author: WILLIAMS, Justice.

text:
    T. J. KITTRELL et al., Appellants, v. STATE of Texas et al., Appellees.
    No. 16402.
    Court of Civil Appeals of Texas. Dallas.
    July 24, 1964.
    Rehearing Denied Sept. 25, 1964.

      McKool & McKool and Marvin Thomas, Dallas, for appellants.
    Henry Wade, Dist. Atty., A. D. Jim Bowie, Don R. Stodghill, Leonard E. Choate and Ted Z. Robertson, Asst. Dist. Attys., Dallas, for appellees.
   WILLIAMS, Justice.

This is a condemnation case instituted by the State of Texas and County of Dallas against T. J. Kittrell, Sophie Kittrell, and Harry W. Goethe for the purpose of acquiring certain land and improvements thereon for the widening of a highway in Dallas County. The landowners conceded that the State and County had the right to condemn the land which left the sole issue as to the amount of compensation to be paid. Trial to a jury resulted in a verdict and judgment for $18,000, being $1,000 more than the amount awarded by the special commissioners.

From this judgment T. J. Kittrell and wife, Sophie Kittrell, have perfected their appeal by duly executing and filing an appeal bond. However, Harry W. Goethe, said to be an owner of an undivided one-half interest in the land condemned, failed to execute the appeal bond. We sustain appellees’ motion to dismiss the appeal as to Harry W. Goethe. Rule 354, Texas Rules of Civil Procedure; Henslee v. State, Tex.Civ.App., 375 S.W.2d 474, at 475.

By their first two points on appeal, briefed together, appellants complain (1) of the trial court’s failure to sustain their motion, in limine, to instruct counsel for the State and County to refrain from referring to the fact that the proceeds of the condemnation are to be paid for by the taxpayers or the members of the jury as such taxpayers, and (2) of a portion of the closing argument of one of the attorneys for the State wherein he advised the jury that: “This is a State of Texas and County of Dallas project. This is our project. It is your project.”

The record reveals that at the time the motion was made, in limine, the court said: “Sustained as to members of the jury footing the bill. Overruled as to taxpayers footing the bill.”

At the time the jury argument was made counsel for appellants objected and the court ruled as follows:

“MR. THOMAS: Judge, now, I object to him referring to it as a jury project. Please instruct the jury to disregard such remarks and instruct counsel to refrain from making any further statement like that.
“MR. ROBERTSON: It is all our project.
“THE COURT: Well, it isn’t the jury’s project. Counsel won’t inform them it is, and they won’t understand it is.
“MR. THOMAS: Thank you, Judge.”

No motion for mistrial was made at the time the jury argument was delivered. Instead, appellants waited until after the jury verdict was returned and more than forty days later filed a written motion to declare a mistrial which incorporated, inter alia, complaint of the jury argument.

We think that appellants’ Points 1 and 2 are without merit and must be overruled for several reasons. As to the motion in limine the trial court sustained same in part and overruled the same in part. Appellants have failed to demonstrate harm or prejudice resulting to them as a result of the ruling of the court on this motion made at a time prior to the introduction of any evidence or the statement of any counsel to the jury relating to the matters objected to.

As to appellants’ second point relating to jury argument we find no separate bill of exception covering this complaint. We do find the complete jury argument, agreed to by both counsel, incorporated in the statement of facts. Also, there is in the record a written motion for a mistrial incorporating a complaint of the jury argument. We hold that appellants’ complaint relating to jury argument has been waived for two reasons. First, the motion for mistrial which embodies the complaint does not appear to have been presented to or acted upon by the trial judge. Secondly, the motion for mistrial was not made at the time the complained of argument was uttered but was filed approximately forty-two days thereafter. It is well settled that a party cannot wait and take a chance with the jury and, following a verdict which is adverse, then move for a mistrial relating to improper argument. Phoenix Indemnity Co. v. Skinner, Tex.Civ.App., 271 S.W.2d 294, 296; Safety Casualty Co. v. Bennett, Tex.Civ. App., 259 S.W.2d 596; Ford v. Carpenter, 147 Tex. 447, 216 S.W.2d 558; Dimmitt v. Dimmitt, Tex.Civ.App., 263 S.W.2d 648, 660.

Even though we were to hold that appellants had not waived their point relating to jury argument we would still hold that a review of the entire record in this case fails to demonstrate that such argument complained of resulted in the rendition of an improper verdict or judgment.

Appellants’ brief contains the following statement:

“Where improper argument has been indulged in, the adverse complaining party is entitled to a reversal, as a matter of law, if under all the circumstances, there is any reasonable doubt of its harmful effect or unless it affirmatively appears no prejudice resulted. C. F. Frost, et al v. State of Texas, et al, 284 S.W.2d 232 (Civ.App. 1955, error ref., n. r. e.).”

Appellants, by this statement, would lead us to believe that the “presumed harm” doctrine is still the law of Texas. A reading of the authority relied upon by appellants demonstrates that instead of supporting the abandoned doctrine of “presumed harm” the Court of Civil Appeals at Austin reiterates the present law of Texas to the effect that harm is not presumed and that before a judgment will be reversed because of argument the argument must be improper, and must be such as to satisfy the reviewing court that the argument was reasonably calculated to cause and probably did cause the rendition of an improper judgment. Rule 434 and Rule 503, T.R.C.P.; Aultman v. Dallas Railway & Terminal Co., 152 Tex. 509, 260 S.W.2d 596, 600.

Appellants have not discharged their burden to demonstrate to us that the alleged improper argument probably resulted in the rendition of an improper judgment against them. Moreover, we think the court’s instruction to the jury would cure any possible error. Frost v. State, Tex.Civ.App., 284 S.W.2d 232; Camp v. Commissioners’ Court of El Paso County, Tex.Civ.App., 279 S.W.2d 927; and 41B Tex.Jur., Sec. 297, pp. 362-365. Appellants’ Points 1 and 2 are overruled.

Appellants’ third point relates to alleged jury misconduct. Upon the hearing of the motion for new trial, Mrs. Wayne H. Thornton, a member of the jury, testified that while the jury was in the process of deliberating Mr. Anderson, the foreman, stated in the presence of the jury: “Now, we have to consider that this is the taxpayers’ money we are spending and indirectly it is out of our own pocket.” She further stated that another member of the jury, Mr. Bruck, told the other members of the jury that, “We should be careful in our consideration because we would be setting a precedent on other cases here widening Loop 12.” She testified that Mr. Bruck also made a statement to the effect that if the jury gave too much money in one case with all the other cases being involved in this project, that the project would cost “us” too much money. No other member of the jury testified on the hearing of the motion for new trial.

There appears to be no controversy but that these statements were made in the jury room during deliberations. Whether statements are made by jurors amounting to misconduct is an issue of fact but whether such alleged misconduct resulted in injury to the complaining party is a question of law. City of San Antonio v. McKenzie Construction Co., 136 Tex. 315, 150 S.W.2d 989; Menefee v. Gulf C. & S. F. Ry. Co., 181 S.W.2d 287, Tex.Civ.App., err. ref. In solving this question we are directed by Rule 327, T.R.C.P. to consider the record as a whole and determine whether probable harm resulted from such misconduct. In Rogers v. Stimson Contracting Co., Tex.Civ.App., 373 S.W.2d 548, Chief Justice Dixon of this court reiterated the rule that under Rules 327 and 434, T.R.C.P. the burden is upon the complainant not only to prove an act of jury misconduct but also to go further and show probable harm resulting from such misconduct. See also Taylor v. Dallas Transit Co., Tex.Civ.App., 351 S.W.2d 554, and Martinez v. H. E. Butt Grocery Co., Tex.Civ.App., 379 S.W.2d 94.

Applying these well established rules of law to this record we have carefully examined the entire statement of facts, as well as the testimony of the juror on motion for new trial, and have reached the conclusion that appellants have failed to discharge their burden under Rule 327 and Rule 434, T.R.C.P. to affirmatively demonstrate to' us that probable harm resulted from the alleged statements made in the jury room. In the absence of showing that the juror’s statement had any influence on the verdict, reversible error is not established. Galan v. Luna, Tex.Civ.App., 103 S.W.2d 844; Trousdale v. Texas & N. O. Ry. Co., 154 Tex. 231, 276 S.W.2d 242; Noyl Corporation v. Houston Independent School District, Tex.Civ.App., 317 S.W.2d 756.

This record reveals that the case was hotly contested by both sides as to the value of the property taken by the State and County. The testimony as to value was conflicting. The appellees presented evidence of market value by witnesses who testified to various amounts ranging from $16,850 to $17,000. Appellants presented value testimony ranging from $22,792.20 to $27,000. The jury verdict was $18,000, being $1,000 more than the highest valuation placed upon the property by the appel-lees’ expert witnesses. From a review of ■these facts we are not convinced that the jury was prejudiced against the landowners nor is there any evidence of a concerted effort on the part of the jury to avoid setting a precedent for values of other property in the area.

Appellants’ third point is overruled.

The judgment of the trial court is

Affirmed.


source: Caselaw Access Project

author: DAVIS, Justice.

license: Public Domain

text:
    Mrs. Coral B. JONES et al., Appellants, v. W. P. H. McFADDIN et al., Appellees.
    No. 7574.
    Court of Civil Appeals of Texas. Texarkana.
    Sept. 1, 1964.
    Rehearing Denied Sept. 22, 1964.
    W. T. Weir, Philadelphia, Miss., William Glover, Houston, W. W. Hewitt, Mead-ville, Miss., for appellants.
    Orgain, Bell & Tucker, Geo. A. Weller, Ewell Strong, Beaumont, Thomas H. and Jesse J. Lee, Williams, Lee & Lee, William S. Clarke, Houston, Strong, Moore, Pipkin, Strong & Nelson, Beaumont, W. Forrest Smith, Dallas, Fred A. Lange, Vinson, El-kins, Weems & Searls, Houston, McLeod, Mills, Shirley & Alexander, Galveston, Sam Lipscomb, Beaumont, Butler, Binion, Rice & Cook, Houston, Dan Collie, J. L. Ly-Brand, Jack Hardy and Joiner Cartwright, Beaumont, for appellees.
   DAVIS, Justice.

This is an action in trespass to try title to the surface estate and the mineral estate, of the Pelham Humphries league of land that is situated in Jefferson County, Texas. The suit was brought by plaintiff-appellants, Mrs. Coral B. Jones, an heir and agent and attorney in fact, and other agents and attorneys in fact, for and on behalf of approximately three thousand heirs of Pelham Humphries, against defendants-appellees, W. P. H. McFaddin, and about three hundred other defendants. In their second amended original petition, appellants alleged that they were the fee simple owners of the surface estate, and the mineral estate, of the Pelham Humphries league of land. They further alleged that the appel-lees had removed and marketed minerals therefrom of the value of one-half billion dollars.

The appellees answered by general denials and pleas of not guilty. They further plead the 2, 3, 4, 5, 10 and 25 year statutes of limitation. The appellees then filed a motion for summary judgment. The appellants filed two controverting affidavits, but it seems that they do not raise any genuine issues of fact. The trial court in considering the pleadings, the records of deeds on file, the affidavits and the testimony that had been offered by depositions, granted the appellees’ motion for summary judgment. It seems that the trial court held that the appellants’ title, if any they had, in the event there were no deeds of conveyances, had been divested out of them by the statutes of limitation by appellees’ adverse possession.

Appellants excepted to the summary judgment and have perfected their appeal. They attempt to bring forward two points of error, which read as follows:

“1. Whether the Court erred in sustaining the defendants’ motion for summary judgment.
2. Whether the Court erred in overruling the plaintiffs’ motion to strike defendants’ plea of the statutes of limitation.”

Appellants, in their brief, take the position that there are genuine issues of fact to be determined by the trial court because, they say, that there is in existence two separate and distinct estates; the surface estate ; and the mineral estate. Appellees contend that there must be and is but one general title.

According to the record, W. P. H. Mc-Faddin, and those holding under him from the year 1883 down to the filing of this suit, has an unbroken, continuous, peaceful and adverse possession of all the Hum-phries league of land. This amounted to about 75 years adverse possession at the time of the trial of this lawsuit.

This property was once the property of Spain. King Charles III promulgated a Mining Ordinance on May 22, 1783, which applied to all Spanish Americans, except Peru. By this ordinance, appellants take the position that the Sovereign of Spain reserved all minerals; thus segregating the mineral estate from the surface estate. From 1821 to 1824, the Republic of Mexico gained its independence from Spain. Mexico then adopted, recognized and applied the Mining Ordinance of the Sovereign of Spain. According to the colonization law of Mexico, Coahuila and Texas became a Republic on March 24, 1825. On February 14, 1835, the Commissioners of Coa-huila and Texas issued to Pelham Hum-phries a patent to eight labors of land. Thereafter, on March 2, 1836, the State of Texas became a .Sovereign Nation and established itself as the Republic of Texas. The Republic of Texas adopted, recognized and applied the Mining Ordinance of 1783 issued by King Charles III, the King-of Spain, as the law of the land. The Sovereign Nation of Texas became one of the States of the United States on December 29, 1847. In 1866, the State of Texas-adopted the Constitutional Relinquishment Act, Art. VII, Sec. 39, whereby it released, to the owners of the soil all mining and mineral substances, which reads as follows :

“That the State of Texas hereby releases to the owners of the soil all mines and mineral substances that may be on the same, subject to such uniform rate of taxation as the Legislature may impose.” (emphasis added)

On December 31, 1883, W. P. H. Mc-Faddin purchased the Pelham (alias William) Humphries league of land from R. P.. Carswell, the agent and attorney in fact for William and Mira English. It recited in the deed that it was the same tract of land that was conveyed on February 14,1836, by William Humphries (alias Pelham Hum-phries) to William English. The deed to-McFaddin was recorded on January 10,, 1884. In 1884, McFaddin enclosed the entire league with a substantial cattle-proof fence. This was more than 75 years prior to the filing of this suit.

Prior to 1901, McFaddin issued an oil' and gas lease. In 1901, the Lucas well blew in and the oil field was named the “Spindle-top Oil Field”. There has been continuous production of minerals ever since. There are other fact statements that could he repeated, but in view of the length of this opinion, it seems that sufficient fact statements have been given.

Appellants take the position that the mineral estate has never merged with the surface estate since it was separated by the Sovereign of Spain. They take the position that the Spanish Mining Ordinance of 1783 severed the mineral estate from the surface estate. They take the further position that the severed mineral estate reserved to the Crown of Spain and subsequently to the State of Texas was an estate in fee simple with equal dignity with the surface. They take the position that the surface estate, and the mineral estate, each being fee simple estates, could not be merged by the Constitutional Release of 1866. They say the possession of the surface, although sufficient to cure limitation to the surface, would not mature limitation title to the severed estate.

Appellees take the adverse position. They say the right of the Sovereign Crown of Spain in the minerals was not a separate and distinct fee simple estate, and was not of equal dignity with the surface. They say the reservation by Spain was a separate right, but not of equal dignity with the surface, and did not prevent a merger. They further take the position that the doctrines of merger .and non-merger and its application were upon the intention of the State. The Constitutional Release of the minerals in 1866 evidenced the intent to release to the owners of the soil all of the title of the Sovereign to the mines and minerals for the purpose of combining the Sovereign’s rights in the mineral estate with the surface estate in such manner as to give the soil owners the general title to the entire property; not to two severed estates.

In the event the intention of the State of Texas at the time of the Constitutional Release in 1866 does not govern, then we will have to look to the intention of the parties at the time of the purchase of the Humphries league of land in 1883. At that time William and Mira English were the owners of the oil (surface), as well as the mineral interest. They conveyed all the right, title and interest that they had in and to the league of land to McFaddin. The Constitutional Release of the minerals was not executed during the time that the soil was owned by Pelham Humphries, or his heirs. The deed from Humphries to English was executed on February' 14, 1836. The Constitutional Release was not executed until 1866. Regardless of the intent of the parties, according to the record in the case, the Humphries have no cause of action. According to their theory, they have never been the owners of the mineral estate under the Humphries league of land.

The intention of the parties governs as to whether or not the mineral estate merged with the soil. It seems that the action of English, the owner of the soil at the time of the Constitutional Release, establishes such intent, and the minerals merged into a fee simple estate with the surface.

According to the reservations by Spain, the only mineral reservation that was made was to the gold, silver, and quicksilver and their kingdoms, as well as the income from the salt wells, fisheries, and works in iron and other metals. See Chap. 5, Spanish Mining Ordinance of 1783, Secs. 1, 2, and 3. Also see the Basic Civil Law of Spain, Par-tidas iii, Title 320, and iii, Law 11. If appellants are claiming under the Mining Ordinance of 1783, it must be under Section 1 of Chapter 5, which says that: “The mines are the property of the Royal Crown”, (emphasis added). According to Las Siette Partidas, the Crown was reserving only the income from the mines. The mining Ordinance of 1783, Sec. 24, required the payment of damages to the owners of the soil where the mines were located to the extent that the surface was harmed.

The Supreme Court of Texas indicated in an opinion, State v. Parker, 61 Tex. 265, that the Constitutional Release would apply both retrospectively and prospectively. It held that the minerals under lands previously held, as well as thereafter patented by the State, were released by the state to the present owners. In 1912, Cox v. Robison, 105 Tex. 426, 150 S.W. 1149, the Supreme Court of Texas gave the Constitutional Release a thorough analysis and outlined two alternate decisions that could be made. One alternative was intended by the framers of the Constitutional Release to release the minerals to present owners of the soil and to the future patentees and the state would be without authority in any way to control the disposition of future minerals; and, the constitutional provision would amount to the limitation on the power of legislature to reserve minerals in the future. The second alternative construction of the Constitutional Release was the one adopted by the court, which reads as follows:

“If, however, it was curative in its nature and retrospective in its effect, and intended as an extinguishment of the rights of the state only in those mines and minerals in soil owned at the time of its adoption, the title of the state to all other mines and minerals in lands of the public domain remained unimpaired and unaffected; and its authority to provide by law that their reservation should be made in future conveyances of such lands must be recognized.”

We hold that as a result of the Constitutional Release of 1866 of the minerals to the owners of the soil, that the minerals and the soil became merged into a general title, and if necessary, is subject to limitation title by possession of the minerals in this case. There has actually been possession of the minerals since the year 1901, and the holders of the minerals have acquired title by limitation.

The appellees have filed a very able brief in this case. It would lead far afield to a discussion of the points of error not necessary to a decision in this case. They cite-Amaya v. Sun Oil Company, Civil Action: No. 664, as well as Amaya et al v. Hewit & Dougherty et al, Civil Action No. 663,. and quoted freely from Judge James All-red’s holdings. They cite Humphryes-Mexia Co. v. Gammon (Tex.Sup.Ct.) 113 Tex.. 247, 254 S.W. 296, 29 A.L.R. 607; Cox v.. Robison, supra; Carlos B. Masterson, 30 T.L.W., 331, in which they point out that under the common law doctrine that two estates of equal dignity can not be merged, into one applicable to a constitutional' amendment. The court held that regardless; of any technical common law, the two estates were merged.

. The points of error are overruled and the-judgment of the trial court is affirmed.


author: WERLEIN, Justice.

text:
    L. B. FOSTER STEEL CO., Inc., et al., Relators, v. Honorable Ben MOORHEAD, Judge of the 11th District Court of Harris County, et al., Respondents.
    No. 14514.
    Court of Civil Appeals of Texas. Houston.
    Oct. 8, 1964.

      Talbert, Giessel, Cutherell, Barnett & Stone, Don Weitinger, Houston, for rela-tors.
    Robert Roch, A1 Taylor, W. James Kron-zer, Houston, Brown, Kronzer, Abraham, Watkins & Steely, Houston, of counsel, for respondents.
   WERLEIN, Justice.

Our opinion handed down herein on September 24, 1964 is withdrawn and the following opinion is substituted therefor.

This is an original proceeding in which the relators seek a writ of mandamus directing the Honorable Ben H. Moorhead, Judge of the 11th Judicial District Court of Harris County, Texas, to enter judgment upon a jury verdict received and filed in Cause No. 556107 pending in such court, wherein William W. Harper is plaintiff and the relators are defendants. Said plaintiff brought suit against the defendants to recover damages for personal injuries sustained by him in a motor vehicle collision.

After the jury had notified the bailiff of the court that it had reached a verdict, and had been brought back into the court room and had there announced through its foreman in open court that a verdict had been reached, the court read the answers of the jury to the special issues submitted and found that all of the issues on primary negligence and contributory negligence had been answered in favor of the defendants and against the plaintiff, and that Special Issues Nos. 23 and 24, being the damage issues had not been answered. Whereupon counsel for the plaintiff informed the court that it was his wish that the jury should retire and consider Special Issues Nos. 23 and 24 and answer them. Counsel for the defendants objected and requested that the verdict be accepted and entered as returned by the jury.

The court thereupon instructed the jury to return and answer all the questions submitted, calling attention to the fact that Special Issues Nos. 23 and 24 had been left blank and were not answered. After the jury had been so retired, counsel for the defendants objected to the court sending the jury back to answer Special Issues Nos. 23 and 24 since under the other findings of the jury any answer to such issues would be wholly immaterial. Said counsel again requested the court to accept the verdict as it had been brought in. Counsel for the plaintiff then made an objection to the Court’s action in sending the jury back to the deliberation room and moved the court to enter a mistrial because the verdict returned into court was not a complete verdict. The judge overruled both motions. Counsel for plaintiff then again moved the court to declare a mistrial while the jury was still in the deliberation room on the ground that although the jury’s deliberations are supposed to be secret, the jury had been brought into open court and its answers had been read to counsel for both sides, with Special Issues Nos. 23 and 24 not answered, and it was improper for counsel to know the status of the deliberations. Whereupon the court had the jury returned into open court. Counsel for plaintiff again objected to accepting a partial verdict.

When the jury was brought back into the court room, the following occurred:

“THE COURT: Ladies and gentlemen, when you came back a few minutes ago and said you had reached a verdict, you had not answered Issues 23 and 24, which are the damage issues, specifically, now speak through your Foreman again; you haven’t answered 23 and 24 as of yet, is that right?
“FOREMAN: No, sir, we have not.
“THE COURT: You haven’t changed the answers to any of the others?
“FOREMAN: No, we have not.
“THE COURT: Let me ask all of you to answer this question, please. You heard the reading of the answers to Special Issues through 22, are these answers your verdict, all of you answer.
“At which time all jurors answered, ‘Yes’.
“THE COURT: So declared, ordered filed and you will be excused. You may go downstairs, let me ask one more question before I excuse you: You were not — , that is not necessary.
“Jury forget about it, I will receive the verdict as is.”

Thereafter, on the 13th day of April the plaintiff and the defendants came and presented their respective written motions, the plaintiff asking for a mistrial, and the defendants for judgment on the verdict. The court having heard said motions overruled the defendants’ motion for judgment that plaintiff take nothing and sustained the plaintiff’s motion for mistrial.

In this case all of the issues, both of primary negligence and contributory negligence, were so answered that the plaintiff couldn’t possibly recover any damages regardless of whether the damage issues had been answered in any amount whatsoever. The damage issues became immaterial in view of the jury’s other answers. Southern Pine Lumber Co. v. Andrade, Tex.Com. App.1939, 132 Tex. 372, 124 S.W.2d 334; Le Compte v. Sanders, Tex.Civ.App.1964, 378 S.W.2d 861.

When the jury was first returned into court and announced that it had arrived at a verdict, it would have been proper for the court to have received such verdict, ordered it filed and entered judgment for the defendants. In our opinion it would also' have been proper for the court, when the jury had been returned into court after further deliberation, to have entered judgment on the verdict which the court then received and ordered filed. See Texas Life Insurance Company v. Goldberg, Tex.Civ.App.1944, 184 S.W.2d 333; Williams v. Patterson, Tex.Civ.App., 170 S.W.2d 269; Davis v. Bond, Tex.Com.App.1942, 138 Tex. 206, 158 S.W.2d 297; McDonald, Texas Civil Practice, Vol. 3, Sec. 15.03, p. 1264. In Chancey v. New Amsterdam Casualty Company, Tex.Civ.App.1960, 336 S.W.2d 763, writ ref., n. r. e., the court said:

“It is appellant’s position that the jury’s verdict was incomplete in that Issues 2, 3 and 4 were unanswered, and that a mistrial should have been granted. In order for this position to be tenable, the issues which were unanswered must be material, and there must have been evidence to support the submission of such issues.”

The question to be decided by us, however, is not whether it would have been proper for the court to have entered judgment, but whether under the record before us this Court has the power to mandamus the trial judge to set aside its order granting a mistrial and to enter judgment for relators. In the motion for mistrial several grounds for mistrial are set out. In the court’s order decreeing a mistrial, it is stated that “ * * * the Court having considered both the Motion for Judgment upon the Verdict and the Motion for Mistrial and all the evidence, arguments and authorities adduced by counsel, and being of the opinion that the Motion for Mistrial ought to be sustained, it is, therefore, Ordered, Adjudged and Decreed that a Mistrial be declared in this cause.”

In such order the court does not state upon what ground the mistrial was decreed. It is clear that the court in considering the matter exercised judicial discretion and based his judgment upon one or more of the grounds set out in the motion for mistrial. Since the court did not state in his order the ground upon which he based liis ruling, this Court is not in a position to determine same. The bill of exception prepared and approved by counsel for relators, .and signed by the judge, was not signed by ■counsel for respondents, and cannot be considered by this Court as evidence on the ground upon which the court based his order. Foreman v. Texas Employers’ Insurance Ass’n, Tex.Sup.1951, 150 Tex. 468, 241 S.W.2d 977. The determination of the trial court as to whether a mistrial should be granted necessarily involved judicial discretion under the attendant circumstances and especially so in view of the court’s instructions to the jury as set out in the motion for mistrial. We are not called upon to decide whether or not the court correctly applied the law in the exercise of his judicial discretion.

It is our view that the case of Johnson v. Court of Civil Appeals, Tex.Sup. 1961, 162 Tex. 613, 350 S.W.2d 330, is controlling. In that case the Court held:

“There are only two instances where any appellate court of this state has ever directed the trial judge to set aside its order granting motion for new trial. These instances are:
“(1) When the trial court’s order was wholly void as where it was not entered in the term in which the trial was had; and
“(2) Where the trial court has granted a new trial specifying in the written order the sole ground that the jury’s answers to special issues were conflicting.
“Neither of the two situations exists here. The motion for new trial was granted during termtime, and the trial court did not specify on what grounds he was granting the motion for new trial.”

In the case at bar the motion for mistrial was granted during termtime and the order did not specify the grounds. As applicable to this case, we adopt the following language of the Beaumont Court of Civil Appeals in Meyer v. State, 372 S.W.2d 764: “We see no legal distinction in the application of the rule of the Johnson case, supra, between a mistrial and a new trial.” In the Johnson case, supra, the Supreme Court held that since the motion for new trial was granted by the trial court it was not required to render judgment in the cause, and the Court of Civil Appeals was without authority to do so.

We have concluded on rehearing that under the holding of Johnson v. Court of Civil Appeals, supra, this Court does not have the authority'to order the issuance of the writ of mandamus prayed for by re-lators.

Motion for rehearing is granted. Mandamus denied.


author: STEPHENSON, Justice. HIGHTOWER, Chief Justice, and. PARKER, Justice

text:
    T. J. PEEL et al., Appellants, v. Joseph SLOBODIN, d/b/a Safety Metals Co., Appellee.
    No. 6671.
    Court of Civil Appeals of Texas. Beaumont.
    Aug. 13, 1964.
    Cain & Cain, Liberty, for appellants.
    Pitts & Benardino, Conroe, for appellee..
   STEPHENSON, Justice.

This is a suit on a verified account for goods, wares and merchandise sold by plaintiff. T. J. Peel was sued individually and as Commissioner of Precinct 4 of Montgomery County and Montgomery County was also named as a defendant. Trial was by jury and judgment was rendered upon the jury findings against T. J. Peel individually and that plaintiff recover nothing from Montgomery County. The parties will be referred to here as they were in the trial court.

Defendant Peel first complains of the action of the trial court in refusing to disregard certain issues because the answers were not complete. Whether the trial court erred in accepting an incomplete verdict is not a question of fundamental error, but is a procedural question which must have been preserved in the trial court for this court to consider it. No objection was made to the verdict being incomplete at the time it was received by the court, and the jury was discharged without objection. Ordinarily a procedural error must be preserved by timely action by the party complaining. This is true because a trial judge can usually correct his procedural errors if they are brought to his attention. There were no inconsistent findings of the jury which the court had to ignore in order to render judgment. Lewis v. Texas Employers’ Ins. Ass’n, 151 Tex. 95, 246 S.W.2d 599. The points are overruled.

Defendant Peel contends the trial court erred in disregarding the failure of the jury to answer both parts of two issues because such issues were multifarious and duplicitous. The record does not show that any objections were made to the court’s charge. Rule 272, Texas Rules of Civil Procedure, provides that all objections to the court’s charge not presented to the court in writing before the charge is read to the jury shall be considered as waived, The point is overruled.

Complaint is next made that there is an irreconcilable conflict in the findings of the jury. No conflict in the answers made by the jury is pointed out to this court. This point is in reality a complaint about the failure of the jury to answer certain issues. This matter is covered by the first point in this opinion,

Judgment affirmed.

HIGHTOWER, Chief Justice, and. PARKER, Justice

(concurring).

We concur in the conclusions reached in. the foregoing opinion but, for clarity, we point out that the issues which were answered by the jury support each element of the plaintiff’s cause of action establishing the liability of defendant Peel and also’ providing a measure of damages.


text:
    Charles LERMAN, Appellant, v. IMPLEMENT DEALERS MUTUAL INSURANCE COMPANY, Appellee.
    No. 14401.
    Court of Civil Appeals of Texas. Houston.
    Sept. 10, 1964.
    Rehearing Denied Oct. 8, 1964.

      Jack Babchick, Houston, for appellant.
    Thompson, Coe, Cousins & Irons, Robert W. Porter, Larry L. Gollaher, Dallas, for appellee.
   WERLEIN, Justice.

This suit was brought by appellant upon an insurance policy issued by appellee to recover damages to his building in Texas City caused by Hurricane Carla on or about September 9, 1961. The building was insured in the amount of $27,000.00. At the conclusion of appellant’s evidence the trial court, on appellee’s motion for an instructed verdict, withdrew the case from the jury, and entered a take nothing judgment against appellant.

In determining whether it was proper for the court to take the case from the jury and render judgment, we must view the evidence in the light most favorable to appellant, the losing party. White v. White, 1943, 141 Tex. 328, 172 S.W.2d 295. We must indulge against the action of the court every inference that may properly be drawn from the evidence, and if the record reflects any testimony of probative force in favor of the losing party, we must hold the court’s action improper. Texas Employers Ins. Ass’n. v. Boecker, Tex.Civ. App., 53 S.W.2d 327, error ref.; Clutter v. Wisconsin Texas Oil Company, Tex.Civ. App., 233 S.W. 322, error ref.

The insurance policy in question which was introduced in evidence, as applicable to the present suit, includes damage caused by hurricane. It contains the following provision :

“Subject to Article 6.13 of the Texas Insurance Code, 1951, liability hereunder shall not exceed the actual cash value of the property at the time of loss, ascertained with proper deduction for depreciation; nor shall it exceed the amount it would cost to repair or replace the property with material of like kind and quality within a reasonable time after the loss, without allowance for any increased cost of repair or reconstruction by reason of any ordinance or law regulating construction or repair, and without compensation for loss resulting from interruption of business or manufacture nor shall it exceed the interest of the insured, or the specific amounts shown under ‘Amount of Insurance.’ ”

It also provides in a subdivision under Section III, entitled “Conditions Applicable Only to Windstorm, Hurricane, and Hail

“Unless specifically named hereon, this Company shall not be liable for loss caused by * * * nor (b) by snow storm, tidal wave, high water, or overflow, whether driven by wind or not; nor for any loss caused by rain, whether driven by wind or not, unless the wind or hail shall first make an opening in the walls or roof of the described building, and shall then be liable only for loss to the interior of the building, or the insured property therein, caused immediately by rain entering the building through such openings.”

The measure of damages under an insurance contract insuring a dwelling, when the loss is not total, is the difference between the value of the property immediately before and immediately after the occurrence of the loss and damage, within the amount of the policy. German Ins. Co. v. Everett, 1898, 18 Tex.Civ.App. 514, 46 S.W. 95, writ den.; St. Paul Fire & Marine Ins. Co. v. McRae, Tex.Civ.App., 98 S.W.2d 363; Millers Mutual Fire Ins. Co. of Texas v. Eggleston, Tex.Civ.App.1962, 357 S.W.2d 766.

In the present case Earl M. Stafford, a real estate broker for many years who was familiar with the property in question, and who had been in the building and with whom the property had been listed for sale in the summer of 1961, testified that the actual cash price of the property before the hurricane was in the neighborhood of $25,000.00, and immediately after the hurricane its value was $18,000.00. Mr. Stafford’s opinion as an expert witness constitutes evidence of probative force as to the value of the property immediately before and immediately after Carla, and shows that the damage to the building was $7,000.-00. The policy, however, provides that the liability of appellee “shall not exceed the actual cash value of the property at the time of loss, ascertained with proper deduction for depreciation; nor shall it exceed the amount it would cost to repair or replace the property with material of like kind and quality within a reasonable time after the loss * * Since the building was not totally destroyed, the second clause applies, i. e., the loss shall not exceed the amount it would cost to repair the property with material of like kind and quality. Gulf Insurance Co. v. Carroll, 1959, 330 S.W.2d 227; Manhattan Fire & Marine Insurance Co. v. Melton, 1959, 329 S.W.2d 338, writ ref., n. r. e.

G. G. Martin, a general contractor in construction work with the degree of Construction Engineer, and a well qualified expert, testified that he went out and looked at the building in question with his paint foreman and on another occasion with appellant, and that he checked the building after the hurricane. According to appellant, his inspection with Mr. Martin was eight or nine days after the hurricane. Mr. Martin testified at length with respect to the damage that was done to the roof of the building, the fire wall and flashing, .and various rooms and apartments on the •second floor. He testified that there were places on the roof that were bare; that quite a bit of flashing at the junction of the roof and fire wall had been blown off or ■damaged; that some of the gravel on the Toof had blown off, and the roof paper was •damaged, and rolled up in places; that there was damage to the wallpaper and ■ceiling; that two windows upstairs had ’been blown out; that the damage to the ■ceilings on the second floor was caused by water coming through the roof where it was damaged by the wind; that the temporary work done on the roof cost $173.26, and that repairs to the roof and fire walls would cost $1,752.00, using on the roof the same kind of materials that were previously used. He further testified as to the ■cost of making other repairs to the upper ■part of the building and stated that the •entire cost of such repairs would amount to -$5,115.51; that the water got in the building from 13 to 13j4 inches, but that all of the damage in his estimate of $5,115.51 was above the water line; that he did not include in his estimate any damage growing out of the rising water, but included only wind damage and damage to the building from rain coming through the damaged roof. Appellant testified that after the hurricane the repairs to the building cost him more than $5,000.00.

We have carefully read all the statement of facts, and are of the opinion that there was evidence of probative force that the damage to the roof of the building and the upstairs rooms and Celotex ceiling of the first floor, and indeed all the damage for which recovery was sought, was caused solely by wind or by rain coming through openings in the roof and walls made by the winds of Carla, within the terms of the policy. Gulf Insurance Company v. Carroll, Tex.Civ.App.1959, 330 S.W.2d 227.

The insurance policy in question provides that: “unless otherwise provided in writing added hereto, this Company shall not be liable for loss occurring * * * (d) following a change of ownership of the insured property.” We are of the view that there was no change of ownership of the insured property within the terms and meaning of the policy prior to the damage thereto caused by Hurricane Carla on or about September 9, 1961. There is some evidence that an earnest money contract had been entered into by appellant with Mr. and Mrs. Gerald H. MacDonald on August 17, 1961, and that $500.00 had been deposited as earnest money. There is also evidence that the earnest money contract recited the purchase price of $32,000.00, including the down-payment and a note which was to be executed by the purchasers in the sum of $29,000.00. Such earnest money contract was not introduced in evidence and it is impossible for this Court to tell whether or not it was an enforceable contract.

Mr. Stafford, who negotiated the sale, when asked whether such earnest money contract was consummated at a later date by an actual closed transaction, testified that it was not. He further testified that the transaction was not actually closed in August of 1961 or prior to Hurricane Carla. This seems consistent with appellant’s expenditure of more than $5,000.00 for repairs subsequent to Carla. The deed of trust securing the purchase money note bears the date of September 5, 1961, above the signatures of the purchasers, Gerald H. MacDonald and wife, Gladys B. MacDonald, but the notarial certificate on the deed of trust shows clearly that the typewritten date of September 5, 1961 appearing in the notarial acknowledgment was struck out and the date of October 31, 1961 was inserted, apparently by the notary public, as the date of acknowledgment. The deed which was executed by appellant and his wife also bears the date of September 5, 1961 above their signatures, but the notarial certificate attached to the deed shows that it was acknowledged before a notary public, other than the one who took the acknowledgment of the purchasers, on November 2, 1961, the notary public having struck out the typewritten date of September 5, 1961 and inserted the date of November 2, 1961.

There is no testimony in the record showing that the deed of trust and deed were delivered prior to their respective dates of acknowledgment. Mr. Stafford testified unequivocally that the date of the sale was November 1, 1961. Appellant testified that he signed the deed before John V. Fox, a notary public, who scratched out the date of September 5, 1961 and dated the acknowledgment at the time appellant signed the deed, and that such date was November 2, 1961. Thus there is evidence of probative force that the deed was not actually executed until November 2, 1961. Since there is no evidence as to the date of delivery of the deed it will be presumed to have been delivered on the date of its execution and acknowledgment. Hooks v. Vanderburg, Tex.Civ.App.1959, 328 S.W.2d 467, and authorities there cited. Moreover, it seems clear that any attempted delivery of a deed prior to its execution would be of no legal effect.

It will be noted that the policy uses the language: “change of ownership.” It is a settled principle of insurance law that language of a policy that is susceptible of more than one construction should be interpreted strictly against the insurer and liberally in favor of the insured. Roth v. Travelers’ Protective Asso., 102 Tex. 241, 115 S.W. 31; McCaleb v. Continental Casualty Co., 132 Tex. 65, 116 S.W.2d 679; Davis v. National Casualty Co., 142 Tex. 29, 175 S.W.2d 957; 32 Tex.Jur.2d p. 121, § 60. In so construing said provision in the policy, it is our view that what is meant is a complete change of ownership or legal title to the property. Appellee contends that there was a change of ownership when the $500.00 earnest money was deposited. In our opinion the deposit of such earnest money merely gave the MacDonalds an equitable interest in the property. It did not change the complete ownership or legal title to the property from appellant to the MacDonalds. The completed change of ownership occurred when the deed was executed, acknowledged and delivered on November 2, 1961. Furthermore, it was incumbent upon appellee, in order to avoid the policy, to prove a change in the ownership or legal title of the property. Dixie Fire Ins. Co. v. Henson, Tex.Com.App.1926, 285 S.W. 265. It has not done this. There is no evidence that the earnest money contract, which is not in evidence, was valid or could have been enforced by specific performance. There is evidence that such contract was not consummated by an actual closed transaction.

We have not been able to determine from the record upon what grounds the trial court instructed a verdict and entered judgment for appellee. In our opinion the record does not disclose any ground which might sustain such judgment.

Reversed and remanded.


author: BELL, Chief Justice.

text:
    Antonio MOLIS, Jr., Appellant, v. ORE NAVIGATION CORPORATION, Appellee.
    No. 14323.
    Court of Civil Appeals of Texas. Houston.
    Sept. 24, 1964.
    Rehearing Denied Oct. 8, 1964.
    Schwartz & Lapin, Newton B. Schwartz, Frank C. Herzog, Houston, for appellant.
    B. D. McKinney, Houston, Baker, Botts, Shepherd & Coates, Houston, of counsel, for appellee.
   BELL, Chief Justice.

Appellant was a member of the crew of the SS Bethflor that was operated by appellee, which was a subsidiary of the Bethlehem Steel Corporation. He was injured on May 21, 1961. He sued to recover damages, alleging the vessel was unsea-worthy and also that appellee, through its employees, was guilty of negligence. A jury acquitted appellee of negligence; found the occurrence was an unavoidable accident; found that a cable used to raise and lower sky-lights broke but the cable was not unseaworthy. The court rendered judgment that appellant take nothing.

Appellant contends that there is no evidence to support the jury’s finding that it did not find from a preponderance of the , evidence that the cable was unseaworthy. He also contends that such finding was contrary to the overwhelming weight and preponderance of the evidence. While we can pass on the question as to whether there is any evidence of probative force to support the finding, we are precluded in a case of this kind from passing on whether it is contrary to the overwhelming weight and preponderance of the evidence. Gulf C. & S. F. Ry. Co., v. Deen, 317 S.W.2d 913 (S.Ct.).

The evidence bearing on the question of seaworthiness of the cable is quite meager and is undisputed. About 30 feet above the engine room are some sky-lights. They serve, when open, to admit air into the engine room. Attached to each sky-light is a cable. The cable runs through a pulley and extends down to a point on a bulkhead in the engine room where it can be reached by a member of the crew. Attached to the cable at this point is a counterweight which weighs about 85 pounds. The cable is made of twisted strands of steel and is about }4th of an inch in diameter. To raise a sky-light a person pulls down on the counterweight. One duty of appellant was to raise and lower the sky-lights. The counterweight is on tracks that are affixed to the bulkhead. Shortly before attempting to raise the skylights they had been closed by appellant due to a rain that had come up. Apparently in closing them by lifting on the counterweights, they were closed without incident. On May 21 appellant was in the process of raising the sky-lights. Two of them had been raised without incident. In attempting to raise the third one, appellant placed both of his hands on the counterweight and pulled downward. It came down only about a foot. He raised it and on the second pull it came down a little less. He pushed it up and on the third pull the cable broke. Appellant says the “whole thing” came off the wall and in trying to keep the weight from falling on him he injured his back. No one but appellant was present at the occurrence. In response to requests for. admissions appellee admitted that the cable broke. We have no testimony showing the condition of the cable. The appellant did testify that when he came up to the cable it looked all right to him. He did not inspect it; such was not his duty. What the defect was, if there was any, is not shown. Whether there was a defect is left to inference. The testimony of appellant is that he was handling the raising of the sky-light in the usual and proper manner. We think this is established also by the admission of appellee.

We are squarely confronted with the question as to whether the above facts establish as a matter of law that the cable was unseaworthy.

It is settled law that a ship owner is under an absolute duty to furnish and maintain a seaworthy vessel, equipment, appliances and appurtenances. Negligence or not by the owner or its employees is not material on the issue of unseaworthiness. Mahnich v. Southern S. S. Co., 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561; Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed.2d 941. This does not mean, however, that the ship owner is an insurer. The ship, appliances, etc., are not required to be perfect but they must be reasonably fit for their intended purpose. In a case where it is charged that a particular appliance or appurtenance is unseaworthy it must be determined whether that particular appliance or appurtenance was reasonably fit for its intended use. McAllister v. Magnolia Petroleum Co., 357 U.S. 221, 78 S.Ct. 1201, 2 L.Ed.2d 1272.

In the case of Mitchell v. Trawler Racer, Inc., supra, the Supreme Court, after stating negligence was not material on the issue of unseaworthiness but the owner owed an absolute duty to furnish a seaworthy ship, appliances and appurtenances, said:

“What has been said is not to suggest that the owner is obligated to furnish an accident-free ship. The duty is absolute, but it is a duty only to furnish a vessel and appurtenances reasonably fit for their intended use. The standard is not perfection, but reasonable fitness ; * * *.”

From the above holdings it will be seen that we must determine whether under the undisputed evidentiary facts the only reasonable inference that can be drawn is that the cable was not reasonably fit for the purpose for which it was intended. We have concluded that we cannot. Even though we might feel that the most reasonable inference is that it was unseaworthy, we are precluded from making such inference. If different reasonable inferences might be made, there is a fact question and the jury has settled that by its finding of seaworthiness.

We have read all of the cases cited us and many which we have found on search that deal with the question of seaworthiness. The effect of them all is to say that “ordinarily” seaworthiness is a question of fact. While by the use of the term “ordinarily” the courts leave the implication that there may be evidentiary facts that permit of only the inference of unseaworthiness, we have found no case where the courts have held unseaworthiness as a matter of law. We notice specifically only those cases which we find not different in any material respect from the fact9 before us because in such cases the courts have held there was a fact question despite the fact that we feel that clearly the most reasonable inference would have been that there was unseaworthiness. They did not hold, however, that such inference was compelled.

In the case of Petterson v. Alaska S. S. Co., 205 F.2d 478 (9th Cir.), aff’d 347 U.S. 396, 74 S.Ct. 601, 98 L.Ed. 798, a longshoreman was injured when a block used in loading cargo broke. The evidence merely showed that the block was being used for the purpose for which intended; that it was being used in a “customary and usual” manner; and that it broke, causing the injuries. The trial court had held the owner not liable because it was not shown the block was brought on board by the owner. The Court of Appeals held this made no difference and proceeded to infer as an ultimate fact from the undisputed evi-dentiary facts that the block was unsea-worthy. It stated that in admiralty it had the right to find ultimate facts from evi-dentiary facts where credibility of witnesses was not involved. The part of the holding that is of particular significance in the case before us is that the court had, as do we, a situation where an appliance was being used in a usual and customary manner for the purpose for which it was intended and it broke. There was no evidence showing the condition of the block, that is, whether it was defective or not. In drawing the factual inferences of unseaworthiness, the Court said:

“But an admiralty appeal is a trial de novo * * * and this court may make its own inferences from the facts as found where it does not upset the findings based upon the credibility of witnesses. If the block was being put to a proper use in a proper manner, as found by the district judge, it is a logical inference that it would not have broken unless it was defective — that is, unless it was unseaworthy.”

The court did not hold unseaworthiness as a matter of law.

In the case of Jefferson v. Taiyo Katun, K. K. et al., 310 F.2d 582 (Fifth Cir.), cert. denied 372 U.S. 967, 83 S.Ct. 1091, 10 L.Ed. 2d 130, dunnage had been placed on top of barrels that were a part of the cargo. While stowing cotton in one of the holds the injured party, with other members of the crew, was walking on the dunnage and the dunnage board broke. The trial court had refused to hold as a matter of law that the dunnage was unseaworthy, and the jury found it was seaworthy. The Court of Appeals was called on to determine whether these facts showed unseaworthiness as a matter of law. In holding in the negative, the court said:

“The sole question for us to determine is whether, as a matter of law, the vessel was unseaworthy and the appellant was entitled to an instructed verdict on liability. It will be a rare case where the issue of unseaworthiness as the proximate cause of an injury is to be resolved for or against a shipowner as a matter of law. * * * This is not such a case * * *

Under the facts of this case we feel that the most reasonable inference is that the cable was unseaworthy but no such conclusion is by reason compelled.

It is asserted that the jury was guilty of misconduct in various respects. Most of the alleged misconduct related to damages that is immaterial in the light of our action sustaining the jury’s answer finding the cable seaworthy. As to the other asserted grounds of misconduct, it suffices to say that the evidence relied on by appellant to establish misconduct is vague and indefinite and also whether it occurred is disputed by the evidence. There is evidence to support the implied finding of the court that misconduct did not occur.

The Points of Error complaining that the court should have sustained appellant’s objections to the definitions of “seaworthiness” and “proximate cause” are overruled. We are unable to find in the record where any such objections were made in the trial court. We do find a definition of the term “seaworthy” requested by appellant. However, the definition given by the court is sufficient.

Appellant complains of the failure of the court to submit its specially requested issues asking if appellee failed to provide a safe place to work, whether such was negligence and if so whether it was a proximate cause of the injury. There was no error in this because the court submitted special issues on failure to inspect the cable and failure to keep it in good repair and whether these failures were negligence and any of them was a proximate cause. These issues covered every specific act of appellee raised by the evidence that would make the place one unsafe in which to work. They adequately presented all grounds of liability asserted by appellant based on negligence. We think all controlling issues were fairly submitted.

The judgment of the trial court is affirmed.


author: WILSON, Justice.

text:
    E. R. ARNOLD et al., Appellants, v. STATE of Texas et al., Appellees.
    No. 4244.
    Court of Civil Appeals of Texas. Waco.
    Sept. 17, 1964.
    Rehearing Denied Oct. 10, 1964.

      Allen Melton, Dallas, Jones, Boyd, West-brook & Lovelace, Waco, for appellants.
    W. C. Haley, Waco, for appellees.
   WILSON, Justice.

The landowners appeal from judgment in a condemnation case which allowed them damages for the taking of 6.63 acres from their 35-acre tract. All but four of their 31 points complain of exclusion of evidence. In disregard of Rule 418(c), Texas Rules of Civil Procedure, as to most of these points appellants leave us to delve through the voluminous Statement of Facts, without record references or specification of the excluded evidence referred to, to examine all which was excluded. In conformity to Rule 422 we have done so, and we overrule all the points.

The first series of points challenges exclusion of a sand and gravel lease contract. Appellants Arnold and McGinty bought the 35 acres in 1960, each paying one-half the purchase price. The following year these proceedings were instituted, but in the interim Arnold and McGinty as lessors executed the lease on the entire acreage, naming Arnold lessee, and specifying the royalty to be paid by Arnold to himself and McGinty on material extracted. At the beginning of the trial the court was informed by Arnold that he and McGinty had entered into an agreement as to how the proceeds of the condemnation would be shared. Appellants say the lease was important in determining the value of the leasehold interest of Arnold because “both the lessor and lessee are entitled to share in the award under condemnation according to their respective interests”. Without the lease, it is urged, the jury could not determine the amount of lessee’s compensation.

The issue on which this evidence is now claimed to be material is apportionment. That issue concerned appellants as between themselves. They had settled it by agreement. The matter then no longer presented a justiciable controversy which the court had jurisdiction to determine. See Board of Water Engineers v. City of San Antonio, 155 Tex. 111, 283 S.W.2d 722. The contention does not reflect ground for reversal. For the same reasons appellants’ contentions concerning refusal of requested issues are overruled.

A group of 20 points relates to exclusion of evidence offered pertaining to the value of sand and gravel deposits in the land taken and remaining, the prices being paid for such material after processing, the cost of its extraction, processing and delivery, and the income derived from the operation of the sand and gravel business. Evidence relating to all of these matters was actually admitted without objection. The statement and argument under many of these points concern excluded testimony of witnesses not referred to in the points or supporting assignments. We have tediously sifted the record to ascertain that which is the subject of complaint by both the motion for new trial and the brief. In effect, appellants argue that the court improperly excluded evidence affecting determination of the value of the deposits of sand and gravel remaining on the land, apart from the market value of the realty itself, which would have established a basis for multiplying the quantity of material by a net unit profit per cubic yard based on past operations, operating costs, and the market price of processed sand and gravel.

Concerning quarry cases it is said in Orgel, Valuation Under Eminent Domain, 2d ed., Sec. 165, p. 674: “A fortiori, it is error to consider testimony based on assumptions as to annual productivity over a long period of years, fixed future costs of production and sale prices of the quarry product.” Quoting holdings that such formula is so uncertain and speculative as to be useless, the text continues: “But more often the owner contends that the proper way to arrive at the market value of the property is to estimate the amount of stone in situ and to multiply this amount by a fixed price per unit. This method is uniformly rejected.” Stating that fluctuations in the labor market, consumer demand, supply and other economic factors make such evidence too conjectural, the rule is summarized in 4 Nichols, Eminent Domain, 3d ed., Sec. 13.22(2), p. 248: “In applying the valuation process to mineral deposits in place it has been held improper to determine the value thereof by using the product of the estimated amount of the deposit and a fixed price per unit.” Since the contingencies of costs and profits are uncertain, it is said in 156 A.L.R. 1423, “It is a general rule that in ascertaining the amount of compensation to be awarded for taking property containing mineral deposits in eminent domain, the amount of the mineral deposits cannot be estimated and then be multiplied by a fixed price per unit.” There are decisions to the contrary representing a minority view.

It is not necessary for us to express an opinion on whether such evidence should be uniformly or generally excluded. Its exclusion is not reversible error in this case because appellants were permitted to show by extensive evidence every element or factor which would support arithmetical conclusions which the court struck. They introduced evidence showing the estimated material content per acre, the grade and quality of that material, the marketability of and demand for processed and pit-run gravel and its derivatives, the usual royalty rates in the county, unit prices of gravel, sand, aggregate and collateral materials, appellants’ past production records, the quantity and quality of cushion sand per surface acre adjacent to the land taken, the daily production capacity, the area of gravel in the tract taken, costs and profits. Appellant testified without objection to his plans before condemnation for operating the gravel source, his proposed production methods, interference by the taking with these plans and methods, the location of depleted areas in relation to the tract taken and the highest and best use for the land.

The specific testimony of appellant as a witness which the court struck may be summarized as follows: appellant testified without obj ection to numerous figures in answer to his counsel’s questions as to value of gravel-bearing land taken and the value “insofar as gravel content is concerned” totaling over $88,000. His testimony was then admitted as to additional amounts of over $22,000 as constituting value of two smaller of these tracts “to the landowner”. He was then asked the value “to the landowner” of the 6.63 acres taken, and objection was sustained. On the bill of exception appellant testified, “I don’t have that.” He was then asked to testify to the value of the 6.63 acres taken as severed land. He answered “I am confused. I can’t give you it”; and counsel said, “I have perfected my bill, judge.” Later appellant testified to amounts of several hundred thousand dollars as being the value of the 6.63 acres. He admitted these were “my auditor’s figures” and “I am a little bit confused.” No reversible error is reflected in striking the latter testimony.

Appellants’ complaints of the striking of the testimony of the witness LeBlond do not show reversible error. We assume from the points as presented they refer to striking of opinion testimony as to specific value figures as being based upon an improper valuation method. The court did not strike testimony of this witness comprising 108 pages of the Statement of Facts which gave to the jury the same evidence in a different form. The striking of some of the testimony of this witness was obviously erroneous, but the error was not reversible in view of the great volume of his testimony repetitiously elicited by both parties which-afforded the jury substantially the same components of the witness’s opinion.

We have considered all appellants’ points and all are overruled. Affirmed.


text:
    CONTINENTAL OIL COMPANY, Appellant, v. Robert E. LINDLEY, Appellee.
    No. 14392.
    Court of Civil Appeals of Texas. Houston.
    July 9, 1964.
    Rehearing Denied Sept. 17, 1964

      John L. McConn, Jr., Houston, and Butler, Binion, Rice & Cook, Houston, of counsel, for appellant
    W. A. Combs and W. Wiley Doran, Houston, and Combs & Mitchell, Houston, counsel, for appellee.
   WERLEIN, Justice.

This suit was brought by appellee, Robert E. Lindley, a seaman, under the Jones Act (Title 46, Sec. 688, U.S.C.A.), and also under the General Maritime Law, against appellant, Continental Oil Company, to recover damages for personal injuries sustained by him on the tanker S.S. Ponca City while it was docked starboard side against the wharf at Lake Charles, Louisiana. From the judgment rendered by the court, based on the jury verdict, appellant has perfected its appeal.

Appellee was employed as a wiper, and his work was principally in the engine room of the ship. At about 9 o’clock in the evening, after appellee had finished his work for the day, he went from the afterhousing of the vessel where the crew were housed, along a catwalk about 300 feet in length between the afterhousing and the midship housing, to the deck where the captain’s quarters were located two decks above the main deck, in order to make a draw on his pay. It was his intention to leave the ship after making such draw, and to spend the night ashore with his wife and child. In undertaking to go from the captain’s quarters to the gangway which was about mid-ship and on the starboard side of the vessel, he descended by a ladder from the deck where the captain’s quarters were located to the midship housing end of the catwalk which was on the same level as the deck next above the main deck, with the intention of descending from such deck to the main deck by means of a ladder near the starboard side of the midship housing. Finding such passage was blocked by a large hose which was being used by members of the crew in loading the ship, he descended from the deck at the end of the catwalk to the main deck by a ladder near the port side of the midship housing. He then made his way on the main deck on the port side of the vessel, looking for a way to get over to the starboard side and the gangway leading to the wharf, when he discovered an iron walkway or bridge with steps at both ends, which led crosswise of the ship under the catwalk and over a number of large pipes on the main deck. Appellee testified that he did not see or know of a ladder which led from about midway of the catwalk to the main deck on the starboard side of the ship, and which he might have used had he known of its presence. The evidence shows that such ladder was obscured by a mast and rigging of the ship, and could not be seen from the catwalk on the deck immediately below the captain’s quarters.

Appellee had not previously known of the walkway which, it seems, could be used by members of the crew when working on the main deck or when operating certain overhead valves under or near the catwalk, or when going from one side of the ship to the other. Its elevation was twenty-five inches above the main deck with the lower step eleven inches high and the top step fourteen inches in height. Appellee undertook to use this walkway to get to the starboard side of the ship and the gangway in order to leave the vessel. He testified as follows:

“I come up to it and I stepped up on this step with my left foot and I kind of bent over, kind of shaded up here from the light, what light there was, and I couldn’t see where my head was going up there and I stooped over and I come up and unbalanced and hit my knee up on that top walkway.”

Appellee testified that there was no rail along the walkway and nothing to steady him as he tried to climb the steps of the walkway to cross over to the starboard side of the ship. There were certain pipes running parallel with the catwalk and just underneath the same, and the distance between the top of the walkway and such pipes was about four feet. It was shown however, that the walkway extended out a little beyond the catwalk and that appellee’s head would not have struck the pipes in question even had he stood upright in climbing up the steps. He testified: “I know that now, but at that time I didn’t know it because it was shade and those lights shinning from shore, that gangway shaded me and it made it dark in there, just like walking in the shade of a cloud or something out of a light.” Appellee admitted that if he had been looking down he would not have bumped his knee but he was worried about his head as he undertook to climb up on the walkway by means of the high steps, fearing his head would strike the pipes under the catwalk. In stepping up in a stooped position, he became unbalanced and his right knee hit at the top of the walkway or top step. No question is raised as to the verdict being excessive. Hence it will not be necessary to discuss the injury to plaintiff’s knee and the operations which he had to undergo.

The jury found in answer to Special Issue No. 1 that appellant’s failure to provide handrails for the steps on the structure in question was negligence, and in answer to Special Issue No. 2 which inquired whether such negligence, if any, played any part, even the slightest, in producing plaintiff’s injury, the jury answered in the affirmative. The jury also found that the maintenance of the steps to the structure in question at a height of eleven and fourteen inches, respectively, was negligence, and that such negligence played some part in producing plaintiff’s injury.

Appellant complains that such findings are not supported by any evidence and that in the alternative they are so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. The same complaint is made with respect to the answers of the jury to Special Issues Nos. 8 and 9 to which the jury found, respectively, that the manner in which the structure in question was constructed rendered it not reasonably suitable for use for the purpose for which it was intended on the occasion in question, and that the maintenance of the structure in such manner was a proximate cause of appellee’s injury.

We have read the statement of facts and have concluded that under the law as enunciated by the Supreme Court of the United States in Federal Employers’ Liability Act and Jones Act cases there is ample evidence to sustain the findings of the jury with respect to negligence and unseaworthiness. Appellee testified that in ascending the steps to get on the walkway he became unbalanced and that the walkway was not at all right because of the lack of handrails. Captain Jack Roberts, holder of an unlimited Master’s license and a marine surveyor of long experience, testified that he had observed other ships with similar walkways that were equipped with handrails; that handrails are a safety device for the purpose of steadying oneself; that the installation of handrails on vessels had cut down the accident rate; and that the fact that the second step of the walkway in question was fourteen inches over and above the eleven inch lower step, would have a relation with respect to the matter of balance of the user of the steps. To the inquiry as to whether or not handrails would be more necessary in the type of installation in question than they would if there were three steps instead of two, he testified, “Handrails would be advantageous, yes, sir.”

In the recent case of Dennis v. Denver & Rio Grande Western Railroad Co., 1963, 375 U.S. 208, 84 S.Ct. 291, 11 L.Ed.2d 256, the Supreme Court stated:

“It is true that there was evidence in conflict with petitioner’s version of what occurred. * * * But in FELA cases this Court has repeatedly held that where ‘there is an evidentiary basis for the jury’s verdict, the jury is free to discard or disbelieve whatever facts are inconsistent with its conclusion.’ Lavender v. Kurn, supra, 327 U.S., at 653, 66 S.Ct. at 744, 90 L.Ed 916. ‘Only when there is a complete absence of probative facts to support the conclusion reached [by the jury] does a reversible error appear.’ Ibid. ‡ ‡
“In this case, petitioner’s evidence, though vigorously disputed, was sufficient to support the jury’s conclusion that respondent’s negligence contributed to the injury. Hence, ‘the appellate court’s function [was] exhausted,’ Lavender v. Kurn, supra, 327 U.S., at 653, 66 S.Ct., at 744, 90 L.Ed. 916, and it could not properly substitute its judgment for that of the jury * *

The federal courts have broadened the jury function in F.E.LA. and Jones Act cases so that very little evidence is required to uphold a jury verdict of negligence. Robinson v. Gulf, Colorado & Santa Fe Railway Co., Tex.Civ.App., 1959, 325 S.W. 2d 432, writ ref., cert den., 362 U.S. 919, 80 S.Ct. 672, 4 L.Ed.2d 739, and authorities ■cited. See Deen v. Hickman, 1958, 358 U. S. 57, 79 S.Ct. 1, 3 L.Ed.2d 28, in which the court referred to its prior holding, “that the proofs justified with reason the jury’s conclusion that employer negligence played a part in producing the petitioner’s injury.” These Supreme Court cases have established that in F.E.L.A. and Jones Act cases the appellate court has no jurisdiction to.overturn a jury verdict supported by some evidence of probative force even though the appellate court should conclude that the verdict is against the great weight and preponderance of the evidence.

The alternate plea of recovery by .appellee is based upon the alleged unseaworthiness of the S.S. Ponca City. In Hess, Inc. v. Garcia, Tex.Civ.App., 1962, 358 S.W.2d 391, the court quoted with approval the statement in 91 C.J.S. Unseaworthy, pp. 507-508, that “Unseaworthiness” is a comparative term, and in its ordinary sense it means a deficiency of the vessel in equipment. In speaking of unseaworthiness the U. S. Supreme Court in Seas Shipping Co. v. Sieracki, 1946, 328 U.S. 85, 66 S.Ct. 872, at 877, 90 L. Ed. 1099, stated: “It is essentially a species of liability without fault, analogous to other well known instances in our law. Derived from and shaped to meet the hazards which performing the service imposes, the liability is neither limited by conceptions of negligence nor contractual in character.” The duty of shippers to furnish a seaworthy vessel is absolute. It is required to furnish both a vessel and appurtenances reasonably fit for their intended use. Mitchell v. Trawler Racer, Inc., 1960, 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed.2d 941. See also H. A. Scandrett, 2d Cir. 1937, 87 F.2d 708, in which Justice Hand, speaking for the court, said: “ * * * under the maritime law there is an absolute obligation to provide a seaworthy vessel and, in default thereof, liability follows for any injuries caused by breach of the obligation.”

We are not unmindful of the fact that a ship may be seaworthy while in port and yet be unfit for rough water. Lester v. United States, 2d Cir., 234 F.2d 625, and authorities cited. In the instant case the jury knew that the ship was in port and was advised of the uses made of the walkway in question, and with such knowledge found that the manner in which the structure in question was constructed rendered it not reasonably safe for use for the purpose for which it was intended. It is our view that we are not authorized to overturn the jury’s finding since there is some evidence of probative force in support thereof.

In our opinion the trial court did not err in refusing to submit as the first issue in the charge an issue as to whether appellee bumped his knee on a cross-pipe or on a step on the structure or walkway across the pipes. Special Issues Nos. 1 and 2.inquired, respectively, as to whether the failure of appellant to provide handrails for the steps on the structure in question was negligence and whether such negligence played any part, even the slightest, in producing appellee’s injury. These issues were in conformity with appellee’s pleadings and evidence at the trial. Appellee’s testimony is quite clear with respect to what he did and how he was injured. The reports given by appellee to the U. S. Health Service, and the history given by him to his doctor, show that the injury occurred as testified to by appellee. It is true that appellee was confronted at the trial with two statements prepared by a third party and signed by ap-pellee the day following the injury, one entitled “Request for Master’s Certificate,” and the other entitled “Report of Personal Injury,” in which it is stated that appellee said he bumped his knee on a cross-pipe on the main deck. Appellee explained at the trial that what he had said was, “Well, I told him I bumped my knee in crossing the pipe on that walkway. He just put it down cross-pipe, I guess. I didn’t detail it myself.” In his deposition appellee also testified with respect to the walkway in question. The bottom of the ladder from the captain’s quarters to the first deck below was right at the midship end of the catwalk. This could explain appellee’s statement in his deposition that he “came down the catwalk and went down a ladder * *

Appellant, in contending that its said requested issue should have been given first, relies on Westinghouse Electric Corp. v. Pierce, 1954, 153 Tex. 527, 271 S.W.2d 422. In that case it was 'demonstrated conclusively that plaintiff’s injury could not have resulted from the use of the sun lamp in the manner claimed, and hence there was no duty on the part of the defendant to warn of any danger from use in that manner. The Supreme Court held in effect that it was not error for the trial court to inquire in Special Issue No. 1 whether the injury was caused in the manner in which the plaintiff alleged and testified it occurred, and to submit other issues conditioned upon an affirmative answer thereto.

The Westinghouse case is distinguishable from the instant case. In the case at bar the evidence, with the exception of the two impeaching statements which were explained by appellee, clearly showed that the injury not only could have occurred in the manner appellee pleaded and testified that it occurred, but that it did so occur. It was proper, therefore, for the court to submit issues in accordance with the standard practice. Wichita Falls & Oklahoma Ry. Co. v. Pepper, 1940, 134 Tex. 360, 135 S.W.2d 79. The undisputed evidence shows that appellant had failed to provide handrails for the steps on the structure in question. The first inquiry, therefore, was whether such failure was negligence. Similar issues were submitted with respect to the height of the steps to the structure in question, and seaworthiness. These were all ultimate fact issues. The jury could not have answered the issues on causation as it did without finding that appellee was injured in the manner and at the place as testified by him. Furthermore, the submission of appellee’s case as requested by appellant would have deprived appellee of the affirmative and unconditional submission to which he was entitled. Fox v. Dallas Hotel Co, 1922, 111 Tex. 461, 240 S.W. 517; Texas Employers Ins. Ass’n v. Patterson, 1946, 144 Tex. 573, 192 S.W.2d 255; Rule 277, Texas Rules of Civil Procedure.

Appellant complains of Special Issue No. 8 as being multifarious. Such issue reads: “Do you find from a preponderance of the evidence that the manner in which the structure in question was constructed rendered it not reasonably suitable for use for the purpose for which it was intended on the occasion in question ?”

The ultimate fact issue was whether the walkway or bridge in the manner constructed (indisputably with high steps and no handrail) was reasonably suitable for the purpose for which it was intended. Mitchell v. Trawler Racer, Inc., 1960, 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed.2d 941. It is our view that the issue in question, though it might have been worded differently, constitutes essentially a proper inquiry. The issue does not assume any disputed fact in controversy. It includes two elements, the purpose for which the walkway or bridge was constructed and whether reasonably suitable for such purpose. These elements are component parts of the one ultimate issue. Our Supreme Court has held in several types of cases that various subsidiary facts or elements constitute, and are properly submitted in, a single ultimate issue. Meyer v. Great American Indemnity Company, 1955, 154 Tex. 408, 279 S.W.2d 575. In Howell v. Howell, 1948, 147 Tex. 14, 210 S.W.2d 978, the court said: “Where, as in this case, the one ultimate issue embraces a number of subsidiary facts, it is not improper to include in the issue these several facts, and a special issue so framed is not duplicitous.”

If the jury in the instant case had been in doubt as to the existence of either element encompassed in Special Issue No. 8, it is improbable that the form of such issue would have caused them to return an affirmative answer, as was done. It is our view that the submission in one issue of the two elements above stated is not objectionable as multifarious or an improper grouping of two issues. Both of such elements or facts had to concur and appellee had to prove both by a preponderance of the evidence. Turner v. Texas Company, 1942, 138 Tex. 380, 159 S.W.2d 112.

Appellant asserts that it was error for the trial court in Special Issues Nos. 2 and 4 to inquire whether appellant’s negligence, if any, “played any part, even the slightest, in producing plaintiff’s injuries” because the same was a comment on the weight of the evidence. The use of the words “even the slightest” unduly emphasizes the fact that even though the evidence might be meager, the jury could find that appellant’s negligence played a part in producing appellee’s injuries. It is our view that under our state practice the submission was not proper since it is in the nature of a comment by the court although the court gave no independent instruction in connection with such issue. The words “played any part” encompass the slightest part. It was unnecessary to add the superfluous words “even the slightest.” In an F.E.L.A. or Jones Act case tried in the State court, procedural matters are governed by the State law. Thompson v. Robbins, 1957, 157 Tex. 463, 304 S.W.2d 111.

Under the decisions of the Supreme Court of the United States appellee was entitled to recover if the negligence of appellant played the slightest part in producing his injury. In view of the holding by the federal courts with respect to submitting such issues, we would hesitate to hold that the manner of submission in this case was reversible error, although in our opinion the issues should have been worded in a different way. This particular point raised by appellant is limited to the negligence phase of the case and does not in any way affect the claim founded on unseaworthiness.

In Rogers v. Missouri Pacific Railroad Company, 1957, 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493, the court in speaking of the inquiry which should be made in F.E.L.A. cases stated:

“The employer is stripped of his common-law defenses and for practical purposes the inquiry in these cases today rarely presents more than the single question whether negligence of the employer played any part, however small, in the injury or death which is the subject of the suit.”

In DeLima v. Trinidad Corporation, 2d Cir.1962, 302 F.2d 585, the court reversed the judgment for the defendant because of the refusal of the trial court to submit an issue as to whether “the employer’s'negligence ‘played any part, even the slightest, in producing an injury to plaintiff.’ ” Instead of such issue the trial court gave the usual instruction on proximate cause. In reversing the judgment of the trial court, the court cited the Rogers case, supra.

To like effect see Page v. St. Louis Southwestern Railway Company, 5th Cir. 1963, 312 F.2d 84. In that case the court said:

“The Supreme Court cases would seem to establish the proposition that in determining whether a jury question is presented the court should confine itself ‘to the single inquiry whether, with reason, the conclusion may be drawn that negligence of the employer played any part at all in the injury or death.’ 352 U.S. 507, 77 S.Ct. 449. By necessary implication, it would seem to follow that, if the jury does so conclude, it would find that the injury or death resulted ‘in whole or in part from the negligence’ of the employer within the language of the statute, 45 U.S.C.A. § 51.” (emphasis added)

See also Ferguson v. Moore-McCormack Lines, Inc., 1957, 352 U.S. 521, 522, 77 S.Ct. 457, 1 L.Ed.2d 511.

The Rogers, DeLima and Page cases are •distinguishable from Bertrand v. Southern Pacific Company, 9th Cir., 282 F.2d 569, cert. den. 365 U.S. 816, 81 S.Ct. 697, 5 L.Ed.2d 694, cited by appellant. The court in the Bertrand case stated: “The proposed instruction is faulty because it bound the jury to find what it was entitled to find but was not required to find.” The Page and DeLima cases, supra, show that the charge used in the present case would be upheld by the federal courts, since the Supreme Court •of the United States has clearly held that if the employer’s fault plays any part, however ■small, in producing the employee’s injury, the employer may be held liable.

It was not error on the part of the court to refuse the issue submitted by appellant on unavoidable accident. With respect to appellee’s claim based on the unseaworthiness of appellant’s vessel the maritime law must govern, and under such law unavoidable accident is not a defense to an action based on unseaworthiness. Pope & Talbot v. Hawn, 1953, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143. Moreover, the state court must follow the law as established by the federal decisions in cases brought under the Jones Act or the Federal Employers’ Liability Act. Guthrie v. Sinclair Refining Company, Tex.Civ.App., 320 S.W.2d 396, writ ref., n. r. e. In Yanow v. Weyerhaeuser Steamship Company, 9th Cir.1957, 250 F.2d 74, the court reversed the judgment of the trial court which charged the jury that, “There are such things as unavoidable accidents — accidents which happen without the fault of anyone.” The court concluded that such instruction was improper in a case of maritime injury. In Neal v. Lykes Bros. Steamship Company, 5th Cir.1962, 306 F.2d 313, the court said: “ * * * it may be conceded, as appellant claims, that unavoidable accident is not a defense to an action based on unseaworthiness, * * * ”

Under the decision of the Supreme Court of the United States in Tiller v. Atlantic Coast Line R. Co., 1943, 318 U.S. 54, 63 S.Ct. 444, 87 L.Ed. 610, 143 A.L.R. 967, it seems questionable whether the defense of unavoidable accident is available to a defendant in an F.E.L.A. or Jones Act case. In that case the court said, “ * * * The Act of 1908 and the amendment of 1939 * * * leave for practical purposes only the question of whether the carrier was negligent and whether that negligence was the proximate cause of the injury.”

In Page v. St. Louis Southwestern Railway Company, supra, 312 F.2d at 93, the court stated:

“We would agree that ordinarily in a case under this Act (F.E.L.A.) a charge on unavoidable accident is confusing and tends to distract the jury’s attention from the simple issues of whether the carrier was negligent and whether that negligence was the cause, in whole or in part, of the plaintiff’s injury.”

It is our view that even if the defense of unavoidable accident is available in F.E.L.A. and Jones Act cases predicated upon negligence, the issue on unavoidable accident was properly refused in the instant case because there is no evidence raising such issue. An unavoidable accident is one that occurs without having been proximately caused by the negligence of any party to the event. If the evidence does not raise the issue that something other than the negligence of a party to the event caused the injury, an issue on unavoidable accident should not be submitted. Dallas Railway & Terminal Co. v. Bailey, 1952, 151 Tex. 359, 250 S.W.2d 379; Hicks v. Brown, 1941, 136 Tex. 399, 151 S.W.2d 790; Hodges on Special Issue Submission in Texas, Sec. 19, p. 51.

Appellant contends that appellee stooped because of some kind of optical illusion as to the location of the pipes. It is our view that the evidence shows a miscalculation on the part of appellee rather than an optical illusion. The pipes were a little farther away from the steps than appellee thought as he undertook to climb the same. His act in stooping was conduct on his part going to the matter of contributory negligence and not unavoidable accident. See Harrison v. King, Tex.Civ.App., 296 S.W.2d 344, writ ref., n. r. e.; Lubbock Bus Co. v. Pearson, Tex.Civ.App., 266 S.W.2d 439, writ ref., n. r. e.; McCarthy Oil & Gas Corp. v. Cunningham, Tex.Civ.App., 255 S.W.2d 368, writ ref., n. r. e.; Good v. Born, Tex.Civ. App., 197 S.W.2d 589, writ ref., n. r. e.

It was not error for the court to refuse to give an instruction on aggravation in connection with Special Issue No. 19, the damage issue. Dr. Hucherson, who examined appellee on several occasions, testified that he found “Chondromalacia” present in appellee’s knee and that in his opinion there was a causal relationship between that condition and the injury in question. He based his opinion upon the history given him by appellee that he had had no trouble of any kind until he struck his knee, and upon the surgical report that the condition was of traumatic origin. There is no evidence of probative force in the record that any other possible cause had in fact produced or aggravated appellee’s injury.

Judgment affirmed.

On Motion for Rehearing

Appellant, in its motion for rehearing,, contends that this Court erred in holding it was not reversible error for the trial court to fail to submit as the first issue in the charge the inquiry as to whether appellee-bumped his knee on a step of the cross-walk or on a cross-pipe. It is our view that appellee’s testimony at the trial and by-deposition as to how the injury occurred, as-well as his reports to the United States. Health Service and his doctor, are clear and' positive, and that there is no evidence of probative force or circumstances discrediting such testimony. This fact brings it within the exception recognized in Owen Development Co. v. Calvert, 1957, 157 Tex. 212, 302 S.W.2d 640.

The unsworn statements which were inserted in type on the forms entitled “Request for Master’s Certificate” and “Report of Personal Injury”, prepared by some unknown person, but evidently one in the employ of appellant or its insurance-carrier, containing the statement to the-effect that appellee stated he bumped his. knee on a cross-pipe, are not such as to discredit the clear and positive testimony of appellee, and especially so since appellee-denied he made such statements and appellant failed to contradict him by either such “unknown party” or by the master of the ship who signed the “Report of Personal Injury”, and who testified at the trial. Moreover, to Special Issue 10-A the jury found by a preponderance of the evidence that appellee did not bump his knee on a. cross-pipe on the main deck at a location other than the structure [walk-way] ins. question.

Motion for rehearing overruled.