text:
    Troy Lee DOUTHIT, Appellant, v. The STATE of Texas, Appellee.
    No. 39895.
    Court of Criminal Appeals of Texas.
    Nov. 30, 1966.
    Paul L. Fourt, David T. Lancaster, Dallas, for appellant.
    Henry Wade, Dist. Atty., Kerry P. Fitz-Gerald, Asst. Dist. Atty., James F. Law, Asst. Dist. Atty., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Judge.

The offense is aggravated assault (Art. 1147(10) Vernon’s Ann.P.C.); the punishment, one year in jail.

Trial was had and judgment was entered on the jury’s verdict prior to January 1, 1966. Motion for new trial was overruled, sentence pronounced and notice of appeal given after January 1, 1966.

Three claims of error are assigned in appellant’s brief filed in the trial court.

Appellant first complains of the overruling of his written motion to suppress evidence relating to his prior convictions, the last of which was in “June or July 1951.”

Motions to suppress evidence were first recognized as a part of Texas Procedure in the 1965 Code of Criminal Procedure. (Art. 28.01 § 1(6)) Under the law as it existed at the time, the trial court did not err in overruling the motion. Dominguez v. State, 161 Tex.Cr.R. 124, 275 S.W.2d 677; Arrington v. State, 164 Tex.Cr.R. 20, 296 S.W.2d 537, and cases cited.

We further observe that no exception was reserved to the overruling of the motion; the evidence sought to be suppressed was introduced for impeachment purposes in the cross-examination of appellant without objection, and the convictions were not too remote, appellant having been released from the penitentiary in 1959.

Appellant’s second complaint relates to his cross-examination as to a conversation he had with police officers who came to his home in which he denied having been in a fight and denied having a knife; and his last complaint relates to testimony of the arresting officer William L. Johnson to the effect that he did so deny.

The fact that appellant cut the injured party, Jennings, on the neck, hip and side with a small knife was shown by the testimony of appellant as well as the testimony of the injured party.

Jennings testified that the assault upon him was unprovoked. Appellant’s version was that Jennings ordered him out of his car, threatened to whip him and was trying to pull him out of his car when he grabbed the open knife he had been using to clean his fingernails and slashed Jennings on the side of his neck; that Jennings was still kicking at him when he cut him on the hip and on the side, and that he saw something shining in Jennings’ hand.

Assuming that appellant was in custody when he made the statements to the officer, the admission of such evidence, in • view of the testimony of appellant and of Officer Johnson, was not error.

Officer Johnson testified:

“Q. All right, And did he make any statement about whether or not he was the person involved ?
“A. He stated that he didn’t know what I was talking about.
“Q. He didn’t know what you were talking about?
“A. That’s right.
“Q. Did he make any statement about whether he had had a knife or not ?
“A. He stated he didn’t have a knife.
“Q. Said he didn’t have a knife, and did he say that he hadn’t been involved in any fight?
“A. Yes, he diet.
“Q. He denied having been involved in any fight?
“A. Yes, he did.
“Q. All right, now I’ll ask you after you got downtown to the police station — without going into what was said — if you had a conversation with the Defendant?
“A. Yes sir, I did.
“Q. All right. Prior to that conversation, did you know where the knife in question was located?
“A. No sir, I didn’t.
“Q. All right, after you talked with him, did you recover the knife, following that conversation with him?
“A. Yes sir, I did.
“Q. All right. Did he tell you where to find that knife?
“A. Yes sir, he did.
“Q. What did he tell you?
“A. Told me he put it in the Beckley Club in a hole in the wall in the bathroom.
“Q. Put it where?
“A. In the Beckley Club — it’s a cafe. He said he went in the bathroom and put it in a little hole in the wall.
“Q. All right, did he tell you why ?
“A. No, he said he just hid it, just to get rid of it.
“Q. All right. But he told you where to find it?
“A. Yes, he did.
“Q. And did you subsequently recover it?
“A. Yes, I did.”

Testifying in rebuttal, appellant admitted having told the officer" where the knife was and that he put it in a hole in the wall of the rest room in the Beckley Cafe, but denied that the knife introduced in evidence was the knife he used.

Art. 727 Vernon’s Ann.C.C.P., in effect at the time of appellant’s trial, provides in part that a confession made while the defendant is in custody shall not be used— unless in connection with said confession he makes statements of facts or circumstances found to be true which conduce to establish his guilt, such as the finding of the instrument with which he states the offense was committed.

The statements of appellant were admissible under such provisions. Jones v. State, 167 Tex.Cr.R. 72, 318 S.W.2d 444, cert. denied, 361 U.S. 846, 80 S.Ct. 100, 4 L.Ed.2d 84; Richardson v. State, 172 Tex.Cr.R. 299, 356 S.W.2d 676; Marshall v. State, Tex.Cr.App., 384 S.W.2d 893; Payton v. State, Tex.Cr.App., 396 S.W.2d 120; Whitaker v. State, 160 Tex.Cr.R. 271, 268 S.W.2d 172; Henderson v. State, 172 Tex.Cr.R. 75, 353 S.W.2d 226, and cases cited.

Art. 38.22(a), par. 3, C.C.P. became effective after appellant’s trial and need not be here considered or construed.

The judgment is affirmed.


source: Caselaw Access Project

author: WOODLEY, Judge. MORRISON, Presiding Judge.

license: Public Domain

text:
    Jimmy Placido CHAVEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 39677.
    Court of Criminal Appeals of Texas.
    Oct. 12, 1966.
    Rehearing Denied Nov. 30, 1966.

      Gilbert K. Howard, Amarillo, for appellant.
    Dee D. Miller, Dist. Atty., Bob D. Slough, Asst. Dist. Atty., Amarillo, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Judge.

The offense is rape; the punishment, death.

Represented by able counsel whose experience included service as district attorney of the district where the indictment was returned and the case was called for trial, appellant pleaded guilty and a jury was selected to assess his punishment.

The evidence shows that the victim, an eight year old girl, was discovered missing and the police were notified.

Police Officer Vaughn arrived about 9 P.M. with a dog. The dog picked up a track beside the house and followed it down an alley into a vacant lot where Officer Vaughn found appellant on top of the child and pushed him off with his foot.

Appellant’s pants were down around his knees and his privates were exposed and were bloody, as were the front of his clothes. The child’s pants were off and her lower parts and the back of her dress were bloody.

An examination of the child at the hospital revealed “a severs vaginal laceration * * * a third degree tear such as comes from child birth.” Her vagina was full of blood.

As a witness in his own behalf, appellant testified that he had been drinking and he admitted his guilt. He further testified that he had received a probated sentence of three years a few months earlier, upon his plea of guilty to attempted burglary, and that he was drinking when he committed that offense.

The grounds upon which reversal is sought relate to the summoning of talesmen from which to complete the jury after the panel was exhausted.

Trial was had and notice of appeal was given prior to the effective date of the present Code of Criminal Procedure.

There was no special venire and no motion or request for such.

The regular panel drawn from the jury wheel having been exhausted, the sheriff was instructed to summon talesmen and the jury was completed from those summoned.

It is contended by appellant that additional jurors should have been drawn from the jury wheel because less than 100 of the jurors drawn from the jury wheel as jurors for the week were summoned.

In view of the fact that the statutory method for completing the jury in a criminal case when the panel is exhausted has been rewritten, it would serve no useful purpose to now revisit Coy v. State, 163 Tex.Cr.R. 58, 288 S.W.2d 782, wherein the writer dissented.

It is clear that prior to January 1, 1966, under Art. 601-A Vernon’s Ann.C.C.P. as amended after Coy, a capital case could be tried “by regular jurors summoned for service in such county for regular service for the week in which such capital case is set for trial and such additional talesmen as may be summoned by the sheriff upon order of the Court as provided in Article 596 of the Code of Criminal Procedure * * ” which Art. 596 C.C.P. provides:

“On failure from any cause to select a jury from those summoned upon the special venire, the court shall order the sheriff to summon any number of men that it may deem advisable, for the formation of the jury.”

Johnson v. State, 167 Tex.Cr.R. 289, 319 S.W.2d 720; Martinez v. State, 168 Tex.Cr.R. 18, 322 S.W.2d 635; Moon v. State, 169 Tex.Cr.R. 14, 331 S.W.2d 312.

Appellant contends that such statutes and authorities are not here applicable because, although more than 100 jurors were drawn from the jury wheel for regular service for the week, less than 100 of those drawn had been “summoned”.

The term “have been summoned” as used in Art. 601-A C.C.P. does not mean jurors who have received notice requiring them to appear.

The Pennsylvania Courts have said, in this regard:

“The venire issued by the court is a summons and he becomes a juror the moment his name is dropped from the jury wheel. He is then a juror summoned, by authority of the court, for jury duty. It is true that the law provides a method by which the jurors are notified that they are chosen, but this is but a provision showing how the juror shall be notified, and at that not an exclusive method. * * * When the juror’s name is dropped from the wheel and he is thus chosen with others for jury service, he is a summoned juror as that term is used in the statute defining embracery. He has not been served as required by statute but he has been summoned.”
Com. v. Wiswesser, 134 Pa.Super. 488, 3 A.2d 983, 985.

There is ample procedure for obtaining the appearance of a juror whose name has been drawn from the jury wheel.

Be this as it may, the record does not support the contention that less than 100 of the 107 jurors drawn from the jury wheel for regular service for the week were given notice to appear.

Appellant moved for mistrial after two jurors had been selected and the court had instructed the sheriff to summon talesmen, upon the ground that such talesmen should be selected by the use of the jury wheel.

The district attorney suggested that the record should reflect “the exact number of jurors actually summoned” and the court, in overruling the motion for a mistrial, stated: “Yes, the record will reflect there were 110 jurors summoned through use of the jury wheel; that no demand for a special venire was made and therefore the regular panel for the week was used * *

The motion for mistrial was renewed after appellant’s peremptory challenges had been exhausted and again after he had exercised five additional challenges allowed him by the court and the jury was completed.

To refute the court’s statement that “there were 110 jurors summoned through use of the jury wheel” appellant relied upon the jury list and the sheriff’s return which he offered at the hearing on his motion for new trial.

The names of 107 jurors appear on the list of jurors drawn, to which list three jurors drawn for other weeks were added.

The sheriff’s return reveals that opposite the names of the persons listed as not summoned appear such notations as “No return” ; “unclaimed”; “moved — no address”; “undelivered”; “called, 76 years old”; “not /«/dable.”

Such irregular return strongly suggests that notices had been mailed to the jurors drawn from the wheel. In any event, such return is not sufficient to refute the trial court’s statement that there were 110 jurors summoned through use of the jury wheel.

The remaining claim of error relating to the manner in which some of the talesmen were selected shows no reversible error.

The judgment is affirmed.

OPINION

ON APPELLANT’S MOTION FOR REHEARING

MORRISON, Presiding Judge.

In addition to what we said originally, we call attention to the fact that at the hearing on the motion for new trial appellant introduced in evidence the list of 107 jurors who were drawn to serve during the week of appellant’s trial. He also called the district clerk, who testified that the circles around the numbers opposite the juror’s name indicated that such juror had been excused and that 26 names had been so circled.

In Gonzalez v. State, 164 Tex.Cr.R. 64, 297 S.W.2d 144, we held that a special venire was not invalidated by reason of excuses which reduced the number below the number required.

Remaining convinced that we reached the correct disposition of appellant’s appeal originally, his motion for rehearing is overruled.


author: McDonald, judge.

text:
    A. M. WASHINGTON, Appellant, v. The STATE of Texas, Appellee.
    No. 39856.
    Court of Criminal Appeals of Texas.
    Nov. 30, 1966.

      Robert B. Maloney, Dallas, for appellant.
    Henry Wade, Criminal Dist. Atty., Kerry P. FitzGerald, Asst. Dist. Atty., Dallas, Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

McDonald, judge.

The offense is felony theft; the punishment, enhanced by two prior convictions for felonies less than capital, life imprisonment.

Trial was had, sentence pronounced, and notice, of appeal was given prior to January 1, 1966.

The record reflects that Mrs. M. C. Terry was the owner of Terry’s Laundry and Cleaning located at 3101 Commerce Street in the City of Dallas. She owned a 1956 light green panel truck with the name of her business painted on its side and back. On December 2, 1964, this truck, valued at $400.00, was taken from her control without her consent. On this particular date, the truck was being operated by J. L. Hig-genbotham, an employee of the laundry. He testified that at approximately 6:30 P.M. on the evening in question the truck was parked at the laundry. He was inside the laundry getting a final load of goods to put on the truck for delivery. When he came back to where the truck was supposed to be, it was gone. Higgenbotham immediately reported to the police that the truck was missing, and gave them a description of the vehicle. At 7:00 P.M. the same evening, Sergeant Holcomb of the Dallas Police Department stopped the truck, which was being driven by A. M. Washington, the appellant. Washington informed the Sergeant that his name was Nathaniel Mann and that he was an employee of the laundry. Holcomb radioed to get verification of the driver’s claim of employment and was informed that it was false and that he was not supposed to be driving the truck.

Appellant offered no testimony in his behalf.

Appellant’s first contention is that the evidence is insufficient to sustain the conviction because the witness Higgenboth-am, who had custody of the truck, did not testify that he had not consented to the appellant or any other person taking the truck and without direct proof of such fact, alleged in the indictment, the evidence is inr sufficient.

The indictment alleges that the vehicle in question was owned by Mrs. M. C. Terry. She testified fully that she owned the truck, that Higgenbotham was her employee, and that she gave no other person permission or consent to take the vehicle.

There are no facts or circumstances in this case requiring proof that the employee, Higgenbotham, did not give his consent to the taking of the truck.

The mere custody of property by an employee or servant of the owner does not operate to take the property out of the possession of such owner. 5 Branch’s Ann. P.C.2d 83, Sec. 2635.

Appellant’s final contention is that the trial court erred in allowing the state to introduce evidence before the jury, of the appellant’s prior felony convictions and submitting this evidence to the jury together with the issue of guilt or innocence of the primary offense.

This court has consistently approved the practice herein complained of. As was stated in Stephens v. State, Tex.Cr.App., 377 S.W.2d 189, “We are not disposed to depart from our holding in numerous decisions that the state may allege and prove a previous conviction for the purpose of enhancing the punishment under the applicable enhancement statute.” (Arts. 61 to 63 P.C.).

Finding no reversible error, the judgment is affirmed.


author: BELCHER, Commissioner.

text:
    Napolean SIMON, Appellant, v. The STATE of Texas, Appellee.
    No. 39776.
    Court of Criminal Appeals of Texas.
    Nov. 2, 1966.
    Rehearing Denied Dec. 14, 1966.
    Charles W. Tessmer, Dallas (On Appeal Only), Ronald R. Waldie, Dallas (On Appeal Only), Ralph L. McDowell, Dallas (On Appeal Only), Emmett Colvin, Jr., Dallas (On Appeal Only), for appellant.
    Henry Wade, Dist. Atty., John H. Stauf-fer and Tom F. Reese, Jr., Asst. Dist. Attys., Dallas and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Commissioner.

The conviction is for burglary of a private residence at night with the intent to commit rape; the punishment, five years.

The prosecutrix testified that she was a widow, 26 years of age, and on August 6 and 7, 1964, she actually occupied and used as her residence one side of a duplex with her two sons, ages eleven and three; that the other side of the duplex was not occupied during the time here in question; that about 12:30 a. m., August 7, she retired in her bedroom, the boys having retired in another bedroom; that an air conditioner in her bedroom was operating and a fan was running in the boys’ room and that her apartment was closed; that about 2 a. m. she was awakened by someone tapping her on the shoulder, and when she turned to look a man said, “G — d—it, don’t you scream; don’t holler, do nothing or I’ll kill you”; that he told her he wanted to have sexual intercourse with her; that as she straightened out in the bed she kicked him against the dresser, and he came back “full force” and hit her several times on the face; that while there were no lights on in the bedroom, the 100 watt light in the bathroom was on and shining across her bed, allowing her to see that her assaillant was a young Negro man with sideburns coming down nearly to a handkerchief covering his mouth but exposing his nose, ears, sideburns, and hair; that he was wearing a light colored shirt and had his pants unzipped with his penis exposed; that she had never before seen her assailant; that as he leaned across her bed he held a butcher knife under her throat and as she screamed he threatened to kill her; that after she screamed and he had struck her he left the room, and as she started to leave through an open bedroom window, which was closed when she retired, she saw the man run from the yard; that she then awoke her boys and notified the police who arrived at the scene in five or ten -minutes. Within a few minutes a small card was found in her bed in the bedroom; a book of matches was found inside the living room near the door; a butcher knife was found by the side of the porch; and a small book was found in the driveway; and while testifying the prosecutrix identified each of these objects, and said the knife belonged to her and she kept it in the kitchen; and that the man did not have her consent to enter her house or have carnal intercourse with her.

The prosecutrix further testified that about two weeks after the attack in her home she viewed a four-man lineup at the city hall, which was presented three separate times, with the men in different positions in the line each time; and while testifying on the main trial she identified the appellant as the man who attacked her in her apartment; and she further identified the appellant as the same man she had identified in the lineups at the city hall.

Testifying in his own behalf, the appellant denied that he committed the offense charged, that he did not know the prosecu-trix or where she resided, and named the places he had been on the night of August 6-7, 1964, and the court properly submitted alibi to the jury. Further, while testifying, the appellant looked at the book of matches introduced by the state and said that they were like those in his home.

On direct examination, Mrs. McCorter, the appellant’s aunt, testified that in July, 1964, the appellant asked her if she had seen his address book saying “he had been looking for it.” Other testimony pertaining to the address book is shown in connection with a contention urged for reversal.

Appellant contends that the trial court erred in refusing to sustain his objection to the testimony of Officer Peace when he testified to an incriminating statement made by the appellant while under arrest; and the court also erred in refusing to withdraw such testimony.

Detective Peace testified that the address book identified as State’s Exhibit No. 4 belonged to the defendant. Appellant’s counsel objected and moved to strike such testimony. Voir dire examination was allowed during which Detective Peace testified that he secured his knowledge as to the ownership of the book from the statement of the defendant made while he was under arrest.

As a witness in his own behalf, both on his direct and cross-examination, appellant testified that the address book identified as State’s Exhibit No. 4 belonged to him; that he usually kept it in his shirt pocket but had lost it before his last pay day in July.

The book was found in the driveway by the apartment of the prosecutrix within 20 or 30 minutes after the assault. In view of the testimony of the appellant pertaining to the book no reversible error is presented. 5 Tex.Jur.2d 704, Sec. 446.

It is insisted that the trial court committed reversible error in permitting the state to bolster the testimony of the un-impeached complaining witness who had identified the appellant at the police lineups.

The testimony of the state and that of the appellant while testifying in his own behalf, without objection, describes the three separate four-man lineups with the men in different positions each time.

Reversal is strenuously urged on the ground that the following testimony of Officer Peace bolstered the testimony of the prosecutrix:

“Q Total of three. At the conclusion of this showing, after the three different arrangements that you had set up, was the Defendant released from custody ?
“A He was not.”

Appellant insists that this line of testimony could have no other purpose than to holster the identification of the appellant by the unimpeached complaining witness. There was no objection to the testimony. It does not constitute fundamental error. No error is presented.

Notice of appeal was given prior to January 1, 1966.

The evidence is sufficient to support the conviction.

The judgment is affirmed.

Opinion approved by the Court.


text:
    Enorris BRYANT, Appellant, v. The STATE of Texas, Appellee.
    No. 39741.
    Court of Criminal Appeals of Texas.
    Nov. 9, 1966.
    Rehearing Denied Dec. 14, 1966.
    C. C. Divine, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Joe S. Moss and F. M. Stover, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Commissioner.

The conviction is for felony theft; the punishment, three years.

Notice of appeal was given February 4, 1966.

The record brought forward on appeal is not in compliance with the requirements of Art. 40.09. It is not assembled under one cover and approved by the trial court. The transcript is certified only by the clerk. A separate statement of facts of the evidence adduced upon the trial is approved by counsel for the appellant and the state but is not approved by the trial judge.

After the statement of facts was filed in this court on June 2, 1966, the clerk of the trial court on June 7, 1966, issued a supplemental transcript which was filed in this court on June 8, 1966. It contained an order signed by the trial judge on June 3, 1966, referring to a transcript of the court reporter’s notes taken during the trial, and he approves and directs it to be filed in the record of the cause.

Although no grounds of error are properly presented by the appellant for review, his contention that this conviction cannot be sustained on the ground that the theft of money is not constituted by a loss of money by gambling, has been considered as unassigned error, under Art. 40.09, Sec. 13.

Where a card game is used with the intent to fraudulently take the possession of money and deprive the owner of its value and appropriate it, and the money is so appropriated, the evidence sufficiently shows the commission of the offense of theft. Art. 1413, V.A.P.C. In a card game with substantially the same facts as here, a conviction for theft was affirmed in McDonald v. State, 385 S.W.2d 253.

The judgment is affirmed.

Opinion approved by the Court.


author: PRESLAR, Justice.

text:
    Stacy BRATCHER, Appellant, v. PECOS MOTORS, INC., a corporation, Appellee.
    No. 5814.
    Court of Civil Appeals of Texas. El Paso.
    Nov. 9, 1966.
    Rehearing Denied Nov. 30, 1966.
    Walker F. Means, Barstow, for appellant.
    John F. Tomlin, Pecos, for appellee.
   OPINION

PRESLAR, Justice.

Appellant brought suit against appellee for injuries to his credit arising out of the purchase-sale of an automobile. At the conclusion of the plaintiff-appellant’s evidence, the court granted defendant-appel-lee’s motion for instructed verdict. Appellant assigns four points of error by the trial court in granting the instructed verdict, one of which is that the court erred in holding his claim barred by limitations. We believe that issue was correctly determined and the judgment is affirmed on that basis.

Appellant pleaded that he bought a used car from appellee and became dissatisfied with its mechanical condition. It was then agreed between buyer and seller that repairs would be made and the cost shared equally, but disagreement arose over the cost of such repairs after they were made, and the entire transaction was by mutual agreement canceled. Appellant traded in a pickup truck and financed the balance of the purchase price through Universal C. I. T. Credit Corporation. The basis of his claim for damages is that the appellee reported the transaction to the Retail Merchants’ Association of Pecos, Texas, as a “repossession”, or that it reported it to Universal C. I. T. as a repossession, knowing that they would so report it to the Retail Merchants’ Association, and that in either event it injured his property, his credit; that the reasonable inference arising from the report of the transaction between the parties as a “repossession” was that appellant had not been able to pay his financial obligation, or had failed or refused to do so, and would be so understood by those with whom he did business and might seek credit. The Retail Merchants’ Association of Pecos, he alleged, is an association engaged in the business of making credit reports upon individuals and firms, and they recorded the transaction as a repossession on appellant’s credit record.

The peremptory instruction of the court was correct and should be affirmed if the appellee was entitled as a matter of law to judgment. As indicated, we are of the opinion that the appellee was entitled to judgment for the reason that appellant’s claim against it was barred by the statute of limitations, Article 5524, Revised Civil Statutes. That statute provides in part:

“There shall be commenced and prosecuted within one year after the cause of action shall have accrued, and not afterward, all actions or suits in courts of the following description:
“1. Actions for * * * injuries done to the character or reputation of another by libel or slander.”

Appellant alleged that the report was made in July 1961. This suit was filed on July 19, 1963, two years after the cause of action accrued. The nature of appellant’s suit brings it under the above-quoted provisions of the statute, for the basis of it is damage to his reputation. The very nature of the operation conducted by the Retail Merchants’ Association is reputation — one’s reputation for paying his bills. This is reflected in appellant’s pleading wherein he says:

“ * * * that said Retail Merchants’ Association recorded said transaction as a repossession on plaintiff’s credit record. That the reasonable inference arising from the report of the transaction between plaintiff and defendant as a ‘repossession’ was that plaintiff had not been able to pay his financial obligations to the defendant and/or to Universal C. I. T. Credit Corporation, or had failed or refused to do so, and that the notation of a ‘repossession’ upon a person’s credit record is so understood by creditors generally * * * ”

Appellant’s “credit record” as kept by the Retail Merchants’ Association would amount to his reputation for meeting his obligations, at least it would be a part of his over-all reputation. Appellant seeks to avoid the statute of limitations by characterizing his suit as one for damage to property, to-wit, his credit. While there might be instances where credit is property, or a valuable property right, such is not the case presented here. The record in this case shows that appellant is not seeking damage for any specific or enumerated loss occasioned by the report, but for injury or destruction of his credit generally, a blot on his credit record.

As a matter of law, the nature of appellant’s cause of action is established as one which had to be commenced within one year, within the meaning of Article 5524.

The judgment of the trial court is affirmed.


author: DUNAGAN, Chief Justice.

text:
    John I. MOORE and H. R. Wardlaw, d/b/a Red Town Farm et al., Appellants, v. Harold ELLIS, a Minor, by Next Friend, A. G. Ellis et al., Appellees.
    No. 84.
    Court of Civil Appeals of Texas. Tyler.
    Oct. 6, 1966.
    Supplemental Opinion Oct. 20, 1966.
    Rehearing Denied Nov. 3, 1966.
    On Motion to Re-Tax Costs Nov. 3, 1966.
    Second Rehearing Denied Dec. 1, 1966.

      Donald Carroll, Michael A. Hatchell, Ramey, Brelsford, Flock & Devereux, Tyler, Luther Johnston, Johnston & Johnston, Palestine, for appellants.
    George E. Pletcher, Albert P. Jones, Helm, Jones & Pletcher, Houston, John B. McDonald, B. R. Reeves, Palestine, for appellees.
   DUNAGAN, Chief Justice.

This is the second time this appeal has been before this court for consideration. Our former opinion is reported in 385 S.W.2d 261 and the opinion of the Supreme Court in 401 S.W.2d 789.

This is a suit for personal injuries arising out of an accident in which a tractor furnished by appellants turned over on Harold Ellis and seriously disfigured him. Trial was to a jury, resulting in a judgment on a jury verdict for the plaintiffs for $126,-500.00.

The nature, character and facts of the case are fully stated in the opinions of both this court and the Supreme Court. The opinion and mandate of the Supreme Court finally disposed of the first nine points presented by appellants in their brief, and the case was remanded for this court to pass on the other points raised by appellants which had not been disposed of by our former opinion.

Appellants’ original brief presented 79 points of error. Subsequent to the remand of this case by the Supreme Court, with permission of this court the appellants filed a post-submission brief in which they only present and argue four of the points heretofore presented in their original brief.

As stated by the Supreme Court in its majority opinion, many issues of contributory negligence were given, each of which Harold was acquitted by the jury.

The first point in appellants’ post-submission brief is the contention that the trial court erred in overruling their motions for instructed verdict and for judgment n. o. v., because the evidence establishes as a matter of law that the plaintiff, Harold Ellis, was guilty of contributory negligence. This contention is overruled.

This point presents to this court for its determination strictly a question of law. As we understand the Supreme Court’s opinion in this case, it determined this question of law adversely to appellants’ contention. The decision and judgment of the Supreme Court is the law of this case on this question, and cannot be overturned here. MacDonald v. Follett, 193 S.W.2d 287, (Tex.Civ.App.) 1946, writ ref. However, if we be in error in our interpretation of the Supreme Court’s opinion, then in that event, under all of the facts and circumstances of the case as shown by the record, we have concluded as a matter of law that the danger was not one which was so open and obvious that we would charge Harold with knowledge and appreciation of it, or that by the exercise of ordinary care he should have known and appreciated the danger involved, which is necessary before an injured person can be charged with contributory negligence. Jordan v. City of Lubbock, 88 S.W.2d 560, 563, (Tex.Civ.App.) 1935, writ dism.; Brownsville Navigation District v. Valley Ice & Fuel Company, Inc., 313 S.W.2d 104, 107, (Tex.Civ.App.) 1958, n. w. h.; Kenny v. El Paso Electric Company, 371 S.W.2d 777, 780 (Tex.Civ.App.) 1963, writ ref., n. r. e.

Included in the 79 points of error in appellants’ original brief not heretofore passed upon are assignments that there was no evidence to support the answers to many of the special issues and further the answers to such issues were against the great weight and preponderance of the evidence and were supported by insufficient evidence. In passing on whether this is true of the jury’s answers, we must review all of the evidence. After carefully considering and reviewing the entire record in this case, in light of the rules announced in the case of In re: King’s Estate, 150 Tex. 662, 244 S.W.2d 660, we have reached the conclusion that we cannot say, in the light of the whole record, that the answers of the jury were so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. We, had we been jurors, might have reached a different result, but as a reviewing court we may not merely substitute our views for those of a jury. Before we can disturb the jury’s answers, we must be able to say they are so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong. Ashman v. Smith, 389 S.W.2d 509, 512, (Tex.Civ.App.) 1965, n. w. h. We also find the evidence sufficient to support the jury’s findings. These points of error are overruled.

Special Issue No. 37 inquired of the jury what sum of money would compensate the parents of Harold Ellis for the following:

(a) Loss of services of the plaintiff until age 21, and
(b) The medical expenses to be incurred on behalf of the plaintiff from the date of trial to his twenty-first birthday.

The jury found that the parents had sustained a loss of services in the amount of $2,500.00, which is unchallenged by the appellants as being excessive. The jury then awarded $24,000.00 for future medical expenses. This latter figure is challenged by the appellants as being excessive and erroneous because it is grossly in excess to all the medical testimony relating thereto.

The only evidence relating to medical expenses for Harold from the date of trial to the plaintiff’s twenty-first birthday was given by appellees’ witness, Dr. LeRoy Mathis, Jr. The doctor testified that the reasonable and necessary charges involved in operations for Harold would be a $500.00 fee for each operation, a $500.00 hospital and drug fee for each operation, and $50.00 for office visits after his discharge following each operation. Dr. Mathis further testified that there was a reasonable medical probability that there would be required or necessary for the restoration of Harold from 15 to 25 procedures. As we understand his testimony, it was his best judgment that it could be done with 20 surgical procedures. He also testified that these operations or procedures could not be conducted but once every three months at the minimum. This would mean that Harold would undergo a maximum of four operations per year from the date of trial to his twenty-first birthday.

Taking the figures given by Dr. Mathis and computing the medical bills which would occur between the date of trial and Harold’s twenty-first birthday, allowing $1,050.00 as the reasonable expenses for each operation or procedure, then, on the basis of four operations or procedures per year for the three years from the date of trial (November 4, 1963) until Harold’s twenty-first birthday (September 29, 1966) the maximum amount, under the evidence presented by Dr. Mathis, which could be allowed for medical expenses prior to plaintiff’s twenty-first birthday, is $12,600.-00.

Appellees recognize that under the above evidence the award of future medical expenses to Harold’s parents is excessive and urge this court “to reform the judgment to provide that $11,400.00 in reasonable medical expenses which will be incurred following Harold’s twenty-first birthday, be added to his recovery.” Ap-pellees cite no authority nor are we aware of any that would support such action by this court. It is the rule in Texas that a parent is liable for the medical expenses of his child, Coates v. Moore, 325 S.W.2d 401, (Tex.Civ.App.) 1959, writ ref., n. r. e., and a minor plaintiff is not entitled to recover in his own name for past or future medical expenses which are the responsibility of his parents, Mercer v. Evans, 173 S.W.2d 206, (Tex.Civ.App.) 1943, writ ref.; Tyrrell Hardware Co. v. Orgeron, 289 S.W. 1040, (Tex.Civ.App.) 1926, writ ref.

The appellants request this court, under authority of Rule 440, Texas Rules of Civil Procedure, to require the appellees to submit that remittitur which we deem proper. It is without dispute that the award of the $24,000.00 in question is excessive in the sum of $11,400.00. Therefore, under Rule 440, this court is under a duty to reverse and remand this case unless appellees file a re-mittitur of $11,400.00.

We have examined and considered all the other points of error of appellants and found them to be without merit. There being no other reversible error in the record, if such remittitur is filed within ten days from the date of this opinion, the judgment of the trial court will be affirmed as reformed.

SUPPLEMENTAL OPINION

In our opinion delivered and filed on October 6, 1966, this Court suggested that if appellees would file a remittitur in the amount of $11,400.00 within ten days, the judgment of the trial court in favor of appellees would be reformed and, as reformed, affirmed. Appellees filed in writing the suggested remittitur on October 13, 1966.

Accordingly, the judgment of the trial court is reformed in conformity with such remittitur and, as so reformed, is affirmed.

ON MOTION FOR REHEARING

Appellants, subsequent to filing their original Motion for Rehearing, have filed an Amended Motion for Rehearing in which they allege that this Court erred in taxing the entire costs of appeal against them. Simultaneously therewith the appellants aso filed a motion to re-tax the costs. This Court by its written opinion this day delivered and filed disposing of the last mentioned motion has re-adjusted the costs. After careful consideration, we think that the original opinion and judgment of this Court in all other respects are correct and appellants’ Motion for Rehearing and Amended Motion for Rehearing are overruled.

ON MOTION TO RETAX COSTS

The appellees in the trial court recovered a judgment against the appellants in the total sum of $126,500.00. This court in a written opinion delivered and filed on October 6, 1966, found the verdict and judgment to be excessive in the sum of $11,400.00 and suggested that if appellees would file a remittitur in the amount of $11,400.00 within ten days, the judgment of the trial court would be reformed and, as reformed, affirmed. Appellees filed in writing the suggested remittitur on October 13, 1966. The judgment of the trial court, by supplemental opinion of this court delivered and filed on October 20, 1966, was reformed in conformity with such remit-titur and, as so reformed, was affirmed. The judgment in this case taxed all the costs against the appellants.

The appellants on October 21, 1966, filed in this court its motion to re-tax costs.

As grounds therefor, appellants in their motion make the following statement:

“In the trial of this cause, the jury awarded the Appellee, A. G. Ellis, $24,-000.00 as damages sustained by him for the loss of the services of the minor Plaintiff, Harold Ellis, and for future medical expenses to be incurred by A. G. Ellis on behalf of the minor Plaintiff from the date of the trial to Harold Ellis’ 21st birthday. In their Motion for New Trial, Appellants challenged this finding as having no support in the evidence. The trial court, which had the power to order a remittitur, overruled this contention. On appeal, Appellees virtually conceded the validity of Appellants’ challenge to the above finding. Appellees, however, did not tender a remittitur in the trial court to cure the error raised by Appellants in their Motion for New Trial. For this reason, Appellants were required to prosecute this appeal to secure the relief to which they were entitled and, it is submitted that these facts constitute ‘good cause’ for this Court, under the authority given in Rule 448, T.R.C.P., to tax at least half, or some equitable portion, of the costs of this appeal against the Appellee, A. G. Ellis.”

In view of appellants’ 79 assignments of error lodged against the judgment of the trial court, we think it is apparent that the five assignments of error upon which the remittitur was ordered were not the sole cause for this appeal. However, in view of the fact that appellants have obtained certain relief by prosecuting this appeal, and considering the relation of the amount deducted from the judgment to the amount permitted by us to stand, under the discretion given us by Rule 448, T.R.C.P., NINE PER CENT (9%) of the costs of this appeal will be taxed against A. G. Ellis and NINETY-ONE PER CENT (91%) against the appellants. It is so ordered. Bridwell v. Bernard, 159 S.W.2d 981, (Tex.Civ.App.) 1942, writ ref., w. o. m.; De Leon v. Aldrete, 398 S.W.2d 160, (Tex.Civ.App.) 1965, writ ref., n. r. e.; Wichita Nat. Bank v. United States Fidelity & Guaranty Co., 147 S.W.2d 295, (Tex.Civ.App.) 1941, n. w. h.; Pendery v. Panhandle Refining Co., 169 S.W.2d 766, 780, (Tex.Civ.App.) 1943, writ ref., w. o. m.


author: COLEMAN, Justice.

text:
    GALVESTON TRANSIT COMPANY, Appellant, v. Estelle MORGAN et vir., Appellees.
    No. 14866.
    Court of Civil Appeals of Texas. Houston.
    Nov. 17, 1966.

      McLeod, Alexander, Powell & Apffel, E. A. Apffel, Jr., Galveston, for appellant.
    Shead & Kinney, Eugene A. Smith, Houston, for appellees.
   COLEMAN, Justice.

This is a suit for damages by reason of personal injuries received by Estelle Morgan. She was riding as a passenger on a bus owned and operated by appellant when the bus was involved in a collision with an automobile at a street intersection in Galveston, Texas.

The jury found that the driver of the automobile was guilty of several acts of negligence constituting proximate causes of the collision, but failed to find that any act of negligence was the sole proximate cause. The jury also found that appellant failed to keep a proper lookout and that this failure was a proximate cause of the collision. Based on this finding, judgment was rendered for appellee.

Appellant contends that the issues on lookout were not raised by the evidence and should not have been included in the court’s charge. It also contends that the answers made to these issues were contrary to the great weight and preponderance of the evidence.

The collision happened at an intersection where the view of the bus driver down the intersecting street to his left was obscured to a considerable degree by a line of tall leafy oleander bushes. The testimony with reference to the number of these bushes and the distance between them was not clear and definite. However, the bus driver testified that there were from three to six bushes, and that the first bush was some 18 to 25 feet from the intersection, and they extended back to an alley about 150 feet from the intersection. A picture introduced into evidence supports this testimony. The pictures reflect that the house on this corner was set well back from both 40th Street and Avenue M. From an examination of the pictures in evidence, the jury might well have concluded that the first oleander bush was two or more car lengths from the intersection.

One of appellant’s witnesses testified that when she first saw the car, she looked at the bus driver and he was looking to the right; that the car was almost upon them and “when the driver saw the car he swerved the bus to the right and hit the car.” This witness was seated in the middle of the bus. The inference from this testimony is that she saw the car before the bus driver did, and that had the bus driver been keeping a very careful lookout he could have seen the car sooner than he did.

Another passenger testified that as the bus approached the intersection the driver was looking to the right and talking to a passenger. He testified that he was looking at the bus driver until some of the passengers started screaming and that he didn’t see the driver look to the left before he heard the screams, at which time the bus was just entering the intersection.

The bus driver testified that he first saw the car when he was at the sidewalk and the front of the bus was eight to ten feet from the curb line. The car was then about forty yards from the intersection. The bus driver had already made a partial application of his brakes. As soon as he saw the car, he knew it would not stop for the stop sign and he just “mashed” the brakes “on down”, but he did not apply the brakes hard enough to skid the wheels in order to avoid throwing the passengers out of the seats.

He later testified that he was crossing the sidewalk — practically to the curb line when he first saw the car — that the front of the bus was even with the curb line. He testified that he did not attempt to turn the bus because he didn’t have time, but that he swerved the bus very slightly to the right. He knew the oleanders. were there at the intersection and approached with caution. He could have made a safe stop under the conditions existing in 20 to 25 feet. The bus was 28 to 30 feet long. A passenger seated in the middle of the bus would be about 12 feet back of his position in the bus. The bus traveled 15 to 17 feet after he saw the car before the collision. At the point of impact the bus was going 2 to 4 miles per hour. The left corner of the front bumper of the bus hit the right rear fender of the car. 40th Street was 40 to 45 feet wide. The collision occurred in the southeast quarter of the intersection.

While the bus driver testified that he could not see down the street until he was even with the curb line, the jury was not required to accept this testimony. There was evidence to support its conclusion that the bus driver could have seen the car sooner than he did; that he did not look to the left until after he had entered the intersection; and that had he been keeping a careful lookout he could have applied his brakes in time to have avoided the collision.

The jury found that the appellant’s bus driver failed to keep such a lookout as would have been kept by a very cautious, prudent and competent person under the same or similar circumstances. While one ordinarily is not required to anticipate the unlawful or negligent conduct of another, it does not follow as a matter of law that the bus driver kept a proper lookout. DeWinne v. Allen, 154 Tex. 316, 277 S.W.2d 95, 1955; Brown v. Dallas Ry. & Terminal Co., 226 S.W.2d 135, Tex.Civ.App.1949, error ref.

There is sufficient evidence to require the trial court to submit the issue on lookout and the companion issue on proximate cause. The answers made by the jury to these issues were not so contrary to the great weight and preponderance of the evidence as to be clearly wrong. Figueroa v. Threece, 337 S.W.2d 400, San Antonio Tex.Civ.App.1960, ref., n. r. e.

Appellant proffered testimony that within ten minutes of the collision the driver of the car made a statement to the bus driver voluntarily, and not in response to a question. The testimony was: “He said ‘it’s not your fault at all.’ He said ‘I’m to blame for it.’ He said, T got a broken toe and when I got on the brake that toe hurt me and I took it off,’ and he said, T couldn’t stop for the stop sign, I got a broke toe.’ ”

The statement was spontaneous and was made within such time after the collision as to indicate that the speaker was still dominated by emotion and had not returned to normal calmness. If otherwise admissible, the statement constituted res gestae and should have been admitted as an exception to the hearsay rule. McCormick & Ray, Texas Law of Evidence, § 913 et seq.

In this case, however, it is undisputed that the declarant ran the red light. The court’s refusal to admit the opinion, “I’m to blame for it,” was within the discretion of the court since the declarant was not a party to the suit and the evidence was merely cumulative of other testimony establishing his fault. The statement, “It’s not your fault at all,” is an opinion of a lay witness. It was somewhat speculative and conjectural in nature if it should be taken as a statement that the bus driver had violated no duty which he owed to his passengers. The statement cannot qualify as a “short hand rendering of the facts,” but was an opinion or conclusion based on facts which could have been presented to the jury. The trial court did not err in refusing to admit the testimony. McCormick and Ray, Texas Law of Evidence, §§ 1393, 1397, 1399, 1406. Isaacs v. Plains Transport Company, 367 S.W.2d 152, Tex.Sup.1963.

The trial court submitted an issue to the jury as to whether the driver of the car was traveling at a speed greater than a person of ordinary prudence in the exercise of ordinary care would have driven under the same or similar circumstances, accompanied by issues on proximate cause and sole proximate cáuse. The court refused tendered issues based on a violation of the speed limit. There was evidence of speed in excess of 30 miles per hour.

While the answers returned by a jury to issues submitted will not be considered in determining whether the trial court erred in refusing to submit requested issues, the error of the trial court in refusing these issues will not require reversal of the case since the jury found in favor of appellant on the common law speed issues with the exception of the sole proximate cause issue. This follows from the rule that a case will not be reversed where an error of the trial court was not one which probably caused the rendition of an im- ’ proper judgment. The facts of a particular case might require the submission of issues concerned with common law negligence and negligence per se by reason of the violation of a statutory speed limit. Since the question of whether the speed of the car constituted the sole proximate cause of the collision was submitted to the jury, there was no denial of trial by jury, and the failure to again present this question with respect to a statutory violation was not calculated to cause and probably did not cause the rendition of an improper judgment. Rule 434, Texas Rules of Civil Procedure; Texas & Pacific Railway Company v. Van Zandt, 159 Tex. 178, 317 S.W.2d 528, 1958.

Appellant requested issues on unavoidable accident. These issues were refused by the trial court. Appellant did not plead unavoidable accident, and was not entitled to an affirmative submission of this issue. Rule 93, T.R.C.P.; Rule 279, T.R.C.P.; City of Coleman v. Kenley, 168 S.W.2d 926, Tex.Civ.App.1943, ref., w. m.; Comment 6 Baylor Law Review, No. 4, p. 472.

The trial court refused an issue requested by appellant asking whether the driver of the car failed to turn his automobile out of the path of the bus, together with companion issues on negligence, proximate cause and sole proximate cause. There was evidence of failure in that respect. In view of the uncontradicted evidence that he was driving 30 miles per hour, or faster, approaching a stop sign at an intersection where his view to the right was impaired, his failure to stop at the stop sign, was negligence per se since there was no evidence tending to excuse such failure. As a matter of law, this negligence was a proximate cause of the collision under this record. There was, therefore, no evidence that the failure to turn out of the path of the bus was the sole proximate' cause of the collision. The refusal of the trial court to submit these issues, with the exception of the issue on sole proximate cause, was error, but not such as was calculated to cause, or that probably did cause, the rendition of an improper judgment. The court did not err in refusing to submit the issue on sole proximate cause.

The judgment of the trial' court is affirmed.


author: HUGHES, Justice.

text:
    NEW AMSTERDAM CASUALTY COMPANY et al., Appellants, v. TEXAS INDUSTRIES, INC. and such corporation doing business as Texcrete Structural Products Company, Appellee.
    No. 11451.
    Court of Civil Appeals of Texas. Austin.
    Nov. 16, 1966.
    Rehearing Denied Dec. 7, 1966.

      Brundidge, Fountain, Elliott & Churchill, L. E. Elliott, Dallas, for appellants.
    DeVore, Ashworth & McGahey, Philip C. McGahey, Jr., Arlington, for appellee.
   HUGHES, Justice.

The problems involved in this case are whether attorney’s fees are recoverable in a suit brought to recover on a bond executed pursuant to Art. 5160, Vernon’s Ann.Tex. Civ.St., and if so what legal services may be considered in determining such fee and whether the fee allowed in this case was established as a matter of law, this being a summary judgment proceeding.

Appellee, Texas Industries Inc., also doing business as Texcrete Structural Products Company, as a subcontractor, sued Clarence H. Everett and Company, Inc., as general contractor and its surety, New Amsterdam Casualty Company, to recover a balance of $182,919.44 due for material furnished and labor performed under its subcontracts and for $36,500.00 as attorney’s fees.

Appellee moved for summary judgment. Appellants did not resist the recovery of the principal amount, and interest thereon, sued for, but it did contend that no attorney’s fees were recoverable, that an improper basis was used in fixing such fees, and in no event could they be established as a matter of law by affidavits containing opinion evidence of the reasonableness of a fee.

It is conceded by the parties that the bond given by Amsterdam and sued on herein was a Payment Bond executed pursuant to the provisions of Art. 5160, known as the McGregor Act. This Act does not provide for the recovery of attorney’s fees in suits brought on the bonds required by its provisions.

Amsterdam’s denial of liability for attorney’s fees is based on the absence of provision therefor in Art. 5160 and the principles of law stated in Mundy v. Knutson Construction Company, 156 Tex. 211, 294 S.W.2d 371, and National Union Fire Insurance Company v. Southwestern Greyhound Lines, Inc., 322 S.W.2d 61, Tex.Civ.App., Fort Worth, writ ref., n. r. e.

We will not discuss these cases for the reason that it has been authoritatively established that attorney’s fees are recoverable in suits against sureties on bonds given pursuant to Art. 5160, per force Art. 2226, V.T.C.S. H. Richards Oil Company v. W. S. Luckie, Inc., 391 S.W.2d 135, Tex. Civ.App., Austin, writ ref., n. r. e., and authorities therein cited; Yates v. Industrial Steel Products Company, Tex.Civ.App., Texarkana, 399 S.W.2d 892, n. w. h.

Appellants contend that if attorney’s fees are recoverable in this suit under Art. 2226, as held in the above cited cases, then since such Article provides that a person having a “valid claim” of the type specified may recover reasonable attorney’s fees under the conditions stated, no consideration should be given to the work of the attorneys in perfecting such claim to make it a “valid claim” in the fixing of reasonable attorney’s fees.

Specifically, it is contended here that in fixing a reasonable attorney’s fee no account should be taken of the work, time and skill involved in examining the accounts of the subcontractor and preparing and presenting claims therefor and notices to the general contractor and his surety in the manner and within the times required by Art. 5160. In short, appellants say that attorney’s fees under Art. 2226 can only be recovered for “prosecution of a suit to recover the amount of a valid claim.”

It is our opinion that this is too narrow a view to be taken of Art. 2226.

The statute does not limit the allowance of attorney’s fees to those earned in prosecuting the suit. It permits the recovery of reasonable attorney’s fee if a claimant is represented by counsel and final judgment is obtained for any portion of a valid claim. The distinction is thus made between a valid claim and the judgment obtained on it.

We believe that appellee had a valid claim for labor and materials furnished when they were furnished, but the perfection of these claims for the purpose of fixing legal liability on the general contractor and his surety, as required by Art. 5160, was essential to the successful prosecution of these claims to final judgment. No one would deny that compliance with Art. 5160 with regard to giving the notices it requires calls for the services of an attorney. These services here were performed by the attorney who represented appellee in obtaining final judgment on these claims. We hold that these services, being not only incidental but essential to the obtaining of final judgment by appellee on its claims, were entitled to be considered in fixing reasonable attorney’s fees under Art. 2226.

Appellants contend that there was no presentation of claim as required by Art. 2226 as a prerequisite to the recovery of attorney’s fees.

This contention is based upon the record showing notices as presentation of claims under Art. 5160 but not specifically under Art. 2226.

There is no contention that either the substance of the notice or presentation of the claims was deficient under either Art. 5160 or Art. 2226. It is pointed out that under Art. 5160 suit cannot be brought until sixty days after notice but that under Art. 2226 payment must be made within 30 days after presentation of claim to avoid attorney’s fees. Appellants say that to hold that one notice suffices for the notices required by both statutes would bring them into conflict. We fail to appreciate this logic. The statutes relate to different matters, although they both require similar notices. If the notice given is sufficient under each statute, it must be sufficient under both statutes. We overrule this contention.

Appellants’ last point is that the court erred in holding that $19,773.62 was, as a matter of law, a reasonable attorney’s fee which the court could award in a summary judgment proceeding.

We sustain this point.

Details of the legal services rendered for appellee were given by its counsel.

One attorney testified that, in his opinion, a reasonable fee for the services rendered would be $41,200.00 Another attorney testified that such fee, in his opinion, would be $35,000.00.

The trial court, declining to give effect to either of these opinions, fixed the fee at $19,773.62.

What is a reasonable attorney fee is a question of fact to be determined by the trier of the facts, and expert opinion of witnesses is not conclusive. Gulf Paving Co. v. Lofstedt, 144 Tex. 17, 188 S.W.2d 155; Weatherly v. Longoria, 292 S.W.2d 139, Tex.Civ.App., San Antonio, writ ref., n. r. e.; Lee v. Howard Broadcasting Corporation, 305 S.W.2d 629, Tex.Civ.App, Houston, n. w. h

If this was not a summary judgment proceeding but was a trial to the court, the action of the trial court in fixing a reasonable attorney’s fee could he sustained, but the law is that “cases dealing with the fixing of attorney’s fees by the trial judge when acting as the trier of fact have no application to summary judgment proceeding.” Himes v. American Home Fence Co., (Sup.Court) 379 S.W.2d 290. This case is also authority for our holding that the reasonableness of an attorney’s fee presents an issue of fact. See also Great American Reserve Insurance Company v. Britton, 406 S.W.2d 901, Tex.Sup.

Opposed to this holding, appellee cites Leal v. Leal, 401 S.W.2d 293, Tex.Civ.App., San Antonio, n. w. h. (1966); Hatley v. Hatcher, 376 S.W.2d 943, Tex.Civ.App., Dallas, n. w. h.; Akins v. Coffee, 376 S.W.2d 953, Tex.Civ.App., Dallas, writ dismissed.

Hatley was a non-jury trial, not a summary judgment proceeding. It is not in point.

Akins was a summary judgment based on a sworn account. The Court of Civil Appeals held attorney’s fees were recoverable even though no evidence, including opinion evidence, was before the trial court regarding attorney’s fees.

Leal, a summary judgment case, holds that a reasonable attorney’s fee may be fixed by the trial court in accordance with an uncontested affidavit stating that a certain fee is reasonable.

It is our opinion that Hatley and Leal are not consonant with the rulings of the Supreme Court, shown above, which we are required to follow, and with which we are in complete agreement.

The judgment of the trial court is reversed and this cause is remanded for the sole purpose of factually determining the amount of reasonable attorney’s fees to be allowed appellee.

Reversed and Remanded With Instructions.

      . “Art. 2226. [2178-9] Attorney’s fees
      Any person having a valid claim against a person or corporation for personal services rendered, labor done, material furnished, over-charges on freight or express, lost or damaged freight or express, or stock killed or injured, or suits founded upon a sworn account or accounts, may present the same to such person or corporation or to any duly authorized agent thereof; and if, at the expiration of thirty (30) days thereafter, the claim has not been paid or satisfied, and he should finally obtain judgment for any amount thereof as presented for payment to such person or corporation, he may also recover, in addition to his claim and costs, a reasonable amount as attorney’s fees, if represented by an attorney.”


author: NORTHCUTT, Justice.

text:
    Jay KIRKMAN, Independent Executor and Trustee of the Estates of Anne Slade Kirkman and Georgia Pearl Kirkman, Appellant, v. AIRCRAFTSMEN, INC., Appellee.
    No. 7656.
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 21, 1966.

      Jay U. Kirkman, Amarillo, for appellant.
    Carnahan & Fields, Amarillo, O. P. Fields, Jr., Amarillo, of counsel, for appel-lee.
   NORTHCUTT, Justice.

Aircraftsmen, Inc., as plaintiff, brought suit against Jay Kirkman, as defendant d/b/a Kirkman’s Flying Service in Cause No. 40672 in the 47th District Court of Potter County, Texas, to recover upon a sworn account for labor and materials furnished by plaintiff in repairing an airplane. The case was transferred to the 108th District Court of Potter County, Texas. Kirkman filed a sworn denial to plaintiff’s cause of action and sought by his evidence to show that he was not liable because plaintiff failed to properly install and service certain parts and in not using certain new parts. The case was tried to a jury and upon the answer of the jury, judgment was rendered for plaintiff against Jay Kirkman for the sum of $2,162.07. That judgment became final and no appeal was taken therefrom.

Thereafter on February 26, 1965, Jay Kirkman, Independent Executor and Trustee of the Estates of Anne Slade Kirkman and Georgia Pearl Kirkman, as plaintiff, brought suit in Cause No. 41363-A of the 47th District Court of Potter County against Aircraftsmen, Inc. to recover damages because of the negligence of the defendant in failing to properly install and service the propeller governor and component parts and install other than new parts. The defendant filed its answer by general denial and also pleaded that the issues tried in Cause No. 40672 in the 108th District Court were the same issues, parties and their privies which plaintiff here sought to place in issue and that the proceedings in Cause No. 40672 and the judgment of that court estopped the plaintiff in this case from prosecuting the claim sued upon herein and precluded further proceedings herein and that the defendant was entitled to judgment upon its plea of estoppel by said judgment entered in Cause No. 40672.

The defendant filed its motion for summary judgment attaching certified copies of all the proceedings in Cause No. 40672 as well as certified transcript of the testimony given by Jay Kirkman in Cause No. 40672 contending it was entitled to judgment herein by judicial estoppel and also res judicata. Kirkman filed his controverting affidavit to defendant’s motion for summary judgment attaching thereto a certified copy of the wills of Anne Slade Kirkman and Georgia Pearl Kirkman appointing him trustee of the estates and filed certified copies showing that Kirkman qualified as independent executor of each estate. Plaintiff also attached to his controverting affidavit a bill of sale covering the airplane here involved to Kirkman Trust Estate. The trial court granted summary judgment that plaintiff take nothing against Aircraftsmen, Inc., and that Aircraftsmen, Inc. be discharged from all liability. From that judgment plaintiff perfected this appeal.

The sole question here involved is whether the trial court erred in holding that the judgment entered in Cause No. 40672 was res judicata of the matters here involved or in holding that judicial estoppel applied. In Cause No. 40672 Aircraftsmen, Inc., brought suit against Jay Kirkman to recover for labor and materials furnished by Aircraftsmen in repairing the same airplane here involved. Kirkman defended that suit on the same grounds that he seeks to recover upon herein. The only difference that we are able to really see between the two cases is that in Cause No. 40672 Kirkman contended he owned the airplane that was repaired and in this case that the airplane was owned by the estates of Anne Slade Kirkman and Georgia Pearl Kirkman and being flown for hire by their duly authorized agent, Jay Kirkman. The airplane was purchased long after Jay Kirkman qualified as trustee. We are unable to find any authority under this record or under the statutes of this state permitting the trustee to purchase an airplane and to use the same as a business for hire as was done here.

In this case suit was brought to recover damages to the airplane because of the negligence of defendant in failing to properly install and service the propeller governor and component parts and installing other than new parts. The suit in Cause No. 40672 was brought to recover for the labor and materials used in servicing the same airplane. The same airplane and the same issues were involved in both cases. It has been determined in Cause No. 40672 that Aircraftsmen, Inc. was not guilty of the matters sought to be determined in this case. That contention has been judicially determined and the principle of res judicata applies.

It is stated in Rio Bravo Oil Co. v. Hebert, 130 Tex. 1, 106 S.W.2d 242 as follows:

“Where parties have had the opportunity of litigating certain issues, and a final judgment is entered in said cause adjudicating those iásues, it is not the policy of the law to permit a relitigation of such questions. The rule is now well settled that a judgment on an issue directly involved in a case is conclusive in a second suit between the same parties, although the second suit relates to a different subject-matter. It is also equally well settled that an issue of fact necessary for a determination of issues in a prior case, and a judgment entered therein, creates an estoppel by judgment against relitigation of the same issue. Hanrick v. Gurley, 93 Tex. 458, 479, 54 S.W. 347, 55 S.W. 119, 56 S.W. 330, and cases cited; Houston Terminal Land Co. v. Westergreen, 119 Tex. 204, 27 S.W.2d 526.”

It is further stated in that case as follows :

“ 'There is a difference between the effect of a judgment as a bar or estoppel against the prosecution of a second action upon the same claim or demand, and its effect as an estoppel in another action between the same parties upon a different claim or cause of action. In the former case the judgment, if rendered upon the merits, constitutes an absolute bar to a subsequent action. It is a finality as to the claim or demand in controversy, concluding parties and those in privity with them, not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose.’ ”

We think there is no question but that there was privity...of parties involved in these cases. It is held in Boyett v. Boyett, Tex.Civ.App., 345 S.W.2d 799 (N.R.E.) as follows:

“ ‘There is no better settled principle, than that the judgment or decree of a court of competent jurisdiction, directly upon the point, or necessarily involving the decision of the question, is conclusive between the parties, and their privies, upon the same matter coming directly in question in a collateral action, in the same or another court of concurrent jurisdiction. It can make no difference in the application of this principle, what may have been the subject matter of the judgment, provided it be one of which the court rendering it had jurisdiction. If the court rendering the judgment had jurisdiction of the subject matter and the parties, its decision is conclusive until reversed on appeal or annulled by a proceeding for that purpose.’
“In Victory v. State, 138 Tex. 285, 158 S.W.2d 760, 763, (Comm, of Appeals opinion adopted) Points (1, 3), we find this statement:
“ ‘It is the established law of this state that courts may take notice of their own records and a former judgment may be held to be conclusive in a subsequent action when the record shows a judgment rendered in a cause involving the same subject matter between the same or practically the same parties, even though no plea of res adjudicata was interposed in the subsequent suit.’ ”

See also Lobit v. Crouch, Tex.Civ.App., 323 S.W.2d 618 (N.R.E.) as follows:

“The rule of judicial estoppel is based upon public policy. It does not permit a party to a judicial proceeding to successfully take one position and then to adopt an inconsistent position if to do so will result in prejudice to his adversary. 17 Tex.Jur. p. 134. See also Smith v. Chipley, 118 Tex. 415, 16 S.W.2d 269, 276, where the court said ‘one cannot take advantage of an error of any court that has been induced or invited by him.’ ”

Judgment of the trial court is affirmed.


author: CHADICK, Chief Justice.

text:
    HOUSEHOLD FINANCE CORPORATION OF DALLAS, Appellant, v. Nicolas V. REYES, Appellee.
    No. 7775.
    Court of Civil Appeals of Texas. Texarkana.
    Nov. 15, 1966.
    Rehearing Denied Dec. 6, 1966.
    Joe S. Moss, Houston, for appellant.
    Eugene A. Smith, Simon M. Frank, Anderson & Frank, Houston, for appellee.
   CHADICK, Chief Justice.

This is an appeal from a trial court order quashing a writ of garnishment. The judgment of the trial court is affirmed.

The record presented shows this garnishment proceeding to be ancillary to an action pending in a district court of Harris County. The garnishment affidavit filed in the trial court by Household Finance Corporation of Dallas says that its “original petition was filed and such suit was commenced in the above court [61st Judicial District Court] on the 29th day of October, A.D. 1965, where it is still pending on the docket of said Court as Cause No. 685,-738; that the plaintiff therein and thereby sues Ramiro Bustillos and Carmen Bustil-los, husband and wife, and Nicolas V. Reyes, defendants, for debt to recover the sum of One Thousand Dollars ($1,000.00); * * * ”; but the transcript does not contain the pleading in the principal suit. A motion to quash filed by appellee Reyes, as defendant in the trial court, states:

“That the Plaintiff in garnishment, Household Finance Corporation of Dallas, alleges in its suit under Cause No. 685,738 that they hold a Note and Chattel Mortgage as against this Defendant, Nicolas V. Reyes, and as security on such Note they hold a lien and Chattel Mortgage against certain furniture and a Pontiac automobile as belonging to the defendants, Ramiro Bustillos and Carmen Bustillos. That such personal property is security for such Note and Chattel Mortgage, that the creditor, the Plaintiff in Garnishment, Household Finance Corporation of Dallas, have a lien and Chattel Mortgage against said property * * * >*

Although the appellant’s brief asserts the trial court heard evidence on the motion to quash, a statement of facts has not been filed herein.

It may be assumed that proof was introduced in the trial court supporting the judgment rendered in the absence of a statement of facts. Root v. Hester, (Tex.Ct.Civ.App.1958), 309 S.W.2d 480, wr. ref.; Lane v. Fair Stores, Inc., 150 Tex. 566, 243 S.W.2d 683. That assumption is made here.

The amount of the debt Household Finance Corporation of Dallas seeks to collect from Reyes with the aid of the writ of garnishment is contingent and uncertain until the security for its debt is exhausted, that is, the lien on personal property is foreclosed, the property sold and the amount of the proceeds of the sale deducted from the original amount of Reyes’ indebtedness alleged by Household Finance Corporation of Dallas in its petition in the principal suit. In Teague v. Fairchild (Tex.Com.App.1929) 15 S.W.2d 585 where, as here, the security had not been exhausted, it was held that the trial court could not because of the uncertainty, render a final judgment for a definite sum in the garnishment proceeding. A writ of garnishment may not issue when the indebtedness is contingent or uncertain. “Garnishment”, 26 Tex.Jur.2d 674, § 11; 6 Am.Jur.2d 602, § 57. Because of the uncertainty in the amount of the debt, the trial court properly quashed the writ.

The judgment of the trial court is affirmed.


author: PHILLIPS, Justice.

text:
    Rose Marie SHURETT, a widow, Appellant, v. George Otis OSBORNE el al., Appellees.
    No. 11450.
    Court of Civil Appeals of Texas. Austin.
    Nov. 16, 1966.

      Fanning, Billings, Harper, Fierce & Gil-ley, Harlan Harper, Jr., Dallas, for appellant.
    Strasburger, Price, Kelton, Miller & Martin, Royal H. Brin, Jr., R. Christian Harvey, Dallas, for appellees.
   PHILLIPS, Justice.

This is a slip and fall case brought by appellant, plaintiff below, alleging that she slipped and fell on the porch of a house owned by defendant Osborne and being rented by his daughter, Libby McClosky. Both Mr. Osborne and Mrs. McClosky are appellees here.

Appellant was working as a baby sitter for appellee McClosky and had been so employed for about a year. She lived in the McClosky home where she was employed in caring for Mrs. McClosky’s two children.

The fall occurred when appellant returned to appellee’s home after dark, about 8:30 p. m. in May of 1964.

Appellees filed a motion for summary judgment in the trial court, based upon depositions of the parties, and appellant filed a controverting affidavit. The court granted appellees’ motion for summary judgment, and it is from this judgment that this appeal has been taken.

We affirm the judgment of the trial court.

Appellant is before this Court on six points of error, the first three, briefed together, being the error of the trial court in applying the doctrine of assumed risk, or open and obvious in this case; in failing to revoke or overrule the doctrine of assumed risk, or open and obvious, in this case; in failing to allow the jury to decide this case based on ordinary negligence and contributory negligence grounds.

We overrule these points.

Appellant is attempting to establish liability of appellants on one of two bases of negligence, first that the light on the porch was out or that appellees should have left a window or door open in order to furnish light; and secondly, that there was a slippery substance or something on the porch that caused appellant to fall.

It is without question that the appellant was fully aware that the light on the front porch was out and knew that it had been out for a matter of months. In addition, she testified by deposition that she knew it was out before she attempted to climb the steps.

In Texas the owner-occupier has a duty to exercise ordinary care toward invitees to keep the premises in a reasonably safe condition, or to warn. Genell, Inc. v. Flynn, 163 Tex. 632, 358 S.W.2d 543, 1962; Smith v. Henger, 148 Tex. 456, 226 S.W.2d 425, 20 A.L.R.2d 853, 1950. In order to deny recovery to the invitee, it has been held that the invitee must have either actual knowledge and appreciation of the danger as in Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368, Sup.Ct.1963, or the danger must be open and obvious before he will be held to have assumed the risk. Houston National Bank v. Adair, 146 Tex. 387, 207 S.W.2d 374.

In the case of Houston National Bank v. Adair, 146 Tex. 387, 207 S.W.2d 374, the Texas Supreme Court recognized that where a condition is open and obvious and where the injured party has been over it many times, then as a matter of law the injured party would not be heard to say that he did not know and realize the danger. The Court stated as follows:

“If it might be concluded that the stairs were not properly lighted, the undisputed evidence shows that this situation was open and apparent to Mrs. Adair. It was also obvious that the stairs were not covered or corrugated, and that no handrails existed except the balustrades on the sides of the stairs. The size and shape of the top of each balustrade had not been changed since the building had been constructed, and it was apparent that such surface was too wide to be grasped or gripped from above. All of these conditions being open and obvious to Mrs. Adair when she started down the stairway, it follows as a matter of law that the evidence does not show that the bank violated its duty to Mrs. Adair, and the plaintiff is barred from recovery because Mrs. Adair voluntarily exposed herself to such risks as existed.”

In Halepeska, the Court said:

“The Adair case may be said to stand for the proposition that when a condition is patently open and obvious and the danger apparent, and when the plaintiff has encountered it many times, he will be charged in law with knowledge and appreciation, and the occupier owes him no duty.”

Appellant testified in her deposition that she knew the porch light was out, that it hadn’t burned for a long time, and that she frequently went up and down the porch in the dark. She also testified that she knew the porch light wasn’t on the night of the accident and that she tried to go up the stairs as carefully as ’ she could. Also see Cline v. Texas Hotel, Tex.Civ.App., 392 S.W.2d 594.

Assuming the porch light was out, and assuming the appellee failed to turn on the living room light in order to illuminate the front porch, the appellant had actual knowledge of this condition, had encountered the same condition many times before, and voluntarily chose to ascend the darkened porch steps.

Under the cases discussed, appellant’s repeated exposures to the darkened steps are sufficient to charge appellant with knowledge of the dangerous condition as a matter of law.

Appellant’s fourth, fifth and sixth points, briefed together, complain of the judgment of the trial court in holding that there was no question of fact existing in this case as to the liability of appellees; that appellees owed no duty to appellant in this case; in failing to hold that there was a question of fact as to whether or not appellee McClosky was negligent in failing to turn on the living room light.

We overrule these points.

Appellant’s second basic allegation of negligence is that appellee McClosky was negligent in failing to remove an alleged slippery substance from the steps or porch, which she knew, or in the exercise of reasonable care should have known, was present on such steps or porch.

In H. E. Butt Grocery Company, Inc. v. Russell, Tex.Civ.App., 391 S.W.2d 571, writ of error ref., n. r. e., plaintiff sued a grocery store owner for injuries sustained where the customer slipped and fell on a lettuce leaf on the grocery store floor. The Court said:

“It is settled in Texas that in such a case as this it is incumbent on plaintiff to establish (1) that defendant placed the foreign substance on the floor, or (2) knew it was on the floor and negligently failed to remove it, or (3) that it had been on the floor for such period of time that it would have been discovered and removed by defendant in the exercise of ordinary care.
******
An indispensable element of the third ground above, however, is that the substance had been on the floor for such period of time that ordinary care in making an inspection would have resulted in its discovery.”

Also see Brookshire Brothers, Inc. v. Cherry, Tex.Civ.App., 387 S.W.2d 108, writ of error ref., n. r. e.

According to appellant’s testimony it is not known what the slippery substance was, who put said substance on the porch step, how long it had been there, or whether appellees knew or should have known of its presence. There is no testimony in this regard other than appellee’s affidavit wherein she denied any knowledge as to any slippery substance. In her controverting affidavit, appellant states only that the slippery substance must have gotten on the porch or steps during the time she was out, and that she believed that the substance had been there for some period of time. Appellant never saw this alleged substance either on the steps or on the porch. Neither did she see it on her shoe after the fall, nor did anyone else testify to having seen such a substance. Such evidence presents no more than • surmise or conjecture on appellant’s part, and is insufficient to establish a duty on the part of appellees to remove any such substance from the steps or porch.

We affirm the judgment of the trial court.

      . The following testimony appears in the deposition of Mrs. Rose Marie Shurett:
      “A Yes, Sir, got up to about the top, it was the top step or the edge of the porch, stepped on something slick, felt like spit, slime or some kind of something, I don’t know what it was.
      *******
      Q All right, did it make your right leg go forward?
      A I was going up the steps, going up the steps on the porch and when I stepped on that stuff it threw me off in the flower bed.
      Q Did you see whatever was slick?
      A No, I couldn’t move to see nothing, felt like spit or stuff, I don’t know what it was.
      Q Did you ever see what it was?
      A No, I couldn’t see, because I couldn’t raise and look on my foot.
      Q Did you ask anybody to look up there and see what it was there?
      A Tes, but they didn’t see nothing, I don’t know who it was.
      q * * * X)id you ask anybody to look on the porch?
      A No, I did not.
      Q So you never saw what it was you say you slipped on?
      A No, I don’t know.
      Q You don’t know how long it had been there?
      A No.
      Q Or who put it there?
      A I left there about 5:30 or 5:00, something like that.
      Q You didn’t see anything there at that time?
      A No.
      Q And you don’t know how it got there or when it got there?
      A No, I had been gone.”


author: MASSEY, Chief Justice.

text:
    Roy E. GREEN, Appellant, v. TEMPLE-STUART COMPANY et al., Appellees.
    No. 16771.
    Court of Civil Appeals of Texas. Fort Worth.
    Nov. 18, 1966.

      Monroe Clayton, Wichita Falls, for appellant.
    Thomas A. Melody, Dallas, for appellees.
   OPINION

MASSEY, Chief Justice.

Roy E. Green, retail furniture dealer of Wichita Falls, Texas, brought suit for damages against Temple-Stuart Company, furniture manufacturing corporation of Massachusetts, and its Texas agent-representative, Cedric Norred. Gist of the action was that as the result of an agreement or undertaking entered into by the defendants with a competitive Wichita Falls retail furniture dealer, under the provisions of which defendants would in that trade area sell its products to said competitor “exclusively”, plaintiff had sustained damages in the consequent denial to him of the defendants’ products. Following a jury trial the court rendered judgment for the defendants non obstante veredicto and the plaintiff appealed.

Judgment affirmed.

We consider the case initially as though no question exists but that the defendants’ business was of an intrastate character, and that the transaction might be tested by the provisions of T.R.C.S. Art. 7428, “Conspiracies against trade”. We note the similarity of the situation to that considered in Robison v. Roberts, 279 S.W.2d 484 (Texarkana Civ.App., 1955, error refused) where it was held that a defendant was privileged to cease to sell its products to plaintiff in favor of another. A difference exists in the present case from that in Robison v. Roberts in that Norred, as agent for Temple-Stuart Company, admitted that he had agreed to give plaintiff’s competitor an “exclusive” on his principal’s line of merchandise in Wichita Falls, and was going to proceed to honor such agreement though he knew it would injure plaintiff’s business.

The remedy sought in the case before us is for damages, while in Robison v. Roberts the remedy sought was a mandatory injunction, so we necessarily are concerned as to whether we would be applying language found therein to a situation not within the contemplation of the Texarkana Court. We have concluded that the cited case is authoritative despite this difference.

The question is whether Norred’s admission that plaintiff’s denial of a subsequent supply of Temple-Stuart Company’s products stemmed from the agreement to give plaintiff’s competitor an “exclusive”, coupled with circumstances analogous to those in Robison v. Roberts, sufficed to make out a prima facie case. Of course the plaintiff had no right to Temple-Stuart furniture, and the company at all times was privileged to sell its products to whomever it saw fit without compulsion by the state.

If a manufacturer or dealer has a right to sell or refuse to sell his product to any person he sees fit without compulsion by the state, the legal situation would not be altered (and make him liable where he otherwise would not be liable) merely because he might inform him to whom sale is refused that such was founded in a promise made to another that he have the “exclusive” right to buy the seller’s product in a particular town or area.

For purposes of this case Norred, the agent, and Temple-Stuart Company, his principal, would in Texas be considered as one person and not independent under re-spondeat superior. Hence, no combination against plaintiff in the statutory sense could have existed through any agreement between such parties. Padgitt v. Lone Star Gas Co., 213 S.W.2d 133, 136 (Dallas Civ. App., 1948, no writ hist.). It has also been held that illegality in the statutory sense, relating to concert of action among those who would otherwise be in competitive business, does not exist unless such participants are independent and capable of acting in competition with one another. State v. Fairbanks-Morse & Co., 246 S.W.2d 647, 659 (Dallas Civ.App., 1951, writ ref. n. r. e.). As applied to Temple-Stuart Company and its agent, on the one hand, and to plaintiff, on the other, one was in the manufacturing business and the other in the retail furniture business and in no sense were they competitive with one another.

Under search is the right, if any, which accrued to plaintiff through what he contends to have been a contract which was void for illegality under Texas law as between the parties thereto. Though the agreement might have been in violation of the Anti-Trust laws in so far as the two parties thereto were concerned (unenforceable in any action by one against the other, and one in which money which might be contractually owed from one to the other would be uncollectible) as to third persons not in privity, including the plaintiff, the situation would be one where the parties to the agreement had made “promises” to one another which neither would be obliged to keep. Should one of the parties nevertheless elect to keep his promise, and therefore refuse to sell to plaintiff to his damage, no cause of action would enure to the benefit of plaintiff or like third person under existent Texas law. See Jax Beer Co. v. Palmer, 150 S.W.2d 452, 454 (Fort Worth Civ.App., 1941, no writ hist.) and cases analyzed, concerning which it was stated: “The gist of these opinions is that one or more persons may refuse to have any business dealings with another person and not be liable for their acts, but they ‘may not with impunity influence another person, whether a'party to the conspiracy or not, to refrain from business relations with such person without being guilty of an actionable wrong.’ ” See also Delz v. Winfree, 80 Tex. 400, 16 S.W. 111 (1891).

For these reasons the judgment non ob-stante veredicto was proper when the case is considered as one where the material transaction was of an intrastate character.

In a test of its true character, however, we are of the opinion and hold that the material transaction and all the business shown to have been conducted by Temple-Stuart was interstate and not intrastate. Hence only the Federal Anti-Trust Act could apply. Plaintiff would for this reason be unable to recover under the theory upon which his suit was brought and presented.

All the shipments of furniture to plaintiff were shown to have been under the “original package” doctrine of interstate commerce law, giving transactions with plaintiff the character of interstate commerce. Temple-Stuart Company had a contract with a warehouse in Dallas, Texas for the storage of its furniture. It attempted to keep a supply of “packaged” units of various kinds of its products on hand therein for more prompt delivery to its approved customers, among which plaintiff was numbered until his competitor was given an “exclusive”. Upon receipt of an order for such a “packaged” unit Temple Stuart was able to fill the “order” by having its products “forwarded” from the Dallas warehouse rather than through direct shipments from its factory or warehouse in Massachusetts. By contract of the parties, transfer was treated the same as though shipment was from outside Texas, to-wit: shipped at purchaser’s expense “f. o. b.” the location of the factory. There was no evidence raising the issue that the actual practice involved any intrastate transaction. Indeed, the evidence established that it did not. See 26 A.L.R. 971, Anno.: “What is an ‘original package’ within interstate or international commerce”; 12 Tex.Jur.2d p. 172, “Commerce”, § 10, “Original package doctrine”.

Judgment is affirmed.