the service station is a drive-in theatre. South of the theatre is an animal hospital. The animal hospital is only a few feet north across the street from the part :of the involved property fronting on Britain Road. These business establishments and -others in the area are said to be nonconforming uses.

One witness, a contractor' who builds single family dwellings in the Irving area, testified that the property in question is not suitable for single family, dwellings.

One of the witnesses for appellees, testified that at the hearing before the City Commission there was some testimony of changed conditions.-

An amendatory zoning ordinance is presumed to be valid. Courts have no authority to interfere unless the- change is clearly unreasonable and arbitrary. - If reasonable minds may differ as to the relationship of the ordinance to the public health, safety, morals or general welfare no clear abuse of the City’s discretion has been shown and the amending ordinance must stand. An “extraordinary” burden rests on one attacking the ordinance to show that no conclusive or even controversial or issuable facts or conditions exist respecting the authority of the governing board to exercise its discretion. Ray v. City of Dallas, Tex.Civ.App., 343 S.W.2d 930; City of Waxahachie v. Watkins, 154 Tex. 206, 275 S.W.2d 477; Skinner v. Reed, Tex.Civ.App., 265 S.W.2d 850; Clesi v. Northwest Dallas Improvement Association, Tex.Civ.App., 263 S.W.2d 820; City of McAllen v. Morris, Tex.Civ.App., 217 S.W.2d 875.

We see no merit in the contention of Bull and others that the change amounts to spot zoning. Goddard v. Stowers, supra.

Applying the above principles to the facts of this case, we sustain the City’s three points on appeal. Bull’s points are overruled.

The judgment of the trial court is affirmed insofar as it declares Ordinance No. 668 valid with respect to land still remaining involved in this appeal following the dismissal of part of the appeal. The judgment insofar as it declares Ordinances Nos. 667 and 669 invalid is reversed and judgment is here rendered holding said ordinances to be valid insofar as they may affect-the land still remaining involved-in this appeal following the partial dismissal.


text:
    D. E. SPANN et al., Appellants, v. CITY OF IRVING et al., Appellees.
    No. 16168.
    Court of Civil Appeals of Texas. Dallas.
    May 31, 1963.
    Rehearing Denied June 28, 1963.
    Wynne, McKenzie, Jaffe & Tinsley, Dallas, N. E. Grisham, Irving, for appellants.
    C. J. Taylor, Jr., City Atty., Wells & Power, Irving, for appellees.
   DIXON, Chief Justice.

This is a companion case to the case of City of Irving v. Bull, Tex.Civ.App., 369 S.W.2d 60. Though the two suits were not consolidated they were tried together. The evidence pertaining to both cases was introduced at the same time and has been reproduced in the same statement of facts.

In this case appellant Spann and others attacked the validity of Ordinance No. 652 rezoning certain property from an “A” District (one family dwellings) and a “B” District (two family dwellings) to a “C” District (apartments, boarding houses, etc.)

The property in question lies about 100 feet south of the property originally rezoned in Ordinances Nos. 667, 668 and 669.

For the reasons stated in City of Irving v. Bull, et al. for declaring the amendatory ordinances valid, we hold that Ordinance No. 652 is valid.

The judgment of the trial court is affirmed.


text:
    TELEVISION PROPERTIES, INC., Appellant, v. John L. McCARTY et al., Appellees.
    No. 16184.
    Court of Civil Appeals of Texas. Dallas.
    May 31, 1963.
    Rehearing Denied. July 5, 1963.
    Geary, Hamilton, Brice & Lewis, Dallas, for appellant.
    McCarthy, Carnahan, Fields & Haynes, Amarillo, for appellees.
   DIXON, Chief Justice.

This is an appeal from an order sustaining pleas of privilege whereby appellant’s suit was ordered transferred from Dallas County to Randall County, as to four ap-pellees and to Potter County as to one ap-pellee.

The litigation began when Clarence A. Wilmering brought suit in Randall County against Television Properties, Inc., the action being based on a promissory note in the amount of $1,162.79 principal.

Television Properties, Inc., filed its plea of privilege, which was sustained and the suit was transferred to Dallas County for trial.

In its written answer appellant, Television Properties, Inc., alleged that the note sued on was one of a series of notes it executed as part of the purchase price of all the stock in a company known as Estate Development Corporation, located in Amarillo, Texas. The defense urged was that there had been a breach of warranty in connection with the contract of sale.

Appellant also filed a cross-action against Wilmering and a third-defendant action against appellees John L. McCarty, Sam Fenberg, Robert D. Houck, Hoyt Houck, and Estate Development Corporation. Appellant alleges that the individual appellees, residents of Amarillo, Texas, were all formerly stockholders and directors in Estate Development Corporation, that each of them has become owner by endorsement of one of the series of notes executed by appellant and that they were all parties to the breach of warranty.

Appellees filed pleas of privilege, which were set for hearing on August 12, 1962. On that same date just before going to trial on appellees’ pleas of privilege, appellant filed an amended pleading, in which for the first time, Jack Vaughn, a resident of Dallas County, was made a third-party defendant. Up to the time of the filing of the amended pleading it had not been alleged that any of the third-party defendants were residents of Dallas County. Citation had not been served on Jack Vaughn, the new third-party defendant, nor had any appearance been entered by him or in his behalf.

Appellant attempted to make out a case against Jack Vaughn, the Dallas resident, and thus to bring the suit as to all third-party defendants within the provision of subd. 4, Art. 1995, Vernon’s Ann.Civ.St, and the holding in Stockyards National Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300.

The court properly sustained the pleas of privilege of the non-resident third-party defendants, appellees here. Since no service had been obtained on Jack Vaughn, the Dallas resident, and no appearance made in his behalf, he was not before the court for venue purposes. Therefore appellant is not entitled to retain venue in Dallas County under subd. 4 of the Statute. Williams v. Bain, Tex.Civ.App., 332 S.W.2d 360.

Appellant claims that the stipulations entered into by the parties made out a cause of action against Jack Vaughn, the Dallas resident. This claim is vigorously contested by appellees, who assert that they agreed to only a part of the alleged stipulations. In view of our holding that no; resident defendant was before the court, it is not necessary for us to pass on the controversy about the alleged stipulations.

The judgment of the trial court is affirmed.


author: TIREY, Justice.

text:
    BART DeLATT & ASSOCIATES, INC., Appellant, v. Gussie KNIGHT, a Widow, Appellee.
    No. 4126.
    Court of Civil Appeals of Texas. Waco.
    May 23, 1963.
    Baker, Botts, Shepherd & Coates, Finis Cowan, Jr., Houston, for appellant.
    Moise H. Simon, Bay City, Helm, Jones, Pletcher & Winkelman, Butler, Binion, Rice & Cook, Fulbright, Crooker, Freeman, Bates & Jaworski, Houston, for appellee.
   TIREY, Justice.

Defendant has perfected its appeal from an order overruling its plea of privilege to be sued in Harris County. In the plea of privilege defendant avers that on March 17, 1960, it was not a corporation and was not doing business as a corporate firm; that defendant, DeLatt, the party claiming such privilege, was not, at the institution of the suit, a resident of Brazoria County, but, on the contrary, he was a resident of Harris County, Texas.

The judgment is assailed on one point. It is that “The trial court erred in overruling appellant’s plea of privilege because appellant is not a resident of Brazoria County and no exception to exclusive venue in the county of its residence, Harris County, exists.”

A statement is necessary. Frank Knight, a foreman for the George R. Brown Lease Service, was killed on March 17, 1960, while performing his duties in the course of his employment. He had been employed by the Paño Tech Exploration Corporation to install a pumping unit on its Ross Lease in Brazoria County. Testimony was tendered to the effect that prior to the installation of the unit, it had been determined that the length of the stroke on the pumping unit was too short, and in order to lengthen it, it was necessary to change the position of what is known as the “wrist pin”; that in order to remove the wrist pin, Frank Knight and a fellow employee placed a hydraulic jack behind the pin and exerted pressure in an attempt to force it out, but before and during this jacking process, heat was applied around the area of the pin by means of an acetylene torch; that the wrist pin on a pumping unit is located at the bottom portion of the counter-balance weight or “crank”; that the crank is suspended in a vertical position out from the main body of the unit; that while the pressure of the jack was being exerted on the wrist pin, the crank broke in an area some fourteen to eighteen inches above the pin and fell on Knight, crushing him. The claimant’s petition alleges that her husband’s death was caused by the negligence of each of the defendants. Appellee also alleges that the accident was caused by the negligence of Parkersburg Rig & Reel Company, the manufacturer of the pumping unit, Oil Field Salvage Company, the seller of the unit, and Paño Tech Exploration Company, the owner of the lease upon which the accident occurred. The appellant was employed by Paño Tech Exploration Corporation to furnish engineering advice concerning the installation of the pumping unit on the lease; that Duke Moreland, engineer was in the employ of appellant, and was the only employee of appellant who had any connection with the matters in suit and that Moreland’s sole duty was to observe the installation of the unit to see that the well was not damaged in that process. He was not in charge of the actual installation of the unit; that his principal function was to make certain that the well was not injured; that Moreland inspected the pumping unit two or three weeks prior to the accident while it was on the premises of the Oil Field Salvage Company; that his only purpose in examining the unit at that time was to make certain that it was of a proper size and that there were no missing parts. He did not and was not required to make a detailed inspection of the counter-balance weight or crank at that time. Moreland had had no training or experience insofar as the quality of metal is concerned. It is appellant’s contention that Moreland’s only connection with the removal of the wrist pin was to suggest that it be moved to a different position to increase the stroke of the pumping unit. He had made the suggestion during the week preceding the accident pursuant to his duty to see that the unit was properly assembled in relation to the well. Appellant also contends that Frank Knight actually made the determination to use the jack and heat to remove the pin. On the day of the accident Moreland came to the pumping unit only a few seconds before Knight was killed. It is appellant’s contention that prior to the accident Moreland did not observe the jack in position behind the wrist pin, but he did see the welder heating around the pin as he approached the unit; that the break in the crank was a clean one and the line left by it being straight across and having no jagged ends. The appellee in her controverting affidavit referred to her first amended original petition and incorporated it as a part of her controverting plea, and in addition thereto specially plead that the court had venue under the provisions of Section 9a of Article 1995, Vernon’s Ann.Tex.St. As we understand ap-pellee’s position it is to the effect that the evidence is without dispute that appellant was employed by the Paño Tech Exploration Corporation to supervise the installation of a pumping unit on the lease, and that Moreland was assigned as engineer in charge on that job with duties according to his testimony as follows:

“Q. And as an engineer on that job, it was your overall duty, on that particular job and on any job that you were employed through DeLatt, to see that the work was done properly, was it not?
“A. Yes.
ijc ⅝ ⅜ ⅜ ⅝ sjc
“Q. And they employed you to see * * * this pumping unit was properly installed?
“A. Yes.”

Appellee contends that the record shows that the overall procedure as to what was to be done was within the hands of Moreland, the engineer, and that as a part of Moreland’s duties he was to see that safe practices were followed. We think the foregoing statement is too general and that it is basically inaccurate with all of the testimony tendered, and for that reason we are not in accord with appellee’s view. It is true that Moreland was a geologist employed by appellant, and that appellant had been employed by the owner of an oil well where the accident happened to watch the operation and installation of a pumping unit to be placed on the well, and it was Moreland’s duty to protect the interest of the well. Moreland said insofar as his instructions were concerned by his boss: “ * * * the safety of that well is my prime concern”; that his concern was to see that in the installation of the pumping unit that nothing happened to the well; that he did not give any of the people on the job any instructions as to what to do; that Mr. Knight, who was killed, was supervising the installation and that he gave Knight no instructions, and that his sole duty was to protect the well; that he knew that Knight and those helping him were working on the crank to remove a wrist pin, and that they had started on the day previous; that is to say, Friday or Saturday before Knight was killed on the following Monday; that his purpose in being there was: “Well, I was there to keep a workman from putting a chain or a cable around the well and possibly breaking off a valve, or something like that”; that he was there to give what advice he could if the construction company asked him.

“Q. In order to protect this well, you first had to observe that they did this work in a way you considered proper so as not to harm the well, did you not?
“A. That’s right.
“Q. And you were there also as an expert to give them advice?
“A. No, sir.
“Q. Then as a part of your job, you were working for DeLatt, and in the performance of your duty you were there to give them, to tell them, to specify how they were to put the pumping unit on in order to safeguard the interests of the well. Am I correct in that?
“A. Yes.”

That a man by the name of Long- was supervisor, and that Knight was working under Long’s instructions, and both were in the employ of Brown and were in nowise connected with appellant’s company; that Paño Tech Exploration Corporation employed appellant and its purpose in so doing was to see that the pumping unit was properly installed, and that was the work he was doing on the day the accident happened; that on the day of the accident he had been at the well for only about 15 or 20 seconds, and that he observed Knight and the other men using a jack, and that he walked up to the crank where they were doing the job and had been there only 15 or 20 seconds when the accident happened.

“Q. * * *- an(¿ you say you saw nothing that they were doing out there that you would regard as being a bad method of conducting the work?”
“A. Of the things that I saw before the accident, they were proceeding normally.”

That when his boss, Mr. DeLatt, put him on the job he told him: “He said, go down and watch the installation of the pumping unit and see that nothing happens to the well.” Our view of the evidence is that Knight selected the plan to remove the wrist pin and he proceeded to go about doing it in the way that he thought it should be done, and there is no evidence that Moreland gave him any instructions about doing this particular work of removing the wrist pin, nor is it shown whether Knight discussed the manner of removing the wrist pin with his superior, Mr. Long.

Appellee relies on Exception 9a, of Article 1995 Texas Civil Statutes, to sustain venue in Brazoria County. Exception 9a is:

“9a. Negligence. — A suit based upon negligence per se, negligence at common law or any form of negligence, active or passive, may be brought in the county where the act or omission of negligence occurred or in the county where the defendant has his domicile. The venue facts necessary for plaintiff to establish by a preponderance of the evidence to sustain venue in a county other than the county of defendant’s residence are:
“1. That an act or omission of negligence occurred in the county where suit was filed.
“2. That such act or omission was that of the defendant, in person, or that of his servant, agent or representative acting within the scope of his employment.
“3. That such negligence was a proximate cause of the plaintiff’s injuries.”

As we understand appellee’s pleading she has not pleaded any specific negligence acts or omissions on the part of appellant or its agents. It appears that her theory is that appellant’s agent Moreland, stood by and watched Knight and his crew perform an unsafe operation without warning them of the danger. We think there is no evidence to support such a theory, and that such issue is not tendered, because the record is barren of any evidence that the method employed and selected by Knight to remove the wrist pin was unsafe. Evidence was tendered to the effect that the use of the jack and heat is a common practice in removing wrist pins from pumping units when they cannot be driven out with a hammer. Evidence was also tendered to the effect that Knight had performed the same operations to remove wrist pins on a number of previous occasions. It is our view that there is no evidence that the method of work being used was anything other than customary and a normal every day method of performing this job. There is certainly no evidence that any negligence on the part of Moreland was a proximate cause of the accident giving rise to Knight’s death. Evidence was tendered to the effect that Knight had previously decided how he would remove the wrist pin before he undertook to do so, and that he and the other members had been at the well on the day of the accident since about 7 o’clock in pursuance of their plan, and there is an absence of any evidence that Moreland gave any instructions to Knight as to the manner in which it should be removed, and that More-land got to the well only a few seconds before the accident happened. That leads us to say that appellee’s theory that Moreland allowed the crew to use an unsafe method is untenable because of the fact that all the evidence in the record indicates that Knight himself selected the manner of performing the work, and Knight himself was actually in charge of the supervision of the work.

Under the record here the only possible cause of the accident which appears from the record is that the metal of the crank was defective. The evidence reveals that this was a hidden defect that could not be discovered even by a careful visual inspection. Under these circumstances there is insufficient evidence to tender an issue or any act of Moreland or his employer which could have been the proximate cause of the accident. We are of the view that appellant has failed to prove by a preponderance of evidence any of the venue facts required by Sec. 9a, to Article 1995, V.A.T.S., and we think the order of the'trial court overruling appellant’s plea of privilege should be reversed and the cause transferred to Harris County, Texas. See Goodrich v. Superior Oil Company, 150 Tex. 159, 237 S.W.2d 969, point 1. See also Austin Bridge Company v. Polanca, Tex.Civ.App., 300 S.W.2d 173. Needless to say that the proof that an accident occurred is not of itself evidence of negligence. Rankin v. Nash-Texas Co., 129 Tex. 396, 105 S.W.2d 195. At the hearing on the plea of privilege counsel for appellee orally informed the court that appellee was relying on subd. 4, and that he would amend his controverting affidavit to so indicate; such an amendment was not made. Our Supreme Court, in Victoria Bank & Trust Co. v. Monteith, 138 Tex. 216, 158 S.W.2d 63, opinion adopted, point 3, stated: “ * * * venue cannot be retained in Harris County under an exception not invoked, or upon a venue fact not alleged as such, in the controverting affidavit.” So far as we know our Supreme Court has not changed that rule. See Hudson & Eads, Inc. v. Enlow, Tex.Civ.App., 302 S.W.2d 479, n. w. h. Moreover, we see no evidence, and certainly insufficient evidence, that would sustain venue in Brazoria County under Subdivision 4, because it is our view that plaintiff failed to prove by a preponderance of the evidence that she had a valid cause of action against a resident in Brazoria County. See Texas Venetian Blind Co. v. Bond, 146 Tex. 212, 205 S.W.2d 977; Stockyards Nat. Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300; Compton v. Elliott, 126 Tex. 232, 88 S.W. 2d 91.

Accordingly, the judgment of the trial court overruling appellant’s plea of privilege is reversed, and the cause transferred to one of the District Courts of Harris County, and costs incurred prior to the time such suit is filed in the court to which said cause is transferred shall be taxed against plaintiff. See Rule 89, Texas Rules of Civil Procedure.


author: RENFRO, Justice.

text:
    C. M. GREEN, Appellant, v. J. B. GLADDEN, Appellee.
    No. 16434.
    Court of Civil Appeals of Texas. Fort Worth.
    June 14, 1963.
    Stark, Carroll & Davey, and Ken R. Davey, Gainesville, for appellant.
    Crutchfield & Rhodes, and John Crutch-field, Abilene, for appellee.
   RENFRO, Justice.

Defendant Green appealed from a judgment awarded to plaintiff Gladden as commission on the sale of real estate.

Plaintiff plead and testified to an express contract with defendant, dated July 24, 1960, whereby plaintiff was authorized to sell defendant’s premises, on which was located a motel, for the sum of $90,000, or such less amount the defendant would accept, plaintiff’s commission to be five per cent of the selling price.

In December plaintiff arranged a trade between defendant and one Porter, but defendant declined to trade. In April of the following year Porter and defendant, without the knowledge of plaintiff, consummated a motel trade, involving the equity in the respective properties owned by them, and a cash payment to defendant.

Defendant refused to pay plaintiff a commission.

Over the objection of defendant the court asked the jury what amount of cash would compensate plaintiff “for services rendered in the sale” of the property.

The issue was a quantum meruit issue.

The plaintiff did not plead quantum meruit and the case was not tried by consent on that theory. We sustain defendant’s point of error No. 2, which is based on the action of the court in submitting the quantum meruit issue. A pleading for a commission for the performance of an express contract, there being no alternative plea, will not support a judgment on quantum meruit. Wiley v. Smith, Tex.Civ.App., 55 S.W.2d 879; Vletas v. Stagner, Tex.Civ.App., 45 S.W.2d 1009.

In another trial, Issue No. 4 should be reframed. The issue inquired if plaintiff was the procuring cause of bringing defendant and Porter together for the purpose of selling by Green and the buying by Porter of the property in question at a price of $90,000 or an amount agreeable to Green.

The basis of a broker’s claim to a commission is that he was the procuring cause of a sale. 9 Tex.Jur.2d 727, § 38.

The issue as submitted did not distinctly submit the question as to whether plaintiff was the procuring cause of the sale or trade made between defendant and Porter.

Defendant in other points contends he was entitled to a judgment as a matter of law. Such points are overruled. He also complains of the refusal of the trial court to submit certain requested issues. We find no reversible error in such refusal.

The judgment is reversed and the case remanded for a new trial.


text:
    J. H. GENADOR et ux., Appellants, v. W. F. HAGERLA et ux., Appellees.
    No. 16429.
    Court of Civil Appeals of Texas. Port Worth.
    June 7, 1963.
    Rehearing Denied July 6, 1963.

      Wade, Davis, Callaway & Marshall, and Clyde M. Marshall, Jr., Fort Worth, for appellants on appeal only.
    Jake C. Cook, Fort Worth, for appel-lees.
   RENFRO, Justice.

The appellees, W. F. Hagerla and wife, > sued appellants, J. H. Genador and wife, in trespass to try title. The dispute actually concerned the location of a boundary line between the lots owned by the respective parties. It was the contention of appellees that appellants had erected a fence which encroached 9.8 feet on ap-pellees’ property.

In a trial before the court without a jury the court found in favor of appel-lees, fixed the boundaries of appellees’ lot by metes and bounds and ordered the removal of the fence.

Appellants present the following points of error: (a) The court erred in holding that the fence encroached on appel-lees’ property because the holding is contrary to the undisputed evidence and con- ' trary to the great weight and preponderance of the evidence; (b) the judgment' fails to establish the common boundary in accordance with any permanent monument; (c) the court erred in ordering removal of the fence; and (d) erred in overruling appellants’ motion for new trial for the presentation of additional evidence.

We have given careful study to appellants’ able and persuasive argument. We have, however, concluded that the evidence was such that the court was con-: fronted with a choice between conflicting surveys. Qualified surveyors testified for each side, and their surveys, plats, etc., were introduced in evidence. The court chose to accept the results of the surveys made by two surveyors for appellees.

An examination of the statement of facts reveals ample evidence to uphold the court’s judgment.

Having found that the fence encroached upon appellees’ property, the court had authority to order its removal. Turn-ham v. Sawyer, Tex.Civ.App., 220 S.W.2d 931.

We find no abuse of discretion on the part of the trial court in overruling the motion for new trial so that appellants could present additional evidence. No reason is shown why such evidence was not presented on the trial of the case.

All points of error have been considered' and are overruled.

Affirmed.