text:
    Reginald E. NUTTER et ux., Appellants, v. Gerald Don DEARING, Appellee.
    No. 16641.
    Court of Civil Appeals of Texas. Dallas.
    Jan. 21, 1966.
    Rehearing Denied Feb. 18, 1966.

      Rosenfield, Berwald & Mittenthal, Dallas, for appellants.
    Touchstone, Bernays & Johnston, and Jim E. Cowles, Dallas, for appellee.
   DIXON, Chief Justice.

This is a wrongful death action brought by appellants Reginald E. Nutter and wife Gladys M. Nutter against appellee Gerald Don Dearing arising out of a collision involving a Ford automobile being operated by appellants’ son, Richard Frederick Nutter, and a Chevrolet automobile being operated by appellee Dearing.

The collision took place in the 9500 block on Forest Lane in the City of Dallas, Texas, on Sunday, May 3, 1964 at about 10:00 o’clock P.M. The two cars were traveling in opposite directions, one East and the other West on Forest Lane. Appellants’ son (upon whom appellants allege they were partially dependent for support and maintenance) was killed almost instantly. Ap-pellee’s wife sustained serious injuries from which she died a short time later. Appellee himself sustained injuries which hospitalized him for fifty-seven days. Appellee’s minor daughter suffered less serious injuries.

Appellee filed an action against Henry Ritchey as third party defendant. It was alleged that Ritchey and appellants’ son were engaged in a race immediately prior to the collision. Ritchey was the only eyewitness to the accident.

Appellants allege that their son was driving his Ford car in a westerly direction and appellee was driving his Chevrolet in an easterly direction at the time of the collision. On the other hand appellee alleges that he was driving his Chevrolet in a westerly direction and that it was appellants’ son who was driving his Ford in an easterly direction. It is of prime importance to determine which car was being driven East on Forest Lane because the parties are in substantial agreement that the driver of the automobile traveling East, whoever he may have been, was guilty of the acts of negligence which proximately caused the collision and the injuries and deaths in question.

A jury found that appellee was not guilty of the acts of negligence alleged by appellants; that appellants’ son was guilty of each of the acts of negligence alleged by appellee; that the collision was not an unavoidable accident; and that Henry Ritch-ey, the third party defendant, did not commit any of the acts of negligence charged against him by appellee. Based on these findings judgment was rendered that appellants recover nothing against appellee and that appellee recover nothing against the third party defendant Henry Ritchey.

Several of appellants’ points on appeal attack the jury’s findings on the ground that there is no evidence to support them, or that the findings are so contrary to the overwhelming weight of the evidence as to be manifestly wrong. These points call for a synopsis of the evidence.

SYNOPSIS OF EVIDENCE

Henry L. Ritchey (appellants’ witness), the only eyewitness to the collision, testified that he saw a Chevrolet automobile turn East onto Forest Lane, the same direction he was going on his way to his home in Garland, Texas, a neighboring city in Dallas County, Texas. He passed the Chevrolet, then a short time later the Chevrolet drew even with him and stayed even for a short distance. The Chevrolet was at that time in the left lane of Forest Lane. When the lights of an oncoming westbound car showed up, Ritchey says he decreased his speed to let the Chevrolet pass him and get back onto the right lane of the road out of the path of the approaching car. The Chevrolet did pass him and swerved to the right in front of him, but in doing so went onto the shoulder of the road, skidded at an angle, then went on across the road into the path of the approaching westbound car. The collision followed. Ritchey testified that he stopped his car, got out and went to the scene of the accident. The westbound car was a Ford. Its lone driver was hanging out of his car either dead or unconscious. The occupants of the eastbound Chevrolet were a man, a woman and a child. The occupants of the Chevrolet were screaming and moaning. Ritchey himself was so shocked at the sight and sound of the accident that he almost became nauseated. Almost immediately a ’teen age boy appeared on the scene. Ritchey told him to call the police and the boy left to do so. Soon a police officer appeared. Ritchey gave the officer a statement as to how the accident occurred. On cross-examination Ritchey stated that he had once been convicted in the State of Washington of the crime of “carnal knowledge of a female.”

Robert Andrew Pigg (appellants’ witness), sixteen years of age, testified that he was driving North toward the intersection of Audelia Road and Forest Lane. While waiting at the intersection for traffic on Forest Lane to clear so that he could turn West onto Forest Lane, he saw a Ford automobile pass the intersection going West on Forest Lane. When traffic cleared he made his left turn and followed the Ford car. He saw it climb a rise or hill ahead of him then disappear on the far side of the rise. Shortly thereafter he heard the crash of the collision. Though he was not actually an eyewitness of the collision he arrived on the scene almost immediately thereafter. One of the cars in the collision was the Ford car which he had followed going West on Forest Lane. Ritchey was already there and told him to phone for the police, which he did from a nearby residence.

Five Police Officers (appellants’ witnesses), testified that tire marks and other physical evidence at the scene of the accident indicated appellee’s Chevrolet was traveling East at the time of the collision and that the Ford of appellants’ son was traveling West; the physical evidence also indicated that the Chevrolet had hit the right shoulder of the road, then veered to the center of the road, or across the center, skidding at an angle to the point of impact with the westbound Ford. Two of the officers talked to Ritchey at the scene and gave some consideration to his statement in arriving at their conclusions. One officer arrived at the scene ten minutes after the accident; another twenty-five minutes after; one thirty-five minutes after.

Gerald Don Dearing, appellee (witness in his own behalf), testified that he left home about ten minutes to 10:00 o’clock P.M. to take his wife to work at Texas Instruments, Inc., eight miles distant, where she worked at night. His home is located southeast of Texas Instruments, Inc. The shortest route, and the one he habitually traveled in taking his wife to work, included a strip of Forest Lane leading in a westerly direction. He had traveled this route seventy-five or more times. Due to loss of memory following the collision he remembered nothing after he crossed Northwest Highway, which was about halfway from his home to the place of the collision; consequently he could not testify as an eyewitness to the collision. Neither could his daughter, thirteen years of age, who was asleep on the back seat of the car at the time of the accident.

Judd Carlisle (appellee’s witness), was formerly Inspector of Safety Education with the Texas Department of Public Safety, but presently is in business for himself as a traffic accident consultant. He had been employed by appellee to investigate this accident seven months after the collision. He visited the scene, examined photographs, and a map and depositions furnished by appellee’s attorney. It was his opinion that the Chevrolet was traveling West and the Ford was traveling East at the time of the collision.

Bobby Gerald Dean (appellee’s witness), knew Nutter, appellants’ son, saw him at the “Barbecue Grill”, a restaurant on Green-ville Avenue, on the night of the accident; they went together to “Vickery Gardens” where they played pool a while, then returned to “Barbecue Grill”. Nutter left “Barbecue Grill” at about 10:00 o’clock, saying he was going home. He lived in Garland. One way to get to Garland from “Barbecue Grill” is to go North on Greenville Avenue to Forest Lane then turn East on Forest Lane to Garland. That is the way the witness Dean traveled when he drove to his home in Garland about twenty minutes after Nutter had left. The witness’ brother was a distant cousin of appellee’s wife.

OPINION

Appellants’ first, second and third points on appeal assert that there was no evidence to warrant the submission of Special Issues Nos. 1, 3, 5, 7 and 11-24 inclusive, and no evidence to support the findings of the jury in response to said issues.

The points are multifarious and general in their nature, therefore do not require our consideration. City of Nederland v. Callihan, Tex.Civ.App., 299 S.W.2d 380, 384; Sheffield v. Lewis, Tex.Civ.App., 287 S.W.2d 531, 537; Texas Employers’ Ins. Ass’n v. Logsdon, Tex.Civ.App., 278 S.W.2d 893, 901. However, we have studied the evidence pertaining to all of the challenged issues and have concluded that appellants’ first, second and third points are without merit. They are accordingly overruled.

In their fourth point appellants say that there was insufficient evidence to support the submission of Special Issues Nos. 11 — 24 inclusive. An “insufficient evidence” point has come to mean in the terminology of our procedural law substantially the same as a point that a finding is so contrary to the overwhelming weight of the evidence as to be manifestly wrong. Such a point is not applicable to the question whether an issue should be submitted to the jury. It is the “no evidence” point which is applicable to the submission of issues. Missouri-Kansas-Texas RR. Co. v. Shelton, Tex.Civ.App., 383 S.W.2d 842, 849; Calvert, “ ‘No Evidence’ and ‘Insufficient Evidence’ Points of Error,” Tex.Law Rev., April 1960, Vol. 38, pp. 362,- 365. Appellants’ fourth point is overruled.

Appellants’ fifth, sixth, seventh, eighth and ninth points in substance charge that the jury’s answers to Special Issues Nos. 1, 3, 5, 7 and 11-24 inclusive are so contrary to the overwhelming weight of the evidence as to be manifestly wrong.

Though these points are multifarious and general in their nature we shall give them our careful consideration for they all revolve around one central question: Which of the two automobiles was traveling East on Forest Lane at the time of the collision?

As we have said, the parties to this appeal are in substantial agreement that it was the driver of the eastbound automobile who was guilty of the acts of negligence which caused the collision. But at the point their agreement ends. Appellants contend that it was appellee Gerald Don Dearing who was driving his Chevrolet car in an easterly direction. Appellee Dearing contends that it was appellants’ son, Richard Frederick Nutter, who was driving his Ford car in an easterly direction. The answers of the jury to the special issues are quite obviously based on the belief of the jury that Richard Frederick Nutter in his Ford car was eastbound on Forest Lane at the time of the collision. The question then posed by appellants’ points is this: Is there sufficient evidence to support the jury’s implied finding that it was Richard Frederick Nutter who was driving his car in an easterly direction and therefore it was young Nutter’s acts of negligence which proximately caused the collision ?

We have concluded that the evidence in this case is insufficient to support the jury’s verdict. Later in this opinion in passing on appellants’ eleventh point we shall hold inadmissible the testimony of appellee Dearing as to the route he habitually followed in transporting his wife to her place of employment at Texas Instruments, Inc. Certainly without such testimony ap-pellee’s evidence is thin and speculative indeed. Yet we must say that even if we were to include said evidence we would still be of the opinion that the evidence as a whole is insufficient when weighed against that of the eyewitness, the near eyewitness and the five police officers. Appellants’ fifth, sixth, seventh, eighth and ninth points are sustained.

In their tenth point appellants allege error on the part of the court in refusing to sever the cross-action or third party action filed by appellee against Henry Ritchey since the record as a whole reflects that said action was not filed in good faith, but was filed for the sole and only purpose of discrediting the testimony of the eyewitness, Henry Ritchey.

In his third party petition appellee pleaded that appellants’ son and Ritchey were racing East on Forest Lane immediately prior to the collision. Ritchey testified that for a short distance his car and the driver of the Chevrolet car proceeded side by side. He denied that they were racing and the jury found in his favor in regard to his alleged negligence in connection with the collision. There is no basis in the record for us to hold that appellee’s third party action was brought in bad faith. Moreover, in matters of severance the trial court is clothed with considerable discretionary authority. See Rules 38, 41, 51(b), 97, 174, Texas Rules of Civil Procedure, and authorities there cited. Appellants’ tenth point is overruled.

In their eleventh point appellants complain of the court’s permitting appellee to testify as to the route over which it had been his habit to drive his automobile from his home in delivering his wife to her place of employment at Texas Instruments, Inc. Appellants charge that this was error in view of the fact that there were eyewitnesses, namely, Henry Ritchey and Robert Andrew Pigg, each of whom testified that he actually saw appellants’ son’s automobile traveling in a westerly direction on Forest Lane and saw appellee’s automobile traveling in an easterly direction immediately prior to the collision.

The evidence as to appellee’s habit is significant for if he followed what he said was his habitual route on the occasion in question he would be traveling West on Forest Lane at the time of the collision.

It is undisputed that Henry Ritchey was an eyewitness to the collision. Robert Andrew Pigg did not actually see the collision, but he testified that he followed young Nutter’s Ford traveling West on Forest Lane, was nearby, heard the crash and arrived at the scene immediately thereafter. He recognized Nutter’s Ford as the car that had traveled ahead of him West on Forest Lane.

Our Supreme Court in Missouri-Kansas-Texas RR. Co. v. McFerrin, 156 Tex. 69, 291 S.W.2d 931, 942, expressly held that “habit evidence should not be admitted where there is an eyewitness to the accident, even though the eyewitness be an employee of the opposite party.” Two members of the court dissented and conflicting decisions were cited. But so far as we know the holding of the majority of the court has not been overruled and is still the rule in this State. See also Hudson v. Hightower, Tex.Civ.App., 394 S.W.2d 46; Hearn v. Mrs. Baird’s Bread Co., Tex.Civ. App., 295 S.W.2d 689 (rev. on other grounds, 157 Tex. 159, 300 S.W.2d 646), and McCormick & Ray, “Texas Law of Evidence”, Vol. II, p. 357, § 1513. We hold that it was error to admit the evidence in question.

To paraphrase the language of the Mc-Ferrin case we also hold that the evidence bears weightily on the issues in regard to the alleged negligence of both appellants’ son and of appellee. Without this habit evidence there is very little evidence to support the jury’s findings. Bearing in mind Rule 434, T.R.C.P. we must say that the evidence was calculated to cause and probably did cause an improper verdict. Appellants’ eleventh point is sustained.

In their twelfth point appellants allege error in admitting into evidence a map which was intended to show the streets over which appellee said he habitually traveled in transporting his wife to her employment at Texas Instruments, Inc. Since we have held that appellee’s testimony in regard to the route he habitually traveled was inadmissible,’ the map is also inadmissible. Appellants’ twelfth point is sustained.

Appellants’ thirteenth point complains of the court’s excluding from evidence the testimony of Lloyd Middleton, a police officer, who would have testified to a statement made to him by eyewitness Ritchey about ten minutes after the collision. Appellants’ position is that the testimony was admissible as res gestae.

Ritchey told Middleton that the Chevrolet car was being driven East on Forest Lane at the time of the accident. He was in a state of high excitement at the time. We.believe the statement was admissible. Carrick v. Hedrick, Tex.Civ.App., 351 S.W. 2d 659, 661; McCormick & Ray, “Texas Law of Evidence”, Vol. I, §§ 911-927, pp. 678-718. However, the error must be considered harmless. Middleton stated that he gave some consideration to Ritchey’s statement in reaching his conclusion that the Chevrolet was eastbound at the time of the collision. Middleton’s and Ritchey’s testimony and other evidence in the record could hardly have left any doubt in the jury’s mind as to the substance of Ritchey’s statement to Middleton. Appellants’ thirteenth point is overruled.

The substance of appellants’ fourteenth, fifteenth and sixteenth points is that it was error for the court to elicit by cross-examination from the witness Henry Ritchey for the purpose of impeachment that the witness had been convicted in the State of Washington of the alleged offense of “carnal knowledge of a female”.

On cross-examination the witness Ritch-ey, who was also a third party defendant, and who obviously was not a lawyer, was asked whether he had ever been convicted of a felony. He answered “No”. Objection was then made that the witness was being asked a question of law. The court stated that he believed the objection was good, but never did really rule on the objection and the jury was not instructed to disregard the answer.

Then the witness was asked whether he had ever been convicted of a crime. Objection to this question on the same grounds was overruled. The witness answered in the affirmative. Further examination brought out that in 1958 in the State of Washington the witness had been convicted of the crime of “carnal knowledge of a female”.

The latest pronouncement by our Supreme Court on the admissibility of evidence of a criminal conviction for purposes of impeachment will be found in Compton v. Jay, Tex., 389 S.W.2d 639. It was there held that prior felony convictions for driving while intoxicated are not admissible for that purpose, apparently on the ground that the offense did not involve moral turpitude. In reaching its decision the court held, as we understand the opinion, that the evidence of a criminal offense, whether a felony or a misdemeanor, is admissible for impeachment purposes in a civil action only if the offense involved moral turpitude. The court cited Texas & N. O. Ry. Co. v. Parry, 12 S.W.2d 997 (Tex.Comm.App.), McCormick & Ray, “Texas Law of Evidence” (2d Ed.), § 660, and Lieck’s Legal Trial Aid, 2d Ed. p. 142.

We believe the rule in Texas to be that to be admissible as impeaching evidence in a civil case it must be shown that the conviction (1) was for an offense defined in the criminal statutes, and (2) must involve moral turpitude.

Texas courts will of course take judicial knowledge of our own statutes defining criminal offenses. But not so as to the statutes of other states.

The testimony elicited from the witness Ritchey does not meet the above requirements. The term “carnal knowledge” has been held to mean the same as “sexual intercourse”. Calhoun v. State, 134 Tex. Cr.R. 423, 115 S.W.2d 965, 967. See also 6 “Words and Phrases” 271, under the heading “Carnal Knowledge”. Under the Texas Penal Code a number of acts involving sexual intercourse are made criminal offenses: rape, seduction, fornication, adultery and others. Certainly most if not all of these offenses involve moral turpitude. But they are all concerned with and are limited to particular circumstances under which carnal knowledge of a female (that is, sexual intercourse with a female) is considered repugnant to the public welfare, therefore is made a criminal offense. There is no statute of this State and we know of none in any other jurisdiction which is so broad in its scope as to make carnal knowledge of a female of itself a criminal offense.

It is our opinion that a party seeking to impeach the credibility of a witness by offering evidence of a conviction of a criminal offense must carry the burden of showing that the alleged offense was one within the meaning of the criminal statutes Appellee in this instance has failed to do so. Under the circumstances here presented we believe this highly inflammatory evidence was not admissible. Appellants’ fourteenth, fifteenth and sixteenth points are sustained.

In his brief appellee says that “The jury found * * * that Appellants themselves, the parents of the adult Richard Nutter, suffered no pecuniary loss * * *.” The jury did answer the damage issue “None”. But the submitted issue inquired what pecuniary loss was sustained by the parents “as a direct and proximo,te result of the negligence if any of the defendant, Gerald Don Dearing * * *.” (Emphasis supplied.) The jury had already found that the death of appellants’ son had not been caused by the negligence of appellee. So the jury’s finding cannot be interpreted to mean that appellants had not suffered any pecuniary loss as a result of the death of their son.

The judgment of the trial court is reversed and the cause remanded for another trial.

Reversed and remanded.

      . Special Issues Nos. 1, 3, 5 and 7 inquired of the jury whether appellee Dearing operated his vehicle at a rate of speed in excess of that which a person of ordinary prudence in the exercise of ordinary care would have operated it; whether he was driving in excess of 45 miles per hour; whether he failed to keep a proper lookout; and whether he drove his ear over and across the center of Forest Lane. The answers of the jury were unfavorable to appellants.
      Special Issues Nos. 11-24 inclusive inquired of the jury whether Richard Frederick Nutter, appellants’ son, kept a proper lookout; whether he was driving his automobile at a speed in excess of the lawful limit; whether he was driving his automobile at a speed greater than was reasonable and prudent; whether he failed to apply his brakes; whether he drove his automobile across the center stripe of Forest Lane; and whether each of the above acts and omissions was negligence and a proximate cause of the collision. The answers of the jury were unfavorable to appellants.


source: Caselaw Access Project

author: CHAPMAN, Justice.

license: Public Domain

text:
    R. D. SHARKEY, Appellant, v. T. C. HOLLUMS, Appellee.
    No. 7560.
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 17, 1966.
    Rehearing Denied Feb. 28, 1966.

      Cox & Hurt, Plainview, for appellant.
    John B. Stapleton, Floydada, for appellee.
   CHAPMAN, Justice.

This suit involves a controversy between appellee, T. C. Hollums, an irrigation farmer in Floyd County and R. D. Sharkey, a purchaser and seller of the farm on which appellee had been a tenant since 1945. In the purchase of the farm appellant acquired the rents for the current year. Appellee Hollums, the tenant, owned numerous items of fixtures and improvements which he had placed on the farm with the agreement of the owners that such fixtures and improvements would remain his personal property.

The suit was tried to the court. After the testimony was closed and the arguments were made to the court, judgment was rendered for appellant for $3,250.00 for farm rent money owed him by appellee. A judgment in offset for like amount was rendered for appellee against appellant for the agreed price of certain personal property and improvements located on the farm and owned by appellee, which appellant agreed to purchase as part of the transaction in purchasing the farm. A judgment was also rendered for appellee for $875.00 for conversion of certain personal property and improvements placed on the land by appellee that had been converted without appellee’s knowledge when he paid appellant other rents. Apparently he had held back $3,250.00 of the rent to cover the agreed purchases heretofore stated but had failed to hold back $875.00 more when he paid other rents because he did not know at the time that appellant had conveyed such property to his successor in title, Mr. Robertson. It is from such judgment appeal is perfected to this court.

When Mr. Hollums became a tenant on the farm in 1945 it was owned by S. H. Boon. Mr. Boon’s daughter, Roxie Jeter and her husband, W. M. Jeter, were living on and farming the place when appellee bought their farming equipment, animals and various other items and rented the place from her father.

Though in a good irrigation belt, there were no irrigation wells on the place. After S. H. Boon’s death Mr. Hollums had an agreement with Fred Boon, executor of the S. H. Boon estate, that the tenant might develop the place for irrigation and the equipment such as the pump, motor, etc., would remain the tenants. Mr. Hollums was subsequently paid for the pump and hole. Mr. Hollums later had to lower the well and add more equipment, installed a gas line; placed a three-room house for laborers to use; installed a pressure pump; a pump house; built a garage; completed the bathroom with a hot-water system; and added certain other fixtures, all of which, by agreement of the parties, remained as his personal property except that for which he was paid later by the landowners.

The court found as a fact that the former owners who sold the land to appellant agreed with Mr. Hollums prior to his construction of any improvements, that such improvements should be and remain the separate personal property of the tenant. There is an abundance of probative evidence to support such finding. That such property remained the personal property of the tenant under such agreement has an abundance of support in the case law of Texas. O’Neil v. Quilter, 111 Tex. 345, 234 S.W. 528; Shelton v. Piner, Tex. Civ.App., 126 S.W. 65 (N.W.H.); Grossman v. Jones, Tex.Civ.App., 157 S.W.2d 448 (writ refused wm); Maro Co. v. State, Tex.Civ.App., 168 S.W.2d 510 (writ refused); Rogers v. Fort Worth Poultry & Egg Co., Tex.Civ.App., 185 S.W.2d 165 (N.W.H.). Therefore, we hold the points urging the Statute of Frauds are without merit.

In another point appellant contends that the fact findings of the court do not support the court’s judgment to the effect that appellant was indebted to appellee in the sum of $3,250.00 for the reason there is «* * * no fincjing as ⅛ what damages were sustained by the defendant Hollums if any by Sharkey’s breach of contract if any.”

The items named totaled $50.00 less than the agreed amount alleged in the pleadings, so we assume the court reduced some item by $50.00, since appellee testified that certain items were eliminated by agreement between appellant and himself and that the agreed price for the items purchased was $3,250.00. In any event, if this point is leveled at such discrepancy, we do not believe appellant is in position to complain in that respect when the total found against him was less than that testified to and itemized in the record. In his Findings of Fact the court found: “Prior to entering into his contract for the purchase of the real property in question, plaintiff agreed with defendant to purchase from defendant at the time of closing his contract for the purchase of the real property in question, and at the agreed price of $3,250.00 the following improvements upon the real property in question,” then naming the items. Therefore, from the Findings of Fact by the court supported by probative evidence, the purchase of certain items for the price of $3,250.00 at the time of the closing of appellant’s contract for the purchase of the land became final simultaneously with the closing of such purchase. We believe there is sufficient evidence to support the judgment. However, the record is void of any request for additional findings.

“ * * * where one or more elements thereof have been found by the trial court, omitted unrequested elements, where supported by evidence, will be supplied by presumption in support of the judgment.” Rule 299, Vernon’s Ann.Tex. Rules of Civil Procedure; Bednarz v. State, 142 Tex. 138, 176 S.W.2d 562; DeWitt v. Brooks, 143 Tex. 122, 182 S.W.2d 687.

The second point contends the $875.00 recovery allowed by the court for conversion is not supported by the evidence. The point is without merit. The items represented by this amount were conveyed by Sharkey to Robertson. It is without contradiction in the record that they were appellee’s personal property at the time, which his original landlords agreed he might reserve as such when he placed them on the property not owned by him. When appellant conveyed them away he was guilty of conversion. Grossman v. Jones, supra.

Our court has held that it is not necessary that there should be a manual taking of an article in question; that if the wrongdoer exercises dominion over it in exclusion or defiance of the owner, such action is in law a conversion. Fenberg v. Fenberg, Tex.Civ.App., 307 S.W.2d 139.

The next point urged is that the court did not find any considerations moved from Hollums to Sharkey. The personal property itself constituted consideration and it could be said that the court impliedly found they constituted part of the profit of more than $32,000.00 Sharkey made in profit when he sold the land, together with such items to Robertson.

What we have heretofore said disposes of appellant’s fifth point to the effect that the evidence does not show Sharkey ever promised to pay Hollums anything. As further corroboration, however, Mrs. Hol-lums testified Mr. Sharkey came out to the place later to get a list of the property they owned and did get a list of same. She heard her husband ask if he was going ahead and buy everything and he replied: “Yes, it might as well be under one ownership and there won’t be confusion later.” She also testified: “He said that the check would be in the mail, that the deal was closed and the check, our check, would be in the mail in the next few days.”

The next point urges reversible error because of the introduction into evidence of a letter from Fred Boon, executor of the estate of S. H. Boon, to appellee assuring him that if he paid for a pump and motor for an irrigation well it would be his personal property and he could remove it at any time.

Even if it should be said that the letter was not admissible under the hearsay rule, it would not be reversible error. Our Supreme Court has held that where an action is tried to the court and the judgment sustained by competent evidence it will not be reversed for an erroneous admission. Chicago, R. I. & T. Ry. Co. v. Halsell, 98 Tex. 244, 83 S.W. 15. There is authority to the same effect even when tried to a jury. Texas & P. Ry. Co. v. Stivers, Tex. Civ.App., 211 S.W. 319 (writ dismissed). Here there is admissible probative evidence from other sources that appellee by agreement with his landlords retained ownership of certain irrigation equipment, houses, fences, plumbing, etc., located on the land in question paid for and placed there by the tenant and that they constituted his personal property. Additionally, our Supreme Court has held “ * * * [I]t must be assumed that every judge who has heard improper evidence, upon concluding that it should not have been admitted, is able to, and does in fact, discard it from his consideration when deciding the cause.” Creager v. Douglas, 77 Tex. 484, 14 S.W. 150. Accordingly, the point is overruled.

The point raised by appellant to the effect that the admission into evidence of a telephone conversation between appellee and one of the Boon heirs is reversible error, where it was made at the request of appellant, he was present in Mr. Hollums’ home where it was made, heard at least Mr. Hollums’ part of the conversation and paid for the call is completely without merit. Incidentally, by such conversation Mr. Hol-lums saved appellant more than $14,000.00 in the purchase of the land. Under Rule 434, V.A.T.R., there could not possibly be any prejudice to appellant in this connection.

Appellant’s point nine urges reversible error because the court permitted the witness Taylor to identify the handwriting of his sister, Myrtie B. Boon, and admitting into evidence statements of Mrs. Boon to the ownership by Mr. Hollums of a chicken house, a small house south of the large chicken house, a butane tank, commode, hot-water heater and plumbing on the property he was living on and renting. Subsequently, and without objection on the part of appellant Mr. Taylor testified that he was present when the items were listed by his sister, that he knew about other improvements on the farm placed there by appellee and paid for by him under agreement with the owners of the land that they should remain the separate property of the tenant, including some of the same items set forth on the notation upon which error is now urged for its admission in the evidence. Testimony of similar import was elicited from the witness by appellant, then after-wards he moved to strike all of it. This testimony is only corroborative of other probative admissible evidence, was before the court, and under the authorities heretofore cited did not constitute reversible error.

The other points raised are repetitious, require no discussion and are all overruled.

Accordingly, the judgment of the trial court is in all things affirmed.


author: TIREY, Justice.

text:
    MISSOURI-KANSAS-TEXAS RAILROAD COMPANY, Appellant, v. Clarence WAGNER, Appellee.
    No. 4387.
    Court of Civil Appeals of Texas. Waco.
    Jan. 20, 1966.
    Rehearing Denied March 17, 1966.

      Ñaman, Howell, Smith & Chase, Louis Muldrow, Waco, for appellant.
    John B. Faulkner, Jones, Boyd, West-brook & Lovelace, Waco, for appellee.
   TIREY, Justice.

Plaintiff brought the action against the railroad for damages for personal injuries arising out of an automobile-train collision at a rural crossing approximately 12 miles from the City of Waco and from the City of West. A jury verdict resulted in damages being awarded against the railroad. It is our view that the controlling facts are without dispute. The collision occurred around 10:20 P.M., at a point where the farm road 1858 crosses the railroad track near Tokio in McLennan County, Texas. Plaintiff was the sole occupant of his automobile and it collided with the lighted caboose of defendant’s train while the train was moving across the crossing. The caboose was the 40th and last car of the train, and the impact knocked the caboose from the tracks. The track and the public highway were substantially level at the crossing and crossed at a 90 degree angle. The highway was straight in the immediate vicinity of the crossing; however, the plaintiff had come out of a very gentle 4 degree curve some 300 to 400 feet before reaching the crossing. There was only one track, and the train was moving across the track at approximately 15 to 18 miles per hour. The crossing was equipped with standard statutory cross-arm signs on each side of the track, there being no automatic or elec-trie devices. Plaintiff was familiar with the crossing. He had lived in the community 39 years, and had driven the road at least twice per day for many years. Plaintiff contended that he didn’t see the train on the crossing until it was too late to avoid the collision. He was driving with his lights on dim and it does not appear just when he realized that the crossing was occupied by the train, but his skid marks were plainly visible for a distance of 66 feet before he struck the caboose. This particular farm road connects the Gholson Road and the town of West in McLennan County. The area served by the road is sparsely settled, and that area is generally open country and there were no houses near the crossing and the traffic on both the roadway and the railroad was light. The accident happened on Monday, March 2, 1964, and plaintiff said there was no other traffic on the roadway around the crossing when the accident happened. Only two trains crossed the crossing each 24 hours; one train goes north and one comes back. Appellee said the road was substantially level on both sides of the crossing. The highway right-of-way in the vicinity of the crossing is 100 feet wide; was open, clear and unobstructed; that the improved shoulder and roadway were 32.5 feet wide. The road was virtually straight for a distance of approximately 308 feet; there were no other lights or distractions in the area to create any illusion of an unobstructed track. Plaintiff said that there was no other traffic on the roadway around the crossing either in front of him or behind him; that there were no lights from any houses and no lights from any cars that he could see, and no lights of cars approaching him from the opposite direction on the other side of the crossing. Appellee was on his way home from the town of West, and some distance back from the railroad track he saw a round highway sign with a black “X” on it, and that the sign was there when the accident happened; that at the railroad crossing, both on the side from which he was approaching, and on the other side of the crossing, there was a cross-arm sign; that it was a high metal sign painted white with the reflectors on the cross-arms; that the cross-arm signs were there on the night of the accident; that as he approached the crossing at the time of the accident he saw the railroad sign back up on the highway, and that he could see the cross-arms signs, and that he knew he was approaching the railroad track; that he had not lost his direction, and that he knew where he was on the road. Plaintiff had been traveling over this crossing twice a day for some several years. He testified he knew that the crossing did not have any red lights or bells, or anything like that.

There is an absence of testimony to the effect that the crossing was in bad repair, and there was no obstruction on the highway between plaintiff and the train. The crossing was substantially level with the highway. The train consisted of two diesel engines and 39 cars and the caboose, and was approximately 1900 feet long.

Plaintiff went to trial on his first amended petition and his first supplemental petition. Plaintiff grounded his cause of action on the following specific acts of negligence:

“(a) In failing to ring a bell or blow a whistle to warn plaintiff at the crossing in violation of Article 6371 V.A.C.S. of the State of Texas;
(b) In failing to use ordinary care to warn plaintiff of said train at the time and on the occasion in question ;
(c) In failing to place lights upon the caboose of said train ;
(d) In failing to place reflectors of light upon the sides of the flat bed cars.
(e) In failing to place a sign near said crossing to give plaintiff notice of the proximity of the railroad in violation of Article 6370 V.A.C.S. of the State of Texas.
(f) In failing to place fuzees near said crossing to warn plaintiff of said freight train at the time and on the occasion in question;
(g) In failing to place lights upon the front of the caboose;
(h) In failing to place lights upon the flat bed cars in question.”

Defendant went to trial on its first amended original answer, which included a general denial and several special pleas of contributory negligence. Defendant specially plead:

“The plaintiff failed to stop at the crossing in question in accordance with and in violation of Article 6701d, § 86(d), Texas Revised Civil Statutes, which states: ‘Whenever any person driving a vehicle approaches a railroad grade crossing, the driver of such vehicle shall stop within SO feet but not less than 15 feet from the nearest rail of such railroad and shall not proceed' until he can do so safely when: (d) an approaching train is plainly visible and is in hazardous proximity to such crossing.’ ”

The Court overruled defendant’s motion for judgment notwithstanding the verdict, and granted plaintiff’s motion for judgment and decreed that plaintiff recover the sum of $34,525.00.

The judgment is assailed on 72 points. Point 1 is to the effect that the crossing at the time and on the occasion in question, was not extrahazardous. Point 2 is to the effect that there is no evidence to support the jury’s answer to Special Issue 13. Special Issue 13 is:

“Do you find from a preponderance of the evidence that at the time and place of the collision in question the railroad crossing concerned was an extrahazardous crossing as a nighttime crossing?
“By the term ‘extra hazardous crossing’ is meant a particular crossing which is shown to be more than ordinarily dangerous, one attended with unusual or extra hazards, as a nighttime crossing, a crossing so peculiarly dangerous that prudent person cannot use the same with safety unless extraordinary means are used to protect such crossing.”, to which the jury answered “Yes”.

That the railroad knew it, and further answered that the railroad knew, or by the exercise of ordinary care, should have known that the crossing at nighttime was extrahazardous, and that it had failed to equip said crossing with automatic warning lights, and that such was negligence and a proximate cause of the collision.

Points 3 and 4 are to the effect that the evidence is insufficient to support the jury’s answer to Issue 13, and Point 5 is that the answer is against the great weight and preponderance of the evidence.

We sustain each of the foregoing points for reasons hereinafter briefly stated.

Our Supreme Court in Fort Worth and Denver Ry. Co. v. Williams, 375 S.W.2d 279, point p. 283, recently said:

“Whether or not any given state of facts describing the surroundings of any particular crossing are such as to mark such crossing as one attended with unusual danger or extraordinary hazard is a question solely for the determination of the jury, unless only one conclusion could be drawn therefrom by all reasonable minds.”

We have heretofore detailed the factual situation with reference to the crossing and we are of the view that reasonable minds cannot honestly reach a conclusion that the crossing was an extrahazardous nighttime crossing. We think there is no testimony that it was an extrahazardous crossing. The crossing was being occupied by a moving train in its regular course of business, crossing the highway, and there was nothing in the line of vision between the plaintiff and the railroad to obstruct the plaintiff’s view. He had his lights on dim and he saw the train at some distance, more than 66 feet from the railroad, because the skid marks on his car extended back a distance of 66 feet from the railroad. Therefore, his lights picked up the train moving across the road at some point back from the time he applied his brakes. There is an absence of testimony to show what distance that was, but in all events he was 66 feet from the nearest rail of the track when he applied his brakes.

Going back to the jury verdict, perhaps we should say that it convicted the railroad of three acts of negligence and found that each was a proximate cause of the collision. They are to the effect: (1) that the railroad failed to equip the sides of its flat bed cars with reflectors; (2) that it failed to equip the crossing with automatic signal devices; and (3) that it failed to sound its whistle or horn 80 rods from the crossing. As we have stated before, it is our view that there is no evidence that the crossing was extrahazardous, and that there is certainly no evidence that the railroad had any knowledge of any facts or circumstances to the effect that such crossing was extrahazardous, and since we have stated that because we are of the view that such crossing was not extrahazardous, there was no duty on the railroad to take extraordinary means to protect the public at the crossing by automatic signal devices or reflectors on the sides of its cars. We are of the view that the failure to sound the horn could not have been a proximate cause of the collision.

As we understand the Stratton case (Tex. & N. O. R. Co. v. Stratton, Tex.Civ.App., 74 S.W.2d 741, w. ref.) and under the undisputed factual situation here, the railroad was not guilty of negligence proximately causing the collision in not having other signs and lights and giving other signals to warn persons approaching the crossing of the slowly moving train across the highway. The presence of the train itself was sufficient warning. In the Stratton case we find these significant statements:

“Appellant was not guilty of negligence, proximately causing the collision, in not having other signs and lights and giving other signals to warn persons approaching the crossing of the slowly moving train across the highway; the presence of the train itself was sufficient warning.
* * * * * *
“With reference to the ringing of the bell and the blowing of the whistle, these signals are required for the purpose of giving warning of the approach of trains and not of the presence of a train. Travelers have no right to rely upon such signals for the purpose of determining whether or not the highway is blocked by the presence of a train.”

There is not a scintilla of evidence that there was any obstruction or anything between plaintiff and the train to obstruct plaintiff’s vision except a little fog and darkness, and the evidence is without dispute, and the jury found, that the caboose had lights on it. In the Stratton case the facts are very similar to the case at bar and the Court said in effect that the railroad was not guilty of negligence proximately causing the collision in not having other signs and lights and giving other signals to warn persons approaching the crossing of a slowly moving train across the highway; that the presence of the train itself was sufficient warning. Our view is that under the undisputed factual situation each of the grounds of negligence alleged by plaintiff were foreclosed against him under the doctrine announced in the Stratton case, and that plaintiff was guilty of negligence as a matter of law in running into the caboose.

Under the views here expressed each of appellant’s other points become immaterial and pass out of the case.

Reversed and rendered.


author: DIXON, Chief Justice.

text:
    Thurman E. BUCHANAN et al., Appellants, v. ST. LOUIS SOUTHWESTERN RAILWAY CO., Appellee.
    No. 16651.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 4, 1966.
    Rehearing Denied March 4, 1966.
    Parnass, Weatherhogg & McGuire, Irving, for appellants.
    Touchstone & Sampels, Dallas, for ap-pellee.
   DIXON, Chief Justice.

Eighteen plaintiffs, appellants here, brought separate suits in district courts in Dallas, Texas, against St. Louis Southwestern Railway Company, hereinafter called Railway, for recovery in a lump sum of separation allowances and wages alleged to be due them as former employees under Section 9 of the “Agreement of May 1936, Washington, D. C.”, hereinafter called the Washington Agreement. In the alternative they claim their suits are common law actions for damages because of wrongful discharge from their employment.

Railway in each case filed a plea alleging exclusive jurisdiction of the National Railroad Adjustment Board under the provisions of the Railway Labor Act, 45 U.S. C.A., Sections 151 et seq.; and a plea in abatement alleging that the plaintiff had not exhausted his administrative remedies before filing suit, such administrative procedures being prescribed by 45 U.S.C.A., Sections 152 and 153, by Section 13 of the Washington Agreement, and by the “Agreement Governing Hours of Service and Working Conditions” of 1954.

The eighteen causes were consolidated for the sole purpose of hearing and determining Railway’s pleas to the jurisdiction and in abatement.

After hearing evidence the court sustained Railway’s pleas and dismissed the consolidated causes of action. We have concluded that the judgment of dismissal should be affirmed.

FACTS

The material facts are for the most part undisputed. The Washington Agreement was entered into on May 21, 1936 by certain carriers including Railway and several labor organizations, acting through their collective bargaining agents, including appellants’ representative. For a history of the Washington Agreement and its purposes see Brotherhood of Railroad Trainmen for St. Louis Southwestern Railway Co. et al v. St. Louis Southwestern Railway Co. et al, D.C., 220 F.Supp. 319.

The Washington Agreement piovides for the coordination by railroads to enable two or more of them to unify, consolidate, merge or pool in whole or in part their facilities or services. Provision is made for the protection of employees who will be adversely affected by such coordination.

Under Section 7 of the Washington Agreement an employee who is deprived of employment, or whose position is abolished as a result of the coordination and who is unable to obtain another position by the exercise of his seniority rights, may draw a coordination allowance for a period of time of 60 per cent of his average monthly wage. Under Section 9 such employee may resign if he wishes and receive a lump sum separation allowance. All the appellants in this case seek to recover lump sum separation allowances.

Railway and another carrier, the Southern Pacific Company, Texas and Louisiana Lines, formerly owned and operated separate freight station facilities and services in Dallas, Texas. To effect a coordination of these facilities and services the two railroads and The Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees entered into an agreement called “Memorandum” whereby the provisions of the Washington Agreement were implemented to protect each employee adversely affected b> the coordination.

The coordination took place January 1, 1962. In order to determine the status of employees in the unified facilities the seniority rosters of the two carriers were dovetailed. Thus it was ascertained who would have prior rights to the available positions.

Appellee’s employees fall into two categories: (1) regularly assigned employees and (2) furloughed employees. The latter are employees who do not have regularly assigned jobs, but who protect their seniority rights by filing their names and addresses in accordance with Rule 15-5 of the Clerk’s Agreement.

The evidence before us shows that prior to the coordination six of appellants were furloughed employees, but two of them obtained regularly assigned jobs as a result of the coordination. Twelve of appel-lee’s employees had regularly assigned jobs before and after the coordination.

On August 8, 1963 nine of the regularly assigned employees were “bumped”, that is, displaced, by employees having greater seniority rights. This was due to loss of business which occurred when Acme Fast Freight at Dallas elected to do its own warehousing work rather than to have Railway-do so, as the latter had in the past.

In June 1964 one employee’s job was abolished because of a general decline in business and another employee was displaced as a result of loss of work previously performed by Railway.

It is Railway’s contention that as to sixteen of appellants there still exists an employer-employee relationship as their names and addresses are listed on Railway’s current seniority roster. As to two of appellants who were on the seniority roster it is Railway’s contention the two failed to report for duty after being called, therefore their names were properly removed from the seniority roster in accordance with Rules 15-5 and 15-6.

Appellants claim they have resigned and are entitled to a lump sum severance allowance as provided by Section 9 of the Washington Agreement. Railway claims that the sixteen appellants who are still carried on its seniority roster are not entitled to the lump sum severance allowance; and that the two appellants who failed to report, as above stated, when called for duty, were properly removed from the seniority roster.

OPINION

In their first and second points on appeal appellants allege error on the part of the court in sustaining Railway’s pleas to the jurisdiction and in abatement and in dismissing appellants’ suits.

Appellants rely on the holdings of the Supreme Court of the United States in Moore v. Illinois Central R. Co., 312 U.S. 630, 61 S.Ct. 754, 85 L.Ed. 1089 (1941); Slocum v. Delaware L. & W. R. Co., 339 U.S. 239, 70 S.Ct. 577, 94 L.Ed. 795 (1950); and Transcontinental & Western Air, Inc. v. Koppal, 345 U.S. 653, 73 S.Ct. 906, 97 L. Ed. 1325 (1953). The above cases hold in effect that when a claimant’s status as an employee of a railroad has come to a permanent end and the claimant is not seeking reinstatement he may sue directly in court — ■ State or Federal — without first presenting his claim to the National Railroad Adjustment Board, and without exhausting his administrative remedies as provided in collective bargaining agreements. In the Moore and Slocum cases it was said that the reason for the holding, or at least one of the reasons, was that the claim of a discharged employee not seeking reinstatement did not involve questions of future relations between a railroad and its other employees.

Whatever may have been the law in the past the latest pronouncement of the Supreme Court of the United States unquestionably points out a course which leads away from the Moore, Slocum and Koppal cases and from the position which appellants have taken. We refer to the holdings in Republic Steel Corp. v. Maddox, 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.2d 580 (1965).

In the Maddox case the Supreme Court was not dealing with a railroad employee. In fact, the court in its Footnote No. 14 stated that by refusing to extend the Moore holding to the Maddox case, it did not mean to overrule Moore in the field of the Rail-0 way Labor Act — consideration of such action properly awaiting a case presented under the Railway Labor Act. But the Supreme Court discussed the Moore and Kop-pal cases, saying:

“Once it is established that the federal rule discussed above applies to grievances in general, it should next be inquired whether the specific type of grievance here in question — one relating to severance pay — is so different in kind as to justify an exception. Moore v. Illinois Central R. Co. and Transcontinental & Western Air, Inc. v. Koppal, supra, are put forward for the proposition that it is.
“ * * * Since that time the Court has made it clear that substantive federal law applies to suits on collective bargaining agreements covered by § 204 of the Railway Labor Act, * * *. Thus a major underpinning for the continued validity of the Moore case in the field of the Railway Labor Act, and more importantly in the present context, for the extension of its rationale to suits under § 301(a) of the LMRA, has been removed.” (Emphasis ours.)

The court made other general pronouncements which it seems to us are applicable to the present case:

“As a general rule in cases to which federal law applies, federal labor policy requires that individual employees wishing to assert contract grievances must attempt use of the contract grievance procedure agreed upon by employer and union as the mode of redress. * * *. (Emphasis ours.)
“A contrary rule which would permit an individual employee to completely sidestep available grievance procedures in favor of a lawsuit has little to commend it. In addition to cutting across the interests already mentioned, it would deprive employer and union of the ability to establish a uniform and exclusive method for orderly settlement of employee grievances. If a grievance procedure cannot be made exclusive, it loses much of its desirability as a method of settlement.
“ * * * Although it is true that the employee asserting the claim will necessarily have accepted his discharge as final, it does not follow that the resolution of his claim can have no effect on future relations between the employer and other employees. Severance pay and other contract terms governing discharge are of obvious concern to all employees, and a potential cause of dispute so long as any employee maintains a continuing employment relationship. * * * if applicable law did not require resort to contract procedures, the inability of the union and employer at the contract negotiations stage to agree upon arbitration as the exclusive method of handling permanent shutdown severance claims in all situations could have an inhibiting effect on reaching an agreement. * * * (Emphasis ours.)
“There are, then, positive reasons why the general federal rule should govern grievances based on severance claims as it does others.”

Our appraisal of the Maddox case is in harmony with that of the United States Court of Appeals for the Fourth Circuit as stated in Walker v. Southern Railway Co., 354 F.2d 950, decided November 3, 1965.

Appellants seek to remove their grievances from the jurisdiction of the National Railroad Adjustment Board and to avoid exhausting their administrative remedies before suing in court by alleging in the alternative that their suits are common law actions for damages for wrongful discharge. There is no merit to this claim. A careful reading of the pleadings as a whole leads to the inescapable conclusion that appellants’ grievances are proper subjects for the application of collective bargaining agreements. The pleaded facts of the cases necessarily make them so, and the mere alternative designation of appellants’ actions as common law damage suits cannot change the true nature of their alleged grievances so as to take away the exclusive jurisdiction of the National Railroad Adjustment Board, or the duty of appellants to pursue their administrative remedies. In their brief appellants frankly state that they were wrongfully discharged under the terms of the Washington Agreement and the computation of their damages is a matter of simple arithmetic under the terms set out in the Washington Agreement.

In their third and fourth points on appeal appellants challenge the authority of the court to consolidate the eighteen causes of action for the limited purpose of passing on the pleas to the jurisdiction and in abatement; and complain of the court’s refusal to grant them a jury trial on Railway’s two pleas.

The pleadings and prayers for relief are the same in each of the eighteen cases and so are the pleas of Railway. It was not error to consolidate them to determine the identical law issues presented in the eighteen cases by the pleaded facts. Rule 174, Texas Rules of Civil Procedure. Since only law issues were raised by the pleas to the jurisdiction and in abatement there was no occasion for a jury trial.

Appellants’ points on appeal are overruled. The judgment is affirmed.

BATEMAN, J., not sitting.

      . Justice Black in his dissenting: opinion says “The Court * * ⅜ has raised the overruling axe so high that its falling is just about as certain as the changing of the seasons.”


author: WILLIAMS, Justice.

text:
    NATIONAL BANKERS LIFE INSURANCE COMPANY, Appellant, v. Frank M. ROSSON et al., Appellees.
    No. 16657.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 4, 1966.
    Rehearing Denied March 11, 1966.

      John A. Pace, Roy R. Ray and Daniel T. Collins, Dallas, for appellant.
    Johnson, Guthrie, White & Stanfield, Curtis White and R. L. Dillard, Jr., Dallas, Frank M. Rosson and Floyd McGown, Jr., San Antonio, for appellees.
   WILLIAMS, Justice.

This suit was originally filed on July 11, 1958 in the District Court of Kendall County, Texas, by Vernon T. Adler, individually, and as Executor of the Estate of H. O. Adler, Deceased, and Dorothy Virginia Helm and husband, Floyd H. Helm, Jr., as plaintiffs, against Pierce P. Brooks and National Bankers Life Insurance Company, as defendants. The suit was in the nature of a stockholders’ derivative class action authorized by Rule 42, Texas Rules of Civil Procedure. Plaintiffs, as minority stockholders of National Bankers Life Insurance Company brought the action for the benefit of the company and on behalf of all its minority stockholders. Plaintiffs’ petition contained itemized violations by Pierce P. Brooks against the company and claim was made against Brooks for the sum of $3,000,000. Brooks was a majority stockholder of the company and an officer and director of the company at the time the suit was filed.

After an appeal on venue the case was transferred to Dallas County for trial. On December 2, 1962 the 116th District Court of Dallas County entered a summary judgment in favor of National Bankers and denying plaintiffs any relief. On appeal, the case was transferred to the Tyler Court of Civil Appeals, which reversed and remanded the case to the trial court for a determination of fact issues. Following remand, the case was transferred to the 101st District Court and tried to a jury. In response to two special issues the jury found (1) that plaintiffs’ suit aided National Bankers Life Insurance Company in the recovery of $1,025,000 from Pierce P. Brooks, and (2) that the sum of $200,000 would reasonably compensate Rosson and McGown for their services as lawyers in this suit.

OPINION

Appellant presents three points of error in its assault upon the judgment of the trial court: (1) that the trial court erred in excluding certain testimony of a witness E. M. Arnold; (2) that the trial court erred in refusing to reduce the amount of the jury verdict which was excessive as a matter of law, and not supported by the evidence; and (3) that the trial court erred in refusing to grant appellant’s motion for judgment non obstante veredicto for the reason that the district court never acquired jurisdiction of this stockholders’ derivative suit. We have elected to consider these three points in inverse order.

A consideration and determination of appellant’s jurisdictional point must be viewed in the light of antecedent facts. On July 1, 1958, some ten days prior to the filing of this suit, the Commissioner of Insurance of the State of Texas filed a Show Cause Order against National Bankers Life Insurance Company and its officers in which allegation was made of many acts of omission and commission constituting mismanagement by the officers of the company, and being many of the same acts later set out in the petition of the minority stockholders. The Show Cause Order fixed a date for the company to appear and show cause why its charter to do business in Texas should not be cancelled. On July 24, 1958, the Insurance Commissioner entered an order finding, in effect, that in spite of mismanagement the company remained solvent and approved the continuation of its certificate of authority to do business in this state. By his order the Commissioner directed the new board of directors and officers of National Bankers Life Insurance Company to immediately take such steps as might be necessary to investigate thoroughly the matters complained about and to take any action indicated to be proper and necessary to recover on behalf of National Bankers any expenditure of funds which was made for illegal or unauthorized investments, etc. Pierce P. Brooks sold his majority stock in the National Bankers Life to R. L. Huffines, Jr. and Victor Muscat, by contract dated August 11, 1958. Subsequently, most of the directors who were favorable to Brooks, or controlled by him, resigned and a new board of directors and new officers were elected, including Huffines as President and Muscat as Chairman of the Board of Directors. The new management took over National Bankers Life Insurance Company and on December 17, 1958, while plaintiffs’ lawsuit was pending, the new management of the company, Huffines and Muscat, entered into a written contract of settlement with Pierce P. Brooks in New Orleans, Louisiana. This settlement agreement called for Brooks to pay $1,025,000 to the company.

Appellant’s contention that the trial court never obtained jurisdiction of the subject matter of this litigation is based upon the doctrine of primary jurisdiction. Appellant invokes the provisions of Art. 1.19 of the Insurance Code, Sec. 3, Vernon’s Ann.Tex.Civ.Statutes, which provides, inter alia: “No action shall be brought or maintained by any person other than the Board for closing up the affairs or to enjoin, restrain or interfere with the prosecution of the business of any such insurance company organized under the laws of this State.”

Appellant argues that by virtue of this statute, and the Commissioner of Insurance having obtained original jurisdiction of the “affairs and condition” of the insurance company that the court had no right or authority to consider the case. It invokes the application of the doctrine of primary jurisdiction which is fully discussed in 1 Tex.Jur.2d, p. 661. See also 28 Texas Law Rev., pp. 400, 402; 42 Am.Jur., pp. 698-699; Kavanaugh v. Underwriters Life Ins. Co., Tex.Civ.App., wr. ref., 231 S.W.2d 753; Huffines et al. v. Mercury Life & Health Co. et al., Tex.Civ.App., 185 S.W. 2d 239; Texas & Pacific Ry. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 27 S.Ct. 350, 51 L.Ed. 553.

While we fully recognize and appreciate the extent and effect of the doctrine of primary jurisdiction as it relates between administrative boards and the courts, we find ourselves unable to agree with appellant that the Commissioner of Insurance of Texas obtained such primary jurisdiction of the subject matter of the litigation as to deprive the trial court of jurisdiction thereof. We think that the decision of the Tyler Court of Civil Appeals in Adler v. Brooks, 375 S.W.2d 544, wr. ref. n. r. e., is determinative of the question. There, the Court of Civil Appeals carefully considered the identical jurisdictional attack now being made here and held that the relief sought by plaintiffs in their stockholders derivative action does not infringe upon any duty of the insurance company governed by the Insurance Board or its officers but seeks to recover from fraudulent officers, for the benefit of the company, money which the Insurance Commissioner was not authorized to sue for and at the time that suit was brought there were no officers of the company to whom the stockholders could turn to prevent this great loss to them. The court held that plaintiffs were not barred from the prosecution of their suit by the filing of the Show Cause Order by the Insurance Commissioner for the reason that the Insurance Commissioner did not have the power to secure the relief sought in their suit.

We are in complete agreement with the opinion of the Court of Civil Appeals at Tyler and overrule appellant’s third point of error.

Appellant utilizes the greater part of its brief by attacking the excessiveness of the verdict and judgment. It prays that we require a remittitur so as to reduce the judgment or that we reverse and remand the judgment for further consideration on the question of reasonableness of the attorneys’ fees sought by appellees. It is significant to note that appellant does not challenge the jury finding that appellees’ suit aided National Bankers in the recovery of the $1,025,000. Appellant does not question appellees’ right to recover attorneys’ fees under the facts here presented but only assails the amount of recovery. The Court of Civil Appeals at Tyler in its opinion in Adler v. Brooks, 375 S.W.2d 544, correctly stated the law as to the right to recover attorney’s fees and expenses in stockholders derivative actions, as follows:

“We think the rule in Texas covering the right of a minority stockholder suit under Rule 42 authorizes recovery of expenses and attorney’s fees to the extent that the suit aided the company in its recovery of the $1,025,000.00 which it recovered from Brooks. Modern Optics, Inc., Appellant, v. Jesse Buck, Appellee, and authorities therein cited. Tex.Civ. App., 336 S.W.2d 857. The letters, depositions, and statements in this record certainly make an issue of fact for the trial court as to the extent, if any, such suit aided the company in its recovery.”

The question of excessiveness of the verdict and the judgment rendered thereon naturally requires an exhaustive review of the testimony material to the issue. We have carefully read the entire statement of facts and find that it presents the usual and characteristic testimony in cases of this kind. There is evidence presented by both appellant and appellees to support their respective contentions. The statement of facts is very voluminous and it would unduly lengthen this opinion to attempt to summarize all of the testimony both pro and con on the issue of the value of the services rendered by appellees for which they seek recovery.

Appellees presented voluminous testimony concerning the actual work which they performed from 1957 to 1964 including investigation, research, interviews, trips, conferences, trials, appeals, all in the prosecution of their employment as attorneys in the stockholders derivative action. Suffice it to say that their testimony with reference to their work over a period of approximately seven years presented a clear picture for the jury in arriving at their answers to the special issues both on the effect of their services as well as the value thereof. Appellees presented the expert testimony of attorneys Bascom Thomas and Angus Wynne, both of the Dallas, Texas Bar, each of which had had extensive experience in stockholders derivative actions. Their testimony included opinions concerning the reasonable value of the attorneys’ services ranging from ten per cent to fifty per cent of the recovery of $1,025,000.

As opposed to this, appellant introduced the testimony of Hubert Johnson, a respected member of the Dallas Bar, who testified that the fee should be on an hourly basis of $30 per hour. He admitted, on cross-examination, that he had had very little experience with stockholders derivative suits and expressed a doubt that he should render an opinion concerning a suit of this kind.

The State Bar minimum fee schedule provides as a minimum fee in contingent cases that the attorney will receive twenty-five per cent of the amount recovered if no suit is filed and one-third of the amount recovered if a suit is filed, whether tried or not. The verdict of the jury amounts to slightly less than twenty per cent of the recovery.

When we consider the conflict in the testimony; the amount of work actually testified to by appellees; the skill of the attorneys; the nature and character of the litigation; the time involved, and the many other and various factors involved, we are in no position to say that the jury acted arbitrarily or without support in the evidence in rendering the verdict of $200,000.

Our Supreme Court in Gulf Paving Co. v. Lofstedt, 144 Tex. 17, 188 S.W.2d 155 discussed the question of the reasonableness of attorneys’ fees and, among other things, said:

“The general rule is that it is the province of the jury to determine what is the reasonable value of an attorney’s services, and that the jury may take into consideration the facts before them in relation to the services rendered, as well as the estimates of their value made by attorneys who testified.” (Citing cases.)

To the same effect see Merchants’ Ice Co. v. Scott & Dodson, Tex.Civ.App., 186 S.W. 418, wr. ref., wherein the court said that the value of the professional services of attorneys was peculiarly within the province of the jury and where there is evidence to support the verdict the same will not be disturbed by the reviewing court.

We find ample evidence in this record to justify the jury’s findings. No effort was made to demonstrate that the jury’s verdict was the product of bias or prejudice or inflammatory testimony or argument. Appellant’s second point is overruled.

In its Point 1 appellant complains of the exclusion' of the testimony of the witness E. M. Arnold, a representative and an Arkansas attorney for Pierce P. Brooks, concerning his opinion that the pendency of the stockholders derivative suit benefited National Bankers Life Insurance Company in arriving at the settlement with Brooks. Three witnesses testified concerning the negotiations in New Orleans which led to the final settlement and payment by Brooks of the sum of $1,025,000. These witnesses were O. A. Fountain, the general counsel and director of the company, R. L. Huf-fines, Jr., Chairman of the Board of the company, and E. M. Arnold. Both Fountain and Huffines, over objections of ap-pellees, were permitted to testify and render their opinion to the effect that the pen-dency of the stockholders derivative suit did not in any way aid or contribute in working out the final settlement. The deposition of Arnold was offered in evidence, one question being:

“Q. Can you tell the jury whether in your opinion the pendency of this suit in any way benefited National Bankers Life Insurance Company in arriving at a settlement?”

Appellees objected on the ground that the witness was not shown to be qualified to express an opinion and that there were no facts to show that he was competent to judge what benefits could be derived from the Texas suit. The court sustained the objection. The statement of facts reveals that following this transaction appears the following:

“(REPORTER’S NOTE: The following is the answer to which objection was made:
‘A. It is my opinion that the pendency of the Adler suit did not benefit National Bankers Life Insurance Company in arriving at the settlement agreement.’)”

Appellant vigorously urges that the exclusion of the witness’ answer was extremely harmful to its case and caused the rendition of an improper verdict.

Appellant contends that pursuant to Rule 212, T.R.C.P. no objection as to the form or the manner of taking the deposition shall be heard where the deposition shall have been on file in the court at least one entire day before the case is called for trial unless such objection is in writing and notice thereof is given to the opposite party before the trial commences. We do not agree with appellant that Rule 212, T.R. C.P. applies in this case. The question propounded called for an opinion of the witness and did not go to the form or the manner of taking the deposition as contemplated by law. The question asked, and the answer sought to be elicited from the witness, went to the competency and relevancy of the evidence which may properly be raised at the time of offer. 20 Tex.Jur. 2d, p. 14; Lee & Co. v. Stowe & Wilmerding, 57 Tex. 444, 450; Sonnefield v. Mayton, Tex.Civ.App., 39 S.W. 166; Burleson v. Morse, Tex.Civ.App., 172 S.W. 2d 361.

Several other reasons are found in this record why appellant’s contention is without merit. The record is not clear as to whether the trial court was ever advised as to what the answer of the witness would have been had he been permitted to testify in answer to the question propounded. The “Reporter’s Note” is not conclusive in this regard. It is well settled law that where a bill of exceptions to the rejection of evidence fails to state what the complainant would have proved had the witness been permitted to testify is not sufficient to authorize an appellate court to reverse an alleged error predicated on the action of the court in excluding the testimony. Galveston, H. & S. A. Ry. Co. v. Dehnisch, Tex. Civ.App., 57 S.W. 64; Bowles v. Bourdon, Tex.Civ.App., 213 S.W.2d 713, affirmed Supreme Court, 148 Tex. 1, 219 S.W.2d 779, 13 A.L.R.2d 1; City of Houston v. Huber, Tex.Civ.App., 311 S.W.2d 488; Gass v. Baggerly, Tex.Civ.App., 332 S.W.2d 426.

Assuming, arguendo, that the court erred in excluding the proffered opinion of the witness Arnold, we are convinced from a reading of this record that appellant has not demonstrated that such exclusion probably resulted in the rendition of an improper verdict in this case. Rule 434, T.R.C.P. As stated, the court admitted in evidence the same testimony from two other witnesses, Fountain and Huffines, so that Arnold’s testimony, if admitted, would be only cumulative testimony. Appellant’s Point 1 is overruled.

Floyd H. Helm and Dorothy Virginia Helm, referring to themselves as “Appellants”, have filed a brief which contains one point of error in which they say that: “The Court committed fundamental error in overruling plaintiff’s motion for a new trial and entering a judgment allowing attorney’s fees in the amount of $200,000.00 in favor of Frank M. Rosson and Floyd McGown, Jr.” We have considered the Helms’ point and find the same to be entirely without merit. They point to nothing that could be considered “fundamental error” and, in essence, complain of the amount of the judgment as being excessive. They frankly state: “The appellants herein wish that the attorneys, Floyd McGown, Jr. and Frank M. Rosson be paid a reasonable sum and they recover expenses and attorney’s fees to the extent that the plaintiff’s suit aided the corporation in its recovery but they feel that the sum of $200,-000.00 as attorney’s fees is excessive and unjustified for the services rendered by Rosson and McGown.” What we have said in connection with appellant’s Point 2, relating to the charge of excessiveness of the verdict and judgment, applies with equal force to the Helms’ argument. Their point is overruled.

Having carefully considered the entire record in this case and finding no reversible error reflected, we affirm the judgment of the trial court.

Affirmed.

BATEMAN, J., not sitting.

      . National Bankers Life Ins. Co. v. Adler, Tex.Civ.App., 324 S.W.2d 35.

      . Adler v. Brooks, Tex.Civ.App., 375 S.W. 2d 544, wr. ref. n.r.e.


author: CHADICK, Chief Justice.

text:
    INWOOD CONSTRUCTION COMPANY et al., Appellants, v. HUNTINGTON CORPORATION, Appellee.
    No. 7665.
    Court of Civil Appeals of Texas. Texarkana.
    Sept. 28, 1965.
    On Motion for New Trial Dec. 7, 1965.
    Rehearing Denied Dec. 28, 1965.

      Sol Goodell, Thompson, Knight, Wright & Simmons, Edward C. Fritz, Fritz, Vinson & Stevens, Dallas, for appellants.
    Spencer Carver, Biggers, Baker, Lloyd & Carver, Dallas, for appellee.
   CHADICK, Chief Justice.

This is a suit for damages occasioned by the breach of a construction contract. The judgment entered in the trial court is reversed and the case remanded for retrial.

Huntington Corporation and Inwood Construction Company, a corporation, entered into a cost-plus contract that obligated Inwood to construct buildings and facilities, including paved parking areas, at sites ties, including paved parkink areas, at sites in Texarkana, Marshall, and Vernon, Texas, under development as shopping centers. This action is concerned only with the paving at Texarkana and Marshall. Huntington as plaintiff sued Inwood, and that company’s performance bond surety, Trinity Universal Insurance Company, as defendants. The trial petition alleged that the paving at Texarkana and Marshall was not constructed in accordance with plans and specifications, and specified fourteen particulars in which the contract was violated.

Huntington’s petition alleged that notice was served upon Inwood of “the complete failure of the paving to meet plans and specifications at the Marshall and Texar-kana sites; of the absence in the paving at the Marshall and Texarkana sites of good and workmanlike performance; of the failure of Inwood as contractor to furnish its best skill and judgment in the paving at Marshall and Texarkana sites; of the failure of Inwood to furnish efficient superintendence during the paving at the Marshall and Texarkana sites; of the failure of In-wood to secure the paving work’s execution in the best and soundest way and at the most expeditious and economical manner consistent with the interest of Huntington Corporation; and the violation by the defendant Inwood of the trust and confidence placed in Inwood under the terms of the contract.” Coupled with the quoted notice is the further allegation that demand was made upon Inwood to reimburse Huntington $52,383.36, the amount Huntington paid for the two paving jobs, less credits aggregating $7,733.12 that Huntington acknowledged as due to Inwood.

The jury determined by answer to the several special issues submitted to it that Inwood failed to either fully or substantially “construct and deliver” asphaltic concrete and flexible base as specified in the contract at the Texarkana site. It found the reasonable cost of remedying defects and omissions that would put the paving at the Texarkana project into conformity with specifications would total $17,460.00. The jury’s findings referable to the Marshall job were similar except a finding that In-wood substantially performed its contract to construct and deliver asphaltic concrete as specified and that the reasonable cost at Marshall of remedying defects, etc., would be $34,740.00. The trial court judgment allowed Inwood a stipulated offset of $9,953.57 and awarded Huntington a recovery of $42,246.43, with interest from the judgment date.

The foregoing summary leaves unmentioned much of the record containing a transcript of 322 pages, a statement of facts in 8 volumes, an excess of 100 exhibits, with briefs in proportion. Other explanations will be added as the opinion progresses. The adequacy of the measure of damages used in submitting this case to the jury is the paramount question for decision.

The case was submitted to the jury on the theory that the appropriate measure of damage is the reasonable cost of remedying defects and omissions in the asphaltic concrete and flexible base so as to bring the paving into conformity with contractual specifications. The jury was instructed to apply this measure of damage if it found Inwood failed to fully perform its contractual obligations in every detail, and regardless of whether Inwood’s performance was substantial or less than substantial. It has been recited that the jury found Inwood did not fully perform nor substantially perform except as to the asphaltic concrete at the Marshall site.- The jury was not required to separately ascertain the cost of bringing the Marshall asphaltic concrete up to specifications. The concrete that the jury found to substantially conform was laid over a flexible base, which was found not to substantially conform, and became the outer surface and binding agent of the pavement. Suggestion is not made how the Marshall base might be remedied without first destroying the asphalt surface. Testimony was introduced that paving as specified at both sites could be accomplished only by completely removing that constructed by Inwood and beginning anew.

No effort will be made to reconcile or choose between theories expressed by various Texas courts and those of other jurisdictions bearing upon the measure of damage problem as the Supreme Court performed that task in Hutson v. Chambless, 157 Tex. 193, 300 S.W.2d 943. The opinion in the case by Chief Justice Hickman in part sayss

“Our study of the involved record in this case has convinced us that one question of law is decisive of the character of judgment which should be rendered here, and our statement will be limited to the essential facts relevant to that question. That decisive question is the proper rule for measuring the damages for the breach of a contract to construct a house.”

Further along the opinion pronounced the general rule applicable in the absence of substantial performance of a building contract in this manner, to-wit:

“ * * * It is stated by the Supreme Court of Washington in White v. Mitchell, 123 Wash. 630, 213 P. 10, 13, in this language:
* * * Generally, where there has not been * * * substantial performance, the measure of the owner’s damage is the difference between the value of the building as constructed and its value had it been constructed in accordance with the contract. Such a recovery would be just to both parties. It is manifest that to measure the owner’s damage by the cost necessary to make the building conform to the contract would often be an injustice, because in many instances such cost would amount to almost as much as the original contract price.’
“That rule was followed in Totten v. Houghton, Tex.Civ.App., 2 S.W.2d 530, no writ history, and authorities therein cited. It is announced in practically the same language in 9 American Jurisprudence, Building and Construction Contracts, Sec. 43, p. 33. Many authorities supporting the rule are annotated in 23 A.L.R. 1436, 38 A.L.R. 1383, and 65 A. L.R. 1298.”

Huntington endeavors to justify the submission of damages as made on three grounds. These grounds will next be discussed in order.

The Parties Contracted for A Rule of Damage.

Subdivision XIV of the Construction Contract reads:

“Any cost due to the negligence of the CONTRACTOR or anyone directly employed by him either for the making good of defective work, disposal of material wrongly supplied, making good of damage to property, or excess costs for material or labor, or otherwise, shall be borne by the CONTRACTOR, and the OWNER may withhold money due the CONTRACTOR to cover any such cost already paid by him as a part of the cost of the work.”

This contractual provision is self-explanatory. It clearly provides that costs for making good defective work, etc., “due to the negligence” of Inwood is to be borne by Inwood. There is no pleading or finding that Inwood or its employees were negligent in the performance of the contract. Neither this provision nor any other pointed out by Huntington supports the contention.

The Measure of Damage Rule in Hutson v. Chambless, supra, is Exclusive to the Construction of a House.

While necessarily the rule expressed in Hutson is referable to the facts of that particular case, the principle enunciated applies to the construction contracts having a similar factual background. The case establishes a precedent applicable to construction generally. Courts, 15 Tex.Jur. 2d, Sec. 131.

Inwood Deliberately Departed from Specifications.

Associate Justice Norvell in his concurring opinion in Hutson directs attention to several established exceptions to the general rule under discussion. Among the exceptions mentioned is the rule of recovery governing cases of willful or intentional breach by contractor. Huntington argues that intentional departure from specification is proven as a matter of law. However, there is no pleading that Inwood willfully or intentionally defaulted. The evidence shows that Inwood subcontracted the paving to E. W. Wilson, Jr., a paving contractor. If Inwood was aware that the paving did not conform to specifications before the jobs were completed and delivered to Huntington, this court’s attention has not been directed to such proof in the record. After complaint was made by Huntington to Inwood, tests were conducted and the alleged departures, omissions and deficiencies became a subject of discussion. No evidence of an intentional deviation was developed. Huntington’s contention in this respect is not valid.

The appellant Inwood’s points of error presenting this issue are sustained and the case is reversed.

ON MOTION FOR REHEARING

The appellee, Huntington Corporation, has filed a motion for rehearing in which, for the first time, it is contended that Article 20, Standard Form of American Institute of Architects, Sixth Edition, 1951, governs the measure of damages to be applied in the event of a breach of the building contract. Article 20 was incorporated into the contract by reference and reads as follows, to wit:

“CORRECTION OF WORK AFTER FINAL PAYMENT — The contractor shall remedy any defects due to faulty materials or workmanship and pay for any damage to other work resulting therefrom, which shall appear within a period of one year from the date of final payment, or from the date of the owner’s substantial usage or occupancy of the project, whichever is earlier, and in accordance with the terms of any special guarantees provided in the contract. Neither the foregoing, nor any provision in the contract documents, nor any special guarantee time limit, shall be held to limit the contractor’s liability for defects, to less than the legal limit of the liability in accordance with the law of the place of building. The owner shall give notice of observed defects with reasonable promptness. All questions arising under this article shall be decided by the architect subject to arbitration, notwithstanding final payment.”

Huntington’s theory of the case presented in its original brief eliminated Article 20 as a factor in this appeal. The brief dismissed the article in these words: “The title and contents regulate its application to buildings and not to site improvements separate from buildings”. In a former appeal, Huntington Corporation v. Inwood Construction Company et al. (Tex.Civ. App.) 348 S.W.2d 442, W.R., N.R.E., Justice Towne Young’s opinion disposed of it as a factor upon a different basis, by saying:

“ * * * In the first place the allegations of plaintiff’s petition being taken as true; 4 Tex.Jur.2d 308, they extend beyond the recitals of Article 20 (Correctional Work) and amount to charges of total failure of performance with respect to construction work on two of these paving sites; not confining the architect to amount or value of the correctional work as in the Clancy case, supra. And furthermore, Articles 20 and 40 must be constructed together, * *

The defaults in construction charged against Inwood as constituting breaches of the contract go beyond allegations of defects due to faulty material or workmanship, etc., appearing within one year. The failures alleged are particularized in the original opinion. The jury was instructed to determine the degree of Inwood’s performance and the cost of bringing the paving into conformity with contractual specifications, etc. The case was not tried or submitted on a theory consistent with the terms of Article 20. Huntington’s motion for rehearing is overruled.

Appellants, Inwood Construction Company and Trinity Universal Insurance Company, answered the appellee’s motion for rehearing, and in doing so set out matters and asked for relief, that out of caution, will be treated as a motion for rehearing. The judgment in the trial court awarded Huntington $52,200.00 damages, and deducted as an offset $9,953.33 awarded Inwood for extras under the contract, attorney fees, interest, etc. Prior to trial on the merit the parties made stipulations which included this:

“That the counterclaim of Defendant, Inwood Construction Company, in the amount of $8,042.12, plus interest thereupon at the rate of 6% per annum, from January 1, 1961 is just and proper, and will either be off-set against Plaintiff’s claim, or recovered by Defendant, depending upon whether or not Plaintiff is awarded a recovery in Plaintiff’s action against Defendant, and if so, depending upon the amount of any such judgment;”

The stipulation appears to contemplate an uncontested judgment on the cross-action in the event judgment was rendered in the damage suit. It does not provide that judgment would be entered independent of a disposition of the original suit. Reversal for a new trial of the original suit does not impair the stipulation, and a judgment in harmony with the parties’ agreement may be entered at the time the damage suit is decided. The appellant’s motion for rehearing is overruled.