author: CHAPMAN, Justice.

text:
    Paul H. DUNCAN v. Joseph Darwin DURHAM, Panhandle and Santa Fe Railway Company, and Gerald Howard Gately.
    No. 7112.
    Court of Civil Appeals of Texas. Amarillo.
    March 19, 1962.
    Rehearing Denied April 16, 1962.
    Ray & Knudtson, Amarillo, R. Dale Winget, Amarillo, of counsel, for appellant.

      Culton, Morgan, Britain & White, Simpson, Adkins, Fullingim & Hankins, Lewis Jeffrey, Amarillo, McLeod, Mills, Shirley & Alexander, Galveston, for appellees.
   CHAPMAN, Justice.

This is an appeal by Paul H. Duncan from an instructed verdict against him and in favor of all defendants below.

Mr. Duncan sued Gerald Howard Gately and the Panhandle and Santa Fe Railway Company for personal injuries growing out of alleged ordinary negligence. He then alleged numerous grounds of ordinary negligence against Mr. Durham and attempted to allege .gross negligence as follows: “ * * * said acts of negligence constituted gross negligence * * * in that said defendant drove his automobile at a rate of speed in excess of the speed limit, ignored the traffic light and approaching traffic and failed to make any attempt to avoid colliding with defendant railroad’s truck and said acts constitute gross negligence and were a proximate cause of the collision. * * * ”

On April 13, 1959 Mr. Durham left his home at Lakeview, a community near Memphis, Texas, between 2:00 and 2:30 P.M. to go by Memphis and on to Amarillo to attend an electronics school that night. He had accompanying him as guests in his car Mr. Smith and appellant, the former riding in the seat beside the driver and appellant riding in the back seat. According to appellant they left Memphis sometime after 5:00 o’clock P.M. At approximately 6:50 P.M., while driving in a westerly direction on 10th St. in the City of Amarillo, Mr. Durham drove through a red light at the intersection of 10th St. and Arthur St., a North-South street in the city.

At approximately the same time a Santa Fe pickup truck driven by its employee, Gately, was proceeding down Arthur St. in a southerly direction. The pickup had stopped in the face of a red light. When the light turned to green the pickup cautiously proceeded across 10th St. in second gear, the gear the driver customarily used for starting. There was an island in the center of 10th St. approximately 3 feet wide. At a time when all the full length of the pickup but about 2;½ feet of the rear had cleared 10th St. North of the island the left front fender of the Durham automobile struck the left side of the pickup at approximately a foot from the rear with such force the car was so severely damaged it was towed away and required $300.00 to repair. From this collision appellant filed suit alleging ordinary negligence against Mr. Gately and Santa Fe, and the pleadings above quoted against Mr. Durham. After appellant rested his case motions for all defendants for instructed verdict were made and by the trial court granted.

In the early jurisprudence of this state our Supreme Court in Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059, laid down the following rule:

“From a careful examination of the cases, it appears (1) that it is the duty of the court to instruct a verdict, though there be slight testimony, if its probative force be so weak that it only raises a mere surmise or suspicion of the existence of the fact sought to be established, such testimony, in legal contemplation, falling short of being ‘any evidence’; and (2) that it is the duty of the court to determine whether the testimony has more than that degree of probative force. If it so determines, the law presumes that the jury could not ‘reasonably infer the existence of the alleged fact,’ and ‘that there is no room for ordinary minds to differ as to the conclusion to be drawn from it.’ The broad and wise policy of the law, formed in and descending to us through the crucibles of time, does not permit the citizen to be deprived of his property, his liberty, or his life upon mere surmise or suspicion, and places upon a trained judiciary the grave responsibility of determining as a question of law whether the testimony establishes more.”

'That rule has been followed.consistently ‘since. Waco Drug Co. v. Hensley, Tex. Com., 34 S.W.2d 832, 835 (Commission Appeal), and cases there cited.

In making this determination we must view the evidence in the light most favorable to appellant, must indulge against the instruction every inference that may properly be drawn from the evidence, and if the record reflects any testimony of probative force in favor of the loser we must hold the instruction improper. “A peremptory instruction is warranted only when the evidence is such that no other verdict can be rendered and the winning party is entitled, as a matter of law, to a judgment.” White et al. v. White et al., 141 Tex. 328, 172 S.W.2d 295. (All emphases shown herein are ours.)

Being always conscious of these rules just announced, this court gives very careful consideration to each case that reaches ■us from an instructed verdict. In giving that careful consideration to the facts of this case and applying the above settled rules to such facts we are still compelled to hold that the trial court properly instructed a verdict for all defendants.

Without discussing all the evidence appellant urges for the several grounds of negligence alleged against Santa Fe we have no hesitancy in saying that the only possible issue that even came near to raising a fact question against it and its driver was that of failure to keep a proper lookout.

The evidence viewed in the most favorable light to appellant shows the Santa Fe pickup was stopped at the red lights facing it. Tenth St. where it intersects with Arthur St. is 72 feet wide from curb to curb with three traffic lanes on each side of the island in the center. Arthur St. is 34 feet wide, is a two-way street, and the Santa Fe pickup was on its proper right hand side of the street as it proceeded into the intersection. Gately observed a city bus headed East on 10th St. stopped at the South curb facing the traffic signal as the red light faced it. He also observed a cab on the West side of Arthur St. facing Southward just South of 10th St. Just before the signal turned green facing Gately he observed a worn an and child step off the South-East corner of the intersection and proceed toward the cab. Figuring they might get in on the street side of the cab he did not accelerate the pickup any faster and may have swerved “a little bit to one side” — the left. He did not turn his head “all the way” and look in any direction because of keeping a lookout for the woman and child caught in the intersection by a red light but his side vision to the East embraced the whole lane next to the island out at least 30 feet East beyond the curb and that distance of part of the middle lane. It is without contradiction that the Durham car was either in the lane next to the island or the middle lane. There was no vehicle standing or approaching within that area as Gately proceeded into the intersection. He did not see Durham’s car at any time before the collision and made no application of his brakes. In fact, he was so far into the intersection at the time he heard the screeching of the brakes he did not think the noise had any connection with him and was greatly surprised at the impact.

The investigating officer testified from the physical facts, giving the Durham automobile the benefit of the doubt, that its speed was at least 30 miles per hour before applying the brakes. He also testified there were 39 feet of skid marks.

Appellant testified he looked at the speedometer about three minutes prior to the collision and it was “setting on 65.” In answer to the question of whether it seemed to slow down any as they proceeded toward the intersection he answered, “None whatever.”

In light of the .physical facts we do not consider appellant’s testimony of a speed of 65 miles per hour immediately prior to applying the brakes constituted evidence of probative value. But if we use the speed of 30 to 40 miles per hour or Mr. Duncan’s 65 miles per hour, either of those speeds, with the distance they necessarily would have placed the Duncan car from the intersection would not, in our opinion, have forewarned Gately that the Durham car would run the three red lights facing it even if he had been looking directly at it when he proceeded into the intersection. Gately was not legally obliged under the facts of this case to anticipate unlawful or negligent conduct on the part of Durham. Our Supreme Court in Fort Worth & D. C. Ry. Co. v. Shetter, 94 Tex. 196, 59 S.W. 533, said: “We think it well settled that one person is not bound to anticipate negligent conduct on the part of another.” That same court in Seinsheimer et al. v. Burkhart, 132 Tex. 336, 122 S.W.2d 1063, said: “A pedestrian crossing a street on a proper signal light is not charged by law with the duty of looking up the street beyond the intersection to discover approaching cars and anticipating that drivers may disobey signal lights.” This same principle was announced again by the same court in De-Winne v. Allen, 154 Tex. 316, 277 S.W.2d 95, in the following language:

“It is well settled that a person is not bound to anticipate negligent or unlawful conduct on the part of another. Texas & N. O. R. Co. v. Brannen, 140 Tex. 52, 166 S.W.2d 112; Seinsheimer v. Burkhart, 132 Tex. 336, 122 S.W.2d 1063; Minugh v. Royal Crown Bottling Co., Tex.Civ.App., 267 S.W.2d 861, wr. ref. In the absence of knowledge to the contrary, therefore, Mr. DeWinne was entitled to assume that no vehicles were traveling in a southerly direction on San Saba Street, and was under no duty to look to the north for the purpose of ascertaining whether or not a vehicle was approaching the intersection from that direction.”

The stock definition of proper lookout is “such a lookout as a person of ordinary care and prudence would have kept under the same or similar circumstances.” We believe the evidence in this case, taken in its most favorable light to appellant, shows that Gately used at least as much, if not more care and prudence than that legally required of him as he proceeded into and through the intersection. A study of this record reveals nothing whatever Gately was legally obligated to do that he did not do nor does it show any action on his part that was different to that which a person of ordinary care and prudence would have taken under the same or similar circumstances. Appellant has cited many cases for the proposition that even though a person has the right-of-way it does not excuse him from exercising ordinary care for his own safety and the safety of others. All his cases, including Lewis v. Martin, Tex.Civ.App., 120 S.W.2d 910, by our own court, are distinguishable on the facts from the instant case, where Gately did use ordinary care for his own safety and the safety of others. Accordingly, we hold the trial court properly instructed a verdict for Santa Fe and Gately.

The question then presents itself as to whether Mr. Durham was guilty of gross negligence, which we shall consider without holding that the pleadings do or do not allege such grounds. By brief appellant asserts: “There was ample evidence from which the jury could have inferred that the defendant did not slow down on reaching the intersection in question.” As we have heretofore intimated, we do not consider appellant’s testimony in that regard as constituting probative value.

In the first place he testified that about three minutes prior to the collision the speedometer showed 65 miles per hour. If that was a true statement the car was more than three miles from the collision at the time he noticed that speed. The question was then asked him if the car seemed to slow down any as they “got toward the intersection.” With more than three miles in which to decrease the speed from 65 miles per hour to between 30 and 40 miles per hour such decrease could easily have been accomplished without appellant being conscious of that fact. The record also reveals that appellant made a statement shortly after the collision to the effect that he was not watching the speedometer but he would estimate “our car at the time we approached the place of accident was between 30 and 40 miles per hour.” When we consider appellant’s testimony in connection with the undisputed physical facts and the expert testimony of the investigating officer there is just not any probative evidence of speed beyond 40 miles per hour immediately before applying the brakes prior to the collision.

Mr. Durham testified, and there is not any probative evidence to the contrary, that as he reached the middle of the block approaching the 10th St. and Arthur St. intersections he saw the overhead signal was green. The car ahead of him had gone through the intersection, though the record does not show how far ahead it was. As he reached a point 30 to 40 feet from the crosswalk marking the beginning of the intersection he looked up at the light in the center and was blinded by the sun. He applied the brakes lightly, and since the car ahead had gone through he decided the light was probably still green. Thinking it would be better to proceed than to risk being struck from behind he drove ahead. At the entrance of the intersection he observed the Santa Fe pickup, applied his brakes and skidded from 30 to 40 feet. He struck the extreme rear end of the Southbound pickup and stopped a few feet away. Though the collision did considerable damage to the car it did very little damage to the pickup.

Mr. Durham did not even know appellant before the day of the collision. The other guest, Mr. Smith, asked him if Mr. Duncan might come with them. Neither of the guests were contributing any money or gasoline to the trip. There is not any testimony whatever of heedlessness or a reckless disregard of the rights of others nor that the collision was intentional on the part of Mr. Durham. He testified he left his home in Lakeview, a few miles from Memphis, about 2:00 or 2:30 o’clock. The two guests started riding with him at Memphis. There is not any probative evidence of appellant objecting at any time to the manner of driving or that Mr. Durham was in any particular hurry.

Art. 6701b, Vernon’s Annotated Texas Statutes, known as the “Guest Statute” was passed by Acts 1931, 42nd Legislature. It provides in effect that no person transported over the public highways of this State by the owner or operator of a motor vehicle as his guest without payment for transportation shall have a cause of action for damages against such operator or owner for injuries, death, or loss in case of accident unless such accident shall have been intentional on the part of said owner or operator, or caused by his heedlessness or his reckless disregard of the rights of others. Our Supreme Court under the particular facts of each case has established certain rules as guides in the interpretation of this statute by which we may determine if such facts are sufficient to support a cause of action by the guest against the owner or operator of the motor vehicle. They have held that a defendant driving an automobile between 75 and 85 miles an hour when he entered the city limits of a city of 6000 population on a heavily traveled highway with knowledge of defective brakes on his machine supported findings of “heedlessness or reckless disregard of the rights of others” including guest passengers. Bowman v. Puckett, 144 Tex. 125, 188 S.W.2d 571.

Where a driver backed an unlighted automobile out of a driveway in the night and onto a heavily traveled highway, driving it diagonally across wrong lanes of traffic in front of an automobile ápproaching at 70 to 75 miles an hour the-court held the period of time during which the negligent conduct exists is not the sole criterion for determining gross negligence. Fancher v. Cadwell, 159 Tex. 8, 314 S.W.2d 820.

Gross negligence was held to exist where a defendant had driven his automobile after dark at 70 to 75 miles per hour and had passed a moving van to its left from the rear without slowing down just as it entered a left hand curve. Burt v. Lochausen et al., 151 Tex. 289, 249 S.W.2d 194.

Where a defendant drove 65 to 70 miles per hour at night along a highway with many curves, and prior to the collision drove off the highway at one time on a curve but continued afterwards to drive at the same speed until he collided with a truck on a curve, such conduct was held to be gross negligence. Bernal v. Seitt et al., 158 Tex. 521, 313 S.W.2d 520.

That same court has held that a conscious violation in not stopping at a stop sign, standing alone, does not come within the Guest Statute exception creating liability; that there must be evidence of a continued or persistent course of action evincing conscious indifference to the rights or welfare of persons affected by it to create liability of the driver of the automobile for injuries suffered by the guest in a collision; and that a driver who proceeded on to a thoroughfare at a moderate rate of speed who failed to heed a stop sign proved no more than a momentary thoughtlessness, inadvertence, or error of judgment, and did not meet the requirements of law to prove gross negligence. Rogers v. Blake, 150 Tex. 373, 240 S.W.2d 1001.

We fail to see where anything worthwhile would be accomplished by debating the last case cited, where the facts were held by the Supreme Court to be insufficient to show gross negligence, with the other cases we have cited where the facts were held by that court to come within the Guest Statute exceptions creating liability. To us there are clearly distinguishing features to justify the results reached by the Supreme Court in each case. Suffice it to say that the facts of the instant case are more akin to the facts in Rogers v. Blake, supra than to the other cases from which we have quoted and show as a matter of law that the accident was not intentional on the part of Mr. Durham nor caused by his heedlessness nor his reckless disregard of the rights of others. The failure to stop at the red stop light was not even 'intentional as in the Rogers-Blake case and Mr. Durham’s actions in general showed no more than a momentary thoughtlessness, inadvertence, or error of judgment. He was clearly guilty of grounds of ordinary negligence but the facts just as clearly did not meet the requirements of law to prove gross negligence. Accordingly, we hold the trial court properly instructed a verdict for all defendants, and the judgment of the trial court is in all respects affirmed

      . The testimony shows the traffic at the intersection of 10th St. with Arthur St. was at the time controlled by five traf-fie signals, one on each corner and one suspended overhead in the center of the intersection.


source: Caselaw Access Project

author: BELL, Chief Justice.

license: Public Domain

text:
    GULF OIL CORPORATION, Appellant, v. SPENCE & HOWE CONSTRUCTION COMPANY, Appellee.
    No. 13895.
    Court of Civil Appeals of Texas. Houston.
    March 29, 1962.
    Rehearing Denied April 26, 1962.

      Finis Cowan, Houston, Baker, Botts, Andrews & Shepherd, Houston, of counsel, for appellant.
    Fulbright, Crooker, Freeman, Bates & Jaworski, Houston, Newton Gresham, Larry W. Starr, Houston, for appellee.
   BELL, Chief Justice.

An employee of appellee was injured by the negligent acts of an employee of appellant while working on a job that appellee was performing for appellant at appellant’s refinery at Port Arthur, Texas. Appellee’s employee, Mr. Cummings, sued appellant for damages resulting to him. Appellant reached a settlement of the claim and the amount agreed upon was paid. Appellant in this case sued appellee, claiming that under the contract between them appellee had agreed to indemnify appellant against all liability to anyone who was injured in connection with the work to be performed by appellee under the contract, the indemnity being even against liability created by the negligent acts of appellant’s employees.

In a trial before a jury, the jury exonerated appellee of any negligence; found appellant’s agent’s acts to be solely the cause of Cummings’ injuries, and found the settlement made by appellant was reasonable and was made in good faith. The court, however, rendered judgment in favor of appellee. Apparently the basis of the court’s judgment is that the injury occurred at a time when there was an oral contract in effect which encompassed no indemnity agreement, or that the indemnity provision of the written contract, executed subsequent to the injury, did not cover the injury caused solely by appellant’s employee.

The position of the appellant is that all of the work performed by appellee was performed under the terms of the written contract which contained an indemnity provision indemnifying it against all liability for any injury received by anyone in connection with the work to be performed under the contract, including indemnity against liability for acts of appellant’s own employees.

. The position of appellee is that at the time of the injury to Mr. Cummings work was being performed under an oral contract containing no indemnity agreement. Further it contends the written contract on which appellant relies does not indemnify appellant against the acts of its own agents.

The evidence shows that the work of driving piling for six propane tanks was commenced by appellee on October 26, 1954. This work was commenced at the oral direction of appellant. Mr. Cummings was injured October 29. A written purchase order, which all parties treat as the written contract, was executed by appellant November 3 and by appellee on November 4. The written contract contained the indemnity agreement which we will notice specifically later in this opinion. It also contained this provision: “By oral agreement work under this order commenced on October 26, 1954.”

Practically all of the testimony dealing with the negotiations for the contract came from Mr. Hartzog, President of appellee. He did not remember what representative of appellant he talked to but he said it was probably Mr. Marble. Neither could he remember just when negotiations began. He stated it could have been a day or so or a week before October 26. He further stated he could not state precisely how the negotiations commenced but assumed they proceeded as in the previous contracts between the parties for like work. It appeared from other evidence that there had been some 54 contracts involving driving of piling for appellant by appellee between 1951 and October, 1954. The negotiations would, as did this contract, commence by a telephone call from appellant asking appellee for a bid. Appellee would then quote a price. Then, as in this case, appellee would confirm the oral bid by letter. In this case apparently the bid as to prices was accepted orally over the telephone and appellee was told to confirm the bid by letter. This was done by letter, dated October 27. The letter was addressed to appellant and then stated: “We propose to furnish labor, supervision, etc., to drive piling for 6 propane tanks at the following schedule of prices: * * Then follows a listing of hourly charges for various types of work. One item listed reads: “Insurance and assessment at cost.” The evidence given by Mr. Hartzog shows he assumed that the work would be done pursuant to a purchase order similar to the ones that had been issued on prior jobs. He knew it would contain a form of indemnity similar to that on the previous jobs. He knew that appellee must furnish appellant with insurance containing contractual coverage endorsement. On all previous jobs the work had been done under a written purchase order. In a few instances work had commenced by oral direction of appellant and the purchase order subsequently issued. The purchase orders, except the last one signed immediately before the one here involved, contained an indemnity agreement expressly excluding any liability by appellee for the acts of appellant. The one here involved and the one immediately preceding it were worded the same and did not expressly exclude liability of appellee for the negligent acts of appellant. Appellee, however, did not actually know of any change in wording though it executed this and the previous purchase order. In his testimony Mr. Hartzog testified the purchase order expressed the entire agreement between appellee and appellant.

We are of the view there was only one contract and it was the written purchase order and it covered all work done by ap-pellee in the driving of piling for 6 propane tanks.

The rule with regard to whether oral exchanges between an offeror and offeree form a contract between the parties, or, whether a written agreement covering the same subject subsequently executed constitutes the contract so that all previous oral representations are merged into the written instrument, is a matter of the intention of the parties. If by oral exchange all of the terms of the contract have been agreed upon and the parties intend to reduce the agreement to writing only so the writing is intended as a memorandum of the completed contract, there is no merger. If, however, the parties intend there shall be no contract formed by the oral exchange, but intend that the written instrument subsequently executed shall be the contract, there is a merger of the prior and contemporaneous exchanges and the written instrument becomes the contract. If all of the terms of a proposed contract are not orally agreed upon but there is a subsequent writing in which all the terms are agreed upon, the writing becomes the contract and that which preceded it was merely a part of the negotiations leading to the contract. Friedman et al. v. Schleuter et al., 105 Ark. 580, 151 S.W. 696.

The difficulty is not so much as to what the rule of law is as is its application.

Here we think the parties themselves by their acts and the words of their written agreement show, as a matter of law, the intention to make the written purchase order dated November 3, 1954, applicable to all work done. The evidence shows a prior course of dealing between the parties involving the same type of work and in each instance the work was performed under a written purchase order issued by appellant. In some previous instances verbal direction was given to start the work prior to the execution of the written order, but in each such instance the written order followed. Mr. Hartzog testified he knew a purchase order similar to those previously executed would be executed. All of the terms of this particular contract had not been agreed upon until the written order was signed. Further evidencing the intention to make the written order the contract covering all work is the fact that the order number assigned the written purchase order appears on the billing for work done during the month of October. Too, the “proposal” contained in the letter of October 27 aids us. It is termed a “proposal” and shows the contract in all its terms had not been fully agreed upon because it contained an item of cost stating “Insurance and assessments at cost”. What insurance is meant is not shown. What assessments are intended are not shown. We feel that all of these undisputed facts point to merely a period of negotiations. If we had no more than this there would probably be a fact issue to be determined by the jury, and, no jury answer having been obtained by appellant, we would be required to presume it was found by the court in a manner so as to support the judgment favorable to ap-pellee. We, however, deem of controlling importance what the parties in the writing have themselves said. The purchase order says: “By oral agreement work under this ohder commenced on October 26, 1954.” This language stands unchallenged and unexplained in the testimony. We think it can only mean that all work was performed and was to be performed under the terms of the purchase order. If the parties intended that the work already done was under a separate oral agreement, there would have been no need to even make reference to it.

We are not unaware that the effect of this holding is to make the contract retroactive. We see no reason why a contract may not be made retroactive where the parties choose to do so. No case has been cited us that is precisely in point. The nearest we have found is that of Cable v. Foley et al., 45 Minn. 421, 47 N.W. 1135, by the Supreme Court of Minnesota. The full facts do not appear in the opinion. It does appear, however, that there a contract calling for certain work was reduced to writing a few days after part of the work had been done. The written contract, however, was dated back so as to be prior in point of time to all of the work. The question arose as to whether the terms of the written contract were applicable to the work done before the execution of the written contract. The court said there would be no doubt that the terms of the written contract governed all the work included in the instrument had it not been shown that part of the work was done before the execution of the writing. The court held the fact that part of the work had previously been done was not conclusive and said:

“That, however, is not conclusive that the entire work was not intended to come within the terms of the written contracts; for it is competent for parties, when a parol contract has been in part performed to reduce the contract to writing; and when they do so the prior parol contract is merged in it, and the writing becomes the sole expositor of the terms agreed on. Blondel v. Le Vesconte, 41 Minn. 35, 42 N.W.Rep. 544. The contracts provide for work to be done in the future. But they are dated back from the time of their execu-' tion, so that the dates are prior to the doing of the work; and the work done was done in the future in respect to the dates. The date of a contract is not always material, but it may be made so by the terms of the contract, an instance of which is where there is a promise to pay or to do an act within a specified time after the date. In the case of these contracts, we think the dates are material, as showing what work — to-wit, that done after the dates — was intended to he covered by their terms. And, so far as the extrinsic evidence hears on the point, (supposing it to be a case for extrinsic evidence as to which no question is raised,) it tends to show that the contracts were intended to have effect as of their dates, and not as of the times of actual execution; for it is to be fairly inferred from the testimony of the plaintiff that it was the understanding that there should be a written contract to ' cover all plaintiff was employed to do. We conclude, then, that the terms of the contracts were to control the rights of the parties growing out of the employment, as well what is alleged in the sixth cause of action as the other. The parol evidence offered to show that it was not intended the contracts should take effect and be binding would expressly contradict their terms, and was therefore not admissible.”

In our case the writing was not back dated but the effect of the provision of the writing itself is to show it was to govern all the work of driving the piling, particularly the language “By oral agreement work under this order commenced October 26, 1954.”

The above holding is supported by dictum in Granger v. Kishi, Tex.Civ.App., 153 S.W. 1161, and Gulf, C. & S. F. Ry. v. House & Watkins, 40 Tex.Civ.App., 105, 88 S.W. 1110, and Courreges v. System Freight Service, 152 S.W.2d 841 (CCA).

Appellee takes the position there is no merger where partial performance has taken place. In each case cited there is such a statement but such statement was unnecessary to the decision. In all but one of them there had really been complete performance by one of the parties of an oral contract which placed an obligation on the part of the other to perform, so there was no binding written agreement, though a writing was subsequently executed, when the writing purported to obligate the party to do what he was already obligated to do. There was no consideration for the alleged written agreement and therefore no written contract.

In McCann v. Central Forwarding, Tex. Civ.App., 211 S.W.2d 794, McCann was contending his purchase order controlled over an oral agreement for hauling of freight though it was issued after the freight had been loaded but before it was shipped. However, it was held not controlling because McCann’s agent at Corpus Christi had independent negotiations with and entered into an oral contract with appellee and McCann testified if the agent did this he owed for all the freight charges. McCann himself had not participated in the negotiations between his agent and the plaintiff in the case.

Appellee contends also that the indemnity agreement is not binding on it because it did not know this particular form of indemnity was in the purchase order and it should have specifically been called to his attention. There is no suggestion of any fraud, overreaching of any kind or mutual mistake. In the absence of such, parties are bound by the provisions of the writing. They are charged with knowledge of what they can know by reading the instrument.

Appellee cites the case of Halliburton Oil Well Cementing Company v. Millican, 5 Cir., 171 F.2d 426, as supporting its position in this regard. We think it does. We most respectfully disagree with the very learned judge who wrote the opinion. We know of no sound reason why such should be an exception to the well established rule, that parties to a written contract are bound by all its provisions in the absence of fraud, accident or mistake.

The next question is whether the indemnity provision encompasses liability under the particular facts of this case.

The contract provides that appellant shall furnish the equipment for driving the piling. It furnished the pile driving equipment and its own employee to operate it. It paid its employee. However, the operator of the pile driving equipment was to take directions from appellee in performance of the work of driving the piling. In this particular case Mr. Cummings was up on the leads, a part of the pile driving machine, engaged in performing work covered by the contract. A leadman, an employee of appellee, had signaled the operator to raise piling immediately before the accident. The negligence as found by the jury, however, did not consist of any act done by appellee’s employees. The negligence that was found to be the proximate cause of the injury was the failure of Gulf’s employee to keep a proper lookout for the safety of Mr. Cummings. In answer to Special Issue No. 18, the jury found the injury to Cummings resulted solely from the use of equipment furnished by Gulf. In answer to Special Issue No. 19, it found the injuries were solely caused by the negligence of Gulf.

Appellee says the indemnity agreement does not cover the injury received by Cummings because is was not caused by any act of appellee or its failure to act and it did not arise “in connection with” work to be done by appellee under the contract.

The written purchase order signed by both appellant and appellee, which we have held covered all work done and to be done, is addressed to appellee. The order first provides in substance that appellee shall furnish labor and supervision and drive piling for six propane tanks as per appellee’s proposal of October 27, 1954. The proposal shows appellant was to furnish unnamed equipment, but all parties agree it was to furnish the pile driving equipment and its operator. Then follows this provision that has been “typed” on a typewriter: “In the performance of this contract you agree to assume responsibility for doing or failing to do anything that may result in death of or bodily injury to any person and loss of or damage to any property.”

Appellee would have us read the word “your” before the word “doing” and the word “failing”.

The above indemnity provision is typed on a printed form used by appellant generally for purchases of goods or services it makes, and paragraph 13 of the form contains this printed indemnity provision:

“In case of entry by Seller * * * upon premises of purchaser, for the purpose of construction, erection, inspection or delivery * * * Seller agrees to provide all necessary sufficient safeguards and to take all proper precautions against occurrence of accidents, injuries or damages to any person or property, and to be responsible for and to indemnify and save harmless the purchaser from all loss or damage and any and all claims arising by reason of accidents, injuries or damage to any persons or property in connection with such work, * * * and further agrees to defend at Seller’s expense, any and all suits or actions, civil or criminal, arising out of such claims or'matters * ⅝ * i>

We have reached the conclusion that the effect of both indemnity provisions, construed together in the light of the surrounding circumstances and the nature of the work undertaken by appellee, makes appellee liable to reimburse appellant for what it paid Mr. Cummings and the reasonable expenses incurred in that connection.

In construing contracts we must seek the intention of the parties from the language used in the contract. All of the language used is to be considered. Too, consideration may be given to the subject matter of the contract and the surrounding facts and circumstances, not for the purposes of varying or adding to the contract but in order to find out the intention with which words are used.

Appellee does not contend that the indemnity agreement must expressly indemnify against the indemnitee’s own negligence. He only contends assumption of liability for the indemnitee’s acts must be fairly said to come within the language used by the parties. We agree with appellee’s statement of applicable law. Mitchell’s, Inc. v. Friedman, 157 Tex. 424, 303 S.W.2d 775. Our disagreement is in the application of the law to the facts before us.

We will first discuss the contention that the injury was not received in connection with the work contracted to be done by appellee. The basis of this assertion is that under the contract appellant was to furnish the pile driving machine and its operator and that the sole cause of the injury to Mr. Cummings was the negligence of the operator in operating the machine. Actually, the contractual undertaking of appellee was not only to furnish, except for the operator, labor for the driving of piling for six propane tanks, but appellee was to supervise the entire job which necessarily included supervision over appellant’s machine operator while he was engaged in carrying out his functions in performance of necessary acts in driving piling. Under the facts of this case, the act of the operator which caused the injury was one necessary to be done in driving of the piling. He was lifting the piling in the leads which was an act in a series of acts in driving the piling. He was lifting the piling in response to a signal from ap-pellee’s employee. It was in the execution of the act called for by the signal that constituted the negligence that caused Mr. Cummings’ injury, that is, the operator failed to keep a proper lookout for Mr. Cummings’ safety. We do not mean to imply any negligence on the part of appellee’s employee in giving the signal. Certainly, however, the operator’s act was one necessary in driving the piling and it was appellee’s obligation to supervise the whole job and see that the piling was driven. We, therefore, conclude the injury resulted from an act done in connection with the work to be done by appellee within the meaning of the indemnity provision of the contract. See Chrysler Motors of California v. Royal Indemnity Co., 76 Cal.App.2d 785, 174 P.2d 318.

We also conclude that the indemnity provisions of the contract encompass the negligent act of the machine operator, which act was performed in connection with the work appellee contracted to do.

We see no inconsistency between the typewritten indemnity provision and the printed one. There is no question in our minds that the printed provision covers responsibility by way of indemnity. Appel-lee does not seem to seriously question this. However, it contends that the printed indemnity, when construed with the typewritten provision, limits its responsibility to its own acts of negligence. The typewritten portion states that appellee in the performance of the contract “assumes responsibility” for doing or failing to do anything that may result in death of or injury to any person or damage to any property. Without any such provision appellee would be responsible for its own acts which resulted in loss to anyone. There is no need for such a provision in the contract. “To assume” means to adopt, receive or take up, to become bound as another is bound, or to put one’s self in the place of another as to an obligation or liability. Texas Employers’ Ins. Ass’n v. Texas & P. Railway Co., Tex.Civ.App., 129 S.W.2d 746 writ dism., cor. judg.; New York Central R. R. Co. v. General Motors Corp., D.C., 182 F.Supp. 273. It means to take on an obligation that would not be the obligor’s except for the agreement to take it on.

Let us look at the circumstances in which the words were used. Appellant was to furnish an operator who was to assist appel-lee in driving the piling but (and this is of particular import), under the supervision of appellee. Certainly ordinary persons would recognize the situation was fraught with the danger that the employees, either the operator, or appellee’s employees, or both, might be guilty of negligence causing injury and that appellant would thus be in danger of being subjected to liability though its operator was under the supervision of appellee. It might be very difficult to factually determine whether appellant’s employee’s negligent act was wholly independent of any negligence of appellee, or whether the negligence of appellant’s operator and an employee of appellee would concur in causing the injury. The parties wanted to put at rest once and for all any question of ultimate responsibility for an act performed by anyone in connection with, the driving of the piling. It is just in such a situation that you would expect an indemnity certainly to the extent of protecting appellant against liability for the negligence of its operator in carrying out directions of appellee in performance of the obligation to supervise the driving of the piling. See Jacksonville Terminal Co. v. Railway Express Agency, Inc., 296 F.Zd 256, note at p. 263, (5th Ct. of App.; St. Louis & S. Ry. Co. v. Stewart et al., 187 S.W. 836 (Mo.); Northern Texas Traction Co. v. City of Polytechnic, 236 S.W. 73 (Tex.Com.App.).

Certainly the typewritten portion did not use the word “your” before the words “doing” or “failing to do”. Only general language was used and this in connection with the words “you agree to assume responsibility for”.

We think the contract in the light of all surrounding circumstances and the language used means that the indemnitor would indemnify the indemnitee for the act of in-demnitee’s operator performed in connection w.ith the driving of the piling which in-demnitor contracted to supervise and was supervising at the time of the injury.

We have not discussed and cited the Texas cases involving indemnities, other than as above, because we do not consider them helpful on the situation before us, other than as above stated.

The judgment of the trial court is reversed and judgment is here rendered for appellant.


text:
    Julia Mae Anderson BARNHART, Relator, v. James A. BERTRON, Chairman, Harris County Republican Executive Committee, et al., Respondents.
    No. 14016.
    Court of Civil Appeals of Texas. Houston.
    April 27, 1962.

      Julia Mae Anderson Barnhart, Houston, for appellant.
    Charles M. Haden, Hart T. Mankin, Walter Williams, Blake Tartt, Houston, for respondent James A. Bertron, Chairman, Harris County Republican Executive Committee.
    Joe Resweber, County Atty., Charles F. Mitchell, Billy R. Kerr, Edward J. Landry, Asst. County Attys., Houston, for respondents R. E. (Bob) Turrentine, County Clerk of Harris County, William M. Elliott, County Judge of Harris County, and Buster Kern, Sheriff of Harris County.
   BELL, Chief Justice.

This is an original proceeding by Relator seeking a writ of mandamus against Respondents. We granted leave to file the application.

Relator is a candidate for nomination as the nominee of the Republican Party for Congresswoman for the 22nd District of Texas. Respondent Bertron is the Chairman of the Harris County Republican Executive Committee. Respondent Elliott is County Judge of Harris County. Respondent Turrentine is County Clerk of Harris County. Respondent Kern is Sheriff of Harris County. The last three named Respondents compose the Election Board for Harris County.

Relator complains that Bertron does not intend to appoint election judges for each of the 278 election precincts in Harris County to serve at the primary election to be held May 5. She in effect contends that this is a duty imposed on him and the Harris County Republican Executive Committee. She therefore seeks a writ of mandamus compelling him to appoint, with the assistance and approval of a majority of the members of the Harris County Republican Executive Committee, an election judge for each of the 278 precincts in Harris County. In the alternative she asks that Bertron be required to submit the name of a person to such Executive Committee for each election precinct for confirmation by the Committee.

As against the other Respondents she asks that if we determine it is not necessary that a primary election be held in each precinct, we mandamus such Respondents to accept her name as the Republican nominee should she he entitled to and receive certification from the Chairman of the Harris County Republican Executive Committee that she was nominated at said primary. Respondent Turrentine has announced he will not accept certification of any alleged nominees of the Republican Party unless a primary is held in each election precinct.

After argument of the case by counsel for all parties and after mature study of all pleadings, affidavits and briefs, we have determined that the proceeding should be dismissed.

The proceeding must be dismissed as to Respondent Bertron because of the absence of indispensable parties, that is, the members of the Harris County Republican Executive Committee.

.. Article 13.05 of the Election Code, V.A. T.S. provides that a presiding judge shall be appointed by such Committee chairman with the assistance and approval of a majority of the members of such Committee. Article 13.19 of the Election Code provides that the “executive committee” shall have general supervision of the primary in the county.

As we interpret these articles, the selection of election judges, which is a part of the primary which is under the supervision of the whole Committee, is not to be done alone by the Chairman of the Committee, but is to be done by the Chairman and a majority of the members of the Committee. The result is that any order we should issue to the Chairman would not be effective to accomplish anything because the selection of a presiding judge must be concurred in by a majority of the members of the Executive Committee, who are not parties to this suit. We do not sit to determine abstract questions. County Democratic Executive Committee in and for Bexar County v. Booker, 122 Tex. 89, 52 S.W.2d 908.

The proceeding must be dismissed as against Respondents Kern and Elliott because while they are members of the Election Board, we are unable to find where the “Election Board” has any duties with regards to determining who are nominees and whose name shall go on the general election ballot. The Board’s only duty is to provide necessary supplies for the conduct of the election. Article 7.07, Election Code.

As to Respondent Turrentine, the proceeding must be dismissed as being prematurely filed.

The time has not yet arrived for the performance by Turrentine of any duty imposed by law. Mandamus will not lie to compel the performance of a duty not yet due. While it is asserted by Relator, and not denied by Respondent Turrentine, that he does not intend to certify the names of Republican nominees who have been properly certified to him by the proper officer of the Republican Party as nominees chosen at the Republican Primary unless a primary election is held in each election precinct, such threats cannot take the place of default. Mandamus lies to require performance of duty by an officer who is in default. If said Respondent fails to perform the duty imposed on him by law, when time for performance arrives, any person who has a justiciable interest will have sufficient time before the holding of the general election in which to take appropriate action. Love v. Wilcox, 119 Tex. 256, 28 S.W.2d 515, 70 A.L.R. 1484.

The cause is dismissed.


author: ARCHER, Chief Justice.

text:
    RESERVE LIFE INSURANCE COMPANY, Appellant, v. John E. ROSS et ux., Appellees.
    No. 10945.
    Court of Civil Appeals of Texas. Austin.
    April 4, 1962.
    Joe Bailey Humphreys, Dallas, for appellant.
    Cofer & Cofer, Douglass D. Hearne, Austin, for appellees.
   ARCHER, Chief Justice.

This is an appeal from a judgment based on a jury verdict in favor of appellees.

The suit was filed against appellant on a hospitalization and medical policy. The parties stipulated that appellant’s liability, if any, was $120.00 exclusive of penalties and attorneys’ fees and a further stipulation was that $100.00 was a reasonable attorneys’ fee.

The only question in the case and on which the Court submitted an issue, was whether or not the cause of the sickness of appellee, Mrs. Ross, for which she was hospitalized and operated on in October 1960 originated after January 1, I960- fifteen days after the issuance of the policy.

The appeal is founded on eight points to the effect that the Court erred in overruling a motion for instructed verdict, in overruling the objections and exceptions of appellant to the Charge, in refusing appellant’s special issue, in overruling motion for judgment, in overruling objections and exceptions to the judgment, in overruling motion for a new trial, and in overruling appellant’s objection to the testimony of appel-lee’s medical witness fixing the date the medical cause originated.

The jury found that the cause of Mrs. Ross’ sickness did originate after January 1, 1960 and the judgment is based on this verdict.

We believe that the evidence was competent and' supports the verdict.

' 'The policy of insurance was issued on December 17, 1959 and all premiums had been páid thereon. The insuring clause, is in part, as follows :

“Reserve Life- Insurance Company * * * hereby insures * * (ap-■'pelléés)' ⅜| ^’' f&r tile' expense of medical treatment and surgery incurred while this policy is in force on account of the Insured * * *
(b) resulting from sickness the cause of which originates while this policy is in force and more than fifteen days'after, the, date hereof, hereinafter referred to as such sicknegs * * * ”

Mrs. Ross was hospitalized on October 24, 1960 to undergo a surgical operation to her spine by Dr. LáLonde, her physician. The operation was performed and Mrs. Ross remained' in the hospital until she was released on October 30, I960.

Dr. LaLonde, the only medical witness to testify, testified that he examined Mrs. Ross on October 20, I960 for pain in her left arm, neck, - and near her shoulder blade, and -that she was suffering from radicu-lopathy, an abnormality consisting of compression of the spinal nerve root; that the cause of this October 20, 1960 radiculopathy was a cervical osteophytosis, or boney spurring of the vertebrae of the spine; that this diagnosis and cause was confirmed and that the cause of Mrs. Ross’ sickness originated after January 1960, based on the fact of the acute nature of the October 20, 1960 pain and abnormalities and of the comparative x-rays taken .between 1956 and 1960. \

Wfe overrule appellant’s first point directed to the overruling of its motion.for judgment since there was evidence of probative force in support of the verdict. Reserve Life Ins. Co. v. Everett, Tex.Civ.App., 275 S.W.2d 713, error ref., N.R.E.

There was no error in overruling appellant’s objections and exceptions to the Charge and in refusing its requested issue. The issue requested was if the appellant acted in bad faith in failing to pay the policy benefits. There was no question but that appellees made demands for payment. (The expenses incurrfed by appellees as a result of the operation and hospital treatment was in excess of $700.00.)

Mr. Ross testified that proof of loss claims were submitted to appellant in December, 1960 and that he wrote a letter seeking payment of the claim. On January 4, 1961 appellant by letter denied any liability under its policy and again in March, 1961 appellant denied all liability.

The suit was filed on April 26, 1961. Art. 3.62-1, Texas Insurance Code, V.A.T.S., provides that delay in payment of losses shall impose damages with reasonable attorney’s fees. We believe that the allowance of 12% damages as a penalty and the attorney’s fee was proper in the case. .

National Life & Accident Ins. Co. v. Dove, 141 Tex. 464, 174 S.W.2d 245; Reserve Life Insurance Company v. Miller, Tex.Civ.App., 300 S.W.2d 343, error ref., N.R.E.

The issue requested by appellant was an affirmative defense and if the appellant was entitled to the submission of an issue of “just cause” such should have been worded to place the burden of proof on appellant. The issue as requested placed the burden of proof on appellees, and if such had been submitted, it would have constituted reversible error.

Pride of Dallas Taxicab Co. v. Lawrence, Tex.Civ.App., 277 S.W.2d 169, error ref., N.R.E.; First National Life Insurance Company v. Vititow, Tex.Civ.App., 323 5.W.2d 313, error dism.

There was no error in rendering ..judgment uponthe verdict of the jury.

The "only issue-was whether;,the “causé”‘of 'Mt’s. Rb'ss’" sicknes's‘'dfi'giriafed after January 1, 1960 and the proof of which must be made to meet the wording of the policy. The issue as submitted fairly submitted the question to the jury.

Reserve Life Ins. Co. v. Kelly, Tex.Civ. App., 266 S.W.2d 395, error dism.

Appellant seeks to justify its action in denying liability under the policy solely on the basis that it was mislead by the Rroof of Loss Statement signed by Dr. LaLonde. The physician’s statement, in the part herein in issue, reads as follows:

“Patient had this condition in 1956— It was not corrected at that time. She was seen again recently, and surgery was performed. (10-20-60)”

Dr. LaLonde, at the trial, testified that he did not fill in the blanks in the statement which bears his signature. In answer to a question as to how he reconciled his testimony with the statement above set out, testified :

“A. That is very simple. The patient had radiculopathy in 1956, which was an attack. She also had an attack of radiculopathy in 1960. The cause of the radiculopathy, as far as I am concerned, was due to two different things.
“Q Now, on November 29, 1960, I will ask you what diagnosis you reported to my client?
“A The diagnosis that was put on this chart by my secretary was, ‘Cervical disc protrusion.’ This is an error. That’s a technical error on the part of the staff of my office. That is not the correct diagnosis. The correct diagnosis is on her chart at the hospital.”

The testimony of Dr. LaLonde stated that the cause of the sickness of Mrs. Ross, for which she was treated in October, 1960 originated subsequent to January 1, 1960 and constituted evidence on which the jury could and did base its verdict.

Reserve Life Insurance Company v. Miller, supra and cases therein cited.

Opinions of qualified physicians and surgeons with respect to the physical conditions of a person are admissible. Such witnesses may testify as to the nature of disease or injury, whether temporary or permanent and as to the extent of incapacity or disability, whether total or partial, caused by the disease or injury.

Federal Underwriters Exchange v. Cost, Tex.Com.App., 132 Tex. 299, 123 S.W.2d 332.

The judgment of the Trial Court is affirmed.


author: HIGHTOWER, Chief Justice.' STEPHENSON, Justice

text:
    Roy McBRIDE, Appellant, v. BEAUMONT CITY LINES, INC., Appellee.
    No. 6389.
    Court of Civil Appeals of Texas. Beaumont.
    March 29, 1962.
    Rehearing Denied April 25, 1962.

      Sample & Walker, Beaumont, for appellant.
    u ‘Strong, Pipkin, Strong & Nelson, Beaumont, for appellee.
   HIGHTOWER, Chief Justice.'

Our former opinion of January 11, 1962 affirming the trial court’s action in sustaining appellee’s plea in abatement is withdrawn and the present substituted therefor.

Appellant, Roy McBride, quit his job with appellee, Beaumont City Lines, Inc., November 28, 1958. On November 27, 1959, he brought suit against appellee for its refusal to give him vacation pay and unpaid wages, together with attorneys’ fees. The trial court, in due time and order, sustained appellee’s plea in abatement and dismissed appellant’s cause of action, hence this appeal.

The plea in abatement set forth, and alleged, that appellant’s suit was barred by reason of his failure to comply with the following grievance provisions of a Collective Bargaining Agreement existing between the parties:

“Section 2 * * *

“First: No grievance shall be entertained or considered .unless it is presented in writing—

“(a) Within ten (10) days inclusive after the incident occurred which gave rise to the controversy involving the interpretation or application of the terms of employment as herein set forth; or”

⅜ * ⅜ ⅝ * #

“Second: Any grievance presented in a due and timely manner as hereinabove provided shall be taken up by the ASSOCIATION’S Grievance Committee and an official or officials of EMPLOYER designated by EMPLOYER within not more than three (3) days, after EMPLOYER receives such grievance. Within ten (10) days thereafter such grievance shall be settled or arbitration shall have been demanded as hereinafter provided. If not so settled, and if arbitration shall not have, been so demanded by either party, such grievance shall be forever barred and extinguished.”

These provisions were followed'-by rather extensive provisions providing for the procedure and settlement of differences by arbitration in the event such differences were not worked out under the grievance provisions.

The provision providing for ten days notice was clearly complied with by appellant. Approximately two weeks after quitting his job he was informed by appellee that he had no further pay or benefits due him. This was the first knowledge appellant had of such position. Within ten days thereafter he made written demand through his attorney of his claims against appellee. Approximately twenty-five days thereafter ap-pellee replied by letter to said attorney, the substance of said letter being to deny any and all claims of appellant.

The ten days notice provision having been complied with by appellant, we hold that the clear intendment of Subsection Second of Section 2 of the foregoing Grievance provisions is that after receiving proper notice it then became the duty and responsibility of appellee, if it wished to avail itself of said provisions, to present said grievance to “the ASSOCIATION’S Grievance Committee and an official or officials of EMPLOYER designated by EMPLOYER within not more than three (3) days, after EMPLOYER receives such grievance.” This, according to the evidence, appellee did not do.

The law is clear that one seeking recovery against an employer in these circumstances must pursue the procedure prescribed by the grievance provisions of the working agreement prior to resort to the courts. Wyatt v. Kansas City Southern Railroad Co., Tex.Civ.App., 101 S.W.2d 1082. Conversely, we hold that having failed to perform the condition precedent imposed upon it by the terms of the agreement, appellee cannot be heard to urge the same as a bar to appellant’s suit. Moreover, we are of the opinion that appellee, having denied liability in toto, and having wrongfully or ■ negligently failed to submit the grievance to the designated officials, waived its right to insist on the grievance procedure. Connecticut Fire Ins. Co. v. Hilbrant, Tex.Civ.App., 73 S.W. 558; Delaware Underwriters v. Brock, 109 Tex. 425, 211 S.W. 779.

We doubt that the trial court’s action in sustaining the plea was intended as an adjudication of the validity of the common law provisions of the Bargaining Agreement relating to arbitration, but in order to clarify this matter, which appellant strongly urges, and to simplify the hearing in the court below, we make this observation: The agreement seeks to compel the adjudication by arbitration of the liability of appellant to appellee, as contradistin-guished from an agreement to establish by arbitration the sum of money, if any, which appellee might be entitled to claim under the terms of the Bargaining Agreement as a whole. These types of agreements are distinguished and explained in American Cent. Ins. Co. v. Bass et al., 90 Tex. 380, 38 S.W. 1119. The agreement under consideration being one to compel arbitration of liability, it cannot be urged in bar of appellant’s suit inasmuch as the parties have failed to pursue the same to a final award. Tejas Development Co. v. McGough Bros., 165 F.2d 276 (5th Cir.); 6 Tex.Jur.2d Arbitration and Award, Secs. 20, 22.

The cause is reversed and trial ordered on the merits.

STEPHENSON, Justice

(concurring).

I concur with the decision reached in this case, but I feel it is important to point out that Sec. 5 of Art. 7 of the Contract referred to in the opinion reads as follows:

“The decision of a majority of the Board of Arbitration shall become final and binding on the parties of this Agreement when delivered to them in writing.” This provision in the Contract had the effect of ousting the courts of jurisdiction, and was therefore voidable. Not being binding upon the parties, it could not be made a condition precedent to filing this suit. The parties to a contract are free to enter into any agreement they choose, and may make conditions precedent to filing suit, as long as such conditions do not have the effect of denying either party the right to have the matter finally adjudicated by the courts. Tejas Development Co. v. McGough Bros., supra.


author: CHADICK, Chief Justice.

text:
    Metta Rives ARMSTRONG et vir, Appellants, v. Emory H. GRANT et ux., Appellees.
    No. 7378.
    Court of Civil Appeals of Texas. Texarkana.
    March 20, 1962.
    Ramey, Brelsford, Hull & Flock, Tyler, for appellants.
    James N. Phenix, Gordon R. Wellborn,. Henderson, for appellees.
   CHADICK, Chief Justice.

This is a venue case. The defendants, interposed a plea of privilege to be sued in Madison, the County of their residence, and. the plaintiffs controverted the plea, asserting venue in Rusk County by reason of the exception from the General Rule of Venue authorized by Subdivision 9a, Art-1995.

The appellants, Metta Rives Armstrong and her husband, M. V. Armstrong, have briefed points of error that there is no evidence, and insufficient evidence to sustain the trial judge’s implied finding that Mrs. Armstrong’s negligence was the proximate-cause of the injuries sustained by the ap-pellees, Emory H. Grant and wife, Frances-Grant. Appellants’ argument endeavors to-demonstrate that, if not physically impossible, it is unbelievable and improbable that the collision between the Grant and Armstrong automobiles occurred as described by-Grant as a witness.

There is no conflict in the evidence as to the time and the scene of the collision, the drivers of the vehicles or the general direction of the two vehicles’ movements until just prior to the collision. The scene was-in the City of Henderson, where South Main Street intersects U. S. Highway 79 and offsets to the west to continue in a southerly direction as the old Nacogdoches road. From the intersection South Main Street runs in a general north-south course, while U. S. Highway 79 follows a general east-west direction. Just before the time of collision the Grant vehicle with Mr. Grant driving, and his wife and daughter as passengers, was proceeding East on U. S. Highway 79, meeting the automobile driven by Mrs. Armstrong, which was moving westerly on the highway. The collision occurred as Mr. Grant made a turn to the north into South Main Street. The left front and side of each automobile was damaged and bore marks of the collision.

In its most favorable version the evidence showed that Mr. Grant started his left turn blinker signal when he was about 200 yards from the intersection, signaling his intent to turn into South Main Street. When he was 20 to 30 feet from the intersection he saw the Armstrong automobile approaching from the east on its proper side of the four-lane highway at a speed of 70 to 80 miles per hour. Grant testified that he allowed room for other vehicles to enter into the intersection from South Main Street as he turned into the street from his position on the south side of the center stripe of the highway. He testified that he had proceeded in his turn about 24 feet north of the center stripe when the Armstrong car suddenly appeared immediately in front of him. The collision occurred. The Grant vehicle came to rest about 4 feet north of the highway center stripe. The Armstrong car stopped approximately 100 feet west of the intersection on the north shoulder of the highway. The pavement and shoulder of the street and highway at the junction point are of such area that the Armstrong car moving westerly did pass to the north of the Grant vehicle after its northward turn.

It was after Grant’s turn and movement northward some 24 feet that the collision occurred according to the only evidence in the record, that given by Grant himself. It is this evidence that the appellants attack as improbable, unbelievable and contrary to undisputed physical facts; therefore constituting no evidence or insufficient evidence to support the court’s judgment. The appellants adduced little or no evidence to rebut that offered by Grant, being content to rely on the physical facts of the points of damage to the vehicles, the position of the cars after collision, and the unproved supposition that a point 24 to 30 feet north of the center stripe would place the vehicles entirely out of the intersection to sustain their argument. No evidence was offered showing the dimensions of the highway and street pavement, the shoulders, roadway, etc., at the intersection or its topography.

It is elementary that the trial judge, no jury being demanded, as the trier of facts, was empowered to determine the credibility of the witnesses, the weight to be accorded their testimony, and to reconcile conflicts and discrepancies in the proof offered. See 24 Tex.Jur. (2) 350 Sec. 705 and 712. It would not mark a judge as gullible to find, if he considered the witness creditable, that when Grant turned to enter South Main Street Mrs. Armstrong’s automobile approaching at a high rate of speed veered slightly to her right in an area of the intersection where the roadbed would permit, and passed north and substantially in front of Grant’s turning car. The collision appears to have been a glancing sideswipe. Very little reconciliation would be necessary to find that Grant had not moved as far from the center stripe of the highway as he testified, that he had only partially headed north, and that the impact hurled his vehicle to the place near the center stripe at which it came to rest. Likewise, the speed of Armstrong’s automobile and the impact of the collision causing it to come to rest at the point indicated.

The evidence is sufficient to support the implied finding that Mrs. Armstrong’s failure to apply her brakes, to turn left, and to maintain proper control, as well as her excessive speed under the circumstances was negligence and the proximate cause of the appellees’ injury. Further discussion can serve little purpose, except to point out that Mrs. Armstrong did not claim in her testimony to have applied her brakes, blown her horn, or attempted to take any evasive action, left or right, to avoid the accident. She contended that Grant’s sudden turn in front of her at the moderate speed she said she was traveling did riot leave time for her to do anything toward preventing the collision. This court is not justified in setting aside the judgment for lack or insufficiency of evidence. See Jess Edwards, Inc. v. Foley, Tex.Civ.App., 321 S.W.2d 328, N.W. H.; Cavanaugh v. Davis, 149 Tex. 573, 235 S.W.2d 972 at 977; Woodward v. Ortiz, 150 Tex. 75,237 S.W.2d 286.

The judgment of the trial court is affirmed.


author: MORRISON, Judge. DICE, Commissioner.

text:
    Frank BEYER, Appellant, v. The STATE of Texas, Appellee.
    No. 34082.
    Court of Criminal Appeals of Texas.
    Jan. 10, 1962.
    Rehearing Denied March 28, 1962.
    Gib Callaway, Brownwood, Schlesinger, Goodstein & Semaan (On Appeal Only), San Antonio, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is cattle theft, with a prior conviction for an offense of like character alleged for enhancement; the punishment, ten years.

Sam C. Cathey testified that sometime ago he had been in the cattle business; that two years previously his son took over the business; that the cattle on the Cathey place and on the appellant’s adjoining property became mixed because the fence was in bad repair; that while the Catheys and appellant were separating the cattle before testing them for brucellosis he claimed the cow in question, stating that it belonged to his son, along with two other cows, at which time appellant told him to take the other two cows if they were his, but refused to surrender the cow in question; that he recognized the cow as belonging to his son because he raised her and recognized the “dollar mark” brand on her right hip; that she had been recently branded on the jaw with appellant’s “J F” brand and her horns and ear had been recently cut; that the two cattle appellant surrendered to him had been recently ear-marked with what was apparently appellant’s mark but the cow in question was the only one that was branded with the “J F” brand, and that the Catheys had sold no cows since 1954.

J. R. Cathey testified that the cow in question belonged to him, that the cow had his dollar mark brand on her right hip, and that he had never sold any cows to appellant.

Joe Townsend, sheriff of Brown County, testified that he picked up the cow in question in appellant’s pasture after a complaint was filed by S. C. Cathey, that the cow had horns that had been recently tipped and fresh ear-marks, that she had a fresh “J F” brand on her jaw and a dollar mark brand ■on her right hip, and that the dollar mark brand was dim and hard to make out before the hair was sheared away.

Ben Tongate, Bill Strickland and Billie Porter testified that they had examined the cow in question and were of the opinion that the brand on her left hip was the Cathey ■dollar mark brand.

Chester Davis, testifying for appellant, •stated that he had worked for him and that the cow in question had been in appellant’s ■pasture and he had treated it for screwworms a year before.

Mrs. W. C. Lynch testified that she had leased to appellant the pasture adjoining the Cathey place in September, 1959, that she was familiar with appellant’s cattle, and that the cow in question was one of the cattle that appellant originally put into the pasture at the time it was leased.

Jessie Davis testified that he sold cattle to appellant in 1959 of the same type as the cow in question.

Seaburn Garwin testified that he hauled some cattle for appellant on February 2, 1961, to the Yeager sales barn to be tested for brucellosis, that they were of the same type as the cow in question, and that appellant branded and tipped the horns of four or five of these cattle on that date.

Leonard Greer testified that he received a commission for the sale of some cattle from Jessie Davis to appellant in 1959, which cattle were of the same type as the cow in question. He further testified that the brand on the cow in question was not a dollar mark brand but a figure eleven brand.

Appellant, testifying in his own behalf, said that he bought the cow in question from Jessie Davis in 1959, that the brand on the cow’s hip was a figure eleven instead of a dollar mark and was on the cow when he bought her.

The jury resolved the disputed issue against appellant. We will discuss the contentions advanced by appellant in brief and argument.

We are met at the outset with the contention that the court erred in accepting the jury’s verdict and rendering judgment thereon. Among the forms of verdict submitted was one finding appellant guilty of the primary offense alone and one finding him guilty of the primary offense and further finding that he had been convicted in the prior case alleged for enhancement. The jury returned both verdicts signed by the foreman. The first fixed appellant’s punishment at three years, while the second, under the terms of Article 62, Vernon’s Ann.P.C., fixed no punishment. The judgment of the court, based upon these verdicts, was that appellant be confined for a period of ten years.

It is apparent that the court disregarded the first, accepted the second, and gave application to Article 62, supra, in fixing the punishment.

It is appellant’s contention that, since the court accepted both verdicts, this made them so uncertain and contradictory as to not support a judgment. The State contends that, even though the court should not have accepted both verdicts, it is within the power, and becomes the duty of this Court, to reform the judgment so as to make it conform to the verdicts in question. Since the court accepted verdict #1, which in effect found that appellant was not the same person who had been convicted in the prior case alleged for enhancement, this Court must accept such finding and cannot uphold the ten-year judgment imposed by the court. But it does not necessarily follow that we must reverse the conviction because we have a finding of guilt as to the primary offense plus the fixing by the jury of a definite term of imprisonment. Our attention has been directed to no case directly in point. After careful consideration, we have concluded that it becomes our duty to reform the judgment to find appellant guilty of the primary offense and give application to that portion of the verdict which fixes his punishment at confinement for three years. The judgment is reformed so as to provide for a punishment of three years instead of ten years, and the sentence is reformed to read “not less than two (2) nor more than three (3) years.” It is so ordered.

Having disposed of the most difficult question in the case, we pass on to a consideration of the other contentions advanced by appellant.

Appellant contends that the evidence is insufficient to support the conviction and cites Darnell v. State, 43 Tex.Cr.R. 86, 63 S.W. 631; Moran v. State, 94 Tex.Cr.R. 55, 249 S.W. 474; Enox v. State, 131 Tex. Cr.R. 551, 101 S.W.2d 243; and Ramirez. v. State, 147 Tex.Cr.R. 218, 179 S.W.2d 973, to support his contention.

In Darnell, supra, the animal was known in the community to be a stray, and appellant took it under the honest belief that he had a right to take it. In Moran, supra, appellant took a cow and calf off the range under the belief that the cow was one he had turned out as a heifer and he surrendered her to the prosecutor before any criminal action was instituted. The Court, through Judge Morrow, held that the circumstances which led appellant to believe the cow belonged to him were so strong as to put the question of fraudulent intent in such doubt that the Court could not affirm the conviction. In Enox, supra [131 Tex. Cr.R. 551, 101 S.W.2d 244], when the owner claimed the bull, appellant said, “Well, if he is yours, he damn sure isn’t mine,” and tried to buy the bull. The Court held the evidence insufficient to support the conviction because it did not show a distinct and conscious assertion of ownership by the appellant. In Ramirez, supra, the State failed to connect appellant with the cow that was stolen.

The State’s evidence in the case at’ bar shows a branding and marking by appellant of a cow already bearing the Cathey brand plus a definite assertion of ownership on his part, and we are of the opinion that the evidence is sufficient to support the conviction.

Appellant contends that the court erred in excluding from evidence a check dated January 6, 1959, from appellant to-Jessie Davis marked “For 51 big cows” for the reason that it fixed the date on which appellant purchased the cow in question. The record indicates that both appellant and Davis testified concerning the sale-of cattle by Davis to appellant in 1959, and, as the check in no way shows that the cow in question was among those for which the check was given, we can see no prejudicial error in the exclusion of it. For the same reason, there was no error in excluding from evidence the check dated February 2, 1961, appellant gave Seaburn Garwin for “hauling cows from Owens” to the Yeager sales barn.

Appellant contends that the court erred in excluding from evidence a Texas Animal Health Commission report regarding a brucellosis test given 21 head of his cattle on February 2, 1961, because such report corroborated appellant’s evidence that he branded and cut off the horns of certain cattle on that date. The report, which is a part of the record before us, in no way shows that any cattle were branded or had their horns cut off on the date in question, and we are of the opinion that no error was committed in excluding it from evidence.

Appellant also complains that the court erred in refusing his requested charge to the effect that the jury could not consider his former conviction for cow theft as a circumstance affecting his credibility as a witness.

The court charged the jury that they could not consider appellant’s former conviction, if any, in passing upon the issue of his guilt or innocence for the primary offense charged in the indictment, to which appellant made no objection.

We have been cited no authority and are aware of none which holds that the charge as given did not fully protect appellant’s rights.

No reversible error appearing, the judgment as reformed herein is affirmed.

ON APPELLANT’S MOTION FOR REHEARING

DICE, Commissioner.

Appellant strenuously insists that we were in error in reforming the trial court’s judgment so as to find appellant guilty of the primary offense of cattle theft and fix his punishment at confinement in the penitentiary for a term of three years as found by the jury in their verdict No. 1 returned under the first count of the indictment.

It is first contended that the two verdicts returned by the jury were nullities because they in effect found appellant guilty of two different felony offenses under one single indictment. Numerous cases are cited by appellant which support the proposition that an accused cannot be convicted of more than one offense under a single indictment.

While such is the rule in this State, appellant does not here stand convicted of two different offenses under the one indictment. In each verdict, the jury found appellant guilty of the primary offense of cattle theft. The finding of the jury in the second verdict that appellant had been previously convicted of cattle theft was not a finding of his guilt of another offense. The statutes, Articles 61-64, Vernon’s Ann.P.C., authorizing enhancement of punishment upon proof of a prior conviction or convictions do not create an offense but merely prescribe a more severe punishment. 16 Tex.Jur.2d, par. 403, page 624; Ellison v. State, 154 Tex.Cr.R. 406, 227 S.W.2d 545.

Appellant next insists that we were in error in reforming the court’s judgment because the two verdicts returned by the jury and accepted by the court were so indefinite, uncertain and inconsistent as to the punishment that they cannot support any judgment of conviction rendered thereon.

In support of his contention appellant cites certain decisions by this Court where it has been held that verdicts finding an accused both “guilty” and “not guilty”; assessing the punishment at a fine “and/or” confinement in jail; fixing two different punishments for the same offense or fixing a punishment in excess of that provided by law are too indefinite to support a judgment of conviction thereon.

We have carefully reviewed the cases cited and remain convinced that the verdicts returned by the jury in the instant case were sufficient to support the judgment of conviction, as reformed by this Court, finding appellant guilty of the primary offense of cattle theft and ordering that he be punished by confinement in the penitentiary for three years as fixed by the jury in its verdict No. 1 which was returned into the court.

As heretofore pointed out, each verdict returned by the jury found appellant guilty of the primary offense of cattle theft. In verdict No. 1, the jury specifically fixed appellant’s punishment at confinement in the penitentiary for three years. No punishment was fixed by the jury in the second verdict.

Remaining convinced that a proper disposition was made of the case upon original submission, the motion for rehearing is overruled.

Opinion approved by the Court.


author: BELCHER, Commissioner.

text:
    Lovie WRIGHT et al., Appellants, v. The STATE of Texas, Appellee.
    No. 34231.
    Court of Criminal Appeals of Texas.
    March 14, 1962.
    No attorney for appellants of record on appeal.
    Frank Briscoe, Dist. Atty., Samuel H'. Robertson, Jr., Edward D. Michalek, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The twenty-two appellants were jointly tried and convicted of unlawful assembly under Arts. 439 and 449, P.C.; the punishment a fine of $250 each.

The appellants were charged with intentionally aiding each other by forming a continuous line near the ticket office of Loew’s State Theater, there situate to prevent the sale of tickets, and thereby deprive Homer William McCallon from engaging in the operation of the theater.

The testimony of Theater Manager Mc-Callon, Assistant Manager Hogan, and Police Sergeant Monroe shows that about 4:30 P.M. on April 30, 1961, a felt rope had been placed on 4 posts across the theater entrance, leaving 30 inch passageways on either end. The group of appellants, some of whom carried signs, arrived at 6 P.M. and about ten of them formed a continuously moving double line blocking the front of the theater entrance. In addition, from two to five of the others stood in each of the passageways and kept them closed almost constantly. Assistant Manager Hogan and three ushers had to stand behind the felt rope and assist patrons who had been able to get past the double line, on through the blocked passageways. This was usually done by moving one of the 20 pound posts to enlarge the opening, and then squeezing patrons through this enlarged opening. Ten police officers of the City of Houston arrived at 6:30 P.M., and arrested the appellants about 7:15 P.M. after conferring with both them and the theater management.

McCallon further testified, when asked to describe the double line of appellants, that they made a “formidable barrier”, and in order to sell tickets “we would move the tape aside and squeeze people in”. He stated that there was a certain amount of physical effort to get through both the appellants in the double line and those obstructing the passageways, and that for the most part patrons had to be escorted in.

Hogan testified that he asked the appellants in the passageways to move but they would not answer and would stand “side by side” as soon as a patron would walk up.

Police Sergeant Monroe, who directed the police activities, identified the appellants and testified that after talking with the manager and his assistant, he told the appellants that they were depriving the theater of the right to do business in a normal manner and to let the patrons come and go as they chose. He further testified that following this the theater manager then asked each to move and they refused. “They said they decided they would stay regardless”. Sergeant Monroe also testified that he observed the appellants’ actions for some 45 minutes, and that during this time some 18 or 19 people walked up to the theater and about half of them got in and the other half turned away. Also during this time, some 30 to 40 other people talked to him about this situation, asking if the movie was open, and some said “let’s go to another theater”, and “several asked if he would see to it that they got in safely”.

John Wesley Bland was the only appellant to testify. He stated that after admission was refused to the appellants that they formed peaceful picket lines for the purpose of gaining admission. On cross-examination, he related that all of the actions of the group had been previously planned in the event that admission was denied.

There are no formal bills of exception, nor has any brief been filed on behalf of the appellants.

The informal bills of exception have been considered, and they reflect no error.

The evidence is sufficient to warrant the conclusion that the appellants are guilty as charged.

The judgment is affirmed.

Opinion approved by the Court.


text:
    Marion M. MOODY et al., Edythe R. Page et al., Martha Jones et al., Appellants, v. The STATE of Texas, Appellee.
    Nos. 34092-34094.
    Court of Criminal Appeals of Texas.
    March 14, 1962.

      No attorney for appellant of record on appeal.
    Frank Briscoe, Dist. Atty., Samuel H. Robertson, Jr., David Ball, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The appeals in the above numbered and styled causes are from convictions of the appellants for the offense of unlawful assembly, Art. 449, P.C. Appellants Page and McCalister each entered a plea of nolo contendere, and each of the other appellants plead not guilty. After waiving a jury trial, all of the appellants were found guilty and fined $100 each.

These are companion cases charging the commission of the same offense, occurring at the same time and place. The statement of facts in each case are the same. Therefore, the three cases are consolidated and will be considered and disposed of together.

The appellants were charged with intentionally aiding each other by standing together in a continuous line near the ticket office of Lowe’s State Theater to prevent the sale of tickets and thereby deprive Homer William McCallon from engaging in the operation of the theater.

The evidence shows that about 7:30 P.M. on March 16, 1961, several police officers of the City of Houston were called to Lowe’s State Theater. On arriving, they found a group of about 22 persons, including the appellants, standing together around the ticket office at the entrance of the theater. The horseshoe shape of the group in a continuous line near and around the three ticket windows prevented other persons from purchasing tickets at the theater.

The theater manager, Homer William McCallon, testified that he saw two of the group pushing against the door at the rear of the ticket office in an effort to prevent the assistant manager from entering, but that they stopped after seeing him. He further testified that during this time, it was impossible to carry on normal operations because of the actions of the group in blocking all of the ticket windows and preventing the sale of tickets at the windows.

The testimony further shows that the group was told that “they could continue to peacefully picket but to leave one of the ticket windows open”. Following this, the group moved back from the ticket window, held a brief conference, then announced, “we will not move”, and resumed their position blocking all of the ticket windows.

The appellants did not testify or offer any evidence in their behalf.

There are no formal bills of exception. The trial being before the court without a jury, it is presumed that any inadmissible evidence was not considered by the court. Garrett v. State, 165 Tex.Cr.R. 328, 307 S.W.2d 270; Milligan v. State, Tex. Cr.App., 343 S.W.2d 455.

No brief has been filed on behalf of the appellants.

The evidence is sufficient to warrant the conclusion that the appellants are guilty as charged.

The judgment is affirmed.

Opinion approved by the Court.