text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant. v. Grace M. FARRIS, Appellee.
    Court of Appeals of Kentucky.
    Nov. 17, 1961.
    John B. Breckinridge, Atty. Gen., H. D. Reed, Jr., Asst. Atty. Gen., Paul E. Hun-ley, Dejst. of Highways, Frankfort, for appellant.
    Lewis A. White, Mt.. Sterling, for ap-pellee.
   STANLEY, Commissioner.

The Department of Highways condemned a 300 foot wide right of way through a 175 acre dairy farm of Mrs. Grace M. Farris for'the construction of Interstate Highway No. 64. Some other small areas were also taken, apparently for an access way. The acreage taken is 18.87 acres. Within this were located a large tobacco barn and two ponds, which were, of course, destroyed. The strip bisects the farm, leaving 120 •acres on the north and 36 acres on the south side of the highway, according to the landowner’s evidence, or 113 and 43 acres, respectively, according to the Department’s measurements. Tenant houses, dairy ■sheds and other facilities are on the south parcel. The dwelling house, other farm buildings, pasture land and other facilities are on the northern parcel.

The construction of the new interstate system of highways introduces a new factor into our condemnation cases, for they are nonaccessible to the property owner except "by ways of access from other public roads •built as part of the system. Flere the highway forms an impenetrable wall between the two parts of appellee’s land. The farm has been on the Grassy Lick Road and the ■smaller area continues to bound it. That road has been relocated in part and crosses the new highway on an overpass. The ■northern area is completely cut off from •any road except by a gravel road (apparently 1,500 feet long) built by the Department to the relocated Grassy Lick Road north of the overpass. It is, or will be, necessary for the landowner to build farm roads to connect with this access way, to ■erect 45 rods of new fencing and relocate •other fences, and to provide new water supplies. To get from one part of the divided farm to the other it is, or will be, necessary ■to travel the relocated Grassy Lick Road and cross the new highway on the overpass and the newly built 1,500 foot access gravel road. It is, or will be, necessary to drive the dairy cows at least a mile twice a day over this route between the pasture and the milking facilities.

The reasonable market value of the farm before the taking was estimated by two appraisers for the Highway Department to be (an average in round figures) $89,500 and after the taking, $52,400, thus they fixed the compensation at $37,100. The average of the appraisals by four witnesses for the landowner was before the taking $90,000 and afterward $36,000, a difference of $54,000. The witnesses divided their appraisals between valuation of the property taken and the damages for diminution in value of the remainder of the farm. The verdict was for $19,835 for land taken and $27,295 for “damages to remainder of farm.” The total award of $47,130 is a little above the average of the witnesses, and is about $9,000 less than the sum awarded by commissioners of the county court and confirmed by the judgment of that court.

We need not pass on the claim of excessive damages and some other questions raised by the appellant, as it seems to us the judgment must be reversed for an erroneous instruction. ;

The instruction authorized, in proper lam-guage, a .recovery for the fair and reasonable market value of the 18.87 acres of land and improvements taken by the Commonwealth, “considering the land and improvements taken in relation to the entire farm of which they are a part.” A second paragraph of the instruction reads:

“Second, such a sum as you may believe from the evidence will reasonably compensate the landowner, Mrs. Far-ris, for the damages which will directly result to the remaining portions of her farm by reason of the situation in which they are placed by the taking of said 18.87 acres and by reason of the costs of roads, re-arrangement of fencing, replacement of water supply and replacement of other improvements as may be necessary to provide for the reasonable use and enjoyment of the remaining portions of the farm by reason of the taking of said 18.87 acres.”

The instruction concluded that the award “should not exceed in all the amount which you may believe from the evidence is the difference between the fair market value of the entire farm immediately before, and the fair market value of the remaining portions thereof immediately after, the taking of said 18.87 acres and improvements thereon.”

The appellee contends that the given instruction was proper, but if not, that the appellant failed to preserve its objection properly because it did not specify the matter objected to or state any ground of objection, as is required by CR 51. The attorney for the Commonwealth merely objected to the court giving three instructions offered by the landowner, one of which was that referred to above. The Commonwealth, however, offered and requested the court to give an instruction in practically the same form as that approved in Commonwealth v. Combs, 244 Ky. 204, 50 S.W. 2d 497, published as § 360, Stanley’s Instructions to Juries. It omitted reference to any specific item of damage or award as contained in the second paragraph of the given instruction.

In Fields v. Rutledge, Ky., 284 S.W. 2d 659, p. 662, 58 A.L.R.2d 210, we wrote, that where instructions offered by a party clearly presented his position and they were refused by the court, there is no necessity for the party to be specific in order to save his right of review of the instructions given. It may be, as appellee submits, the statement was obiter dictum; but it was a justifiable response to arguments made on the appeal. Dictum or not, it became a decision in R. H. Kyle Furniture Co. v. Russell Dry Goods Co., Ky., 340 S.W.2d 220, p. 226, in which we held that though the appellant had offered an instruction faulty in form, it should be “regarded as being tantamount to revealing the ground and sufficient to save its right to attack the given instruction.” This interpretation of Rule 51 as being sufficient to serve the purpose of directing the court’s attention to the point of possible error and afford the court an opportunity to correct an instruction proposed to be given if it be erroneous, is generally recognized. Ohlinger’s Fed. Prac., Rule 51(6); Moore’s Fed.Prac., Rule 51.04.

The given instruction, it will be observed, states the compensation for consequential damages to be that which directly results "by reason of the situation” in which the untaken parcels are placed and the “costs” of necessary fencing and “replacement” of certain facilities or improvements.

In Greenup County v. Redmond, Ky., 335 S.W.2d 335, we thoroughly reviewed the proper elements of compensation for damages to or impairment of the market value of untaken land, commonly called consequential or resulting damages. We held, as had been previously held, admissible and competent evidence of expenditures for improvements or facilities reasonably necessary to be incurred by reason of the taking of the right of way, but that it is not proper for the instructions to the jury to authorize specifically such costs other than for fencing. We reaffirmed as the proper instruction the form prepared by this court in Commonwealth v. Combs, 244 Ky. 204, 50 S.W.2d 497, which is published as § 360, Stanley’s Instructions to Juries. In that case, however, the cost of additional fencing was omitted from the prepared instruction because the landowners had made ho claim for it in their exceptions to the commissioner’s report. The instruction in the Greenup County case included that specific item. Thé' judgment *ás reversed not because of the instruction but because the verdict was for different sums for several other specified items, at least one of which could not be deemed “necessary” although convenient. In the present case there was evidence of the necessity of making improvements and supplying facilities, as stated earlier in the opinion, but there was no evidence of cost except for new fencing and the construction of a farm road to reach the newly provided access road.

We find it necessary to reverse the judgment because of the erroneous instruction.

Judgment reversed.


source: Caselaw Access Project

author: GRIFFIN, Justice. NORVELL, Justice

license: Public Domain

text:
    TRAVELERS INSURANCE COMPANY, Petitioner, v. Jack HILL, Respondent.
    No. A-8389.
    Supreme Court of Texas.
    Nov. 22, 1961.
    Rehearing Denied Dec. 20, 1961.
    Baker, Botts, Andrews & Shepherd, Finis Cowan, Houston, with above firm, for petitioner.
    Davis, Phelps, Liles, Norton & Gray, Houston, for respondent.
   GRIFFIN, Justice.

This is a suit to mature a workmen’s compensation award under Article 8307, § Sa, Vernon’s Annotated Texas Civil Statutes, which provides that when the Industrial Accident Board enters an award requiring the insurance carrier to make weekly or monthly payments to an injured employee and the carrier thereafter fails or refuses, “without justifiable cause” to continue to make such payments promptly, the injured employee may bring suit to mature the award; that is, collect the full amount thereof, plus attorney’s fees and recover a twelve percent penalty.

Judgment in the district court was for the injured employee and such action was affirmed by the Court of Civil Appeals. See Travelers Insurance Company v. Jack Hill, Tex.Civ.App., 344 S.W.2d 208. Travelers, the insurance carrier, as petitioner here, submits one point only, viz.: the Court of Civil Appeals erred in holding that under the facts of this case a penalty could be imposed on the insurer even though the delay in making payment was desired and induced by respondent and his counsel. This point raises the question of whether or not the trial judge’s findings of fact support his conclusion of law.

From the findings of fact and the undisputed evidence, it appears that Jack Hill was accidently injured while working for the Sebastial Corporation. Pending action by the Industrial Accident Board, the insurance carrier paid Hill compensation for 29 weeks at the rate of $35 per week. On February 6, 1959 the Board made its final award whereby the carrier was ordered to pay to Hill certain weekly sums for a period of total disability followed by further sums payable weekly for permanent partial disability. On February 10 Hill filed with the Industrial Accident Board his notice of intention to appeal from the Board’s award. However, he did not perfect the appeal with the result that the Board’s award became final on March 2. Article 8307, § 5, Vernon’s Annotated Texas Civil Statutes. Seventeen days later, on March 19, this suit was filed.

Travelers made no attempt to ascertain from Hill or his attorney whether or not a suit had been filed in the district court. Had it done so at any time after March 2 it would have ascertained that Hill was going to abide by the Board’s award. Based upon these facts, the court concluded that the period of seventeen days’ delay (from March 2 to March 19) was without justifiable cause and rendered judgment maturing the award with penalty and attorney’s fees. As above indicated, the Court of Civil Appeals affirmed.

The case of Minor v. London Guarantee & Accident Co., Limited, Tex.Com. App., 280 S.W. 163 (holdings approved by the Supreme Court), is authority for the proposition that when an award is made by the Industrial Accident Board, and no appeal is taken therefrom, and the carrier failed to make payments promptly in accordance with the award, the claimant may mature the award under the provisions of Article 8307, § 5a. We are not disposed to depart from that holding. As pointed out by the Court of Civil Appeals, the later holding of this Court in Maryland Casualty Co. v. Lewis, 151 Tex. 480, 252 S.W.2d 155, in no way militates against the doctrine stated in the Minor case. See also Dixon v. United States Fidelity & Guaranty Co., Tex.Civ.App., 293 S.W. 291, wr. dism., and Texas Employers’ Ins. Ass’n v. Harrington, Tex.Civ.App., 61 S.W.2d 167, no writ history.

We accordingly reach the question as to the legal effect of respondent’s giving notice of appeal from the Board’s award, but not perfecting such appeal and then failing to notify petitioner of such action, or demand payment of the award. In our opinion the rule is that when notice of appeal has been given and not perfected, the award may be matured whenever it is made to appear that the carrier knew or should have known, by the exercise of reasonable diligence, that the award of the Board had become final and payable.

In this case it may he assumed that the carrier had no actual knowledge that the award of the Board had become final. The trial court however made numerous findings to the effect that it should have known that the award was final and hence due and payable prior to March 19, when the suit to mature the award was filed. There is evidence supporting these findings. There is also evidence to support the trial court’s - finding that the delay in payment of the award was without justifiable cause. The fact that the respondent gave notice of appeal from the Board’s award may work some change in the factual pattern disclosed in Minor v. London Guarantee & Accident Company, supra, in that the carrier may not have been chargeable with notice of the finality of the award immediately upon the expiration of the statutory twenty-day period for perfecting an appeal by filing suit in the district court. But here, as above pointed out, the last date for filing suit was March 2, yet the petitioner, although it had not been served with citation in a district court suit, waited seventeen days from March 2 until March 19, the date the maturity suit was filed, taking no action whatsoever. The trial court could well conclude that this delay in making proper inquiry as to the status of the award was without justifiable cause. It was said in the Minor case that “mere neglect to pay either the amount due under the order of the Board, or the weekly payments as they became due, does not show justifiable cause for defeating the beneficiary’s right to mature the entire claim, nor does it show justifiable cause to avoid payment of either of the 12 per cent, damages or reasonable attorney’s fee.” [280 S.W. 165.]

Petitioner contends that respondent’s action in giving notice of his intention not to abide by the decision of the Board and then failing to file suit in the district court constitutes a form of entrapment. It points to evidence that respondent and his attorney were both hopeful that petitioner would overlook the fact that no appeal had been perfected and thus give respondent grounds for maturing the award. The trial judge found that when respondent filed his notice of intention of appeal it was not done with any intent on the part of respondent or respondent’s attorney to mislead the petitioner, but the notice of an intention to appeal was filed with the Board in good faith. The fact that when respondent subsequently decided not to perfect his appeal he entertained hopes that the insurance carrier would fail to resume weekly payments in accordance with the award and thus allow him to file a suit to mature the award cannot make the case one of entrapment or bad faith, as a matter of law, and thus permit this Court to disregard the trial judge’s findings as having no factual basis.

Further, we cannot say that respondent was required to demand payment of the Board’s award or notify the petitioner of his decision to abandon his proposed appeal and abide by the award. This for the reason that the statute nowhere required such demand or notice. Under certain circumstances some delay in payment may be permissible. The statute does not make a demand for payment necessary to render the claim due and payable. This Court, in discussing §§ 5, 5a of Article 8307, Vernon’s Annotated Texas Civil Statutes, providing that in the event of no suit being filed to set aside an award against the compensation carrier, held in the case of Maryland Casualty Co. v. Lewis, supra [151 Tex. 480, 252 S.W.2d 157], “it shall at once comply.” “ * * * The phrase at once has often been distinguished from other words or phrases importing immediate or instantaneous action, and in doing so the ‘courts have declared without qualification that it signified in a reasonable time.’ 7 C.J.S., at p. 160. And see 4 Words and Phrases, p. 682 et seq. * * * ” There is evidence that supports the trial court’s judgment herein. If such demand under certain circumstances should be required, that is a matter for the legislative branch of the government.

The judgments of the district court and the Court of Civil Appeals are affirmed.

NORVELL, Justice

(dissenting).

Considering that a notice of appeal from the Board’s award had been given by respondent, it seems that he should have notified the insurance carrier of his subsequent ■decision to abandon the appeal and abide by the award. This for the reason that Article 8307, § Sa, Vernon’s Ann.Tex.Stats., is highly penal in nature, and has for its purpose the punishment of an insured for •an inexcusable refusal to pay an award. Maryland Casualty Co. v. Lewis, 151 Tex. 480, 252 S.W.2d 155. It is not designed to provide windfalls as a reward for procedural vigilance or the lack thereof. The trial judge found that “the only reason why the Travelers Insurance Company did not ■commence the payment of benefits to Hill, in accordance with the award of the Industrial Accident Board, was because they received and relied upon a notice of intention to appeal from the award of the Industrial Accident Board mailed, prepared and filed by counsel for plaintiff.”

The record clearly indicates that had the insurance company known that the award was due and payable, that is, that respondent had abandoned his appeal, payment would have been forthcoming. Even before the Board had taken action the carrier had admitted liability and offered to settle the claim by paying $4,000 in addition to the weekly payments theretofore made to respondent. It is likewise apparent that respondent did not notify the carrier that he had abandoned his appeal because he hoped that the insurance company would overlook this circumstance, and thus allow him to mature the award and collect a penalty and attorney’s fees. While the decision of this case should not rest upon such factors as hopes and emotional attitudes, the facts of this case point up a situation that is not conducive to open and aboveboard dealing, to say the least. In ordinary business transactions when a person takes a certain action which will place another within his debt, he is generally expected to notify such party of his action. There is no reason why this usual standard of business conduct should not be applied in the present case. The last word the carrier had from Hill was that he, Hill, intended to sue in the district court and not abide by the award of the Industrial Accident Board. Before saddling the carrier with a penalty, it seems fair and equitable to require Hill to make known his change in position and the fact that he had decided to abide with the decision of the Board.

It is Hill’s position that the insurance carrier should have maintained a “cat at the rat hole” type of vigilance in order to avoid a penalty. It is argued that the carrier knew that Hill must file suit in the district court within twenty days after the filing of notice that he would not consent to abide by the final ruling of the Industrial Accident Board and therefore shortly after March 2nd the insurance company, as it had not been served with citation in a district court suit, should have known that Hill had changed his mind and thereupon should have started paying him the installments awarded by the Board. It would seem much simpler and more in accordance with usual business dealings if the one changing his mind would notify the other party of that fact so that the contractual obligations incident to such change of mind could be promptly carried out.

The punitive liability of the statute under the facts of this case has been visited upon the insurance carrier, not as a result of a willful or wrongful refusal to perform, but upon a mere inadvertence which resulted in a failure to ascertain the intentions of a party who in good faith and conscience should have made his intentions clearly known.

Article 8307, § 5a provides for a penalty, Maryland Casualty Co. v. Lewis, 151 Tex. 480, 252 S.W.2d 155, and hence should be strictly construed. 50 Am.Jur., 432, Statutes, § 408. The Legislature sought to secure the prompt payment of insurance claims by providing a penalty for an inexcusable delay. However, it is not necessary in order to serve the statutory purpose to impose a penalty for nonaction which is in no sense willful and could have been wholly avoided by making a simple demand for payment. When a fair construction will accomplish the legislative purpose, a harsh construction should be avoided.

We are unable to agree with the Court of Civil Appeals that respondent’s giving notice of appeal from the action of the Industrial Accident Board does not distinguish this case from Minor v. London Guarantee & Accident Co., Tex.Com., 280 3.W. 163; Dixon v. United States Fidelity & Guaranty Co., 293 S.W. 291, wr. dis. and Employers’ Insurance Ass’n v. Harrington, Tex.Civ.App., 61 S.W.2d 167. In all three of these cases cited, it clearly appears that neither the injured employee nor the insurance carrier gave notice of an intention not to abide by the award. Accordingly, there was no action taken by the claimant which could have mislead the carrier in any way. These cases are authority only for the narrow proposition that when neither side gives notice of appeal, the award of the Industrial Accident Board becomes final when the time for giving notice of appeal expires and hence a failure of the carrier to promptly abide by such award and make payments in accordance therewith constitutes a basis for maturing the award under the provisions of Article 8307, § 5a.

I respectfully dissent from the order of the Court which affirms the judgments of the courts below.

CULVER, WALKER and HAMILTON, JJ., join in this dissent.


author: SMITH, Justice.

text:
    GIBRALTAR SAVINGS ASSOCIATION, Appellant, v. J. M. FALKNER, Banking Commissioner of Texas, Appellee.
    No. A-8286.
    Supreme Court of Texas.
    Nov. 15, 1961.

      Monteith, Bearing & Monteith, Houston, Graves, Dougherty, Gee & Hearon, Austin, for appellant.
    Will Wilson, Atty. Gen., Fred B. Werk-enthin and C. K. Richards, Asst. Attys. Gen., Black & Stayton, Austin, for ap-pellee.
   SMITH, Justice.

This case is brought to The Supreme Court of Texas by direct appeal from a judgment of the 98th District Court of Travis County. We have concluded that this Court has no jurisdiction of the appeal and accordingly dismiss it.

On October 11, 1957, J. M. Falkner, the Banking Commissioner of Texas, issued an order which denied approval of the application of Gibraltar Savings Association to open a “branch savings and loan office” in the Spring Branch area of Houston. The Commissioner’s action was taken pursuant to Article 881a-l et seq., Vernon’s Annotated Civil Statutes.

Gibraltar filed this suit appealing from the order of the Banking Commissioner, and seeking both a temporary and a permanent injunction restraining the Banking Commissioner from enforcing the order appealed from. The judgment of the district court decreed (1) that the order was valid, (2) that Gibraltar, its officers, agents, servants, and employees wer.e enjoined from operating the branch office in question, and (3) “That all relief not herein expressly granted is hereby denied.”

Gibraltar predicates its right to a direct appeal to this Court upon Article 1738a, Vernon’s Annotated Civil Statutes. The pertinent provisions of this statute are:

“ * * * appeals may be taken direct to the Supreme Court of this State from any order of any trial court granting or denying an interlocutory or permanent injunction on the ground of the constitutionality or unconstitutionality of any statute of this State, or on the ground of the validity or invalidity of any administrative order issued by any State Board or Commission under any statute of this State.” [Emphasis added.]

It is apparent that this statute gives the appellant the right to a direct appeal to this Court in two situations. The first is “ * * from any order of any trial court granting or denying an interlocutory or permanent injunction on the ground of the constitutionality or unconstitutionality of any statute of this State, * * Therefore, we must first determine if the order of the district court in the instant case is such an order.

Gibraltar went to trial upon • its Third Amended Original Petition, together with its Supplemental Petition. Gibraltar also filed a trial amendment after the trial of the case upon the merits. We have carefully examined these pleadings and have failed to find any place where the order of the Commissioner was attacked on the ground that the statute on which it was based was unconstitutional. However, Gibraltar’s pleadings do contain an allegation to the effect that if Falkner should be sustained by the Court in his position that Gibraltar had no right of appeal to or other redress in the courts from his action under Article 881a-l et seq., Vernon’s Annotated Civil Statutes, then “Article 881a is in conflict with the United States and Texas Constitutions, and particularly with the due process clauses thereof, and must fall.” This alternative pleading is conditional in its terms and would have amounted to an attack upon the constitutionality of the statute involved only in the event the Court had held that Gibraltar had no right of appeal or other redress, and that the statute granted to the Commissioner the power to exercise final authority. Since the Court did not hold that Gibraltar was not entitled to recourse to the courts to review the actions of the Banking Commissioner, the constitutional question was never reached by the trial court. Injunctive relief was neither granted nor denied on the ground that the statute is constitutional or unconstitutional.

On December 21, 1960, after the trial of the case upon the merits under the “substantial evidence rule” had been completed, Gibraltar filed a trial amendment, seeking a permanent and a temporary injunction pending final judgment, enjoining Banking Commissioner, Fallcner from enforcing the order entered October 11, 1957, and from imposing any sanction upon Gibraltar by reason of its maintenance and operation of its branch office at 8022 Longpoint Road, Houston, Texas.

On January 18, 1961, the trial court entered its judgment, the pertinent part, being:

“ * * * and the Court, having considered the pleadings, the evidence, and the argument of counsel, and being of the opinion that the law and the facts are with the defendant, J. M. Fallener, Banking Commissioner of Texas, and intervenor-defendant, Spring Branch Savings and Loan Association, it is accordingly Ordered, Adjudged and Decreed as follows:
“(1) That the order made and entered on October 11, 1957, denying plaintiff’s application to open, operate and maintain a branch office at 8022 Longpoint Road, Houston, Harris County, Texas, is and the same is hereby declared to be a valid, legal and binding order; and that plaintiff take nothing by its suit herein;
“(2) That pending final determination of this cause in the appellate courts plaintiff, its officers, agents, servants, and employees are enjoined and restrained from operating and maintaining the branch office at 8022 Longpoint Road, Houston, Harris County, Texas, and from doing and performing any of the acts or functions therein authorized by Chapter 3, Rules and Regulations, effective January 19, 1958, adopted by the Building and Loan Section of the Finance Commission of the State of Texas;
“(3) That all other relief not herein expressly granted is hereby denied; * * * >>

It is apparent that the judgment of the trial court in the instant case did not determine the constitutionality or unconstitutionality of any statute, including Article 881, Vernon’s Annotated Civil Statutes of Texas and Article 1136a-9 of Vernon’s Annotated Penal Code. The matter was not before the court and the judgment contains no reference thereto. The case of Standard Securities Service Corporation v. King, Tex., 341 S.W.2d 423, 425, was an attempted direct appeal. The judgment, by its terms, as here, gave no indication that the trial court determined the constitutionality or unconstitutionality of a statute. In holding no jurisdiction of the appeal in that case, this Court said:

“The trial court’s judgment in this case does not determine, and therefore is not based on, the constitutionality or unconstitutionality of a statute.”

As held in the case of Bryson v. High Plains Underground Water Conservation Dist., 156 Tex. 405, 297 S.W.2d 117, 119, 120, our jurisdiction of direct appeals is defined by the provisions of Article 1738a, Vernon’s Annotated Texas Civil Statutes. For this Court to have jurisdiction of a direct appeal “it must appear that a question of the constitutionality of a Texas statute or of the validity of an administrative order issued by a State Board or Commission under a statute of this State was properly raised in the trial court, that such question was determined by the order of such court granting or denying an interlocutory or permanent injunction, and that the question is presented to this Court for decision.” See Rule 499-a, Texas Rules of Civil Procedure; Lipscomb v. Flaherty, 153 Tex. 151, 264 S.W.2d 691; Corona v. Garrison, 154 Tex. 124, 274 SW.2d 541.

The second situation in which Article 1738a, supra, grants the right of direct appeal to this Court is: “ * * * from any order of any trial court granting or denying an interlocutory or permanent injunction on the ground of the * * * validity or invalidity of any administrative order issued by any State Board or Commission under any statute of this State.”

The order in the instant case is not such an order. See Standard Securities Service Corporation v. King, supra. In that case a revocation order of the State Securities Commission was involved. The Securities Act, Articles 581 to 581-39, Vernon’s Annotated Texas Civil Statutes, creates and provides for the appointment of “The State Securities Board” and a “State Securities Commissioner.” Express authority to revoke the registration of a dealer is given only to the Commissioner. We held in that case that the order involved was that of the State Securities Commissioner and was not an order of the Securities Board. We see no distinction between that situation and the present case. Here, the order involved was entered by Falkner in his capacity as Banking Commissioner of Texas, and not by the Finance Commission of Texas. Falkner was appointed State Banking Commissioner of Texas under the provisions of Article 342-201, Vernon’s Annotated Civil Statutes of Texas. The appointment was made by the Finance Commission of Texas. Falkner’s powers as Banking Commissioner of Texas include the supervision and control of all building and loan associations doing business in this State. He is charged with the execution of the laws of Texas relating to such associations under the provisions of Article 881a-7, Vernon’s Annotated Civil Statutes. The Building and Loan Association Act, Article 881a-1 et seq., Vernon’s Annotated Civil Statutes, does not provide for any jurisdiction or control by the Finance Commission of Texas of any order entered by the Commissioner. When the order is considered in the light of the record and the pertinent statutes, it is clear that the order entered by Falkner, on October 11, 1957, refusing the application of Gibralter to open and operate a branch office, is an order of the Banking Commissioner of Texas, and not an order of The Finance Commission of Texas,

The order involved here is not an order of a “State Board or Commission” within the meaning of Article 1738a, supra. See Board of Health, etc. v. Inhabitants of Town of Phillipsburg, 85 N.J.Eq. 161, 96 A. 62, 63; City of Louisville Municipal Housing Commission v. Public Housing Administration, Ky., 261 S.W.2d 286, 288, cited in the case of Standard Securities Service Corporation v. King, supra.

The Legislature has the power under the Constitution to provide for direct appeals to this Court in cases such as we have here. The power to authorize direct appeals from orders of the State Banking Commissioner has not been exercised by the Legislature and cannot be exercised constitutionally by the courts.

The appeal is dismissed.


author: RICHARDS, Justice.

text:
    Luther LYNN, Guardian of the Estate of. James Green Lawson Coulson, Appellant, v. Faye Elizabeth CLARK, Independent Executrix of the Estate of Andrew Perry Clark, Deceased, Appellee.
    No. 12516.
    Court of Civil Appeals of Texas. Austin.
    Oct. 11, 1961.
    Hardeman, Smith & Foy; Smith & Crawford; Sedberry & Williams, San Angelo, for appellant.
    W. S. Leslie, San Angelo, for appellee.
   RICHARDS, Justice.

Appellant’s Motion for Leave to File-Transcript and Statement of Facts under Rule 386, Texas Rules of Civil Procedure, alleges as existence of good cause why the-transcript and statement of facts could not be filed within the 60-day period that although application for the transcript of the record was filed with the Clerk of the District Courts of Tom Green County, Texas, on June 27, 1961, the 60-day period for filling the transcript in this Court had expired before it was completed by the District Clerk and delivered to appellant’s attorneys on August 18, 1961.

The Clerk of the District Courts of Tom Green County, Texas has certified that the transcript of record was actually completed on August 15, 1961, two days before the expiration of 60 days after the entry of judgment on June 19, 1961, and on August 15, 1961 the Clerk notified appellant’s attorneys that the transcript was ready for delivery to them. Since there is no showing of good cause why the transcript could not have been filed in this Court within the time required by Rule 386, the motion is overruled.

Motion Overruled.


author: HUGHES, Justice.

text:
    Andrew Perry CLARK et al., Appellants, v. James Green Lawson COULSON, Appellee.
    No. 10885.
    Court of Civil Appeals of Texas. Austin.
    Oct. 25, 1961.
    Rehearing Denied Nov. 15, 1961.

      W. S. Leslie, Edd B. Keyes, San Angelo, for appellants.
    Plardeman, Smith & Foy, Smith & Crawford, Sedberry & Williams, San Angelo, for appellee.
   HUGHES, Justice.

This suit is brought to establish, affirm the validity and declare the effect of an alleged contract between appellee, James Green Lawson Coulson, and his deceased and only brother, Charles Louis Coulson.

The nature of the alleged contract, dated in the Fall of 1919, was that appellee, who at the time resided in Alabama, would dispose of his Alabama property, move to San Angelo, Texas, and there help his brother in the operation of a business in which he was then engaged, in consideration of which appellee or appellee and his wife Ollie, would presently receive one half of all property owned by C. L. Coulson, and at his death, if appellee survived, ap-pellee would receive all property then owned by C. L. Coulson.

C. L. Coulson died in 1956. He was never married. He left a will, duly probated, in which Andrew Perry Clark and his two minor sons, Charles Andrew Clark and Louis Grayson Clark, appellants, were principal beneficiaries.

The remaining parties were Kate Cren-shaw, Ethel Tester, Dora Tester and Jeff Crenshaw, the only surviving children of Sallie Coulson Crenshaw, deceased, the only sister of appellee and C. L. Coulson.

These parties, called impleaded defendants, adopted the pleadings of appellee.

Before trial, Luther Lynn, Guardian of the Estate of James Green Lawson Coul-son, was substituted as plaintiff.

Trial to a jury resulted in a verdict favorable to appellee. Upon this verdict judgment was rendered, in part, reading:

“that the aforesaid contract found by the jury to have been entered into between the said James Green Lawson Coulson, and the said Charles Louis Coulson, is in all things valid and effective to vest in the said James Green Lawson Coulson the full title to all the estate of the said Charles Louis Coulson, as such estate existed at the time of the death of the said Charles Louis Coulson, subject only to all lawful debts, taxes, and claims against said estate, and all lawful expenses of administration thereof in said Probate Cause No. 4885; and the said James Green Lawson Coulson is DECLARED, ADJUDGED and DECREED to be the owner of all of the said estate and of all properties thereof, real, personal, or mixed, it being further DECLARED, ADJUDGED and DECREED in this connection, that the said instrument dated -February 15, . 1950, and duly probated as aforesaid, as the Last Will and Testament of the said Charles Louis Coul-son, deceased, is wholly ineffective to revoke or abrogate the aforesaid contract between the said James Green Lawson Coulson, and the said Charles Louis Coulson, or to in anywise affect the rights of the said James Green Lawson Coulson under such contract.”
Appellants’ first two points read:
“Point No. 1: There being insufficient evidence of probative value to support the contract sued on, the court erred in submitting this cause to the jury, and in failing to find for appellants as a matter of law.
“Point No. 2: The competent evidence of probative value was insufficient to sustain the finding of the jury that the contract sued on was entered into, and it was error to refuse to enter judgment for appellants.”

These points are “no evidence” points rather than points that the verdict of the jury is so against the great weight and preponderance of the evidence as to be clearly wrong.

In disposing of “no evidence” points “it is proper to consider only that evidence most favorable to the issue and to disregard entirely that which is opposed to it or contradictory in its nature.” Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W. 2d 609, 613.

We will set out the principal evidence upon which appellee relies to support the jury verdict.

The Coulson brothers were youths together in Alabama. When Mr. C. L. Coul-son was a young man (early 1900’s) he moved to San Angelo, Texas, where he entered into a wholesale candy business. His brother, the appeilee, ’ remained in Alabama until, the Fall' of 15)19 when he, too, and his wife Ollie moved to San Angelo.- It is the circumstances surrounding this move that give rise to this lawsuit. It.is appellee’s contention that this move was made pursuant to- a valid contract between him and his brother, C. L. Coulson. The contract is said to consist of a letter from C. L. Coulson to appellee and his wife, written about October, 1919, constituting an offer and acts of acceptance by appellee in compliance with the offer.

The letter, after diligent search where it might be expected to be found, was not located or offered in evidence. The principal witness to its existence and content was T. M. Holloway.

Mr. Holloway, 56, was the brother of Ollie, the deceased wife of appellee. He testified by deposition taken in April, 1959. He expressed a willingness to appear and testify personally at the trial, but he died before trial. Mr. Holloway had known appellee and his father, H. H. Coulson, since he was a child. He first met C. L. Coulson about 1920. Mr. Holloway’s mother was Mary Samantha Holloway. Prior to the time appellee and his wife Ollie moved to San Angelo from Alabama, Mrs. Mary Samantha Holloway lived with them. She did not accompany them to San Angelo. In the Spring or early Summer of 1920, Mrs. Holloway visited her daughter, Mrs. Lottie Allen in Elmdale, Kansas. At the time of this visit the witness Holloway was working near Elmdale, Kansas and lived with his sister.

We now quote the testimony of Mr. Holloway :

“Q. During the time of the visit of your mother, Mrs. Mary Samantha Holloway with her daughter, Mrs. Lottie Izetta Allen in April 1920, I will ask you whether or not during that time your mother ever showed you a letter written by Charles Louis Coulson to his brother, James Green Lawson Coulson ? A. Y es, my mother showed me a letter written by Charles Coul-son to his brother, James Coulson.
“Q. If you have stated that your mother did show you a letter inquired about in the preceding question, then please state the reason or occasion for showing you that letter? A. My mother had this particular letter and showed it to me.
“Q. Will you please state below your answers to the following subdivisions of this question with reference to that letter from Charles Louis Coul-son to his brother James Green Lawson Coulson:
“(1) State whether or not said letter was dated and if so the date of said letter. A. I do not recall the exact date of the letter, except that it came to James and Ollie in the fall of 1919.
“(2) State whether or not said letter was enclosed in an envelope and if so where was said envelope postmarked? A. Yes, it was in an envelope postmarked San Angelo, Texas.
“(3) Please give the name or names and address contained on said envelope? A. As I recall it the letter was addressed to Mr. and Mrs. James Coul-son, Sylvania, Alabama, with notation in the upper corner on the left side: from Charles Coulson, San Angelo, Texas.
“(4) State whether or not there was a return address on said envelope and if so from whom? A. Yes, Charles Coulson, San Angelo, Texas.
“(5) Please state who signed the letter. A. The letter was signed in the handwriting of Charlie Coulson, which said handwriting was known to me at that time.
“(6) Please state to whom the letter was addressed? A. Mr. and Mrs. James Coulson.
“(7) Please state and give the substance of said letter? A. I cannot give the substance of the letter verbatim, but it was to the effect that Charlie requested Jim and Ollie to move to San Angelo to live, and he stated he would give Jim half of his business he had at that time, and half of what personal property he had at that time and that at his death Jim and Ollie would receive the entire proceeds from his estate, whatever same happened to be at the time of his death.
“(8) State whether or not you have read the contents of the aforesaid' letter? A. Yes, I read it.
“(9) If you have answered that you read the contents of said letter, please state why you remember the contents-of said letter ? A. There were several' things to cause me to remember about this letter. The first proposition is, I thought it was a kind proposition for my sister and her husband, Jim.
“(10) Please state in whose handwriting said letter was written? A. It was in the handwriting of Charles Coulson, who is also known as Charlie Coulson.
“(11) Please state in whose handwriting the address and return address was in on the envelope? A. Charles Coulson.
⅜ ⅜ ⅜ ⅜ ⅜ ⅜
“(15) Since the occasion of your mother showing you the envelope and letter from Charles Louis Coulson to James Green Lawson Coulson, have you seen said letter and envelope? A. Yes, I have seen the letter several-times since my mother first showed it to me; in fact, it was with her possessions and from the date I first saw it I continued to see it until approximately 1940, but I have not seen it since approximately that time.
“(16) Please state whether or not you have searched for said letter and envelope written by Charles Louis Coul-son to his brother, James Green Lawson Coulson? A. I have searched for the letter through all the papers in my home.
* ⅝ * * * *
“(18) Do you know the reason why, if any, your mother had the aforesaid letter and envelope in her possession? A. I do not know.
“(19) Please state if prior to that time, that is, in April 1920, you were acquainted with the handwriting of Charles Louis Coulson? A. Yes.
“(20) Please state prior to April 1920 the occasions, if any, you had had to observe the handwriting of Charles Louis Coulson? A. I had seen many letters written by Charles Louis Coul-son to my sister and her husband and to other members of our family.
“(21) Please state after April 1920 wjiether or not you had any occasions to observe the handwriting of C. L. Coulson? A. Yes.
“(22) If you have answered the preceding question that you had occasion to observe the handwriting of C. L. Coulson, then state when and upon what occasions ? A. I was in his place of business on visits to my sister and her husband and I saw his handwriting there on sales slips and other articles connected with his business.”

Mr. Holloway visited in San Angelo for a week in August 1920. Regarding this visit he testified:

“Q. Please state whether or not when you came to San Angelo, Texas, prior to the time of death of your sister, Ollie Sophronia Lee Coulson, whether or not you had occasion to talk and be with Charles Louis Coulson ? A. Yes, I was with him on several occasions during my visit there. My .brother-in-law and he were living in the house together.
“Q. If you have answered the preceding question yes, then please state what and when such occasions were that you talked with Charles Louis Coulson with reference to his writing to his brother, James Green Lawson Coulson about coming to San Angelo? A. I talked with him every day I was in Texas during the last illness and death of my sister.
“Q. Please state the occasion or occasions and give the substance of any conversation you had with Charles Louis Coulson and what he said with reference to anything about him writing to his brother, James Green Lawson Coulson, about coming to San Angelo, Texas? A. We discussed the letter which he had previously written to my sister and brother-in-law and he confirmed that fact by stating it was his intention of leaving them what he had at the time of his death, and that he had also prior to that date fulfilled the other part of his agreement by giving his brother and sister-in-law, Mr. and Mrs. Jim Coulson, one half interest in all the property he owned. He took me around and showed me the business, and I was with him around his business and talked with him on several occasions about the difference in conditions in Texas where he lived, and back on Sand Mountain where we were reared.
“Q. On such occasions prior to the death of your sister, Ollie Sophronia Lee Coulson, please state in detail as near as you recall what you said and what Charles Louis Coulson said about the said Charles Louis Coulson writing to James Green Lawson Coulson about coming to San Angelo, Texas? A. I recall Mr. Charles Coulson’s asking me if I knew the facts and conditions under which Jim Coulson and his wife came to Texas. I told him I did due to the fact I had seen the letter he had written and his generous offer to Mr. and Mrs. Jim Coulson coming out there.
He then stated to me he had given Jim and Ollie half of everything he owned at the time they came there and that at his death they were to get full and complete title and possession to the other half interest in his property.”

Testimony strongly confirming Mr. Holloway was given by the witnesses Roy Tester, Jr., J. E. Young, Clarence Wilson and Vernon Rutherford. This testimony was of conversations with C. L. Coulson in which Mr. Coulson made corroborating statements. We quote only from the testimony of Mr. J. E. Young. The importance and weight of his testimony is attested by the fact that he had been elected and served as City Commissioner of the City of San Angelo longer than any other person had ever served.

Mr. J. E. Young and C. L. Coulson were close friends. He testified to a conversation with Mr. Coulson in 1928:

“Q. Now, Mr. Young, on that occasion I will ask you whether or not there was any statements made and if so what, by Mr. Charles Louis Coulson, with reference to his brother James and his business affairs, as to whether he had them in order? A. Wellj I have known before — yes, he was talking; he told me it had been necessary, he’d of have to have gone out of business, but he wrote his brother along in 1919 to come out and take charge of his business. I asked him, I says, ‘Well, what connection, not able to continue your business?’ He says, ‘Well, I went into a contract will with my brother to get him out here to come and take charge of my business, and I split the profit fifty-fifty, and the business would be,’ and half interest in his business and what he had; and that he also had in the will that he had, that in case he passed away first that he left it all to his brother, because he had been a life sav.er to him in the business, come taking charge of it, and felt he should have'it because he was responsible for it and wanted him, if he passed away first he wanted his business to go to him.”

In 1926, C. L. Coulson wrote in his own handwriting a will from which we quote the following:

“ * * * I have one Brother 3 rieises and one Neffew. It is my desire and will that at my Death my Brother James Green Lawson Coulson shall take charge of all of my Business and have full Power to Collect all my income and to use same as he wishes, all of my Realestate to be his as long as he lives and all of my Personal Property, except I want him to Give to my Neise Catty Crenshaw $500.00 My Nece Dora Tester $500.00 My Nece Ethel Tester $500.00 and my Neffew Jeff Crenshaw $500.00 This to be Paid in Cash within 12 months after my Death. All of the remainder of my Estate to remain to my Brother. * * * But it is my wish that he give to the Cause of Jesus Christ our Lord through the Baptest Church at least 10% of the net income of all my Estate. This instrument of writting is not in regular Form but it is intended to convay all my Estate to my Brother without Bond or cost, except the $2000.-00 to be divided equally between my 3 neices and 1. Neffew.”

This will was superseded by other wills.

We will not attempt to construe this will, but the jury could reasonably consider it to be substantially consistent with the alleged contract and as corroborating its existence.

Under the rule previously stated for disposition of these points, it is our opinion that the evidence sufficiently supports the findings of the jury.

Appellants cite Dyess v. Rowe, 177 S.W: 1001, 1003, writ ref. (1915), San Antonio Civil Appeals, where in a suit of like character the Court stated that:

“It ig.,a .delicate mqtjer to-allow a cpntract of the .cfyaractp.r ,of the.pnp under consideration to prevail, for the dead man cannot tell about the affair, and the testimony obtained is usually in favor of the living, for the latter are usually the prime favorites as against those whose tongues are closed in death. Such being the condition of affairs when such a contract is made the basis of a recovery, it must be fully and satisfactorily proved.”

The circumstances and evidence in that case are not similar to the facts of this case and no benefit would be derived in reciting them. As for the rule there stated, we find it complied with here in that we find the contract sued upon, and its acceptance and performance by appellee, to have been “fully and satisfactorily-proved.”

Appellants also contend that the contract sued on is lacking in consideration, or that the consideration therefor is inadequate.

It is beyond dispute that appellee gave up his residence in Alabama, sold his property there, moved to San Angelo and went into business with his brother. If these acts were performed under and in conformity with the contract between the parties, as the jury found, then they are in law a detriment sustained by the promisee, appellee, and a consideration for the promise of C. L. Coulson. Rose v. San Antonio and Mexican Gulf Ry., 31 Tex. 49.

The adequacy of this consideration, under the circumstances shown by this record, is fully sustained. To give up home and country for a new life in a distant land is a very serious undertaking.

Appellants’ third point is that the Court erred in refusing to quash the deposition of T. M. Holloway on the ground that the answer of the witness to Interrogatory No. 70 was evasive. This question and answer follow:

“ ‘Please detail which of these answers you have given from'your personal knowledge and which answers you have given based upon information furnished you by persons other than Charles Louis Coulson.’

to which the witness answered:

“ ‘All interrogatories have been answered from personal knowledge from my , mother, first, through the - letter; secondly, through talking with my sister and Jim Coulson; thirdly, from talking with Charles - Coulson; and fourthly, from what I know myself.’ ”

When the witness was asked this question he had then been asked and answered about 232 questions.

It would have required super intelligence to have accurately answered this question.

The answer given may not have been entirely satisfactory to appellants, and they were entitled to the use of the answer as they saw fit.

This answer, however, does not stand alone. It was augmented by the following testimony, also elicited by appellants:

“85 Q. Have you stated anything in this deposition that you do not know of your own personal knowledge? If so, which answers were not within your own personal knowledge ? A. Nothing except the names of the sister of Jim Coulson and C. L. Coulson.
* * * * * *
“87 Q. Realizing that you are under oath to tell the truth, and that God watches what men do, do you now say that all of your answers to this deposition are true; that none were prompted by anyone; and that you personally heard and saw everything you have testified about ? A. Yes.”

We believe the Trial Court was well within his discretionary authority in refusing to suppress the entire deposition of T. M.-Holloway on the ground asserted.

■ Rule' 215a, Texas Rules of Civil Proce-; dure, provides a specific remedy for the' refusal of a witness to answer interrogatories. Appellants did not avail themselves of this remedy.

We overrule Point Three.

Points Four,, Five and Six are jointly presented. They are that “The Court erred in admitting hearsay evidence of the witness Holloway,” and in admitting his testi-. mony which “was not responsive to the questions asked,” and in admitting his testimony consisting of “conclusions only.”

The specific matters presented under these points were duly and timely presented by a motion to strike, all requests being denied by the Court. For our opinion to reflect our holdings, it is necessary to set out each question and answer admitted over objections.

To the inquiry as to whether the letter in suit was dated and, if so, its date, the witness answered: “I do not recall the exact date of the letter, but it came to James and Ollie in the fall of 1919.” The objection was that this was not responsive, hearsay and a conclusion.

We overrule these objections since the witness had seen the letter and its stamp and cancellation. The conclusion, if such it be, was a proper and reasonable one for the witness to draw.

The witness was asked, “Who signed the letter?” The answer was “The letter was signed in the handwriting of Charlie Coulson, which said handwriting was known to me at the time.” The objection was that the answer was not responsive, and no predicate was laid as to the identity of the handwriting.

If the letter was signed in the handwriting of Charlie Coulson, it was signed by Charlie Coulson and this much of the answer was-responsive. If it was signed in the handwriting of Charlie Coulson, then the witness must have known his handwriting, making the latter phrase harmless repetition. Also, elsewhere the witness testified in detail to his familiarity to the handwriting of Charlie Coulson.

The witness was asked why he remembered the contents of the letter. He answered : “There were several things to cause me to remember the letter. The first proposition is that I thought it was a kind proposition for my sister and her husband, Jim.”

The objection was that it was an opinion, conclusion, prejudicial, and was irrelevant.

It was a conclusion, but was one which the witness alone could draw. It was not irrelevant, and if it was prejudicial it was properly so.

The witness was asked whether he had seen the letter and envelope since his mother had showed it to him. Fie answered:

“Yes, I have seen the letter several times since my mother first showed it to me; in fact, it was with her possessions and from the date I first saw it I continued to see it until approximately 1940, but I have not seen it since.”

The objection was that all of the answer except “Yes” was unresponsive and prejudicial.

The witness was entitled to explain and amplify his answer. If the answer was prejudicial, it was properly so.

The next objection to the interrogatory is, merely that the answer was immaterial. This is an insufficient objection.

The witness was asked to state in detail “What you said and what Charles Louis Coulson said about * * * (Mr. Coulson) * * * writing to * * * (appellee) * * * about coming to San Angelo.”

The witness answered:
“I recall Mr. Charles Coulson’s asking me if I knew the facts and conditions under which Jim Coulson and his wife came to Texas. I told him I did due to the fact I had seen the letter he had written and his generous offer to Mr. & Mrs. Jim- Coulson coming out there. He then stated to me that he had given Jim and Ollie half of everything he owned at the time they came there and that at his death they were to get full and complete title and possession to the other half interest in his property.”

The objection was that the testimony was repetitious, cumulative and that the last sentence of the answer was not responsive.

The admission of cumulative evidence and permitting repetition is largely discretionary with the Trial Court. No abuse of discretion is here charged, and none is found.

The nonresponsive objection is sound, hut not cause for reversal since this testimony was cumulative of other testimony received from this and other witnesses.

The witness was asked “Please state whether or not Charles Louis Coulson ever made any statements to you as to why his brother * * * came to Texas.” He answered “Yes, he was the cause of their coming there and he expected to see that they did well during his lifetime and at his death, they would take his entire property.” The objection was that the question was repetitious and the answer was not responsive.

We agree, but both question and answer were repetition. A nonresponsive but repetitious answer is not reversible error absent abuse of discretion which is not charged.

The witness was asked, “Please state whether or not Charles Louis Coulson ever made any statement or statements to you with reference to James Green Lawson Coulson selling and sacrificing his property in order to come to Texas.” He answered “No, he did not make a statement about too great a sacrifice; he just stated he was the cause of Jim selling his property in Alabama and moving to Texas, and he told me the reason why, and that was that he was to have half interest in his business, there, which he had already given him, and at his death to take all the property if he owned any at the time of his death.” The objection was that after the words “too great a sacrifice” was not responsive.

The answer was certainly responsive to the question'as to statements made by C. L. Coulson “with reference” to appellee “selling * * *■ his property in order to come to Texas.” He, C. L. Coulson, stated that he caused appellee to sell his property, and he stated the nature of the cause. The objection was properly overruled.

The witness was asked “When did you first learn that Charles L. Coulson did not leave his property to James Green Lawson Coulson ? Please state from whom and how you received that information.” He answered “I thought for several years after his death he left everything to Jim, judging from what he told me, and I first learned there was some question about it approximately two years ago. I got this information from a gentleman by the name of Smith.”

Objection was made that the first part of the answer beginning with “I thought” and continuing to “he told me and” was not responsive to the question, expressed an opinion of the witness.

The objection that the witness expressed an opinion was properly overruled since the opinion of the witness was based upon other evidence in the record. We also think the answer was responsive since the witness was merely attempting to fix the date inquired about. In any event, the answer if erroneous, was extremely harmless under Rule 434, T.R.C.P.

The witness was asked “What business was James Green Lawson Coulson engaged in at the various times you were in San Angelo, Texas? Please give in detail the dates and specific business.” He answered “He and his brother were operating a wholesale candy company; in 1951 when I was there he was principally retired and was collecting rents on real estate he owned there at that time.”

Objection was made that the words “and his brother,” were not responsive to the question and was a conclusion, and that the phrase “he owned at the time” was a conclusion, opinion and assumed ownership not established and was hearsay, and prejudicial.

Testimony that appellee was in business with his brother was certainly within the scope of the question. The real estate from which appellee was collecting rents and which he was stated to own not being identified, the offhand statement of the witness was not prejudicial and its admission, if error, is harmless under Rule 434, T.R.C.P.

The witness was asked “When were you first notified that you should search for the letter, or remember its contents?” The answer “I was first cautioned to remember its contents by my mother the first time she showed me the letter, and it was stated to me that I as a brother of Ollie, should know the contents and remember them. I was first notified to search for the letter approximately two years ago on or about October 1, of this year.”

Objection was made to the first sentence ending with “remember them” because that part was hearsay, and not responsive.

We overrule this objection because part, at least, of the first sentence was admissible since it was invited by appellants and was within the legitimate scope of the question, such part being from the beginning of the sentence to the first comma. Specific objection should have been made to the remainder of the sentence in order for the objection to be reviewable.

The witness was asked “You know, of course, do you not, that H. H. Coulson supported himself until his death?” The answer was, “No I do not, for I personally know my sister and her husband Jim supported him and even helped him obtain enough money to buy a small stock of goods for his little store.”

Objection was made to all the answer except “No I do not,” because it was not responsive to the question and was a conclusion and hearsay.

The witness was 9 years old when H. H. Coulson died in 1911, having been born in 1902.

H. H. Coulson was the father of the Coulson brothers.

We do not know, as a matter of law, that a nine year old boy could not understand and know matters about which the witness testified. The record does not show how he obtained this information. We cannot say that it was learned from hearsay; nor can we say that the testimony was an unwarranted conclusion. It was responsive.

The witness was asked “(a) Describe in every detail every act by James Coulson in taking care of his father, giving dates that same occurred and the names of persons present with you and James Coulson when it occurred.” He answered, “I know that H. H. Coulson lived in the home of Jim Coulson and my sister. I have been there and I have observed the way he was treated, and I know he was well taken care of, and I know he did not work until the last year of his death when he established a little store.”

Objection was made that the answer was not responsive to the question.

The answer was responsive,-although incomplete. The objection was not tenable.

The witness was asked “(b) How much of James Coulson’s personal money did you ever see him spend in taking care of his father? Please give amounts, dates and purposes for - which said sums, were expended.” His answer was, “Back at that time there was very little personal money in our country. All I know about it, he. furnished a house, food, clothing.”

Objection was made that the answer was not responsive, was a conclusion and hearsay.

We consider the answer responsive, perhaps not complete, not patently hearsay, and if a conclusion, a proper one for the witness to draw.

The witness was asked “Did C. L. Coulson ever tell you he was providing for James Green Lawson Coulson’s support so long as he lives ?” The answer “He did not tell me he was providing his support; he told me- he was giving him a half interest in his business, then at his death the balance of his property.”

Objection was made that that part of the answer beginning with “he told me” and ending with “his property” was not responsive to the question asked.

This objection should have been sustained, but since the testimony volunteered was merely a restatement of what he and other witnesses testified to, it was harmless error under Rule 434, T.R.C.P.

The witness was asked if he compared the letter in suit with any other specimen of C. L. Coulson’s handwriting at the time he read the letter. He answered, “I have seen so many of C. L. Coulson’s handwritings I knew it was his even before I saw his name signed to the letter.”

Objection was made that the answer was not responsive.

This objection should have been sustained. That it was overruled is harmless error under Rule 434, T.R.C.P.

The penalty prescribed by Rule 214, T.R.C.P., is the exclusion of nonpertinent testimony contained in a deposition. The failure to exclude this answer did not materially affect this trial. The witness testified fully to his acquaintance with the signature of C. L. Coulson and to the authenticity of the letter in suit.

The witness was asked with reference to appellee, James Coulson, “How long did he live with his father after marrying your sister, Ollie? Give dates and place.” He answered “He did not live with his father; his father lived with him and my sister Ollie.”

The answer was partially responsive, and the objection to the whole answer was inadequate.

The witness was asked concerning appel-lee “What property in Alabama or elsewhere did he sell after coming to Texas?” He answered “He sold his property in Alabama before going to Texas.”

Objection was made that the answer was not responsive.

We believe the answer responsive and properly explicative so as to make an intelligent answer.

The witness was asked concerning appel-lee “State in detail the kind of business he was engaged in in Alabama in the fall of 1919, and state where the business was located, its name, the specific assets of the business and the amount of money of his own invested in the business.” He answered “I do not know how much money of his own invested in his lumber business, but he had a prosperous and growing business near Sylvania, and he owned some real estate near Sylvania, Alabama. I would judge all was worth between eight and twelve thousand dollars at that time, which would be worth at the present time from fifty to seventy five thousand dollars.”

Objection was made that all of the answer after the words “lumber business” was not responsive to the question, was hearsay, and particularly the last part relative to present value was wholly opinion and conclusion.

The answer of the witness was a fair answer to a very onerous question and was subject to none of the objections made.

The points under consideration are overruled.

Point Seven complains of the following jury argument made by counsel for the impleaded parties:

“In conclusion I want to say this, Mr. Luther Lynn, he’s Guardian of that old gentleman. He may not know what you do here today; he may never know what result your verdict is. I say to Luther and these fine ladies I represent my set-up, we don’t want anything out of this suit. I am not asking you to give these ladies a penny. I am here to tell you in their behalf that what James Louis Coulson says in his petition is true, and that’s all we want. We are not trying to gobble up the estate. I tell you that in behalf of these ladies I represent. We don’t want a thing; we just want the truth to come out. I say to them and Luther, if a man can understand you, you tell him if today this will—”

An objection that this argument was prejudicial was sustained. Counsel thereupon continued his argument as follows:

“I say to you ladies and gentlemen in behalf of my client, these ladies, I feel like we have had a fair trial. I know you are going to do what your conscience tells you to do based upon what you heard from the witness stand and not what I say.”

No objection to this argument was made.

It is our opinion that reversible error under Rule 434, T.R.C.P. is not shown under this point.

These parties had adopted the pleadings of appellee and their pleadings, as well as all pleadings, were before the jury. While none of these parties testified, their attitude in the case was known to the jury. It was, no doubt, improper for counsel to make compurgators of himself and his clients, but the Court’s action followed by the very gracious statement of counsel effaced any measure of harm which may have been occasioned.

Point eight is that the Court erred in excluding from evidence a letter written by appellants’ counsel to counsel for appel-lee requesting information as to the name of the official to whom the Holloway deposition commission was being sent for execution and the approximate time when the deposition was to be taken, the letter also indicating the desire of counsel to be present at such time.

The deposition, on written and direct and cross interrogatories was taken without this information being furnished to counsel for appellants.

Appellants cite no rule or authority supporting the admission of this communication, nor do we know of any such rule or authority. Appellants do say that the letter bears on the “fairness” of the taking of the deposition. We believe that the “fairness” in taking this deposition is conclusively established by the certificate of the notary public, Edna Lovelady, Notary Public in and for Jackson County, Alabama, who executed the commission to take such deposition, in the absence of pleading and proof attacking such certificate. The letter was properly excluded.

The Ninth point is that the Court erred in assessing all costs including the fee of the guardian ad litem for representing the minor defendants, Charles and Louis Clark, sons of Andrew Perry Clark, against the same Andrew Perry Clark.

One of counsel for appellants was the guardian ad litem.

Appellants say that the impleaded defendants, heirs of C. L. Coulson, should have been held for costs. These parties, by their pleadings, aligned themselves with appellee. They were entitled to recover their costs under Rule 131, T.R.C.P., providing that the successful party should recover costs from his adversary.

Three persons originally sued were dropped as parties. The costs attending them should have been borne by appellee. We are not advised of the amount of these costs and can make no order respecting them. If they are nominal, we will not consider them.

A fee of $500.00 was allowed the guardian ad litem. There is no evidence that the minors represented by the guardian ad litem own any property.

Appellants, citing Bruni v. Vidaurri, 140 Tex. 138, 166 S.W.2d 81, 96, assert that this cost should be taxed against appellee, whereas appellee contends that under Rule 141, T.R.C.P., the Court properly exercised his discretion in assessing this cost against Mr. Clark.

The court in Bruni does, say that when an unsuccessful minor defendant has no property ‘out of which such fee can be collected that “the .court should charge it against the successful plaintiff” as they are “deemed costs incurred by the plaintiff within the meaning of the statute.” Art. 2052, R.C.S., 1925, now Rule 127, T.R.C.P.

The Court in such opinion also states:

“When there is another defendant or other defendants than the minor or the party cited by publication, no part of the fee should be taxed against the Othér defendant or defendants unless facts or circumstances are shown by the record from which it clearly appears that he or they should, in fairness, be required to pay part or all of the fee.”

, Rule 127 (Art. 2052) does not purport to adjudge costs. It merely makes each party 'liable for the’ costs incurred by him.

We believe that it was fair to all parties, including the guardian ad litem, that this fee be adjudged against the father of the minors rather than against the minors personally. We affirm the exercise of discretion by the Trial Court in this regard under Rule 141, T.R.C.P.

Point Ten is that the Court erred in admitting in evidence a letter sent by appellant, Andrew Perry Clark, as Executor under the will of C. L. Coulson, to tenants of the Coulson estate properties to pay to him all rentals for property occupied by such tenants. One of these letters was addressed to appellee.

The objection was that the letter was immaterial and irrelevant. We are inclined to agree, but, as previously held, this is not an adequate objection. It was properly overruled.

Point Eleven is that the Court erred in submitting Special Issue No. 1 over their objection that there was no pleading to support that portion of the issue reading “or to the said James Coulson and wife Ollie Coulson.”

Appellants state that there is evidence only that the letter in suit was written to and that the promise therein was made to James Coulson and his wife and not to James Coulson alone.

This point has given us considerable concern, and we are not free from doubt in determining it.

Since appellee was C. L. Coulson’s only brother and was unquestionably the main figure in Mr. Coulson’s plan, and since ap-pellee’s wife died shortly after moving to San Angelo, intestate and without children, appellee, apparently with practicalities more in mind than the fullness of his pleading, gave scant attention to the deceased Mrs. Coulson in his petition. He did plead the facts concerning her death, above recited, and further that “any interest she might 'h'ave had in said contract constituted community property of said marriage and, accordingly, at her death, passed to plaintiff under the laws of descent and distribution of the State of Texas.”

Under these circumstances, we are inclined to the view that the phrase in parentheses in this issue was surplusage and that its inclusion was not harmful to appellants under Rule 434, T.R.C.P. The fact that this phrase was set off by parentheses indicates the collateral nature of it.

Mrs. Coulson was not the real party at interest in the contract. She was a formal party only. The benefits she was to have received under it were through her husband. C. L. Coulson gave no intimation that the terms of the contract had changed or that the contract had lapsed by the death of Mrs. Coulson. His statements show that he construed and interpreted the contract after the death of Mrs. Coulson as being wholly for the benefit of his brother.

We believe this holding, in principle, is supported by the decisions in Southern Underwriters v. Mowery, 147 S.W.2d 834, Texarkana Court of Civil Appeals, writ dismissed, and Beaumont City Lines v. Williams, 221 S.W.2d 560, Beaumont Court of Civil Appeals, writ ref., N.R.E. These cases are to the effect, respectively, that the entire record should be considered in preparation of an issue, and that minor departures in framing an issue are not fatal.

The Twelfth point is that the Court erred in permitting Honorable B. W. Smith, of counsel for appellee, to testify regarding his search for the 1919 letter including this statement, “The inquiry I made and what I learned, the probability of where it was * * * I inquired of James Coulson.” He further testified that he was unable to locate the letter.

The objection to this testimony was that it was hearsay, and also a violation of Art. 3716, V.A.C.S., regulating the admission of evidence of transactions with a decedent.

It was incumbent upon appellee to prove that a diligent search had been made for the 1919 letter before secondary proof as to its contents was admissible. Smith v. Cavitt, 20 Tex.Civ.App. 558, 50 S.W. 167, Dallas Civil Appeals. See also Waggoner v. Alvord, 81 Tex. 365, 16 S.W. 1083.

The search certainly would have been less than diligent if inquiry had not been made of the addressee of the letter.

No authorities are cited to support the contention that this testimony violated Art. 3716. Mr. Smith was not a party. James Coulson was not, and is not, 'a decedent. The statute is inapplicable. '

Nor do we find any hearsay • evidence present. No statement ,of Mn Coulson was repeated by the witness Smith. , ■

The point is overruled.

Points Thirteen and Fourteen are jointly briefed. They are that the Court erred in submitting Special Issue .No. 2 for the reason that there was no evidence and “insufficient evidence of probative force to support the issue.” f < * ■

Special Issue No. 2 inquired if James Coulson received the 1919 letter from C. L. Coulson. The answer was “Yes”.'

There is an abundance of circumstantial evidence to support the answer- to this issue, much of which has been referred to above.

The letter was properly addressed and stamped and cancelled. It was in the possession of appellee’s wife’s mother who lived with appellee at the time the letter should have been received. Compliance with the terms of the letter by appellee is evidence that he knew the contents of the letter, and hence that he had received, it.

Considering all the evidencfe,' we are of the opinion that these points are not well taken, and they are overruled.

Point Fifteen is that the letter made the basis of this suit is too uncertain and ambiguous to constitute a valid contract to make a will, and is violative 'of the statute of frauds. (Art. 3995, V.A.C.S.).

We believe that the following rules when applied to the evidence found in this case, much of which has been referred to, are sufficient authority to sustain our action in overruling this point.

In Parks v. Caudle, 58 Tex. 216, the Court stated:

“We are also of opinion that, under the circumstances, the ■ evidence as to the contents of the deed was not inadmissible because it was not sufficiently specific. If such a deed was in fact ever made and was destroyed by fire, no copy having been preserved, it would be rare indeed that witnesses, after twenty years had passed, would be able to testify definitely to more than its substance.”

In Jordan v. Abney, 97 Tex. 296, 78 S.W. 486, 487:

“That a contract between two persons, upon valuable consideration, that one will, at his death, leave property to the other, is enforceable, where no statute is contravened, is held by an almost unbroken current of authority,. English and American. Such contracts, when sufficiently certain, have been held valid and enforceable, in equity as well as at law, whether they provide for the payment of money, or.the leaving of specific property, or of all or a moiety of that which the obligor should leave at his death. They have usually been put in the form of agreements to bequeath by will, but this has not been regarded as an essential feature; agreements to leave the property, or that the obligee should have it at the death of the obligor, being held sufficient.”

The last point is that the Court erred in excluding from evidence certain bookkeeping records of C. L. Coulson.

Appellants say that since these records are authentic and tend to rebut the proof that Mr. C. L. Coulson recognized the contract of 1919, that they are admissible. •The only basis for this contention is found in this excerpt from appellants’, brief:

“If the records a man keeps cannot be offered in evidence, and his writings are excluded as self-serving, and his lips are sealed by death and nothing he said can be presented in Court in his behalf to challenge an oral presentation such as. Appellee has made, then there is no defense to a case like this.”

Under rules of long standing, self serving hearsay statements or writings are inadmissible. We apply these rules and sustain the action of the Trial Court in excluding these records.

Finding no reversible error, the judgment of the Trial Court is affirmed.

Affirmed.

      . The jury verdict follows:
      “From a preponderance of the evidence do you find that during or about the month of October 1919 O. L. Coulson (otherwise known as Charles Louis Coul-son) wrote a letter to Ms brother James Green Lawson Coulson (otherwise known as James Coulson), signed by the said C. L. Coulson, and stating in substance that if the said James Coulson would sell out his own business in Alabama and move to San Angelo, Texas, and go into business there with the said C. L. Coul-son, he, the said C. L. Coulson, would at his death leave all his estate to his said brother, the said James Coulson (or to the said James Coulson, and wife, Ollie Coulson) ? Answer Yes or No. Answer : Yes.
      “From a preponderance of the evidence do you find that the said James Coul-son received the letter, if any, inquired about in the foregoing Special Issue No. 1? Answer Yes or No. Answer: Yes. “From a preponderance of the evidence do you find that within a reasonable time thereafter (that is, after the receipt of such letter, if any) the said James Coul-son wrote to the said C. L. Coulson a letter accepting such offer, if any? Answer Yes or No. Answer: Yes.
      “From a preponderance of the evidence do you find that after the receipt by the said James Coulson of the said letter, if any, from the said C. L. Coulson, he, the said James Coulson sold out his own business in Alabama and moved to San Angelo, Texas, to go in business there with the said C. L. Coulson? Answer Yes or No. Answer: Yes.
      “From a preponderance of the evidence do you find that the said James Coulson did the things inquired about in Special Issue No. 4 in rebanee upon the promise, if any, of the said C. L. Coulson contained in said letter, if any, to will his property at his death to James Coulson (or the said James Coulson and wife, Ollie Coul-son) ? Answer Yes or No. Answer: Yes.”

      . The following questions were on direct examination of the witness.

      . -The following questions were asked on cross examination of the witness.

      . No attempt was made by appellants to invoke any of the provisions of Rule 186b, T.R.O.P.

      . The full issue hás been set out in footnote 1 and will not be repeated1 here.


author: CHAPMAN, Justice.

text:
    W. H. TAYLOR and Mildred Taylor, Appellant, v. DALLAS TRANSIT COMPANY, Appellee.
    No. 7128.
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 13, 1961.
    Rehearing Denied Dec. 11, 1961.

      Harold B. Berman, Jay S. Fichtner, Jackson, Walker, Winstead, Cantwell & Miller, Melton & James, Dallas, for appellants.
    Turner, White, Atwood, Meer & Francis, Dallas, for appellee.
   CHAPMAN, Justice.

This is an appeal by plaintiffs below, W. H. Taylor and wife, Mildred Taylor, from a judgment of the trial court based upon a jury verdict in favor of Dallas Transit Company in a personal injury and property damage case growing out of a collision at an intersection in the city of Dallas.

The jury absolved appellee company on all issues of negligence submitted. They found appellant, Mildred Taylor, was guilty of running a red light; failing to keep a proper lookout; failing to make a proper application of the brakes; and driving at an excessive rate of speed. From a take nothing judgment plaintiffs below perfected their appeal to the Dallas Court of Civil Appeals and the Supreme Court transferred the case to us for determination.

The collision took place at the intersection of Commerce Street and Good-Latimer Expressway in the city of Dallas. It was a red, amber and green light controlled intersection with each party contending the other ran the red light. E. N. Rhodes was operator of appellee’s trolly bus which had to follow the overhead lines to keep its power. Mrs. Taylor of Denton was driver of her nine passenger station wagon and carried as passengers eight other lady fellow employees from her city, Lewisville and Lake Dallas. They were on their way to a 7:00 o’clock working hour at National Banner Company, 825 Trunk Ave. in Dallas and the driver had left Denton about 15 minutes before 6:00.

The' first point of error concerns alleged misconduct of the jury in reading a Dallas Times Herald story of the trial. The story was as follows:

“9 ‘PEERS’ IN DOUBT?
“Nine women who said they kept silent for five blocks drew disbelieving stages from nine other women to whom they told it in a Dallas trial Wednesday.
“The nine women, appearing in a damage suit, were occupants of a station wagon. Each in turn testified they had gone five blocks and not a word had been spoken prior to a collision between the station wagon and a bus.
“There were nine women on the jury and they looked at each other in strange fashion. The judge (a man) just shook his head and smiled.”

Though it was improper for a juror to take a newspaper reporter’s version of a portion of the testimony into the jury r,pom and show it to the other jurors, we do not see how there could. possibly have been reversible error in the fact that the jury had a laugh at the human interest story written by the reporter. The facts which prompted the facetiously written article took place in the jury room in the presence of the jury. We fail to see any reversible error in the statement that the judge shook his head and smiled. For us to say tha.t such conduct on the part of the judge constituted an overt act of disbelief of the testimony, thus constituting a comment by the judge upon the weight of the evidence, would be to delve into the mysteries of the mind, and would be highly speculative to say the least. It would be even more speculative to say from this record that the jury was influenced by the judge’s actions to conclude that the lady witnesses were not worthy of belief. There was an abundance of evidence to justify the jury in disbelieving the lady witnesses and in answering the issues as they did. Additionally, the record is replete with evidence discrediting the testimony of Mrs. Taylor upon material points in the case concerning a prior injury. As in all contested cases, much of the testimony was conflicting, but “it must be borne in mind that it was the province of the jury to judge the credibility of the witnesses and the weight to be given their testimony. It was their province also to resolve the conflicts and inconsistency in the testimony of any one witness as well as in the testimony of different witnesses.” Ford v. Panhandle & Santa Fe Ry. Co., 151 Tex. 538, 252 S.W. 2d 561-563. They may also disbelieve a witness though he is neither impeached nor contradicted, Cheatham v. Riddle, 12 Tex. 112.

It is settled law of this state that the party asserting misconduct of the jury has the burden not only of proving by a preponderance of the evidence that such misconduct occurred, but also of showing that such misconduct probably resulted in injury to him. As a reviewing court we conceive it our duty, in considering the question of injury, to view the matter in the light of the entire record, which means the evidence heard on the motion urging misconduct, the evidence in the main trial, and all other parts of the record which may throw light on the question of the injury. In doing so we are compelled to say that appellants have not discharged the burden required to show injury.

In the next point appellant asserts error of the trial court in refusing to submit to the jury special issues based upon the theory of discovered peril.

They urged the testimony of the trolley-bus driver as the basis of their point, so we may assume that his testimony was the most favorable to their contentions. Question No. “B” in their requested issues on discovered peril inquires of the jury “if the driver saw the plaintiff * * * and knew and realized the perilous position of said plaintiff at a time when, by the use of the means at hand, having due regard for the safety of himself and his passengers, he, Ellis Nelson Rhodes, could have avoided the collision by the exercise of ordinary care?” With respect to the actual discovery by the bus driver of appellants’ perilous position, appellants’ brief sets out the three factors which they say constituted this element of discovered peril. Subsection (a) of these three is as follows: “that appellee actually discovered, or 'should have discovered’ appellants’ perilous position.” (All emphases are ours unless otherwise stated.)

It is readily apparent that this element of the issue requested does not conform with the “(a)” section just quoted as being proper in that the issue requested made inquiry of the jury if the driver saw Mrs. Taylor in the perilous position in time to avoid the collision and not if he discovered or should have discovered her perilous position.

It is unnecessary for us to discuss which one of the two methods is or is not correct but we are bound by the wording of the issue as requested in passing on whether the tendered discovered peril issues should have been given; viz. if the driver saw the plaintiff in time, etc. and not if he should have seen her in time.

The bus driver testified Mrs. Taylor was going East in the 3rd lane of the S lanes on Commerce Street. Her own testimony was that she was going approximately 20 miles per hour. He stated he was out about half way on Commerce Streets “ * * * when I looked and saw the station wagon coming through;” that he stopped as soon as he could; that his bus was almost to the north side of Commerce when Mrs. Taylor hit him just back of the center of the 30 to 35-foot long bus; that two east bound cars were parked at the intersection facing the red light; and that she was coming around the two cars and already into the intersection when he saw her. Under questioning by appellant- he said:

“Q. Well, what did you do when you saw her; you didn’t tell me what you did? A. Well—
“Q. Did you blow your horn? A. Lord, there wasn’t nothing you coúld do. What would you have done? I couldn’t do nothing.
“Q. I want to know what you did, Mr. Rhodes, not what I would have done. A. I didn’t do anything, just pray the Lord that maybe we all wouldn’t be killed, that is all I could do.
“Q. You didn’t try to stop? A. Why sure, I tried to stop and did.
“Q. You stopped only after she hit you, is that right? A. Yes, that is right.
“Q. Did you try to speed up? A. No, I stopped.
“Q. Did you try to turn to your right to get out of the way? A.' No, I didn’t try to get out of the street, I was so far down, I couldn’t no way.
“Q. Did you try to move over into another lane? A. No, I didn’t have time to do all that.
“Q. So it is your testimony that after you saw her the first time, you didn’t have time to do anything, is that correct? A. No, I didn’t.
“Q. And the first time that you saw her you say she— A. She was right there, she come around these cars and come through.
“Q. She was already in the intersection, is that right? A. Yes, she come around and got around them and I saw something was going to happen, and the only thing I knew to do was to stop if I could and just pray the Lord that maybe she wouldn’t be killed, or maybe I wouldn’t, and I am thankful we wasn’t.
“Q. So, she was, at the time you saw her, already past these cars that you have identified over here? A. No, she was just coming by them.
“Q. Just coming by them ? A. Just —I saw her just — the other cars were sitting still, and she started by them, and I saw her.”

From this testimony, and considering all other testimony and inferences that may be fairly drawn from the record, we find no probative evidence to show what, if anything, the bus driver, in the exercise of ordinary care, could have done with safety to himself and his passengers, while acting in the brief lapse of time transpiring after his discovery of the emergency, by which he could have avoided the disaster. Texas Pacific Coal & Oil Co. et al. v. Wells et al., Tex.Civ.App., 151 S.W.2d 927, affirmed, Wells v. Texas Pacific Coal & Oil Co., 140 Tex. 2, 164 S.W.2d 660; Cantu v. South Texas Transp. Co., Tex.Civ.App., 110 S.W.2d 995; Schumacher et al. v. Missouri Pacific Transp. Co., Tex.Civ.App., 116 S.W.2d 1136; Parks v. Airline Motor Coaches, Inc., 145 Tex. 44, 193 S.W.2d 967, 969. In the last cited case the Supreme Court said:

"[1-4] The rule for allowing recovery of damages under the doctrine of discovered peril is exacting. The issues arising from primary negligence and contributory negligence become immaterial in passing on the issue of liability under this rule. The basis for recovery rests upon humane principles and public policy, and not upon the negligence or dereliction of the injured person. The sole question for determination is whether there is- evidence that the driver of the bus actually discovered the perilous position of the deceased in time to have avoided striking him, by the use of all the means at his command, consistent with the safety of himself, his bus, and his passengers. The burden was upon the plaintiff to establish this fact. That the driver was guilty of violating those humane principles will neither be imputed nor presumed^ but such guilt must be proved by competent evidence. In order to sustain a recovery, it must be shown that the driver actually discovered deceased and realized his perilous position in time to have averted the injury.”

We believe there are other good reasons there is no reversible error shown from the record in failing to give the tendered discovered peril issues but we see no good purpose in extending this opinion further to discuss them in view of the fact that it is so obvious the testimony, when considered most favorably to appellants, does not raise discovered peril.

The next point urged as reversible error is that appellee’s counsel repeatedly made demands before the jury that appellants’ counsel give him privileged ma-ferial -from his file, and that he placed biny on the witness stand to question him re-; garding the privileged written, statement. ■ •

Mrs. Taylor testified that the bus. driver admitted at the scene of the collision that he had run a red light and denied making a written statement herself that the bus driver, at the scene of the collision, had accused her of running a red light.

. There was considerable bantering between opposing counsel before the jury with respect to the statement after Mrs. Taylor testified she had made no such statement. The record shows appellants’ counsel admitted he had handed the statement to Mr. Hauer, counsel for appellee, to read and that he read it. He also testified he had no objections to appellee’s counsel asking him questions concerning the statement and stated in the presence of the jury that he would “swap” the statement to appellee’s counsel for a report made by the bus driver. Then later in the trial appellee’s counsel testified to the contents of the statement, to the effect that the bus driver did accuse Mrs. Taylor, at the scene of the collision, of running a red light.

No point is brought forth complaining of error of the court in permitting Mr. Hauer to testify to the contents of the statement but they only urge alleged error in allowing appellee’s counsel to repeatedly demand the statement in the presence of the jury. The record shows that at one time Mr. Fichtner, one of the counsel for appellant, offered to “swap” the written statement of Mrs. Taylor to counsel for appellee for the report the bus driver made of the accident. That report was later offered but never admitted into evidence.

In this point it appears to us there is “much ado about nothing.” Since the testimony of the contents of Mrs. Taylor’s statement is in evidence without appellate complaint we fail to see how there could possibly be any harm shown to appellants in the repeated demand for it before the jury. Under the harmless error doctrine of Rule 434 we would have to say that even "if there was error in the repeated demands, there were no such denials of appellants’ rights-as were calculated to cause and which probably did cause the rendition of an improper judgment.

Points 4 through 10 complain of the court’s refusal to give numerous requested issues on primary negligence.

The discovered peril issues tendered having been properly refused, refusal to submit further special issues upon primary negligence, even if proper issues under the evidence and the pleadings, was harmless in view of the fact that the jury found appellant guilty of contributory negligence. Wortham et al. v. Bull, Tex.Civ.App., 19 S.W.2d 211 (writ refused); Reeves v. Southwest Flying Service, Inc., Tex.Civ.App., 258 S.W.2d 848. Under this record it is obvious that even if all the primary negligence issues refused had been given and answered against appellee it still could not have changed the result in view of the issues of contributory negligence answered against appellants. Accordingly, the judgment of the trial court is affirmed.

      . Barrington et al. v. Duncan et al., 140 Tex. 510, 169 S.W.2d 462; Rule 327, Vernon’s Ann.Texás Rules of Civil Procedure.

      . Barrington et al v. Duncan et al., supra.

      . Commerce Street, was judged by Mm to be 45 feet wide.