author: WERLEIN, Justice.

text:
    Tony Allen LEMKE et al., Appellants, v. TEXAS & NEW ORLEANS RAILROAD COMPANY, Appellee.
    No. 13883.
    Court of Civil Appeals of Texas. Houston.
    March 15, 1962.
    Rehearing Denied April 5, 1962.
    Frank Abraham, W. James Kronzer, Houston, Hill, Brown, Kronzer & Abraham, Houston, of counsel, Pollan & Nicholson, Rosenberg, of counsel, for appellants.
    John F. Heard, Houston, Baker, Botts, Shepherd & Coates, Houston, of counsel, for appellee.
   WERLEIN, Justice.

This suit was brought by Tony Allen Lemke and Richard Roy Lemke, minors, by and through their Guardian, Leroy Lem-ke, to recover for damages arising out of the instantaneous deaths of their parents, Allen Tony Lemke and Marjorie Juanita Lemke, when their stalled automobile was struck by appellee’s passenger train at a crossing about a mile and one-half west of Sugarland, Texas. The evidence shows that Mrs. Lemke, accompanied by her husband, a prison guard, with the two minor appellants in the back seat of the car, after driving in a westerly direction along U. S. Highway 90-A, made a right turn and headed north on a road which crossed appellee’s tracks and led to Central Prison Farm No. 1. The car stalled with the front wheels about on the south rail of the main tract of appellee which ran parallel with said Highway 90-A and about 50 feet therefrom. While in such position and before the occupants of the automobile were able to get out, appellee’s train, the Sunset Limited, traveling in a westerly direction, struck the right side of the car near the front wheel, killing Mr. and Mrs. Lemke and one of their children seated in the front seat with them. The jury answered all special issues covering primary negligence and two contributory negligence issues in favor of appellee.

It was stipulated by the parties that appellants and their parents were in a position of peril prior to the collision. The jury found that the engine crew discovered the perilous position of the Lemke vehicle and after making such discovery realized that the driver thereof in all reasonable probability would not be able to extricate herself and the automobile from such position of peril. The jury found, however, on the crucial “time” issue that the engine crew did not actually discover and realize the perilous position of the Lemke vehicle and occupants thereof before the collision in such time and distance that by the exercise of ordinary care and the use of all the means at hand, having due regard for their own safety and the safety of the train and the occupants thereof, they could have avoided the “fatalities” made the basis of the suit.

Appellants have appealed from the judgment entered in favor of appellee on the jury verdict and have assigned a number of points of error which are briefed together, the gravamen of which is that the court erred in refusing to admit into evidence, either generally or for purposes of impeachment, the speed tape on appellee’s train, appellants’ Exhibit No. 17, and the associated testimony of the witnesses, Coogler, Chambers, Lemke and Shilstone, which exhibit and testimony they say would have shown that the engine crew did not use all the means at their command to avoid the collision.

Appellee contends that the court properly excluded such tape and allied testimony because no proper foundation or predicate was laid to warrant the admission of the tape and the same was not admissible for any purpose. The respective contentions of the parties require a careful analysis of the testimony with respect to the speed tape to determine whether the court erred in excluding it.

The evidence shows that the original speed recorder tape which was taken from the engine involved in the collision was produced in court by appellee and that the first testimony with respect to what it showed was adduced in evidence by appel-lee in examining its witness, Mr. Coogler, the assistant supervisor of locomotive maintenance, who was riding in the engine cab at the time and on the occasion in question. After appellee’s counsel qualified Mr. Coog-ler as being able to interpret speed tape, he questioned him and elicited answers as follows:

“Q. I just made some reference to a speed tape, and I will ask you is a locomotive equipped with some device that records on a tape the speed at which the locomotive was traveling at certain times?
“A. Yes, sir.
“Q. What is that called?
“A. Speedometer, they call it a speed recorder.
“Q. Is it locked up?
“A. Yes, sir, it is sealed, at each division point a new tape is applied.
“Q. Based upon your experience, is this one of those speed tapes?
“A. Yes, sir.
“Q. As the train goes along, the engine goes along, I notice what appears to be a pencil mark tracing, which goes up and down, what is that?
“A. That is the speed of the locomotive. As the speed comes up, the pencil line goes up, right here we have 76 miles an hour, and here he is stopped or the train is going 10 miles an hour. Each mark is 1 mile.
“Q. For your information, we have furnished opposing counsel with this, and this is a copy of it, it was made prior to the trial, and I think it has been agreed that this is where the emergency application was made. Would you tell us fhat that reads there ?
“A. This looks like right here a quick stop or emergency application of the brakes.
“Q. What lines were those between ?
“A. It looks like that would be 57 or 58 miles an hour.
“Q. It is between 50 and 60 miles an hour?
“A. Yes, sir, I would say 57 or 58 miles an hour.”

On cross-examination appellants had Mr. Coogler put an arrow and “E M” at the agreed point where the emergency brakes were applied and the number “58” indicating the speed of the train immediately prior to the application of the brakes. The speed tape was used by appellee to establish the speed of the train at the agreed point where the emergency application was made. Coogler also testified as to the speed of the train in Sugarland, some mile and one-half east of the crossing, and put the letter “S” on the speed tape marking the dip shown on the tape at such place. Coogler’s testimony that appellee had a master chart which would pinpoint places was refuted by appellee’s claim agent, Mr. Hansen, who investigated the accident. Mr. Hansen testified to questions by appellee’s counsel, that such chart was no longer used by ap-pellee, but that “From the tape they count off where the emergency stop was made and they can then back off and count the number of miles and then determine where they left. If the tape was placed on in Houston, and if the accident happened thirty miles from Houston, that would be the point.” On cross-examination he testified that if furnished a ruler where he could split the miles down to one-tenth, he could tell how far it was from where the speed picked up after Sugarland to the point of the accident, provided he was informed whether the vertical lines on the tape represented one or two miles. Coogler had previously testified that each mark was one mile.

Mr. Chambers, the locomotive engineer of the train in question, testified that the accident happened at milepost 26.3, that is, 26.3 miles from the station in Houston; that speed tapes were put in the trains to check the speed; that there is a little needle which marks on the speed tape the different speeds, and that the low place on the tape represented going through Sugarland where the speed was reduced. He also testified that when he got out of Sugarland he turned the speed on and raised his speed continuously until the point where he put on the emergency brakes, and that as he came through Sugarland and passed the last red light at Sugarland, “that is the place where you start giving it the gun.”

Appellants, in connection with their bill, showed that the distance between the crossing where the accident occurred and the last red light at the point where the engineer starts “giving it the gun” was measured by Mr. Lemke with a 100 foot steel tape, and that such distance was 8,114 feet. Mr. Herbert M. Shilstone, civil engineer and senior partner of Shilstone Testing Laboratories of Houston, long engaged in mathematical and technical studies and scientific investigations, testified in connection with appellants’ bill of exceptions that he could and did scientifically and mathematically calculate the distance from the point where the engineer said he started gaining speed after he went through the last red light at Sugarland to the point of deceleration marked “E M” on appellants’ Exhibit 17, and that such distance was 9,027 feet, with the accuracy of the last digit in question. He also testified that he had prepared an accurate enlargement of the tape, appellants’ Exhibit No. 30, to increase the accuracy of his measurements. This exhibit was excluded by the court and is a part of appellants’ bill. Such evidence, if admitted, coupled with the testimony of Mr. Lemke, would indicate that the engine crew did not apply the emergency brakes until after the engine had passed the crossing in question. It is true that Mr. Shil-stone did not know anything about the working of the speed recorder, but he testified with respect to the speed tape and the lines thereon that the chart was a relatively simple type.

The trial court indicated several times that if it could be shown what the vertical lines on the tape meant and the distance be- • tween them, distances could be shown. Such proof was made. The court then expressed the opinion that it was not shown that the lines on the tape were correlated to distances on the ground, and apparently for such reason the court excluded the tape. As we view the matter, the only correlation established by the evidence between the distances as shown on the tape and on the ground is dependent upon whether ap-pellee’s engineer established with sufficient accuracy the approximate site of the last red light passed on leaving Sugarland as the point where the acceleration of the train commenced. That part of the bill of exceptions, dealing with approximate distances between the towns through which the train runs on the trip from Houston to San Antonio, merely established what had already been proved, to wit, that the distance between the vertical lines on the tape was one mile, but such evidence fell short of correlating distances on the tape and on the ground, although it did indicate that such correlation probably could be established by a witness who could interpret speed tape and who knew definitely the distances between the towns en route.

We are of the opinion that the point of acceleration on leaving Sugarland was sufficiently shown to be the last red light passed on leaving such town. There might be some variation, depending upon whether the engineer began to accelerate immediately upon passing the red light. There is no evidence, however, that he did not give it the gun and begin to accelerate at such point on the day of the accident as he customarily did.

The testimony of both the engineer and fireman on the train was that they first observed the Lemke car when 350 feet from the crossing and that they applied the emergency brakes approximately 150 feet from the crossing. The engineer testified that the train would travel 50 to 75 feet before the brakes would take hold. Basing the calculation upon the testimony of Mr. Lemke and Mr. Shilstone, the difference between the measurement upon the ground from the last red light to the crossing and the measurement on the tape from the point of acceleration on passing such light to the point of deceleration, is 9,027 feet less 8,114, or 913 feet. By adding to 913 feet the number of feet from the point of deceleration on the tape to the crossing based on the engineer’s estimate of 75 to 100 feet, it would appear that the difference between the distance on the ground and the distance shown on the tape from the red light to the crossing is approximately 1,000 feet. Even if allowance is made for a considerable variation, the testimony adduced by said witnesses would still indicate that the emergency brakes were not applied until after the engine had passed the crossing in question.

Such evidence would tend to impeach the testimony of the engineer, who said he observed the automobile when he was 350 feet away from the crossing, and that after he realized the automobile was going to stop and not get over the tracks, he did everything in his power to avert the accident. It would also tend to impeach the fireman’s testimony and that of Mr. Coogler who testified that he felt the application of the brakes in emergency a few seconds before he felt the impact when the engine struck the car. Such evidence would also tend to corroborate the testimony of Esty, the ex-convict, who testified that he was on the prison farm some 50 feet away from the crossing and that the train did not apply its brakes and slow down until after it had hit the car. This witness, who was appellants’ only eye-witness to the accident other than Tony Lemke, a child five years old when the collision occurred, also testified that when the Lemke car stalled, the train was a quarter of a mile from the crossing.

We are of the opinion that the speed tape, if admissible, was of such materiality that its exclusion was reasonably calculated to cause and probably did cause the rendition of an improper verdict and judgment in the case. Rule 434, Texas Rules of Civil Procedure; Salinas v. Casualty Insurance Company of California, Tex.Civ.App.1959, 323 S.W.2d 600, aff’d 333 S.W.2d 109. This view is strengthened by consideration of a note sent by the jury foreman to the court stating: “We a hung up on Issue No. 11. What should we do?” Special Issue No. 11 inquired whether the engineer failed to make a timely application of the brakes of the train. The jury also sent a note to the judge stating they would like to know how far Mr. Coogler estimated it would take to stop the train. Coogler had testified that his best estimate was that the train could be stopped in 1100 to 1200 feet. The engineer, Chambers, testified he believed the front of the train moved around 1450 feet past the crossing. If, in addition to such testimony, the jury had had the benefit of the speed tape and allied testimony, they very likely would have found that the engine crew failed, after actual discovery and realization of the perilous position of the Lemke vehicle, to exercise ordinary care to avoid the “fatalities”. Had the speed of the train been substantially lessened, the engine might have struck the right front of the car with much less violence and brushed it aside without killing appellants’ parents who were in the front seat. The potential lessening of injury or loss is a material consideration in discovered peril cases. In Missouri-Pacific Ry. Co. v. Weisen (1886), 65 Tex. 443, our Supreme Court stated:

“The injury would not have happened if the appellee had not been on appellant’s track at a time when he ought not have been there. Still, after it was discovered that he would not effect, his escape from the track in time to avoid injury, it was the duty of appellant to prevent the result. It could have done this, or, at least, it could have given the appellee more timé to get off the track than was given him; and if he then failed to get entirely out of danger, the violence of the concussion, upon which depended the extent and degree of his suffering, could have been softened.” (emphasis supplied)

In the instant case the court inquired in the discovered peril issues as to whether or not the “fatalities” (not merely personal injuries) could have been avoided. The “time” inquiry is the sine qua non of the doctrine of discovered peril in that the additional time allowed might permit a person in a perilous situation to extricate himself therefrom, or it might lessen the impact and degree of injury. Missouri-Pacific Ry. Co. v. Weisen, supra; Crawford v. Deter-ing Co., 1951, 150 Tex. 140, 237 S.W.2d 615; Ford v. Panhandle & Santa Fe Ry. Co., 1952, 151 Tex. 538, 252 S.W.2d 561; Missouri-Kansas-Texas R. R. Co. v. Montgomery, Tex.Civ.App., 323 S.W.2d 360, writ ref., n. r. e.; Texas & New Orleans Railroad Company v. Landrum, Tex.Civ. App., 264 S.W.2d 530, writ ref., n. r. e.

There can he no question as to the authenticity of the speed tape offered in evidence. It was produced and used by appel-lee in interrogating its witnesses, and it was shown to he the original speed tape upon which was recorded the speed of the train involved in the collision. We also think the accuracy of the speed tape was sufficiently established by appellee’s witnesses. Appel-lee used the speed tape to prove the speed of the train just prior to the time of the collision and showed the agreed point of deceleration on the tape. Appellee now asserts that it interrogated Coogler only with reference to speed of the train at the time the emergency brakes were applied, and not with respect to distances. The record shows, however, that in discussing the chart, Coogler testified that each vertical line represented a distance of one mile, and he indicated on the tape not only the speed but the place where the deceleration occurred as the approximate point of the accident. He also indicated on the speed tape the place where the train slowed down for Sugarland and the place where it began accelerating after the engine passed the last red light coming out of such town. Appellee itself established by its claim agent that speed tape was used in locating places and the speeds at such places.

It seems obvious that the tape which shows speed must also show ascertainable locations and points where the train was running at such speed, or else the tape would be of no value whatever. We are unable to see how the recorder could be accurate as to speed and not as to locations. Speed and distance are necessarily correlated on the tape. Moreover, appellee did not introduce any evidence attacking the accuracy of the speed recorder and tape. By proving the speed and point of acceleration and the approximate point of the accident by use of the tape, and that the tape was used to locate points as well as to determine speed, appellee in effect admitted and vouched for its authenticity and accuracy. The evidence also shows that speed recorders were placed on all of ap-pellee’s engines and are apparently standard equipment.

Speed recorder tapes have been received in evidence to establish speeds of trains at material points prior to collision. ' In Johnson v. New York Central Railroad Co., 1959, 357 Mich. 40, 97 N.W.2d 769, 773, the court stated: “The Mercury diesel engine contained a speed recorder tape, which records automatically as the locomotive moves along the tracks the speed of the locomotive, the miles per hour, any stops, and the point of application of the brakes.”

Apparently no objection was made in the Johnson case to the speed tape which was used to establish speeds of the train at various distances from the crossing and as certain definite locations. Objection was made to the Railroad’s use of its speed tape in Whitton v. Central of Georgia Ry. Co., 1953, 89 Ga.App. 304, 79 S.E.2d 331, on the ground that it would take a qualified expert to show how the machine that marked the tape operated, and also because the witness who testified didn’t know how the machine did operate. The court held that the tape was properly admitted in evidence over such objection because another witness had previously testified that the speed of the engine could be determined at any particular point from the record made.

Appellee further contends that in view of the indefiniteness in the accurate identification of the last red light in question as the point of acceleration of the train as shown on the tape, and the difficulty of making accurate measurements because of the small scale of ½ inch on the tape to the mile, the court properly excluded the tape and allied testimony. We do not agree. Appellee, by producing and using the speed tape, as done, vouched for its accuracy and laid the foundation and predicate for its admission in evidence. Since there is no evidence in the record attacking the accuracy of the tape and speed recorder, it was error to exclude the tape, or in any event the pertinent part thereof showing the speed and distance from Sugarland to the point of deceleration, which part appellants last offered in evidence. Appel-lee’s other objections go to the weight of the evidence and the credibility of the witnesses and not to the accuracy and admissibility of the speed recorder and tape.

Judgment reversed and cause remanded.


source: Caselaw Access Project

author: TIREY, Justice.

license: Public Domain

text:
    Jack B. BAUCOM, Appellant, v. HY-LAY HATCHERIES, INC., Appellee.
    No. 4015.
    Court of Civil Appeals of Texas. Waco.
    March 22, 1962.
    Wm. B. Moss, Sinton, for appellant.
    E. B. Laughlin, Houston, for appellee.
   TIREY, Justice.

Defendant Baucom has perfected his appeal from an order overruling his plea of Res Judicata. The cause was tried without the aid of a jury and upon request the Court has filed Findings of Fact and Conclusions of Law. There is no Statement of Facts. We quote the pertinent parts of the Findings of Fact and Conclusions of Law:

“FINDINGS OF FACT

“1. On June 2, 1961 Plaintiff filed suit in Harris County, Texas, styled as above and being cause No. 572,604 in the 157th District Court of Harris County, Texas.

“2. That said suit was brought on two Promissory Notes, both payable in Bryan, Brazos County, Texas. The first of said notes bears date of February 25, 1960, payable to Plaintiff in Bryan, Brazos County, Texas, in the principal sum of $700.00 together with interest thereon at the rate of 6% per annum from February 25, 1960, and due October 1, 1960. The second Promissory Note bears date of May R?. i960 and is payable to Plaintiff in Bryan, Brazos County, Texas, in the principal sum of $405.00, and is due July 1, 1960. Both of the notes were alleged to have been executed by Defendant.

“3. Citation was served in the above suit on Defendant on June 16, 1961, and Defendant duly and timely filed his Plea of Privilege on June 24, 1961 alleging at the time of service of process therein, and at the time of filing his plea, that he was a resident of San Patricio County Texas and further set out in said plea his address and that of his attorney.

“4. On July 3, 1961 Plaintiff had a voluntary dismissal entered in said cause in the 157th District Court of Harris County, Texas, without having filed a controverting plea.

“5. That Plaintiff’s voluntary dismissal was entered on July 3, 1961, which date was prior to the expiration date for filing a controverting plea as provided in Rule 86, Texas Rules of Civil Procedure

“6. On June 28, 1961 Plaintiff filed suit against Defendant in the 85th Judicial District Court of Brazos County, Texas on the same two promissory notes, but alleging that said notes were payable in Bryan, Brazos County, Texas.

“7. That citation was duly issued by the Clerk of the 85th Judicial District Court of Brazos County, Texas, and it was served on Defendant July 5, 1961.

“8. On July 27, 1961 Defendant filed in the 85th Judicial District Court of Brazos County, Texas his Plea of Res Judicata, and said plea was, by agreement of Plaintiff and Defendant, submitted to the Court on written briefs.”

“CONCLUSIONS OF LAW

“1. Plaintiff’s voluntary dismissal or non-suit entered on July 3, 1961 was entered prior to the expiration date of the time allowed for controverting Defendant’s Plea of Privilege.

“2. The dismissal order entered by the 157th District Court of Harris County, Texas was not rendered on the merits of the venue question and no trial of such issue could have been had on July 3, 1961.

“3. Since the time for filing a controverting plea had not expired on July 3, 1961, an adjudication of the venue question was not made, nor was such adjudication ripe for judgment at that time.

“4. Issue on the venue question was never joined in the 157th District Court of Harris County, Texas, as Plaintiff’s voluntary dismissal was entered by the Court within the time allowed for controverting Defendant’s Plea of Privilege.

“5. The dismissal order entered by the 157th District Court of Harris County, Texas was not a definite judgment of condemnation or dismissal as there was no adjudication of the merits or issues involved in a Plea of Privilege.

“6. The dismissal order was not rendered on the merits or issues involved in the Plea of Privilege as there were no venue issues joined and does not operate as Res Judicata on the question of venue.”

We quote the pertinent parts of the Court’s additional Findings of Fact:

“1. Citation was had on said Jack B. Baucom in the Harris County suit on June 16, 1961, and service perfected in San Pa-tricio County, Texas.

“2. On or about the 24th day of June, 1961, the defendant, Jack B. Baucom, duly and timely filed his plea of privilege to the suit in Harris County, brought by the Hy-Lay Hatcheries, Inc.

“3. The dismissal of the Harris County suit was approved by Ross, Banks and May, Attorneys for Plaintiff, by E. B. Laughlin, 2711 Main Street, Houston, Texas, and said order of dismissal appears of record in the office of the District Clerk of Harris County, Texas, in Vol. 171, page 592, of the Minutes of the 157th District Court of Harris County, Texas; and no controverting plea had been filed in said cause.

“4. The Plaintiff appeared in open court and dismissed the Harris County cause from the docket and said cause was thereupon dismissed by Judge Phil Peden, Judge of the 157th District Court of Harris County, Texas, on the 3rd day of July, 1961.

“5. Citation was duly had on Jack B. Baucom in said Cause No. 16,094, pending in the 85th District Court of Brazos County, Texas, and styled Hy-Lay Hatcheries, Inc., v. Jack B. Baucom, on the 5th day of July, 1961, in San Patricio County, Texas.

“6. Thereafter on the 27th day of July, 1961, the defendant, Jack B. Baucom, duly and timely filed in said Cause No. 16,094, styled Hy-Lay Hatcheries, Inc., v. Jack B. Baucom, pending in the 85th District Court of Brazos County, Texas, his plea of Res Judicata; that, by letters addressed to Judge John M. Barron, from the plaintiff and defendant, it was agreed that said Plea of Res Judicata should be and was submitted to the court on written briefs.”

Appellant has assailed the judgment of the Trial Court substantially on the ground that when plaintiff filed his suit in the District Court of Harris County, and defendant seasonably filed his Plea of Privilege, that the issue of venue was joined, and that since the plaintiff voluntarily dismissed his suit, that it was an admission that the Plea was good and had the effect of fixing the venue of any subsequent suit between the parties involving the same subject matter in the County where the Plea of Privilege alleged it rightfully to be. We think the Findings of Fact of the Trial Court bring this cause squarely within the Rule announced by our Supreme Court in Royal Petroleum Corporation v. McCallum, 134 Tex. 543, 135 S.W.2d 958. Our Supreme Court reannounced and approved the foregoing doctrine in Tempelmeyer v. Blackburn, 141 Tex. 600, 175 S.W.2d 222. In that opinion we find this statement of the Rule:

“A statutory plea of privilege is more than a pleading. It is prima facie proof of the defendant’s right to have the venue changed from the county in which the suit was filed to the county named in the plea. Art. 2007, Vernon’s Texas Statutes, Rule 86, Texas Rules of Civil Procedure. When the appellants took a nonsuit as against appellee they thereby abandoned their contest of his plea of privilege and made the admission in court that it was well taken. That was an admission not only that venue was improperly laid in Dallas county, but that the appellee had the right to have the venue changed to Victoria county.”

It is our view that under the foregoing decisions of the Supreme Court that when the plaintiffs voluntarily dismissed their suit after defendant had filed his Plea of Privilege, that the effect of this dismissal was to admit that the defendant’s plea of privilege was good and it was the duty of that Court to transfer the cause to the county of defendant’s residence. Being of this view, it was the duty of the Trial Court of Brazos County to sustain defendant’s plea of Res Judicata, and transfer this cause to the District Court of San Patricio County, Texas. See also Slack v. The Allen Military Academy, Tex.Civ.App., 289 S.W.2d 783, writ dis.; Picadilly Cafeteria of Waco v. Lee, Tex.Civ.App., 301 S.W.2d 228, n. w. h.; Waxahachie Bank & Trust Company v. Price, Tex.Civ.App., 308 S.W.2d 158, n. w. h.; Gathright v. Riggs, Tex.Civ.App., 344 S.W.2d 757, n. w. h.

Accordingly, the judgment of the Trial Court is reversed and rendered, and all costs to date are taxed against appellee.


author: McDONALD, Chief Justice.

text:
    CITY OF HOUSTON, Appellant, v. Mrs. Neva U. GLOVER, Appellee.
    No. 3780.
    Court of Civil Appeals of Texas. Waco.
    Feb. 22, 1962.
    Reformed and Affirmed March 1, 1962.
    Rehearing Denied March 22, 1962.

      R. H. Burks, City Atty., Edgar Pfeil, Sr., Asst. City Atty., Houston, for appellant.
    Cire & Jamail, Houston, for appellee.
   McDONALD, Chief Justice.

This is a damage suit by the widow of Max E. Glover, against the City of Houston, for the death of her husband, 11 days after he drove his car into a tree on an esplanade (;or tree island) located in the-middle of Sunset Boulevard in Houston, on. 15 April 1957.

A schematic diagram of the esplanade or tree island is believed to be helpful.

Trial was to a jury which, m answer to issues submitted, found:

1) The City of Houston was negligent in failing to remove the tree prior to 15 April 1957.

2) Such negligence was a proximate cause of the collision.

3) The City of Houston failed to provide such warning devices around the trees as would have been provided by a reasonably prudent person in the exercise of ordinary care under the circumstances.

4) Such failure was a proximate cause of the collision.

5) The trees constituted a condition inherently dangerous to persons traveling Sunset Boulevard.

6) Such condition was a proximate cause of the collision.

7) Prior to this collision the City of Houston had notice of such condition.

8) The accident was not the result of an unavoidable accident.

8A) Max E. Glover was not driving his car at an excessive rate of speed.

9) Max E. Glover did not fail to maintain proper control over his car.

11) Max E. Glover did not fail to keep a proper lookout.

13) Max E. Glover was not under the-influence of intoxicating beverages.

15) $50,000. will fairly compensate the-plaintiff widow for her damages by reason of the death of Max E. Glover.

16) $26,000. will fairly compensate the Estate of Max E. Glover for physical pain, suffering and mental anguish sustained by deceased prior to his death.

17) $4000. will fairly compensate the plaintiff for medical and funeral bills, necessarily incurred by Max E. Glover.

The Trial Court entered judgment for plaintiff on the verdict, for $80,000. Defendant City appeals on 78 points, contending:

1) The failure on the part of the City of Houston to remove the trees prior to the collision is the exercise of a governmental function, in the performance of which the City is not liable for negligence.

2) There is no evidence, or insufficient evidence, to support the jury’s findings to issues 1, 2, 3, 4, 5, 6 and 7.

3) Plaintiff’s husband, Max E. Glover, was guilty of contributory negligence as a matter of law.

4) Plaintiff did not comply with the City of Houston’s charter in making claim for the “pain and suffering” of Max E. Glover (Issue 16); plead same for the first time in an amended pleading filed more than 2 years after the accrual of same; and presented no evidence in support of same.

5) The Trial Court erred in admitting the testimony of Mayor Lewis Cutrer; and City Toxicologist Bob Crawford.

6) Plantiff’s counsel made improper argument to the jury.

7) The award of the jury in issues IS, 16 and 17 is not supported by the evidence; and/or is excessive.

Defendant’s 1st contention is that the failure on the part of the City to remove the trees prior to the collision, is the exercise of a governmental function, in the performance of which the City is not liable for negligence. Cities in the building, maintenance and operation of streets are engaged in a proprietary function and are not performing a governmental function so as to enjoy the same exemption from liability as is accorded to States and Counties in the building and maintenance of public roads. Cities are therefore liable for negligence in the maintenance of their streets, a proprietary function. Lebohm v. City of Galveston, 154 Tex. 192, 275 S.W.2d 951; City of Abilene v. Fillmon, CCA, n. r. e., 342 S.W.2d 227.

Defendant’s 2nd contention is that there is no evidence, or insufficient evidence, to support the jury’s answers to issues 1 through 7. Such issues found that the City was negligent in failing to remove the trees prior to the collision; negligent in failing to provide proper warning devices around the trees; that the trees constituted an inherently dangerous condition to persons travelling the street; that the City had notice of such condition; that the negligence and the dangerous condition were all proximate causes of the accident.

The record reflects that at about 8:15 P. M. on 15 April 1957, Max E. Glover struck a tree on a tree island located in the middle of Sunset Boulevard. It had been raining. Eleven days later Glover died of massive chest injuries received in the accident. The tree and the tree island are in the middle of the street and had been there for 40 years. Cars travelling west have to make a sharp turn of about 45 degrees in order to avoid hitting the tree. There were many other trees in the area; they formed a continuous row on each side of the street. The witness Maier, the City’s Director of Traffic, a qualified engineer whose experience was primarily with traffic design and related to traffic safety, testified that the tree shouldn’t be there; it served no purpose and does not comport with current traffic design; the tree with no lights on it would be less discernible, and as much of an obstruction as an automobile parked in the middle of the street with no lights; the tree blended in with the rest of the landscape at night; serious accidents in the past had occurred involving the trees; the only warning device was a “Keep Right” sign very close to the tree itself and 3 reflector buttons on the tree; this had been the sole warning device for at least 10 years; the sign was knocked down frequently and he had personally reported the condition on several occasions; in 1952 he made a strong recommendation that the trees be removed; the City could not and did not have regular inspections to insure the warning signs were in proper repair; those in authority and possessed with power to remedy the situation had knowledge of the serious accidents which had occurred because of the presence of the trees. Mayor Cutrer of the City of Houston testified that he had knowledge of the dangerous condition and had stated publicly the trees constituted a traffic hazard. There is evidence to the effect that the “Keep Right” sign was lying on the grass after the accident and that the tree Glover struck had no reflectors on it. The police officer witness for the City estimated Glover’s speed at 25 to 30 miles per hour. The witness Dr. Greer (a medical doctor) was seriously injured in 1956 when he, driving carefully with his lights on and going slow, struck the “tree island.” Dr. Greer described the scene as an “optical illusion.” There was evidence of other accidents caused by cars running into this tree island. We think the evidence sufficient and ample to support the jury’s answers to issues 1 through 7.

Contention 3 is that plaintiff’s husband was guilty of contributory negligence as a matter of law. The jury found that he was not intoxicated; that he was not driving at an excessive rate of speed; that he did not fail to keep a proper lookout or fail to maintain proper control over his car. As noted, the City’s police officer who investigated the accident testified that Glover was driving 25 to 30 miles per hour. The City’s toxicologist who tested a sample of deceased’s blood, testified that his blood did not contain alcohol sufficient to constitute intoxication. Contributory negligence is ordinarily a question for the jury. The jury acquitted Glover. In any event, the record before us does not sustain the contention that Glover was guilty of contributory negligence as a matter of law.

In contention 4, the City says that the claim filed with the City (as a predicate to suit) did not claim “pain and suffering”; and that such was not plead until more than 2 years following the accident, in an amended petition. Plaintiff filed a claim with the City, stating that deceased was driving his automobile on 15 April 1957 and crashed into the tree; that he received serious injuries which resulted in his death on 26 April 1957. We think the notice filed was sufficient to apprise the City of this element of damages. See City of Dallas v. Moore, 32 Tex.Civ.App. 230, (n. w. h.) 74 S.W. 95; City of Port Arthur v. Wallace, CCA, 167 S.W.2d 549, aff’d. 141 Tex. 201, 171 S.W.2d 480.

The amended pleading filed by plaintiff relates back to the filing of the original petition. Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063. In the substitution of a plaintiff suing in a representative capacity for plaintiff suing as individual, the claim remains the same and the filing of the original petition tolls the Statute of Limitation. 2 McDonald Civil Practice p. 753. The record reflects that Glover was conscious for 11 days; that his windpipe was split open; and that he suffered pain. The evidence is ample to support the finding.

Contention 5 is that the Trial Court erred in admitting the testimony of Mayor Cutrer and City Toxicologist Crawford, as adverse witnesses. The witness Cutrer was Mayor of the City of Houston and the witness Crawford was Chemist and Toxicologist for the City of Houston. The suit is against the City of Houston. The Trial Court had the right to treat both witnesses as adverse witnesses. See Rule 182, Texas Rules of Civil Procedure; City of Waco v. Criswell, CCA (n. w. h.) 141 S.W.2d 1046.

Contention 6 complains that plaintiff’s counsel made improper argument to the jury. Without detailing the argument, we have carefully reviewed same and find no merit in the contention. See Lantex Const. Co. v. Lejsal, CCA, n. r. e., 315 S.W.2d 177.

Defendant’s final contention is that the award of the jury in issues 15, 16 and 17 is not supported by the evidence and/or is excessive. The jury awarded plaintiff $50,000 for her damages for loss of support, contribution etc. The record reflects deceased was making some $5600 per year, and had a life expectancy of 15.13 years. He contributed at least $3600 per year to plaintiff plus doing yard work, painting the house, and repair work about the home.

The testimony on the medical and funeral bills affirmatively adds up to $4300. (after excluding nurses’ and anesthesiologists’ bills because reasonableness was not proved.) The jury awarded $26,000. for the physical pain and suffering and mental anguish of the deceased during the 11 days he lay conscious in the hospital, before his death.

From the record as a whole, we think that the $26,000. awarded for the physical pain and suffering and mental anguish of the deceased is excessive in the amount of $15,-000., and that this cause should be reversed for this reason only. However, plaintiff is given 10 days from this date to file remit-titur of $15,000. Rule 440 T.R.C.P. If such remittitur is filed within the time provided, the judgment of the Trial Court will be reformed and affirmed.

All of defendant’s points and contentions (other than above) have been considered and are overruled.

Reversed and remanded.

AFTER REMITTITUR

Plaintiff having filed remittitur in the amount of $15,000 as suggested by this court, the judgment entered is set aside, and judgment here entered reforming the judgment of the Trial Court in conformity with said remittitur, and as reformed the judgment of the Trial Court is affirmed.

Costs of appeal to date of remittitur are assessed one-half against plaintiff and one-half against defendant.

Reformed and affirmed.


author: McNEILL, Justice.

text:
    L. L. WILLIAMS et al., Appellants, v. KIRBY LUMBER CORPORATION, Appellee.
    No. 6515.
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 1, 1962.
    Rehearing Denied March 7, 1962.

      James F. Parker, Beaumont, Andrews, Kurth, Campbell & Jones, Houston, for appellants.
    Fountain, Cox & Gaines, Williams, Lee & Lee, Houston, for appellee.
   McNEILL, Justice.

This is an action of trespass to try title instituted by Kirby Lumber Corporation, appellee, herein called plaintiff, against L. L. Williams and Alamo Lumber Company, appellants, herein called defendants, whereby Kirby sued for the title to and possession of substantially 500 acres of land in the R. A. Irion League in Polk, Liberty and Hardin Counties and out of a tract of 2214 acres of said league set aside to A. P. Waterfield by partition deed dated December 2, 1878. The 500 acres sued for was described, insofar as necessary to understand the questions involved, in four more or less similar alternative ways as a segregated tract the south and east lines of which lie in the south and east lines of the league. A boundary dispute was also alleged which will be later set forth herein.

Defendants pleaded the general denial, plea of not guilty and as to plaintiff Kirby’s claim of title especially urged the provisions of the Statute of Frauds, Art. 3995 of this state, as a defense against any asserted validity on the part of Kirby Lumber Corporation as to instruments under which it deraigned title.

The case was tried before the court without a jury and at the conclusion of the trial, judgment was rendered sustaining plaintiff’s claim of title. Findings of fact were filed by the trial court.

It was stipulated that on June 9, 1877 A. P. Waterfield owned an undivided one-half interest in the R. A. Irion League; and that by partition deed dated December 2, 1878 a specific 2,214 acre tract in said league was set aside to him.

Thereafter Waterfield executed three deeds: (1) to B. G. Ezell, Trustee, dated September 27, 1880 and conveyed:

“1,000 acres in quality and value out of my 2,214 acre tract, which said 2,-214 acres is bounded as follows * * ”;

(2) to W. J. Cannon dated January 4, 1881, the granting clause of which reads :

“For and in consideration of the sum of $500.00 in hand paid, receipt whereof is hereby acknowledged, I A. P. Waterfield, of the County of Oliran and State of Tennessee, have this day bargained, sold and conveyed to W. J. Cannon of the County of Carroll, and the state aforesaid, 500 acres of land, it being a part of the headright league ■of land granted to R. A. Irion, situated in the County of Liberty, Polk and Hardin, about 32 miles north of the "Town of Liberty, 20 miles S. E. from the Town of Livingston, and about •30 miles N. W. from the Town of Hardin, in the State of Texas, and it being a part of 2,214 acres of said league which was conveyed by deed of partition to the said A. P. Waterfield, which 2,214 acres is bounded as follows, viz: * * *”;

(3) to Thomas B. Tharpe dated March 2, 1882, which reads:

“ * * * do hereby Transfer and Convey to Thomas B. Tharpe, of Cottage Grove, State of Tennessee, and ■County of Henry:
“714 acres of land, more or less, it being an undivided interest in the A. P. Waterfield Survey of 2,214 acres, which is a part of the headright league ■of land granted to R. A. Irion, situated in the County of Hardin, and Polk •and Liberty, State of Texas, about 32 miles N. of the town of Liberty, and about 20 miles S. E. from the town of Livingston, and about 30 miles N. W. from the town of Hardin; * ⅜ *

The owners of the 1,000 acre interest mentioned in (1) above are not involved in the suit, but the excerpt from the deed is quoted for the purpose of giving a clearer picture of what took place. It may be added that the owners of the 1000 acres, without complaint from others, in 1887 located their land off the west end of the Waterfield tract.

Plaintiff claims title under the second above quoted deed, the one from Waterfield to Cannon. When it was offered in evidence defendants objected for the reason that it was void, and as being violative of Art. 3995. It was asserted that since the deed did not describe any tract of 500 acres to be taken out of the tract of 2,214 acres set aside to Waterfield by the partition deed that it was of no effect. This contention is defendants’ second point. The point is without merit. As a sound premise for the solution of the question, the following language of Gaines, C. J., in Curdy v. Stafford, 88 Tex. 120, 30 S.W. 551, and 552 is appropriate:

“The language of a deed is the language of the grantor, and, if there [by any] doubt as to its construction, it should be resolved against him. Again, if an instrument admit of two constructions, one of which would make it valid, and the other of which would make it void, the former must prevail.”

There was no attempt in the deed to describe any 500 acres segregated area. This being so, the deed to the grantee for which he paid valuable consideration must fall unless it may be reasonably held that the grant- or intended to convey an undivided interest of 500 acres in the tract of 2,214 acres. He must have intended to convey some land, amounting to 500 acres in the one-half league. We think it, therefore, reasonable to conclude and we do conclude that by this deed he conveyed an undivided 500 acre interest in the 2,214 acres. The rule applicable is well stated in Dohoney v. Womack, 1 Tex.Civ.App. 354, 20 S.W. 950:

“ * * * When a deed conveys a certain number of acres, without describing the land conveyed, to be taken out of a larger tract described, the grantee becomes, by his deed, a tenant in common, having a fractional interest, represented by a fraction whose denominator is a number equal to the number of acres in the larger tract described, and whose numerator is a number equal to the number of acres conveyed. The grantee acquires such fractional interest in every acre of the larger tract.”

This is still the law. Turner v. Hunt, 131 Tex. 492, 116 S.W.2d 688, 690, 117 A.L.R. 1066, 1070; House v. Humble Oil & Ref. Co., Tex.Civ.App., 97 S.W.2d 314, (W.R.).

The construction placed upon the above deed is further supported by following the 3rd deed quoted from above, the one from Waterfield to Tharpe conveying 714 acres of land, more or less, it being an tmdivided interest in the tract of 2,214 acres. This was the 3rd and last deed made by Water-field, the first, it will be recalled, was for 1,000 acres, the second 500 acres, and the third 714 acres. The Tharpe deed having been made 13 months after the Cannon deed and calling for an “undivided interest” clearly indicates that Waterfield, in conveying the 1,000 acres and the 500 acres, intended each to be undivided interests. House v. Humble Oil & Ref. Co., supra, at p. 317; Heirs of Barrow v. Champion Paper & Fibre Co., Tex.Civ.App., 327 S.W.2d 338, 343.

The next link in plaintiff’s chain of title was a conveyance from W. J. Cannon to F. H. Kaupp and John J. Laumer dated June 8, 1903, wherein the land conveyed was described as follows:

“All that certain Five Hundred (500) acres of land, it being a part of the Headright League of land granted to R. A. Irion, situated in the Counties of Liberty, Polk and Hardin, about thirty-two (32) miles north of the town of Liberty, twenty (20) miles southeast of the town of Livingston, and about thirty (30) miles northwest of the town of Hardin in the State of Texas and it being a part of two thousand two hundred and fourteen (2214) acres of said league which was conveyed by Deed of Partition to the said A. P. Waterfield which two thousand two hundred and fourteen (2214) acres are bounded as follows, to-wit: * * * ”

Defendants’ third point carries forward their objection to the offer of this deed upon the same ground that was made to the deed from Waterfield to Cannon. An examination of this deed indicates that it is substantially in the same language as the first deed, except the description starts with the phrase “all that certain” 500 acres of land. Defendants cite Smith v. Sorelle, 126 Tex. 353, 87 S.W.2d 703, for the proposition that by the use of the phrase "all that certain” in referring to the 500 acres in the deed to Kaupp and Laumer, the intent of the grantor was to describe a specific separated tract, and since it did not, the deed is void. But coupled with this, attention should be called to the use of the words in the Sorelle case, “an undivided one-fourth interest” in minerals preceding the language “all that certain” — and the express use of such a phrase at one place without using a like one again would indicate that an undivided interest of 100 acres in the lots was not intended. This failure of the deed in that case to repeat the use of an undivided interest phrase in connection with and modifying the 100 acres mentioned is important. Too, in the Sorelle case the land was described as “a certain tract.” This phrase could well import a segregated area. But we cannot believe that the mere use of the phrase “all that certain” in connection with acreage called for in the Cannon — Kaupp and Laumer deed means a segregated, isolated tract out of a larger tract more than that it means just what the phrase says “all that certain 500 acres of land.” To what certain 500 acres was the grantor referring? To the 500 acre interest he owned in the 2,214 acre tract. The presumption is indulged, since it does no violence to the language of the deed, that Cannon intended to convey to them the land to which he had title. Jasper State Bank v. Goodrich, supra; Remuda Oil Co. v. Wilson, Tex.Civ.App., 264 S.W.2d 192; Massie v. Hutcheson, Tex. Civ.App., 296 S.W. 939(14). To revert to our premise quoted above, since the phrase “all that certain 500 acres of land” in the deed from Cannon to Kaupp and Laumer could as well be construed as “all that certain 500 acre interest” as that a specific, separate 500 acre tract was meant, we hold the deed valid as conveying the same interest that the deed into Cannon conveyed.

The 4th point assails the deed dated March 2, 1882 from A. P. Waterfield to Thomas B. Tharpe quoted from in the first part of this opinion, which is the foundation of the Mannie Cooley McMan-non title. (See 2nd par. below). The defendant Williams argues that this deed is void and of no effect, and that he only claims through the Waterfield heirs. Whether the deed is void is a close question. But we have decided to uphold it. Though it uses the expression 714 acres of land “more or less” and the quoted phrase is not definite, the deed undoubtedly undertook to convey an undivided interest in the 2,214 acres. After the description above quoted from in this deed is the language of the grantor: “I do covenant with the said Thomas B. Tharpe that I am lawfully seized of said land have a good right to convey it and the same is unencumbered.” This language is clearly the language of ownership to which we may turn for help in identifying the land conveyed. Curdy v. Stafford, 88 Tex. 120, 30 S.W. 551; Heirs of Barrow v. Champion Paper & Fibre Co., Tex.Civ.App., 327 S.W.2d 338. It must also be borne in mind that the language of the deed is that of the grantor and must be given that construction most favorable to the grantee. The use of the clause just quoted, “I am lawfully seized of said land have a good right to convey it” would include grantor’s entire balance in said 2,214 acre tract. It follows that this construction should be placed upon it. Deeds 19 Tex.Jur. 2d Sec. 110, pp. 398, 399, Sec. 155, p. 473. A liberal construction in favor of the grantee should be given the description in a deed and a reasonable certainty is all that the law requires. Gates v. Asher, 154 Tex. 538, 280 S.W.2d 247. After the date of this deed, the State Comptroller’s records show Waterfield stopped paying taxes on any land in the R. A. Irion League, and none was thereafter assessed to him, although he lived until 1928. This factor may be considered on the question before us. Heirs of Barrow v. Champion Paper & Fibre Co., Tex.Civ.App., 327 S.W.2d 338, 343. There had been 1500 acres previously conveyed, and applying the above rules of construction, it is apparent that this is a residue deed and was intended to cover the balance of the undivided acreage owned by the grantor in the J4 league.

However, should we be mistaken in holding that either the deed from Cannon to Kaupp and Laumer or the deed from Wa-terfield to Tharpe is valid, yet because the defendants claim under and through the partition deed next to be mentioned, they cannot deny the Kaupp-Laumer nor Tharpe title.

The next conveyance in the chain of title relied upon by plaintiff was a partition deed between F. H. Kaupp and John J. Laumer, of one part, and Mrs. Mannie Cooley Mc-Mannon of the other part. As stated above, Mrs. McMannon held under the third conveyance (to Tharpe) made by Water-field. The partition deed recites:

“ * * * whereas F. H. Kaupp and John J. Laumer parties of the first part * * * and Mrs. Mannie Cooley McMannon, party of the second part * * * are the owners of undivided interests in a tract of 1214 acres of land, being a part of the R. A. Irion League * * *. Now, therefore, parties of the first part are the owners in fee simple, of an undivided 500 acres and party of the second part is the owner in fee simple of an undivided 714 acres of the hereinabove described tract of 1214 acres of land and both parties are desirous of having partition of said land so that each can own their respective parts in severalty free from the claims of each other * *

The instrument describes and sets aside a 500 acre tract off the East portion of the Waterfield subdivision to Kaupp and Laumer and a 714 acre tract to Mrs. McMannon immediately West of and adjoining the Kaupp and Laumer tract.

Subsequently, Mrs. McMannon conveyed her tract, as set aside to her in said partition deed, to I. L. Ream by deed dated June 28, 1910. Her tract of land is described therein as “beginning at the S.W. corner of a tract of land sold to Kaupp and Laumer ⅝ ⅜ ⅜»

Thereafter, by mesne conveyances, consisting of some nine (9) more deeds, this tract is conveyed into Alamo Lumber Company under whom defendant L. L. Williams holds. Each of the deeds down into Alamo Lumber Company contain substantially the .same reference to the southwest corner of the Kaupp and Laumer tract as that quoted from above from Mrs. McMannon’s deed.

Defendants say that since this partition deed was made between Kaupp and Laumer of the one part and Mrs. McMan-non of the other, and since one or both had no title that the partition deed itself was void and can be of no effect. But this partition deed and each of the succeeding deeds were placed of record and possession was taken by the various grantees, and ■everyone, until lately, had dealt with the ■property concerned in accordance with such recitations and recognition of such title. Doty v. Barnard, 92 Tex. 104, 47 S.W. 712. The partition deed also reciting that each party was the owner of an interest in the land involved, those holding under them, including defendants, are bound thereby, although this link in the chain of title was not a necessary link. Waco Bridge Co. v. City of Waco, 85 Tex. 320, 20 S.W. 137, 140. It should be added that the defendant Alamo Lumber Company’s title which arose in 1932, depends entirely upon the partition .agreement.

In order to understand defendant L. L. "Williams’ position, who came into this title subsequently to his co-defendant, it is necessary to state that one C. I. Withers obtained a deed from the Alamo Lumber Company to the property in 1945, the lumber company reserving a mineral interest. Withers thereby came into the chain under the 1904 partition. Then Withers and another in 1958 conveyed to the defendant Williams, thereby placing him into the chain of title under the 1904 partition.

By deeds dated June 1, 1959, defendant 'Williams purchased from the heirs of A. P. Waterfield all of their right, title- and interest in the R. A. Irion League. It is at this point that Williams seeks to cut himself loose from the fact that he holds under the deed from Waterfield to Tharpe dated March 27, 1882, and the chain from there down to Mrs. Mannie Cooley McMannon, her partition agreement, the subsequent deeds down into Alamo and the recitations therein. He argues that some of these instruments are void and of no effect, and that he only claims through the Waterfield heirs. Even so, he is willing to accede to the fact that Adams v. Duncan, 147 Tex. 322, 215 S.W.2d 599 and Greene v. White, 137 Tex. 361, 153 S.W.2d 575, 136 A.L.R. 626, are applicable and require him to recognize that Alamo Lumber Company is entitled to the mineral interest reserved in its deed to Withers. Thus, being required, he is in the position of one who, accepting a benefit under an instrument, must adopt the whole of it, conform with all its provisions and renounce every right inconsistent therewith. On this it is said in Doty v. Barnard, 92 Tex. 104. 47 S.W. 712 at p. 713:

“ * * * The principle is recognized and established in this country almost precisely the same as in England, and rests upon the equitable ground that no man can be permitted to claim inconsistent rights with regard to the same subject, and that any one who claims an interest under an instrument is bound to give full effect to that instrument as far as he can. A person cannot accept and reject the same instrument, or, having availed himself of it as to part, defeat its provisions in any other part; and this applies to deeds, wills, and all other instruments whatsoever.”

Boundary Questions

In order to better understand these problems we insert here a map being plaintiff’s Exhibit 35, which fairly represents the boundary problems involved. The four corners of the R. A. Irion League are represented by the letters, J, K, L, and F. On

December 2, 1878 the ownership of this league was as follows:

A. P. Waterfield, an undivided ½ interest,

W. H. & C. M. Williams, an undivided 1/5 interest,

The Heirs of Smith Fields, an undivided 515 acre tract,

W. H. Fields, an undivided 150 acre interest,

P. J. Irion, an undivided 665 acre interest.

On that date these persons executed a partition deed setting aside to the various parties the parts of the league which bears their names. It will be seen that W. H. and C. M. Williams took a tract in the Northeast section, W. H. Fields in the Northwest section, The Heirs of Smith Fields immediately south of the W. H. Fields and on the West side of the league, P. J. Irion’s tract is the Southwest corner and A. P. Water-field the balance. The first boundary question is which of the three lines, 1-2, 3-4, or 3-5 on this map is the dividing line between the Waterfield tract on. the South and the Smith Fields and the W. H. and C. M. Williams tracts to the North, Plaintiff alleged that line 1-2 was the dividing line, or alternatively line 3-4 or alternatively line 3-5. If line 1-2 is the boundary, it contends that its 500 acres is the area enclosed by the symbols, C, D, F, 2. Otherwise, its North line is the line 3^k

Defendants Alamo Lumber Company and L. L. Williams also pleaded that line 1-2 is the boundary. Defendant Williams claims not only the 500 acres claimed by plaintiff but also the tract of 714 acres lying between the letters, A, B, C, D. Defendant Alamo Lumber owns a mineral interest under the tract of 714 acres. There are numerous other parties defendant in this part of the litigation, and their pleadings allege generally that line 3-5 is the. boundary and if not, then line 3-4 is the boundary. No evidence supports line 3-5 and it will not be further noticed. The trial court found and established the boundary as that marked by line 3-4, and all the parties, including plaintiff, except defendants Alamo Lumber Company and L. L. Williams, assert in this court that the line established by the trial court is the correct boundary.

The trial court’s action in establishing this boundary is upheld. The original calls for the R. A. Irion league were 7,500 varas North and South and 3,333 varas East and West. It was shown without dispute that the four corners and lines of this league had for many years been the subject of uncertainty and confusion, and that this confusion and uncertainty existed until the boundaries of the league were fixed in judgment entered in Cause No. 6639, C. I. Withers, et al vs. Shell Oil Co., et al, dated April 17, 1959, recorded in Vol. 180, p. 634, Polk County Deed Records. And this judgment established an excess of 182 acres in the league, making the North and South lines 3,339.92 and 3,355.4 varas respectively. The East and West lines 7,785.3 and 7,768.69 varas respectively. The bearing trees and other description of the corners between the Williams and Smith Fields tracts on the North and the Waterfield tract on the South called for in the 1878 partition deed had long since disappeared. Three surveyors testified, John Hunter for plaintiff and Matt Racki and Norman Coats for defendants Alamo Lumber and Williams. John Hunter’s testimony was, in substance, that he found the original corners called for in the partition deed marking the Northwest and Northeast corners of the Heirs ,of Smith Fields tract which would be the 'Southwest and Southeast corners, respectively, of the W. H. Fields tract. He made plaintiff’s Exhibit No. 35 and testified that 'the distances called for in the partition deed between the several corners on the map ¡were in parentheses, and the actual distances were the adjacent figures. He testified also that he found the original Northwest and Northeast corners of the P. J. Irion tract as well as its Southeast corner. Hunter testified that the line 3-4 is at the correct distance called for in the partition deed (2,033 vrs.) South of the two identified North corners of the Smith Fields tract; it is practically the correct distance (4,877 vrs.) from the South corners of the P. J. Irion tract and is within 30 varas of the correct distances (1,656 vrs.) from the Northwest and Northeast corners of the P. J. Irion tract. Hunter further testified that he had found markings on line trees along line 3-4 for a distance of 1,600 varas going Westwardly and that he took a cut of rings on that line, and counting the rings, they counted back to 1878. He stated that timber had been cut to the West of the 1,600 varas distance and no markings were found there.

Mr. Racki stated defendant Williams instructed him to make a plat of the Northeast portion of the league, the W. H. and C. M. Williams tract; to go on the ground around it and see what he could find on the ground. This was the tract he was particularly interested in. This was for the purpose of determining the South boundary line of the 885 acre tract and the North line of the Waterfield tract. “I was to prepare a plat showing what was on the ground and what was being used as the lines.” He started at the Northeast corner of the league and went to the Northwest corner of W. H. and C. M. Williams tract. He then went South along Williams tract to a yellow painted line and turned East and went to the East line of the league at a point on a gas mound. He then went North to place of beginning. He then went back and entered the South line of the Williams tract to a point on the West line of the league marked by an axle. He found a barbed wire fence on this line but it was down in places. He stated Mr. Williams instructed him to recognize this line (which defendant C. H. Jones, who presently owns the two Fields tracts, testified was his South line) and from the evidence on ground it appears to be a recognized line. He computed the acreage in the 885 acre tract and it contained 916 acres. He also ran out the line G-H which is the line G-F on his map, and .ran the South part of the league’s East line South of Williams tract and went West to the Southeast corner of P. J. Irion on South line of the league. From a point in the South line of the league 762.3 varas East of said Irion corner he went North 4,825.4 varas, and near this point found a corner. From this point he went 1,947.4 varas West to the West line of the league. He found a 1" iron pipe near this place just East of a road. Thence he turned North 275 varas to reach the axle location. .From these measurements he stated he was satisfied that, acreage-wise, the line East from the axle corner (practically line 1-2 on plaintiff’s Exhibit 35) was the South line of the W. H. and C. M. Williams 885 acre tract.

Mr. Racki testified his clients did not tell him to look for witness trees between the W. H. Fields and Smith Fields tracts, nor did he make any special effort to locate them; nor did his clients ask him to make any effort to survey these tracts out. He further stated that he was not asked to survey the West line of the P. J. Irion tract, nor the West line of the Waterfield tract, but only to extend the South line of the league over to what is reputed to be the South line of the P. J. Irion 665 acre tract. In effect, what he did was to make a location plat showing the physical lines and fences and other objects found on the ground. He did not go to the Northwest corner of the league, and he did not attempt to locate the North corners of the P. J. Irion 665 acre tract. When asked had he gone as the field notes called for to the common corners of the two Fields tracts and run the North-South lines on the Smith Fields tract from their Northern termini in a Southerly direction the proper distance, he stated those lines would have practically gone to the line 3-4 as located by Mr. Hunter. And when asked on other cross-examination, basing the distances given him and applying the scale on his map (Defendants’ Ex. 8), he testified that when you come South from the Northwest corner of the Smith Fields tract a distance of 2,033 varas, as called for, you would be' at a point which is about 15 varas from the Northwest corner of the Water-field tract, which for practical purposes would make the distances identical. He further admitted that if line 1-2 is the boundary, the distance South of the two Northern comers of the Smith Fields tract, called for in the partition deed, must be shortened more than 200 varas, and the distance North from the corners of the P. J. Irion tract and the South line of the league must be lengthened more than 200 varas. In the interest of brevity, the testimony of the surveyor Coats, who surveyed the defendant C. H. Jones tract in 1960, is not summarized, as it is cumulative, in pertinent part, of Mr. Racki’s testimony.

It appears that only from the two North corners of the league will the partition distances terminate in line 1-2. Defendants Alamo Lumber and Williams urge that in the absence of definite bearing trees or other means of identifying the boundary line corners, that since the nearest established and recognized corners are the Northern corners of the league, the boundary should be established by measuring the proper distance from such corners, as held in Kirby Lumber Co. v. Adams, 127 Tex. 376, 93 S.W.2d 382. And since there was 182 acres excess in the league, this excess would be more equitably awarded by sustaining this boundary. All the other parties assert that since the nearer corners, the Northwest and Northeast comers of the Smith Fields tract and the Northwest and Northeast corners of the P. J. Irion, were found and that their location is practically conceded to be true by all parties, the boundary should be controlled by going the called distances from these corners. The testimony of defendants’ (Alamo Lumber and Williams) witness, C. H. Jones, implies that the bearing trees locating the Northwest and Northeast comers of the Smith Fields tract were there. (S.F. 124, 125). Mr. Racki testified he could not find them, but he admitted that he made no particular effort to locate them and no effort was made by him at all to ascertain the Northwest and Northeast corners of the P. J. Irion tract. In these circumstances, we think the corners just mentioned were located and practically conceded. In sustaining the location of the common corners of the two Fields tracts it is recognized that the distance called for in the old partition deed from the Smith Fields Northwest corner to the North line of the league, 592 varas will be 800 varas. But this, we think, is accounted for by the following circumstances : The partition deed located (1) the P. J. Irion Subdivision going North from the South line of the league; (2) the Wa-terfield from its South line, going North; (3) the Smith Fields northward from the line of the Waterfield; (4) the Williams also northward from the Waterfield; and only the W. H. Fields tract in the Northwest corner was located from the league’s North line southward. The original 15 and 18-inch White Oaks called for in the grant at the league’s Southeast corner were called for in the partition deed. At the Northeast and Northwest corners of the league the bearing trees in the grant were not called for in the partition deed. The fact that the partition deed called for the South league line, as fixed by its original bearing trees, but called for the league’s North line, without calling for a single one of its four original bearing trees, creates a reasonable belief that in subdividing the league the surveyor began on its South line, located the P. J. Irion 665 acres, located the Waterfield 2,214 acres with its North line at 3^4, the correct called distance from the 'South line; from the Waterfield North line he ran north 2,033 varas and located the Smith Fields North and undisputed corners; from these undisputed corners he went North 592 varas as the deed says to where he felt the North line of the Irion league was.

Defendants Alamo Lumber and Williams contend that since their witness, C. H. Jones, the present owner of the two Fields tracts, recognized the Northerly line as the boundary that this would establish the line. However, since there is no evidence of an agreement with the other adjoining property owners, or that the other parties at interest acquiesced therein, the witness’s recognition can have no effect on the true line. Strayhorn v. Jones, 157 Tex. 136, 300 S.W.2d 623.

The other question of boundary involves the contention by defendants Alamo Lumber and Williams that as it appears that plaintiff, until very .recently, claimed its 500 acre tract to be marked by the letters, G, H, N, M, and that all but 272 acres lies to the East of the established East line of the R. A. Irion League, that plaintiff’s recovery should be limited to such acreage. For many years it was believed by all interested parties that there was no vacancy between the West line of the John Thompson Survey and the East line of the R. A, Irion League; in fact, former litigation in which this was thought to be the case between plaintiff and one Bailey reached this court and is reported in Bailey v. Kirby Lumber Co., Tex.Civ.App., 195 S.W. 221. There Bailey claimed part of the area represented by the letters, G, H, N, M, by virtue of limitation. Plaintiff defended that suit and was granted an instructed verdict to all of the area claimed by Bailey except two acres. However, later it was discovered there was a vacancy between the two surveys and plaintiff and L. L. Williams jointly made application to the State for a patent which was issued, giving plaintiff all of the vacancy except two acres which were awarded to Williams. It is now contended by the latter that since plaintiff had for many years claimed the area, G, H, N, M, as its tract, it is bound thereby. In answer to this, plaintiff argues that the description in the partition deed began at the Southeast corner of the league, and so did the deed into it, and that all deeds in its chain of title calls for this corner; that the parties dealing with the land made a mistake as to the location of the Southeast corner. And when it was lately discovered that the East line of the area claimed was not coincident with the East line of the league, the mistake should be corrected, the intent of the parties to the instruments involved honored and the calls in these various instruments complied with. The trial court found it was the intent of the parties to locate the Southeast comer of the 500 acres at the Southeast corner of the league, and since the surveyor or other person attempting to locate the Southeast corner of the league undoubtedly made an error plaintiff is not bound thereby. Cariker v. Davis, Tex.Civ.App., 172 S.W. 728; 9 Tex.Jur.2d, Boundaries, Sec. 12, p. 486.

The trial court having correctly disposed of the case, we affirm the judgment.

STEPHENSON, J., did not participate in the deliberations upon, nor decision in this case.


author: MASSEY, Chief Justice.

text:
    SUPERIOR INSURANCE COMPANY, Appellant, v. General MITCHELL, Appellee.
    No. 16310.
    Court of Civil Appeals of Texas. Fort Worth.
    March 16, 1962.
    Rehearing Denied April 13, 1962.

      Brown & Murray and M. Hendricks Brown, Fort Worth, for appellant.
    Kouri, Banner & Darden and Jack G. Banner, Wichita Falls, for appellee.
   MASSEY, Chief Justice.

This is a suit for Workmen’s Compensation benefits. Claimant, General Mitchell, sought judgment in a lump sum for total incapacity for a period of 400 weeks at $35.-00 per week. The jury returned a verdict finding a total disability period of 260 weeks and that claimant had not and would not sustain any period of partial disability. The jury also found that “manifest hardship and injustice will result if payments of compensation * * * are not paid in a lump sum”. With discount of compound interest calculated, a judgment was entered on the verdict in the amount of $8,417.99 in a lump sum. The defendant, Superior Insurance Company, appealed.

Judgment affirmed.

In the court’s charge to the jury the term “total disability” was defined as not implying “ * * * an absolute disability to perform any kind of labor, but a person disqualified from performing the usual tasks of a workman in such a way as to enable him to procure and retain employment is regarded as being totally incapacitated or totally disabled.” There was no objection to the definition.

Certain issues material for consideration were: No. 1, by answer to which the jury found that claimant was an employee of Austin Building Company on or about October 3,1960; No. 2, by answer to which the jury found that claimant sustained an injury on said date; No. 3, by answer to which the jury found the injury to have been accidental; and No. 4, by answer to which the jury found the injury was received by the claimant in the course of his employment for the Austin Building Company.

The jury returned an affirmative or “yes” answer to Special Issue No. 5, which read as follows: “Do you find from a preponderance of the evidence that the Plaintiff sustained any total disability following the injury, if any, inquired about in Special Issue No. 2?” Conditionally submitted under Special Issue No. S was Special Issue No. 6, which read: “Do you find from a preponderance of the evidence that the injury, if any, previously inquired about, was a producing cause of the Total disability, if any, sustained by the Plaintiff?” In answer thereto the jury found in the affirmative, or “yes”.

The insurance company objected and excepted to the submission of Special Issue No. S, as framed, charging that the language thereof amounted to a comment on the weight of the evidence, specifically in that it was an assumption by the court that the claimant had sustained some disability by reason of the claimed accident. Further, the company pointed out that the inquiry with reference to disability, and whether such disability was total, should be submitted in two separate issues, one inquiring as to whether any disability following the injury was sustained, and the other conditioned thereupon and inquiring whether such disability was total disability.

The company cites us to the provision of Texas Rules Civ. Proc. 277 “Special Issues”, relative to the requirement that “such special issues shall be submitted distinctly and separately”, and to the provision of T.R.C. P. 279 “Submission of Issues”, relative to the requirement that the court “shall submit the controlling issues made by the written pleadings and the evidence”. Based thereupon the company argues its contention that the mode of submission constituted reversible error under reasoning principles from the holdings of Johnson v. Zurich General Accident & Liability Ins. Co., 1947, 146 Tex. 232, 205 S.W.2d 353; Texas Employers’ Ins. Ass’n v. White, 1930 (Tex.Civ.App., Beaumont), 32 S.W.2d 955, error refused; American General Insurance Company v. Coleman, 1956 (Tex.Civ.App., Beaumont), 297 S.W.2d 333, reversed on other grounds at 157 Tex. 377, 303 S.W.2d 370; Lumbermen’s Reciprocal Ass’n v. Wilmoth, 1929 (Tex. Com.App.), 12 S.W.2d 972; Thompson v. Robbins, 1957, 157 Tex. 463, 304 S.W.2d 111; Hutson v. Chambless, 1957, 157 Tex. 193, 300 S.W.2d 943; and Texas & Pacific Railway Company v. Van Zandt, 1958, 159 Tex. 178, 317 S.W.2d 528. None of the cases bear upon an inquiry by special issue identical to that here posed, to-wit: “did the claimant sustain any total disability following the injury?”

In City of Austin v. Powell, 1959 (Tex.Civ.App., Austin), 321 S.W.2d 924, 929, writ ref. n. r. e., the trial court had given the same definition of “total disability” that was given in the instant case, and the special issue submitted to the jury inquiring whether any total disability was thereafter sustained was identical to Special Issue No. 5 in the instant case. The objection in said case was that the issue did not inquire as to causal connection between the February injury and the resulting incapacity. It is noted that the jury, in answer to a subsequent issue, had found that the injury was a producing cause of the “total disability”. The court said, “Any error in the submission of this issue (whether total disability was sustained following the injury) was harmless, since the only injury inquired about was the one in February, 1955.”

In City of Austin v. Cook, 1960 (Tex.Civ.App., Austin), 333 S.W.2d 398, 403 (reversed, on other grounds at 161 Tex. 294, 340 S.W.2d 482), the form of submission was criticized. The court said, “The word ‘following’ is inept and should not be used as employed in this issue. Its use might result in reversible error. All that we held in City of Austin v. Powell, Tex.Civ.App., 321 S.W.2d 924, was that no harm resulted from its use in the issue there under scrutiny.” It is uncertain whether the court deemed that the situation posed a condition warranting a reversal, for it had already stated other grounds for its judgment of reversal and remand.

In reply to the argument presented by the company in the instant case, the claimant likewise argues under the principles of reason, but cites only cases in which the inquiry posed was framed in language identical to that of the one here considered, with no attack made thereupon.

Although the question is not free from difficulty we are constrained to hold that the language of the issue, consideration given to the legal definition of “total disability”, is not subject to the objection leveled. It did not amount to a comment or charge on the weight of the evidence. The point of error is overruled.

By points numbered 2, 3 and 4, the insurance company attacks the jury finding that claimant’s disability would last 260 weeks, under assignments that there was no evidence to support such finding, an insufficiency of evidence to support the finding, and that the finding is contrary to the overwhelming weight and preponderance of the evidence. By point No. 5, coupled therewith, the company attacks as contrary to the weight and preponderance of the evidence the jury’s negative finding (in answer returned to its defensive issue) that the claimant had not sustained any partial disability.

The points of error are overruled. Except as applied to the period of 260 weeks, during which the jury decided the claimant would experience total incapacity, the failure to find any partial disability was actually beneficial to the company and of this it could not complain. Its complaint, therefore, must be as to the 260 weeks during which the jury found the disability to be the total. As applied to this period we believe the testimony of the claimant, and certain additional testimony of expert medical witnesses, constituted adequate support for a return of the answers as to which complaint is made, and such answers were not against the great weight and preponderance of the evidence. The situation is not unlike that under consideration in the case of Angelina Casualty Company v. Spencer, 1958 (Tex.Civ.App., Beaumont), 310 S.W.2d 682, writ ref, n. r. e., which cites pertinent authorities. See also Texas Employers’ Ins. Ass’n v. Robison, 1951 (Tex.Civ.App., Dallas), 241 S.W.2d 339, writ ref. n. r. e.; and American General Insurance Company v. Florez, 1959 (Tex.Civ.App., Houston), 327 S.W.2d 643.

The company objected to the language of the special issue upon the matter of accelerated payments of future compensation. The issue read: “Do you find from a preponderance of the evidence that manifest hardship and injustice will result if payments of compensation, if any, due General Mitchell by the Superior Insurance Company are not paid in a lump sum?” The jury answered said issue in the affirmative, or “yes”.

The 56th Legislature in 1959 amended the previous existing Vernon’s Ann.Civ.St. art. 8306, sec. 15 “Lump sum settlement”, so that the law in effect at time of the trial read as follows: “In cases where death or incapacity in any degree results from an injury, the liability of the association may be redeemed by the payment of a lump-sum by agreement of the parties thereto subject to the approval of the Industrial Accident Board. Where in the judgment of the Board manifest hardship and injury would otherwise result, the Board may compel the association to redeem the liability by payment of the award of the Board in a lump-sum * * (Emphasis supplied.) The law prior to the time of the amendment had merely provided for a lump sum payment in the case of death and total permanent incapacity in special cases wherein it was found that manifest hardship and injustice would otherwise result. The new amendment allowed lump sum in the case of incapacity in any degree but changed the requirements from “injustice” to “injury”. It is the company’s contention that before the claimant is shown to be entitled to a lump sum he must obtain a jury finding in the exact wording of the statute, and that since he has not done so in this case error is apparent.

We do not believe that the point is shown to have been one of which any proper complaint was timely made in the trial court, and preserved for our attention. In the objections and exceptions to the charge the complaint of the issue in question was that there was no evidence, or, in the alternative, insufficient evidence to warrant its submission, and that under the law as applicable to the facts in the case a lump sum could not be allowed, and consequently that it was an immaterial issue. If the manner of submission of the issue amounted to error, the company was under the duty to afford the trial court the first full and fair opportunity to correct the same. In view of the limited complaint made in the trial court the judge thereof could not have known of the reason, advanced for the first time in this court, underlying the company’s contention that the special issue was erroneously framed. The point is overruled.

By a final point of error the company complains of jury misconduct. To the motion for new trial there was appended no affidavit of any juror, nor any explanation or reason given for absence of such an affidavit. There was appended an affidavit of a claim adjuster who was present at time of the trial, assisting the attorney conducting the trial in behalf of the company. By his affidavit it was stated that certain papers were found in the jury room immediately after the trial judge received the jury’s verdict, and the contention was that the writings and figures thereon demonstrated wrongful action on the part of the jury in the manner by which it arrived at the verdict. At the hearing of the motion for new trial there was no testimony offered from any juror who tried the case, nor explanation of why no such testimony was offered. Two witnesses testified, both being claim adjusters or attorneys who had assisted in the Company’s conduct of the trial.

We believe that the circumstances posed by the condition in which the trial court found the motion for new trial were such that there would have been no abuse of discretion on the part of said court had he declined to hear testimony. The single affidavit attached to the motion, setting forth facts and conclusions drawn therefrom,, demonstrates that the Company’s allegations of misconduct were based upon suspicion and hope rather than upon any knowledge of the fact of misconduct. Said affidavit states that papers were found in the jury room after the verdict was returned on which calculations were found, — one showing 260 multiplied by 30 to equal $7,800.00, one showing a figure of 208 multiplied by 30 to equal $6,540.00, one showing calculations of “35 X 25” to equal 875, and still another showing 260 multiplied by 35 to equal a figure of 9,100. We believe that the affidavit fell short of a showing of “material jury misconduct”. Roy Jones Lumber Co. v. Murphy, 1942, 139 Tex. 478, 163 S. W.2d 644.

The trial court did grant leave to the Company to put on evidence under the allegations of jury misconduct, and, as previously mentioned, the testimony was only from the company’s claim adjusters or attorneys. The testimony shows suspicion or hope of misconduct and does not amount to proof thereof. There would be a necessity to first assume that the writings on the several pieces of paper, to which the testimony related, had not been in the jury room before the jury which tried the instant case began hearing evidence, or considering its verdict. The possibility that the papers were not left by a former jury in another case was not foreclosed. Further, it would be necessary to assume that individual jurors in the instant case had not only written upon the papers, but that knowledge thereof, and also as to what was written, was imparted to other persons on the jury at a time before the jury arrived at its verdict, rather than afterward. Even with such assumptions made, before the Company could be said to have made out a prima facie case of jury misconduct it would have been necessary to have evidence from some juror which would have connected the matters so assumed to affirmative action pursuant to misconduct of the jurors individually or collectively, in order to show any materiality. The burden of proof thereof was upon the company, and this it could not be said to have discharged. See Bauguss v. Bauguss, 1945 (Tex.Civ.App., Dallas), 186 S.W.2d 384, writ dism. w. o. m., in which misconduct was asserted but no juror called to testify.

Judgment is affirmed.