author: PARKER, Justice.

text:
    The JARBET COMPANY, Inc. v. Vinnie MOORE et al.
    No. 6791.
    Court of Civil Appeals of Texas. Beaumont.
    Nov. 18, 1965.
    Rehearing Denied Dec. 8, 1965.

      Bailey & Williams, Dallas, for appellant.
    Rex Houston, Henderson, for appellees.
   PARKER, Justice.

Appellees are Vinnie Moore, individually and as independent executrix of the will of J. O. Moore, deceased, and the children of J. O. Moore, deceased. Appellant is The Jarbet Company, Inc. This is a suit brought by appellees against appellant, a road contractor, for money damages arising out of the collision between a pickup truck of J. O. Moore, deceased, and an automobile operated by Mrs. Dorothy Loving, which occurred in the intersection of Highway 58 and Loop 287 in Lufkin, Angelina County, Texas, within the area of a highway construction contract between appellant and The State of Texas. J. O. Moore died as a result of the collision and his wife, Mrs. Vinnie Moore, was injured as a result of the collision. The jury found appellant responsible for various acts and omissions constituting negligence and the proximate cause of the collision in question. The jury also found that the drivers of both vehicles were not responsible for any act or omission which would constitute negligence, proximately causing the collision in question. Judgment was entered for appellees upon their motion for judgment on the verdict of the jury. Appellant filed a motion to disregard the jury’s answers to certain special issues and for judgment non obstante vere-dicto. Appellant’s said motion was refused.

On February 13, 1961, a contract was entered into by The State of Texas, represented by the State Highway Engineer, with The Jarbet Company, Inc. Jarbet agreed to construct Loop 287, a highway through timberland where no road had been. The Loop was designed to route traffic through the south part of Lufkin in an easterly direction from the Houston Highway (Highway 59) to connect with the Lufkin-Beaumont Highway (Highway 69). The roadway to be constructed totaled over 13,000 feet. Approximately midway between Highway 69 and Highway 59 it crossed Highway 58} the latter running north and south from Lufkin. Loop 287 ran east and west. In the contract Jarbet agreed to handle traffic during construction, it being the entire responsibility of The Jarbet Company for the passage of traffic in comfort and safety at all times, the parts of such contract dealing with traffic being as follows:

7.7. Public Safety and Convenience. The safety of the public and the convenience of traffic shall be regarded as of prime importance during construction. The Department will maintain independent detours, as shown on plans, and the contractor will not be responsible for the maintenance and direction of traffic thereon. In all other respects, public safety and convenience and provisions therefor, made necessary by the work, shall be the direct responsibility of the Contractor and shall be performed at his entire expense.
* * * The Contractor shall cooperate with the Engineer in the regulation of traffic and shall so govern his work that when necessary to suspend construction for a considerable time, the roadway may be opened to public travel.
SPECIAL PROVISION
“DETOURS, BARRICADES, WARNING SIGNS, SEQUENCE OF WORK, ETC.”
The Contractor’s particular attention is directed to requirements of Item 7, “Legal Relations and Responsibilities to the Public,” of the Standard Specifications. In addition to these requirements the following provisions shall also govern on this contract.
1.Due to the lack of satisfactory detours, traffic must be handled over the project during construction, and it shall be the entire responsibility of the Contractor to provide for the passage of traffic in comfort and safety at all times. No equipment or material shall be left in a position over night that will endanger traffic.
2. The Contractor shall plan and execute his operations in a manner that will cause the minimum interference with traffic during each phase of the several construction operations. The Contractor’s plans of operation, sequence of work and methods of providing for the safe passage of traffic shall be outlined to the Engineer before the proposed plan is placed into operation and shall be subject to the approval of the Engineer. If, at any time during the construction, the proposed plan of operation does not accomplish the intended purpose, due to changes in weather or any other condition affecting the safe handling of traffic, the Contractor shall immediately change the plan or sequence of operations to the extent necessary to correct the unsatisfactory conditions. Where dust is created by traffic, sprinkling shall be performed as directed.
3. The Contractor shall at all times provide for egress and ingress to private property where existing facilities cannot be used due to construction operations.
4. All construction traffic shall be regulated so as to cause a minimum of inconvenience to the traveling public. At points where it is necessary for trucks or other equipment to stop and unload, warning signs and flagmen shall be provided as necessary to adequately protect public travel.
5. The Contractor shall provide and maintain standard barricades and signs in accordance with the Standard Specifications, Title Sheet and Standard Sheets for Barricades and Warning Signs included in the plans in such manner as to adequately protect and safeguard traffic at all times. All barricades and signs to remain in place at night shall be illuminated by lights between sunrise and sunset.
6. The Contractor shall provide and maintain flagmen at such points and for such periods of time as may be required to provide for the safety and convenience of public travel and Contractor’s personnel, and as directed by the Engineer. Flagmen shall be English speaking, courteous, well informed, physically and mentally able effectually to perform their duties in safeguarding and directing traffic and protecting the work, and shall be neatly attired and groomed at all times when on duty. Flagman shall use the standard flags and signals shown in “Instructions to Flagmen,” published by the Texas Highway Department when directing traffic.
On Page 2.2 of the contract, under Paragraph D-14 appears the safety and accident prevention provisions. “In the performance of this contract, the contractor shall comply with all applicaable federal, state and local laws, governing safety, health and sanitation. The contractor shall provide all safeguards, safety devices and protective equipment and take any .other needed actions, on his own responsibility or as the contracting officer may determine, reasonably necessary to protect the life and health of employees on the job and the safety of the public and to protect property in connection with the performance of the work covered by the contract.”

The collision between Mr. Moore’s pickup truck and Mrs. Loving’s automobile occurred within the area of construction of Loop 287 where Highway 58 crosses Loop 287. At the time of the collision, The Jar-bet Company had not completed its contract and was in control of the Loop 287 job and the intersection in question. On August 27, 1962, at approximately 8:30 a. m., J. O. Moore and his wife, Mrs. Vinnie Moore, were driving south on Highway 58 in their 1954 Chevrolet pickup truck. Mr. Moore was driving, Mrs. Moore riding as a passenger seated on the right side. They were traveling at some 30 miles per hour on the right hand side of Highway 58 and were some 50 feet within the limits of Loop 287 when the collision occurred with a westbound automobile, a 1962 Oldsmobile, of Mrs. Dorothy Ivey Loving. Mrs. Loving was traveling on the south side of her lane for westbound traffic.

In approaching the intersection from the east Mrs. Loving traveled up a slight elevation having a rise of about five feet in some 800 feet. The view of the drivers moving toward the intersection immediately before the collision was obstructed by woods, underbrush and a mound of dirt two or more feet in height. Mr. Moore before entering the intersection would have his view to his left obstructed by trees, growth and the mound of dirt to his left. Loop 287 was a new road. Highway 58 was an old established highway. The intersection in question was a new intersection. Prior to the construction of this intersection there had been no intersection within 1,000 feet of this one. At the time of the collision the entire intersection whether you were looking at it from the north, south, east or west was of the same white coloring. “It was the same color” as the driver viewed it from whatever direction he was approaching the intersection. Before Mrs. Loving reached the intersection she saw no signs or barricades of any kind or any sign whatever that the highway was under construction. She had traveled on 287 approximately a mile from Highway 69 without crossing any streets or roads before she reached Highway 58. She didn’t know that Farm Road 58 crossed Loop 287 and she couldn’t see there was a Highway 58 as she approached the intersection on an upgrade with the respective roadbeds having the same color. There was no road equipment and no workmen to call Mrs. Loving’s attention to the intersection or the fact that construction was going on. To her right as she approached the intersection she could see nothing other than 287, trees and bushes. The same was true as to her left. She couldn’t see any part of a road to the right or left of Loop 287 as she approached the intersection. While traveling about 40 m. p. h., she saw Mr. Moore’s car for the first time when it was some ten feet from her, put on her brakes, sounded the horn with her elbow and the collision occurred. She did not think Mr. Moore was traveling any faster than she was. Referring to Mr. Moore’s driving of the truck, Mrs. Loving testified that so far as she could tell he made a normal drive and did not do anything out of the ordinary. There was not a thing either one could do to prevent the collision.

During the two or three weeks prior to the accident, the Loop had been open to traffic which was increasing in volume. Mrs. Gail Courtney testified during that time she heard the screeching of brakes at the intersection on numerous occasions. “Just as if you were running into a stop sign or stop light and suddenly see it and slam on your brakes.” At that time the intersection was not clearly visible to strange drivers approaching it. She was at her home ISO yards north of the intersection when the collision occurred at which time she heard a screeching of brakes and then a crash.

Trailing Mr. Moore as he approached the intersection was the witness, Mrs. Joe Til-ley, who saw the collision. She was driving 30 m. p. h. down Highway 58 in a southerly direction toward the intersection, keeping up with the pickup of Moore’s in front of her. She was about 2(4 carlengths behind Mr. Moore and did not see Mrs. Loving approaching the intersection on 287 from the east until practically at the same time the collision occurred because “you couldn’t see too good through there, you know.” Mr. Moore had poor sight in his left eye, but had been driving a car for 50 years with that same condition. A photograph of the intersection looking down Highway 58 from the same direction in which Mr. Moore was traveling shows the very limited view drivers approaching the intersection from the north and from the east would have of traffic approaching from the east and from the north, respectively.

Mr. Cockrell, resident engineer for The State Highway Commission, testified:

That on the day of the collision after a “driver turned on that day on Loop 287 and drove from there to the intersection of 58 and Loop 287 and drove West (from Highway 69) there was not a single warning sign, stop sign, slow sign, speed sign, or any other sign of any kind;” nor was there a flagman of any kind between 69 and the intersection where the collision occurred. There were regular highway warning signs back on Highway 69 warning of construction, drive carefully, etc., but there were no warning signs of any kind on Loop 287 between Highway 69 and the intersection where the collision occurred. Likewise, there were no warning signs, stop signs, intersection warning signs, slow signs, flagmen, or any other similar signs North of Loop 287 on Highway 58 which would warn a motorist of the intersection or that his highway was crossing the loop under construction; that before the time of the Moore-Loving collision nobody with The Jar-bet Company ever came to him and informed him that traffic was using 287 in any heavy volume; that no one with The Jarbet Company came to him and proposed a new plan for the handling of traffic safely and conveniently through the intersection and sought his approval for such new method of handling traffic. There were no stop signs at the intersection for either East-West traffic or North-South traffic on the day of the collision; nor were there any intersection marker signs of any kind near the intersection for North-South traffic or East-West traffic on the day of the collision; that a driver moving from the North (just as Mr. Moore was moving) approaching the intersection, looking to his left trees and undergrowth obstructed his view of Highway 69 traffic moving towards the intersection.

Appellant Jarbet’s ramrod or boss on the 287 job at the time of the collision was Mr. Earl Rocky, who testified:

He was the man in charge of the intersection in question and was the man responsible for it. He was, likewise, the man in charge of and responsible for the entire stretch of the loop from Highway 69 to the intersection where the collision occurred; as he was the man in charge of anything that The Jarbet Company had to do out there on the construction job. On the day of the collision, and prior thereto, he knew that Highway 58 was the only paved road that crossed his loop job between Highway 59 and 69; that at the time of the collision he had a road barricade across Highway 59, with a road closed sign on it, but he knew that traffic was going by that and using the loop. He did not have a flagman out there on the day in question because “I didn’t have anybody to work it.” On the day of the collision he didn’t have any kind of warning at all out there other than the barricade that he says was supposed to have been out there to block traffic, though he did know the traffic was using the loop on the very day of the collision and he knew that traffic had used it on the day before; he knew that traffic was traveling on the loop and crossing Highway 58 where it intersects the loop, yet he did not station a flagman at the intersection. He admitted (1) there was no warning sign at all at the intersection (2) there was no slow sign at the intersection (3) there was no flagman at the intersection (4) there was no stop sign at the intersection (5) there was no kind of intersection marker at all at the intersection (6) there was no speed sign at the intersection; that he knew and realized that it was part of his contract and responsibility to erect any warning signs necessary for the safety and convenience of the traveling public. He admitted that he didn’t even know traffic was authorized to use the loop but that he knew traffic had been using the loop in increasing heavy quantities during the two or three weeks immediately preceding the collision; that he knew that Highway 58 was a heavily traveled road; that he was not even furnished with or concerned with any specification sheets or plans showing that signs should be erected by the contractor. He stated, “I hadn’t done anything” about the traffic.

Referring to the number of each special issue, the jury’s findings are summarized as follows:

1. The defendant Jarbet “failed to place a sign on Loop 287, prior to the date of the Moore-Loving collision, warning traffic on Loop 287 of its intersection with Highway 58.”
IA. That failure was negligence.
IB. That negligence was a proximate cause.
2. Jarbet “failed to place a sign on Highway 58 prior to the date of the Moore-Loving collision, warning Highway 58 traffic of the intersection of Highway 58 with Loop 287.”
2A. That failure was negligence.
2B. That negligence was a proximate cause.
3. Jarbet, priorato the Moore-Loving collision, “failed to warn Highway 58 traffic that Loop 287 was being used by westbound traffic.”
3A. That failure was negligence.
3B. That negligence was a proximate cause.
4. Prior to the Moore-Loving collision, Jarbet “failed to warn Highway 58 traffic that Loop 287 traffic was not required to stop for the intersection.”
4A. That failure was negligence.
4B. That negligence was a proximate cause.
5. Prior to the collision, Jarbet “failed to properly mark the intersection and its approaches with warning signs.” "Properly mark the intersection” means a marking of the intersection as would have been made by a contractor of ordinary prudence in the exercise of ordinary care under the same or similar circumstances.”
5A. That failure was a proximate cause.
6. Prior to the collision, Jarbet “failed to place stop signs at the intersection for either East-West or North-South traffic.”
6A. That failure was negligence.
6B. That negligence was a proximate cause.
7. Prior to the collision, Jarbet “knowingly permitted traffic to travel on Loop 287 and through its intersection with Highway 58.”
7A. Prior to the collision, Jarbet “knowingly permitted such traffic, if any, to move through the intersection with knowledge that no flagman, warning sign or stop signs were at the intersection for the benefit of the traveling public.”
7B. That action was negligence.
7C. That negligence was a proximate cause.
8. On the date of the collision, the Jarbet ramrod or boss knew that traffic had become increasingly heavy on Loop 287 through the intersection for approximately three weeks prior to the date of the collision.
8A. After having such knowledge, “the Jarbet ramrod or boss failed to make a proper inspection of the intersection’s safety for the traveling public prior to the date of the Moore-Loving collision.” “Proper inspection” means such an inspection as would be made by a highway construction contractor in the exercise of ordinary care under the same or similar circumstances.”
8B. Such failure was a proximate cause.
16. That at the time and on the occasion in question J. 0. Moore did not fail to keep a proper lookout.
18. That J. O. Moore did not fail to timely apply his brakes.
21. That J. O. Moore was not driving his vehicle at a greater rate of speed than a person of ordinary care and prudence would have driven his vehicle under the same or similar circumstances.
23. That at the time and on the occasion in question Dorothy Loving did not enter the intersection in question before J. O. Moore entered the intersection.
27. That Dorothy Loving did not fail to yield the right of way to- the vehicle driven by J. O. Moore.
31. That Dorothy Loving did not fail to keep a proper lookout.
34. That Dorothy Loving did not fail to timely apply her brakes.
38. That Dorothy Loving was not driving her vehicle at a greater rate of speed than a person of ordinary care and prudence would have driven her vehicle under the same or similar circumstances.

Appellant Jarbet contends not only that it owed no duty to place signs or warning devices to warn of the intersection in question but for it to have done so would have been an unlawful and unauthorized act, citing City of Austin v. Schmedes, 154 Tex. 416, 279 S.W.2d 326, 52 A.L.R.2d 680 (1955). The above case involved an accident of December 9, 1952, before the Legislature of Texas in 1953 enacted Art. 6674u, Vernon’s Ann.Rev.Civ.St.Tex. Adams v. Corbin, 301 S.W.2d 209 (Tex.Civ.App.1957) err. ref. n. r. e.; and Buckner & Sons v. Allen, 289 S.W.2d 387 (Tex.Civ.App.1956) err. ref. n. r. e., ably review Texas decisions and statutory law governing construction cases in which the State of Texas is a party. After the enactment in 1953 of Art. 6674u, such decisions held: “A contractor performing construction work on a public highway is under a duty to exercise ordinary care to protect travelers who are rightfully using the highway and is guilty of negligence in failing to give warnings of danger resulting in damage to the traveler.” Paraphrasing the decision in Buckner & Sons v. Allen, supra, this court holds that under the contract, the statutory law and authoritative decisions, the appellant owed a duty to provide means by which the public could safely travel over the portion of the highway under construction. Necessarily, this means that travelers on Highway 58 should have been warned of its intersection with Loop 287. The contract and its performance created the state of things which furnished occasion for Mrs. Vinnie Moore’s injuries and the death of J. O. Moore, for in the performance of the contract appellant was bound to use due care to avoid injuries to persons or property and was liable for its negligent acts of commission or omission when it knew or should have known of the dangers which resulted in such death and such injuries. It cannot be disputed that the work done under the contract rendered the highway dangerous for travel unless the proper warnings were given. Under the holding in Buckner & Sons v. Allen, supra, appellant Jarbet was authorized to erect or maintain signs, signals or devices directing the movement of traffic to provide means by which the public could safely travel over the portion of the highway under construction, including the intersection with Highway 58. Each and all of appellant’s points of error contending that they owed no duty to place signs or warning devices or flagmen to warn of the intersection in question and that same would be an unlawful and unauthorized act on their part are each and all overruled. Continuous inspection of Loop 287 on the part of Jarbet as the work progressed and the public was traveling Loop 287 should have been made by it to the end that the safety of the traveling public would have been protected by adequate warnings of the hazards of the intersection in question.

Appellant has points of error as to the findings of the jury in answer to special issues Nos. 16, 18, la, lb, 2a, 2b, 3a, 3b, 4a, 4b, 5, 5a, 6a, 6b, 7, 7a, 7b, 7c, 8, 8a and 8b separately urging as to each (a) there is no evidence to support each of such answers, (b) there is insufficient evidence to support each of such answers, and (c) each of such answers is against the overwhelming weight and preponderance of all the credible evidence in the case.

In considering the above “no evidence” points, that part of the record most favorable to appellees supporting the jury’s findings is controlling and each point is overruled. In the “insufficient evidence” points and the points urging each finding as being against the overwhelming weight and preponderance of all the credible evidence in the cause, all the evidence is reviewed. Each and all of said “insufficient evidence” points are overruled. The findings of the jury are not so contrary to the overwhelming weight and preponderance of the evidence as to be manifestly unjust and, accordingly, each and all of such points are overruled.

Appellant’s point of error urging that as a matter of law the said J. O. Moore failed to keep a proper lookout, proximately causing the collision in question is overruled. Appellant’s point of error urging that as a matter of law the said J. O. Moore failed to timely apply the brakes on his vehicle and that such failure was negligence, proximately causing the collision in question is overruled.

Appellant contends that even assuming negligence in the various acts and omissions on the part of Jarbet found by the jury in special issues Nos. 1 through 8, both inclusive, that it was not foreseeable by The Jar-bet Co. that the collision in question or some similar event would have occurred, and, therefore; judgment rendered based in part upon the jury’s answer to each of special issues Nos. lb, 2b, 3b, 4b, Sa, 6b, 7b, and 8b was erroneous. These contentions and appellant Jarbet’s points of error thereon are overruled.

Appellant’s 98th point of error is as follows:

“The trial court erred in permitting the witness, Dorothy Loving, over defendant’s objection to testify that at the time and on the occasion in question neither she nor J. O. Moore was negligent, or did anything wrong bringing about the accident in question, the same being incompetent testimony, prejudicial to the defendant and calculated to and probably did bring about a jury verdict adverse to defendant.”

Prior to this question Mrs. Loving testified:

“I don’t think he was going any faster than I was and I don’t think he saw me until I saw him (referring to Mr. Moore).”

Without any objection from appellant, this testimony of Mrs. Loving was introduced:

“Q All right. As far as you can tell from observing the pickup it made a normal drive and did not do anything out of the ordinary?
A No, sir. I don’t think he saw me before I saw him and there was not a thing either one of us could do about it.”

Appellant itself introduced this portion of Mrs. Loving’s testimony:

“Q And you don’t know whether Mr. Moore knew that the highway was traveled, do you?
A No, sir.
Q So you don’t know whether he did anything wrong or not, do you ?
A No, I don’t know that he did anything wrong.
Q All you are telling us is that you don’t think you did anything to cause the accident, is that right ?
That’s right. And I just don’t think that Mr. Moore saw me either.
Q Of course, you don’t have any way of knowing that, do you, you are just assuming that if he had seen you that he wouldn’t have driven out there and hit you ?
A That’s an assumption, yes.”
“Q You don’t have any way of knowing whether he did or not, do you ?
A No.
Q Why are you saying that you don’t think he did, if you didn’t observe him?
A Well, I just don’t think that he would drive out there and hit me on purpose.
Q Well, of course, you are not accusing anybody of deliberately causing this accident, are you ?
A Not as far as I know.
Q You are just saying that Mr. Moore didn’t deliberately come out there and hit you ?
A No.
Q But you don’t know whether he was looking off some other way or speeding or what, do you?
A I wouldn’t think that he was speeding.
Q How do you know that?
A Well, I don’t think he was.
Q Why don’t you think he was ?
A Well, from, well, I just don’t think that he was.”

From the nature of the testimony complained of when considered with the other evidence of the same witness not objected to which was cumulative, appellant waived any error. No harm came to the appellant by the introduction of the evidence. The error complained of did not amount to such a denial of the rights of appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case and the point of error is overruled. Rule 434, Texas Rules of Civil Procedure.

Parts of the deposition of Dorothy Lovmg were offered by appellees. Then parts of the same deposition were offered by appellant by way of cross-examination. Appellees then stated and objected to the latter as being cross-examination because appellant made Mrs. Loving its witness as to that portion of the deposition offered by appellant, which objection was sustained. Thereafter appellant offered for cross-action such portions of the deposition which were admitted by the court under its ruling. Regardless of whether appellant made Mrs. Loving its witness or not, as to the portions of her deposition offered by appellant, we fail to see from examination of her testimony that any harm resulted to the appellant by such ruling of the court. The ruling of the court discussed did not amount to such a denial of the rights of appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment, and appellant’s 99th point of error is overruled.

Appellant contends that the trial court erred in recessing for lunch between the closing argument of appellant and the closing argument of appellees. Appellant has no bill of exception. The trial court did not abuse its discretion in recessing the jury for lunch. Such matters must be directed and controlled by the trial judge in the proper exercise of his discretion. Appellant’s point of error thereon is without merit and is overruled.

Appellant contends that the trial court erred in submitting to the jury special issue No. 5 with the definition and explanation of “properly marked intersection” because it was a general submission containing several elements rather than a single fact issue and further because the issue was so vague and indefinite that it did not provide to the jury any guide line or standard by which to determine what would be an act of properly marking an intersection and its approaches with warning signs, thus permitting the jury to subject its deliberations to speculation and conjecture. Appellant made the same objections and exceptions to the court’s main charge, which were carried forward in its motion for new trial. Special issues Nos. 1, 2, 3 and 4 inquired as to specific means of warning of danger appellant could have used. Actually, special issue No. S is more specific in many ways than the first four special issues. In Barclay v. C. C. Pitts Sand and Gravel Company, 387 S.W.2d 644 (S.Ct.1965) it was held that in an automobile case involving proper control, a general issue of proper control including, for example, excessive speed, failure to apply brakes, driving too slowly, defective brakes, etc., is a broad issue which is adequate unless objected to. Further, that when all acts and omissions raised by the evidence which affect control of the vehicle are submitted the more general issue on proper control need not be given. When such a broad issue is submitted and objected to, then special issues relating to either primary or contributory negligence should be submitted to cover specific acts and omissions which have been raised by the evidence. Special issue No. 5 does inquire as to specific omissions raised by the pleadings and evidence not covered entirely by the other issues. In answer to other special issues the jury found Jarbet to have been negligent as to several specific acts of omission and commission. Excluding the jury finding in answer to special issue No. 5, Jarbet would be liable to appellees based upon such other jury findings. Therefore, appellant’s point of error is overruled as not amounting to such a denial of the rights of appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment.

Appellant further contends that the trial court erred in rendering judgment based in part on the jury’s answer to special issue No. 8A because there was no duty incumbent upon appellant to make an inspection of the intersection safety except as to those items with which the construction was specifically concerned, it being undisputed that it was not construction, construction equipment, construction material or any operations of appellant that brought about or caused the collision in question. A similar point is directed to the submission of special issue No. 8B. The contract required that appellant make regular inspections. Under the contract this duty was owed by appellant to the traveling public. Appellant cites no authorities. Each and all of such points of error are overruled.

Each and all of appellant’s points of error that have not heretofore been overruled are considered without merit and are overruled.

Judgment of the trial court affirmed.


source: Caselaw Access Project

author: CADENA, Justice.

license: Public Domain

text:
    Lorene OFFER, Next Friend of Russell Bell, Jr., Minor, Appellant, v. Fred BELL, Jr., et al., Appellees.
    No. 14434.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 17, 1965.

      Maxwell Burket, San Antonio, for appellant.
    Pat Maloney, J. C. Grossenbacher, Jr., San Antonio, for appellee.
   CADENA, Justice.

Lorene Offer, as next friend of her minor son, Russell Bell, Jr., (hereinafter referred to as “Russell, Jr.”) prosecuted this appeal from an order of the district court dismissing a writ of certiorari and declining to review certain orders of the County Court of Bexar County, Sitting in Probate.

The controversy between the parties to this appeal involves the estate of Frederick F. Bell, Sr. (hereinafter sometimes called the “decedent”), and the estate of his surviving spouse, Lillian Bell, N. C. M. (hereinafter called “Lillian”), who is presently a patient at the San Antonio State Hospital.

During his lifetime, the decedent, Frederick F. Bell, Sr., was the guardian of the person and estate of his wife, Lillian. Frederick F. Bell, Sr., died in 1955, leaving a will in which his son, Frederick Bell, Jr., one of the appellees, was named independent executor. According to the ap-praisement filed in the Probate Court, the value of the decedent’s estate was in excess of $107,000.00. The will directed the independent executor to establish from the assets of the estate a fund of $15,000.00 for the purpose of supporting Lillian during her natural life, and, inter alia, bequeathed to the decedent’s grandson, Russell, Jr., one-eighth of the remainder of the estate.

Upon decedent’s death his son, Fred Bell, Jr., became guardian of the person and estate of decedent’s surviving spouse, Lillian. This guardianship was closed by an order of the Probate Court on March 31, 1959, and the guardian and his sureties were discharged.

In October, 1964, Marion J. Borchers, Esq., was appointed guardian ad litem of Lillian for the purpose of taking all steps necessary to protect Lillian’s estate, to locate and safeguard the fund of $15,000.00 which the will of decedent directed be established for her support, and to determine what happened to the property of the decedent, in order that Lillian and other beneficiaries might receive the property left to them under such will.

In November, 1964, Lorene Offer was appointed guardian ad litem of her minor son, Russell, Jr., for the purpose of locating, taking possession of, and safeguarding the property left to the minor under the terms of decedent’s will. Thereafter, Lorene Offer filed applications to require the independent executor of the will to file a sworn exhibit of the decedent’s estate and to require that such executor, Fred Bell, Jr., post a good and sufficient bond. Bor-chers, guardian ad litem of Lillian, intervened in this proceeding.

On December 30, 1964, the County Court entered an order reciting that it had no jurisdiction to require an independent executor to file a sworn exhibit of the decedent’s estate or to give bond, and setting aside its order appointing Borchers guardian ad litem of the person and estate of Lillian.

Fred Bell, Jr., on February 10, 1965, filed a contest of the appointment of Borchers as temporary guardian of Lillian. Lorene Offer, as guardian of Russell, Jr., filed a plea of intervention, opposing the removal of Borchers.

On March 18, 1965, the County Court amended, nunc pro tunc, its order of December 30, 1964, by adding thereto a paragraph setting aside the appointment of Lorene Offer as guardian of Russell, Jr. On March 19, 1965, the County Court entered an order setting aside the appointment of Lorene Offer as guardian ad litem of Russell, Jr.; setting aside the appointment oi Borchers as guardian of Lillian, and appointing J. C. Grossenbacher, Jr., one of the appellees herein, temporary guardian of the person and estate of Lillian.

On May 12, 1965, Lorene Offer, as next friend of Russell, Jr., filed in the 73rd District Court of Bexar County an application for a writ of certiorari for the purpose of obtaining review of the actions of the County Court in (1) holding that it lacked jurisdiction to require the independent executor, Fred Bell, Jr., to file a sworn exhibit of the estate-of the decedent and to give a bond; (2) setting aside the appointment of Borchers as guardian of Lillian; (3) setting aside the appointment of Lorene Offer as guardian ad litem of her minor son, Russell, Jr., and (4) naming Grossenbacher as temporary guardian of Lillian. The application prayed that on trial de novo the independent executor of the decedent’s estate be required to give bond or, in the alternative, that he be removed and a receiver of the estate be appointed by the district court; that the order of the County Court setting aside the appointment of Borchers as guardian of Lillian be rescinded; and that Borchers be made permanent guardian of the person and estate of Lillian. The application also contained a prayer that the challenged orders of the County Court be superseded.

The District Judge directed that the writ of certiorari issue and that, upon the filing of a prescribed bond by the applicant, the challenged orders of the County Court be superseded pending trial de novo. The required bond was filed and on May 13, Í965, the district clerk issued the writs of certi-orari and supersedeas.

Fred Bell, Jr., the independent executor of decedent’s estate, and Grossenbacher, who had been appointed temporary guardian of the person and estate of Lillian by one of the challenged orders of the County Court, filed separate answers containing pleas in abatement. Grossenbacher sought to have the writ of certiorari dismissed on the grounds that Russell, Jr., was not an interested person in the estate of Lillian, the N. C. M., and that the sureties of Grossenbacher had not been made parties to the proceedings in the district court.

On June 1, 1965, the District Judge entered an order sustaining the plea in abatement filed by Grossenbacher. This order, after reciting that Russell, Jr., was- not an interested party in the estate of Lillian, decreed that the application for certiorari filed by Lorene Offer, as next friend of Russell, Jr., “insofar as it relates to the temporary guardianship of the Person and Estate of Lillian Bell, N. C. M., is hereby dismissed.” This order further found that Borchers was disqualified to act as temporary guardian of Lillian and removed him from such position. Finally, the District Judge decreed that “so much of the order of this court entered on May 12, 1965, superseding the orders and judgments of the County Court of Bexar County, Texas, Sitting in Probate, is hereby vacated and set aside and held for naught; and J. C. Grossenbacher, Jr., is hereby ordered restored as Temporary Guardian of the Person and Estate of Lillian Bell, N. C. M., with full powers and authority as heretofore granted to him by orders and- judgments of the County Court of Bexar County, Texas.”

It is from this order that Lorene Offer, as next friend of Russell, Jr., prosecuted this appeal.

It is apparent from the above recital that the district court has not entered a final judgment from which an appeal will lie. The proceedings in the district court sought several forms of relief. In the first place, appellant sought judgment requiring Fred Bell, Jr., independent executor of the decedent’s estate, to give bond or, in the alternative, that he be removed. In the second place, appellant prayed that the order of the County Court removing Borchers as guardian of Lillian and naming Grossen-bacher as such guardian, be overturned and that Borchers he appointed permanent guardian of Lillian. The district court, by the order from which this appeal has been taken, merely dismissed the writ of certio-rari insofar as it related to questions concerning the estate of Lillian. No action whatever has been taken in connection with the attempt by appellant to secure a judgment requiring Fred Bell, Jr., executor of the decedent’s estate, to give bond, or, in the alternative, that he be removed. The order appealed from expressly recites that it is the plea in abatement of Grossenbacher which was sustained. No determination has been made of the plea in abatement filed by Fred Bell, Jr. The order resolves no issues relating to the estate of the decedent, Frederick F. Bell, Sr., as distinguished from the estate of Lillian Bell, N. C. M.

In order for a judgment to be final, in the sense that it is appealable, it must determine the whole case, dispose of all matters involved in the suit, and determine the rights of all parties. Unless a judgment meets these requirements, it is interlocutory and non-appealable. Linn v. Arambould, 55 Tex. 611 (1881). The judgment in question does not determine the entire case, since it makes no disposition of questions relating to the estate of the decedent. It does not dispose of all matters involved in the suit, since it does not dispose of appellant’s demand that the independent executor of such estate be required to give bond or, in'the alternative, that he be removed. It does not determine the rights of all parties.

The finality, and hence the appeal-ability, of a judgment does not depend on whether the action is severable as to issues, as to parties, or as to causes of action. If a judgment does not dispose of all parties and issues in the pending suit it is interlocutory and not appealable unless the trial court has ordered a severance of the issues and parties disposed of from the remaining unresolved and undetermined portions of the case. Pan American Petroleum Corp. v. Texas Pacific Coal & Oil Co., 159 Tex. 550, 324 S.W.2d 200 (1959). Here there has been no severance of the issues relating to the estate of Lillian from the unresolved issues relating to the estate of the decedent.

Since the judgment appealed from is not final, the appeal is dismissed.


author: CLAYTON, Justice.

text:
    Juanita Frances PRICE et al., Appellants, v. ST. PAUL MERCURY INSURANCE COMPANY, a Corporation, Appellee.
    No. 5742.
    Court of Civil Appeals of Texas. El Paso.
    Sept. 15, 1965.
    Rehearing Denied Dec. 8, 1965.

      Collins, Langford, Pine & Coldwell, El Paso, for appellants.
    Scott, Hulse, Marshall & Feuille, J. F. Hulse, Taylor Nichols, El Paso, for ap-pellee.
   CLAYTON, Justice.

This is an appeal from a declaratory judgment of the district court of El Paso County, Texas in which the exclusionary clauses of two policies of insurance were construed by the trial court. The appellee corporation issued two policies of insurance on the life of Charles L. Price, General Manager of Tri-State Wholesale Associated Grocers, Inc., in one of which his wife, one of the appellants here, was named beneficiary, and in the other the grocery company, his employer and the other appellant here, was named beneficiary, each policy being in the amount of $25,000.00. Price was killed while piloting a private airplane on a business trip, at a time when the policies were in full force and effect, and each contained the following exclusion clause:

“The insurance under this policy shall not cover loss directly or indirectly caused or contributed to by: * * * (7) riding in or on any aircraft being used for any purpose such as crop dusting, seeding, skywriting, racing, testing, exploration, or any other purpose except the sole purpose of transportation, or while the Insured is operating, learning to operate, or serving as a member of a crew of an aircraft.”

The controversy is over the interpretation of this clause, it having been stipulated below that on the occasion in question the deceased was riding in the aircraft for the sole purpose of transportation, and while he was operating, or serving as a member of the crew of the aircraft; and further, that due and timely notice of loss was made and that appellee refused to make payment under the policies.

Suit was originally brought by the wife and the employer of deceased, appellants here, in the United States District Court for the Western District of Texas, El Paso Division, the claimants contending that they were entitled to judgment for the face amount of the policies plus statutory penalties, attorney’s fees and interest, under the terms of the policies, and in the alternative, that the wording of the policies is ambiguous and capable of two constructions, one allowing recovery under the rule of construction that words of limitation will be strictly construed against the insurer and that construction most favorable to the insured must be adopted, relying upon Continental Casualty Company v. Warren, 152 Tex. 164, 254 S.W.2d 762 (1953) and Fidelity & Casualty Company of New York v. Lott, 5 Cir., 1960, 273 F.2d 500 (1960). The insurance carrier replied that the exclusion clause precluded recovery, and was clear and unambiguous. Summary judgment was granted to claimants in the aggregate amount of $67,250.00. The insurance carrier perfected its appeal to the United States Court of Appeals for the Fifth Circuit. That court, 329 F.2d 687, 5 Cir., in opinion No. 20396, March 26, 1964, stated:

“The question of whether an ambiguity exists in the language of a contract is one of law. Lewis v. East Texas Finance Co., 1938, Tex.Ct.Civ. App., 123 S.W.2d 803; Nelson v. Downtain, Tex.Ct.Civ.App., 1922, 249 S.W. 241, reversed on other grounds, Tex.Com.App., 265 S.W. 135; Cameron Mill & Elevator Co. v. Chas. F. Orthwein’s Sons, 5 Cir., 1903, 120 F. 463. If the applicable language, here that of the exclusionary clauses, is clear and unambiguous, such meaning must be given to the language as will carry out and effectuate the intention of the parties. In that event, rules of construction, such as adopting that construction most favorable to the insured, are not to be applied. General American Indemnity Company v. Pepper, 1960, 161 Tex. 263, 339 S.W.2d 660. On the other hand, if ambiguity exists, construction in accordance with applicable rules is in order.
“We would ordinarily proceed to a disposition of this matter in the light of these rules and the facts presented. However, in an en banc decision rendered under date of February 4, 1964 in two cases, United Services Life Insurance Company v. Delaney, [No. 19,531;] (Paul Revere Life Insurance Company v. First National Bank in Dallas), 328 F.2d 483, this court determined to stay its hand until the courts of the State of Texas have been afforded an opportunity of declaring the law applicable to the exclusionary clauses there involved where the losses involved also had resulted from aircraft flights. The problem in those cases, as well as here, goes back to Warren case, supra, and the scope of its teaching. One panel of this court thought Warren controlling in United Services Life Insurance Company v. Delaney, 5 Cir., 1962, 308 F.2d 484; and another doubted its applicability in a similar case, Revere; hence, the en banc consideration. The case now at bar, while differing from all three to some extent on its facts, is not sufficiently different to warrant our deciding it short of not only obtaining such enlightment as may be forthcoming from the Texas courts in the United Services Life Insurance Company v. Delaney, and Revere cases but as may be gained from giving it the same treatment.
“We said with respect to those cases:
‘ * * * Each of the appellants can, and should, promptly initiate a proceeding in a Texas court seeking a declaratory judgment for the determining of the meaning of the pertinent clauses of the respective insurance contracts, with a review of such judgment by a court of last resort of the State of Texas.
‘An order will be entered in each of the appeals staying further proceedings in this Court until the courts of Texas shall have been afforded an opportunity to determine the issues to be submitted. This Court will retain jurisdiction for the purpose of taking such further action as may be required.’
“That course will be followed here. It is so ordered.”

Pursuant to this Opinion the appellee insurance corporation began the present action for Declaratory Judgment in the District Court of El Paso County, the respective parties taking the same position as in the Federal courts. In addition to the stipulations earlier mentioned in this opinion, it was further agreed that there were no fact issues for determination. The trial judge entered judgment for appellee and found that the language of the policies excluded the insured from coverage and that such language was plain, clear and definite. This appeal was then taken.

In the case of United Services Life Insurance Company v. Delaney, referred to in the opinion of the United States Circuit Court, and in which a stay order was entered as in the case before us, suit for declaratory judgment was filed by the insurance carrier in the District Court of Bexar County, Texas, which court held that it was without jurisdiction to render such a judgment. On appeal, the Court of Civil Appeals, United Services Life Insurance Company v. Delaney, 386 S.W.2d 648, 650 (now pending on submission before the Texas Supreme Court), recited:

“We are here very frankly told that this same lawsuit has been tried in the United States District Court for the Western District of Texas, 201 F.Supp. 25, and a final judgment rendered. An appeal was taken to the United States Court of Appeals, Fifth Circuit, and a panel of that Court, one judge dissenting, rendered an opinion, 308 F.2d 484, affirming the judgment of the United States District Court, and the case is still pending in the Circuit Court upon a motion for a rehearing. That Court has now stayed its own hand, as hereinbefore stated.
“The trial court, under all the facts and circumstances existing in this case, properly held that it had no jurisdiction and dismissed the cause. The Uniform Declaratory Judgments Act, Art. 2524— 1, Vernon’s Ann.Civ.Stats., does not give to the courts of this State any jurisdiction that they did not theretofore have, except that ‘No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for.’ Cowan v. Cowan, Tex.Civ.App., 254 S.W.2d 862. While this Act does authorize Texas courts to render declaratory judgments, it does not authorize such courts to render advisory opinions. California Products, Inc. v. Puretex Lemon Juice, Inc., 160 Tex. 586, 334 S.W.2d 780. After this case has been tried in the Federal Court and taken by appeal to the U. S. Court of Appeals, Fifth Circuit, and while the case is still pending in that Court on motion for a rehearing, that Court cannot give jurisdiction of the cause to the District Court of Bexar County, simply by staying its own hands, and at the same time retaining jurisdiction of the cause.
“We can readily understand the desirability of a decision of the Supreme Court of a State, on the part of the Circuit Court, where it is required to follow the law of the State in deciding such questions as we have here, but until the law-making power of this State authorizes such decisions the Courts of this State do not have jurisdiction to render them.
“The judgment of the trial court is affirmed.”

We are in accord with the reasoning and holding of the San Antonio Court of Civil Appeals as above set out, and here hold that the trial court below was without jurisdiction to pass on the matter before it, as we are here, and we accordingly dismiss the cause of action.

Cause dismissed for want of jurisdiction.


author: CHAPMAN, Justice.

text:
    The LUBBOCK NATIONAL BANK, Appellant, v. Ben HINKLE et ux., et al., Appellees.
    No. 7530.
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 1, 1965.
    Rehearing Denied Dec. 6, 1965.
    Key, Carr & Clark, Lubbock, for appellant.
    Evans, Pharr, Trout & Jones, Anderson & Edwards, Lubbock, McDonald, Sanders, Nichols, Wynn & Ginsburg, Fort Worth, for appellees.
   CHAPMAN, Justice.

This case involves the question that so often arises in controversies between lending agencies such as banks and loan companies on the one hand and affidavit lien claimants furnishing labor and materials that go into the construction of residences and other buildings.

All emphases and parenthetical statements herein are ours.

On November 28, 1962, Ben Hinkle and wife, Lemmie Lou Hinkle, executed a $6,000 vendor’s lien note payable to the Lubbock National Bank secured by a vendor’s lien retained in a warranty deed in which they purchased Lot 48 and the west sixty feet of Lot 49 of the Melonia Park Addition, a residential subdivision in the City of Lubbock.

On the same date the Hinkles executed a mechanic’s and materialman’s lien contract securing a promissory note in the original sum of $24,000 to pay for the construction of a house on the described property. Such note was payable to Lyndle Mitchell, the contractor of record, and the contractual lien was entered into between the Hinkles and Mitchell. Also on November 28, 1962, that note was endorsed by Mitchell without recourse to the bank and the contractual mechanic’s and materialman’s lien securing it was transferred to the lending institution. The bank advanced $6,000 on the vendor’s lien note on November 30, 1962, and $20,000 on the $24,000 promissory note as follows: “December 7, 1962, $10,000; December 31, 1962, $5,000; February 4, 1963, $5,000.”

No point is made as to the priority of the $6,000 vendor’s lien note, so it will be given no further treatment in this opinion.

The bank sought judgment against the Hinkles on the mechanic’s and material-man’s lien note, secured by the above mentioned contract duly filed for record, sought foreclosure of the lien and note and a determination that it was prior and superior to the lien claims of those furnishing labor and materials.

The court held all claims by appellees under their mechanic’s liens who had furnished labor and materials were of equal dignity to the contractual mechanic’s and materialman’s lien purchased by the bank. It was agreed that all mechanic’s liens of the laborers and materialmen were filed for record in due and statutory time and in proper form.

The court in his findings of fact found that the mechanic’s and materialman’s lien securing the $24,000 note was recorded prior to the time the affidavit material-man’s liens were perfected, as was the last advancement of money on the lien and note it secured.

In his conclusions of law he concluded, inter alia, that the contractual mechanic’s and materialman’s lien for $24,000 executed by the Hinkles to the record contractor, Lyndle Mitchell, and the mechanic’s lien affidavits were of equal dignity and the owners are entitled to share pro rata in the amount of any of the proceeds remaining from the sale of the subject property after payment of all prior encumbrances and in-debtednesses created by law or by agreement of the parties.

There is not any question from the record but that the bank bought the $24,000 note believing they were purchasing a lien on a homestead. However, Mr. Hinkle’s testimony itself, after he was taken on cross-examination, shows as a matter of law that the place where he was living at the inception of the liens on the subject house was then his homestead, and continued to be during the time the affidavit liens were accumulating. Counsel for all parties admitted in oral argument that the property giving rise to the controversy was not a homestead, so it would be supererogate for us to consider that question further.

We hold the trial court properly disposed of the question of priority of liens.

Article 16, Section 37 of the Constitution of Texas, Vernon’s Ann.St., provides:

“Mechanics, artisans and material men, of every class, shall have a lien upon the buildings and articles made or repaired by them for the value of their labor done thereon, or material furnished therefor; and the Legislature shall provide by law for the speedy and efficient enforcement of said liens.”

In accordance with the direction of the Constitution, the Legislature adopted what has evolved into the title called “Mechanics, Contractors and Material Men,” Volume 16, Chapter 2, Articles S452 to 5472d inclusive, Vernon’s Ann.Tex.Civ.St.

Within the group of articles named is Article 5459 providing:

“The lien herein provided for shall attach to the house * * * for which they were furnished * * * in preference to any prior lien * * * upon the land upon which the houses * * * have been put * * * ; provided, any lien * * * on the land or improvement at the time of the inception of the lien herein provided for shall not be affected thereby ijs s[s »

The article just quoted is the successor to Article 3171, Laws of Texas, Vol. 9, General Laws, 1885, Chapter 66, p. 684. At that time the statute used the word “accrual” wherein it said:

“ * * * provided, any lien, in-cumbrance or mortgage existing on the land or improvements at the time of the accrual of the lien herein provided for shall not be affected thereby.”

In 1889 the Legislature amended Article 3171 (now Article 5459, V.T.C.S.) to change as the only material amendment thereto the word “accrual” to “inception.” Our Supreme Court then said “ * * * we must conclude that the legislature intended to make a change as to the time at which the lien given by the statute should begin; otherwise, the amendment would have been useless.” Oriental Hotel Co. v. Griffiths, 88 Tex. 574, 33 S.W. 652. That court in the case just cited then held:

“When the building has been projected, and construction of it entered upon, — that is, contracted for, — the circumstances exist out of which all future contracts for labor and material necessary to its completion may arise, and for all such labor and material a common lien is given by the statute; and in this state of circumstances the lien to secure each has its ‘inception.’ ”

So far as we have been able to determine, the Supreme Court has never overruled their pronouncements upon priority of liens made in the Oriental Hotel Co. case. In fact, they approved it in Sullivan v. Texas Briquette & Coal Co., 94 Tex. 541, 63 S.W. 307. Though stating that the facts of the Oriental Hotel Co. case “went as far as the law justifies to sustain such liens, which are much favored by our constitution and laws ” the same judge writing for the same court in Sullivan v. Texas Briquette & Coal Co., supra, still approved the court’s previous holding in the Oriental Hotel Co. case in the following language:

“In the case of [Oriental] Hotel Co. v. Griffiths, 88 Tex. [574] 583, 33 S.W. 652, 30 L.R.A. 765, 53 Am.St.Rep. 790, this court determined the meaning of the word ‘inception,’ as used in the statute, in the following language: ‘What is meant by the “inception” of the lien, as used in the statute, we must determine from a consideration of the language of the proviso, in connection with other provisions of the law. The constitution of this state secures to mechanics, artisans, and material men a lien upon the buildings and articles made or repaired by them for the value of their labor done thereon, or the material furnished therefor, and commands the legislature to provide by law for the speedy and efficient enforcement of said liens. Const, art. 16, § 37. In obedience to this mandate, the legislature has enacted the law referred to, which will be liberally construed in order to secure the rights guarantied by the constitution.’ Under this rule the inception of the lien relates to the date when there was a contract made under which work ivas done or material furnished."
# íjc ijt Sfc ^
“In that case Griffiths had entered into a contract with the Oriental Hotel Company for the construction upon the lot which it then owned of a building according to specifications then furnished, and embracing all work which was subsequently done, or for which material was furnished, by the persons who claimed liens in that case. The bonds were issued and the mortgage given for the purpose of securing the payment of that contract, * * *. This court held that in issuing those bonds and in making the deed of trust, to secure them the completion of that contract according to the specifications was in the contemplation of the parties, and that the liens for all material furnished and labor done in the performance of that contract had their ‘inception’ when the contract was made.”

In the instant case under the authorities quoted, the liens of the suppliers furnishing labor and materials would therefore relate back to the “date when there was a contract made under which work was done or material furnished/’ that date being the same date on which the contract was made for the construction of the house and the same date the bank’s lien was acquired.

Surely it cannot be said that the language used in Sullivan v. Texas Briquette & Coal Co., supra, wherein the court said: “Under this rule the inception of the lien relates to the date when there was a contract made under which work was done or material furnished” is surplusage, because the court then proceeded to distinguish the Oriental Hotel case from the one on which it was then writing, in the following language:

“There is no evidence that we have been able to discover in this record * * * which shows at the time the mortgage was executed any contract for this improvement had been let, or that the particular improvements were intended to be provided for by the making of that mortgage.”

Of course, the Supreme Court is bound by the rules announced in the last two cases mentioned only to the extent that they feel bound by the rule of stare decisis. We, as an intermediate appellate court, feel compelled to follow the rules that court has laid down. There is no material and substantial distinction that can be legitimately drawn between this case and the pronouncements of the cases just mentioned. If the Supreme Court had intended to discard or alter the “relation-back” doctrine since the word “accrual” was changed to “inception” and the latter term interpreted by them seventy years ago in the Oriental Hotel case and again approved six years later in the Texas Briquette & Coal Co. case, they surely would have said so by now. We have read all the supreme judicial expressions we could find on the subject and have been unable to discover any which have overruled either the Oriental Hotel case or the Texas Briquette & Coal Co. case.

Accordingly, the judgment of the trial court is affirmed.

      . The prior “encumbrances and indebted-nesses” constituted principally the sums agreed by all parties that would be incident to the sale of the house and the costs of repairs and completion in preparing it for sale, and the $6,000 vendor’s lien note.

      . The word “lien” had reference to the affidavit lien holders, those furnishing labor, materials, etc.


author: NORTHCUTT, Justice. DENTON, Chief Justice

text:
    R. L. RAMEY et ux., Appellants, v. C. G. RICHARDSON, Appellee.
    No. 7540.
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 22, 1965.
    Rehearing Denied Dec. 20, 1965.

      Cox & Hurt, Plainview, for appellants.
    Simpson, Adkins, Fullingim & Hankins, Amarillo, for appellee.
   NORTHCUTT, Justice.

This is a suit brought by the plaintiffs, R. L. Ramey and wife, Nita Ramey, against the defendant, C. G. Richardson, to recover damages for personal injury and property damage resulting from an accident when plaintiffs’ automobile struck a steer owned by defendant. Plaintiffs allege that on or about 2:30 a. m. on September 2, 1962, they were driving their automobile on U. S. Highway 385 and that a calf or steer owned by defendant suddenly walked from the unpaved portion of the right-of-way of such U. S. Highway up onto and started across the paved portion of such highway on the right-hand side thereof immediately in front of the automobile being operated by R. L. Ramey causing the damages and injuries therein alleged. In other words, the plaintiffs sought to recover from the defendant damages for injuries allegedly sustained as a result of an alleged violation of Article 1370a of the Vernon’s Ann. Penal Code or in the alternative as a result of alleged acts of common-law negligence.

The case was submitted to the jury upon special issues. The following special issues and answers are the only issues here involved:

“SPECIAL ISSUE NO. 1
(a) Do you find from a preponderance of the evidence that the Defendant’s steer ran at large on the occasion in question immediately prior to the collision ?
ANSWER: “YES” OR “NO”
ANSWER: YES.
If you have answered the above and foregoing special issue “Yes” and only if you have so answered the same, then answer the following special issue:
(b) Do you find from a preponderance of the evidence that the running at large of Defendant’s steer, if you have so found, was a proximate cause of the collision and damages?
ANSWER: “YES” OR “NO”
ANSWER: YES
SPECIAL ISSUE NO. 2
Do you find from a preponderance of the evidence that the Defendant, C. G. Richardson and/or his agents or employees, failed to exercise that degree of care that a reasonably prudent person acting under the same and similar circumstances would have exercised in maintaining his fences and gates on September 2, 1962?
ANSWER: “YES” OR “NO”
ANSWER: YES.
If you have answered the foregoing special issue “yes” and only if you have so answered said issue, then answer the following special issue:
SPECIAL ISSUE NO. 3
Do you find from a preponderance of the evidence that such failure, if any you have so found, to maintain such fences and gates on September 2, 1962, was a proximate cause of the collision in question?
ANSWER: “YES” OR “NO”
ANSWER: Yes.
SPECIAL ISSUE NO. 4
Do you find from a preponderance of the evidence that the Defendant, C. G. Richardson, and/or his agents or employees, did learn that his steer had escaped from its pasture prior to the collision ?
ANSWER: “YES” OR “NO”
ANSWER: NO.”

Defendant made and filed a motion for judgment non obstante veredicto which was granted by the court and judgment entered that plaintiffs recover nothing and that the defendant go hence with his cost. From that judgment plaintiffs perfected this appeal. The parties will be referred to herein as they were in the trial court.

The plaintiffs present this appeal upon two assignments of error as follows:

“FIRST POINT
This case should be reversed because the Court should not have disregarded the jury’s answers to Special Issues No. la and lb which found that the Defendant’s steer ran at large on the occasion in question and that such running at large of Defendant’s steer was a proximate cause of the collision and Plaintiffs’ damages. Such findings by the jury entitled the Plaintiffs to have a judgment for their damages as found by the jury under Article 1370a of Vernon’s Annotated Penal Code of the State of Texas.
SECOND POINT
This case should be reversed because the Court should not have disregarded the jury’s answers to Special Issues No. 3 and 4 which found that the Defendant failed to exercise that degree of care that a reasonably prudent person acting under the same and similar circumstances would have exercised in maintaining his fences and gates on September 2, 1962 and that such failure was a proximate cause of the collision. The court should have granted Plaintiffs a judgment for their damages as found by the jury based on the findings the jury made to Special Issues No. 2 and 3.”

Under Subdivision (a) of the first issue the only question asked was whether the steer ran at large on the occasion in question. It does not ask whether defendant knowingly permitted the steer to run at large. The undisputed record shows defendant did not know the steer was out on the highway. There is no evidence that defendant knew about the steer being on the highway. However, the jury found that defendant did not learn that his steer had escaped from its pasture prior to the collision. In order for plaintiffs to have recovered for their damages under Article 1370a of the Penal Code they had to show that defendant knowingly permitted the steer to roam at large. Where an animal has escaped from its owner’s custody through no fault of his, it is not running at large in contravention of regulations. 3 Tex.Jur.2d, Sec. 44, p. 120; Presnall v. Raley, Tex.Civ.App., 27 S.W. 200; Schumacher v. City of Caldwell, 146 Tex. 265, 206 S.W.2d 243; Lightsey v. Radtke, Tex.Civ.App., 219 S.W.2d 841; Davis v. Massey, Tex.Civ.App., 324 S.W.2d 242.

It is stated in Mundy v. Pirie-Slaughter Motor Co., 146 Tex. 314, 206 S.W.2d 587 at 590 as follows:

“The statute, as we construe it, prohibits the lending of an automobile only where the owner knows that the driver does not have a license. We do not think, therefore, that the mere proof, in the absencé of actual knowledge, that the defendant’s agents in the exercise of reasonable care should have known that Dickson did not have a license would show a violation of the statute.”

Since Article 1370a provides any person owning or having responsibility for the control of any steer * * * knowingly permits the steer to roam at large, mere proof in the absence of actual knowledge that defendant in the exercise of reasonable care should have known the steer was on the highway did not show a violation of Article 1370a. We overrule plaintiffs’ first point of error.

By plaintiffs’ second point of error it is urged that they were entitled to judgment upon the findings of the jury in answer to Special Issues Nos. 2 and 3 where the jury found the defendant failed to exercise that degree of care that a reasonable prudent person acting under the same and similar circumstances would have exercised in maintaining his fences and gates on September 2, 1962, and that same was a proximate cause of the collision. The ultimate question here involved was whether there was an adequate fence to keep the steer off the U. S. Highway 385. No issue was requested of the court inquiring as to the fence being adequate. The issues submitted assumed that the fence and gate were not adequate. Issue No. 2 above did not decide the ultimate fact issue. Consequently, it was not proper basis for judgment. Driver v. Worth Construction Company, 154 Tex. 66, 273 S.W.2d 603; Blythe County Line Independent School Dist. v. Garrett, Tex.Civ.App., 232 S.W.2d 248 and cases there cited.

The undisputed evidence is that the defendant leased the pasture in question from Jack Crouch and that Crouch was responsible for maintaining the fences and furnishing the water. There is no evidence that the fences and gates were not adequate or were in any manner in disrepair. We overrule plaintiffs’ second point of error.

Judgment of the trial court is affirmed.

DENTON, Chief Justice

(dissenting).

I respectfully dissent. The majority has placed an undue burden on the plaintiffs below in requiring proof that the defendant “knowingly permitted” the steer to run at large. The defendant’s answer contained only a general denial and allegations of specific acts of negligence on the part of the plaintiff and unavoidable accident. The trial court granted the defendant’s motion for a judgment non obstante veredicto. This motion was based on the proposition that the evidence was uncontradicted that there was no common law duty on the part of the defendant to keep his steer penned on the occasion in question; alternatively, that there was no evidence or insufficient evidence to support any finding of common law negligence on the part of the defendant; and that there was no evidence or insufficient evidence to support a finding of a violation of Article 1370a, Texas Penal Code. The defendant further pleaded alternatively that the jury findings to the named special issues should be disregarded because such issues were not supported by any evidence; and that the undisputed evidence established that the defendant did not knowingly permit the steer to roam at large and that he adequately maintained the fence; and that the defendant had no knowledge prior to the accident that the animal was ac large. In granting this motion the trial court did not state the basis upon which it was granted. It obviously could not be based on the insufficiency of the evidence.

It was stipulated by the parties that the “steer in question was owned by C. G. Richardson, that he was the person owning and having responsibility for control of the animal,” and that the collision took place on the right-of-way of U. S. Highway 385, and that it was a U. S. highway within the meaning of Article 1370a. There was positive testimony that the steer in question was roaming at large unattended on the highway at the time of the accident. It has been held in cases construing 1370a that evidence that the defendant was the owner of an animal allegedly roaming at large on a fenced designated highway was sufficient to present a “prima facie case” of liability for damages resulting from a collision with that animal; without further proof that the defendant “permitted” the animal to roam at large or that the defendant had any knowledge of the fact the animal was on the highway. Adamcik v. Knight (Tex.Civ.App.), 170 S.W.2d 521. That case also held that the proof of ownership of such an animal raises a prima facie presumption of negligence and shifts the burden of offering the evidence to the owner. See also Dorman v. Cook (Tex.Civ.App.), 262 S.W.2d 744 (Writ Dismissed). I think these rules are applicable here under this record.

I also seriously question whether or not the trial court properly submitted the case to the jury on the theory of a violation of a criminal statute. If so, it was done by the submission of special issues la and lb. These issues simply inquire if the defendant’s steer ran at large on the occasion in question and, if so, was it a proximate cause of the collision and damages. Where cases of this general nature are submitted on the common law tort principle it is not necessary for the plaintiff to assume the burden of demonstrating criminal intent on the part of the defendant or that he “knowingly” permitted the steer to roam at large. Green v. Evans (Tex.Civ.App.), 362 S.W.2d 377.

I would reverse the judgment of the trial court and remand the cause for retrial on its merits.


author: DENTON, Chief Justice.

text:
    EMPLOYERS CASUALTY COMPANY, Appellant, v. AMERICAN EMPLOYERS INSURANCE COMPANY, Appellee.
    No. 7534.
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 1, 1965.
    Rehearing Denied Nov. 29, 1965.

      Underwood, Wilson, Sutton, Heare & Berry, Amarillo, for appellant.
    Simpson, Adkins, Fullingim & Hankins, Amarillo, for appellee.
   DENTON, Chief Justice.

This suit is between Employers Casualty Company and American Employers Insurance Company to determine which of the two insurance carriers are liable for the benefits under the Workmen’s Compensation Act for the death of Arthur R. Meath-enia. The case was submitted to the trial court on stipulated facts. The court entered judgment holding Employers Casualty Company liable for all death benefits to the deceased’s beneficiaries.

These two insurance carriers have by-agreement shared the payments to the beneficiaries, but each reserved the right to litigate the ultimate question of liability. The beneficiaries have been paid in full and are not parties to this litigation. Employers Casualty Company will be referred to as Employers, and American Employers Insurance Company will be referred to as American Employers.

Throughout the year 1962 K. L. Towle Construction Company and K. L. Towle, Incorporated were separate corporations, each with its principal office in Hobbs, New Mexico. The two corporations officed in the same building but in different rooms, and each maintained separate sets of books. For convenience we will refer to K. L. Towle Construction as Towle Construction and K. L. Towle, Incorporated as Towle, Inc. K. L. Towle was president of both corporations, and the same auditor served both companies; but both corporations did not have identical officers and directors. Some of the officers and directors were common to both companies but not all. Employers carried the workmen’s compensation insurance on the employees of Towle Construction, and American Employers carried the workmen’s compensation insurance on the employees of Towle, Inc. From June 10, 1962, until the time of his death on August 31, 1962, Meathenia was carried on the payroll of Towle, Inc. During this period his wages were reported to American Employers and not to Employers for workmen’s compensation purposes; and premiums computed on his wages were paid to American Employers and not to Employers. Both Towle Construction and Towle, Inc. had contracts with El Paso Natural Gas Company for construction of a pipe line. The contracts defined the amounts to be paid for the particular services to be rendered by each of the companies. During the period from August 27 to August 31, 1962, which includes the date of Meathenia’s death, the work was being done under El Paso’s contract with Towle Construction. Meathenia’s wages during this five-day period were charged on the books of Towle Construction, and Towle, Inc. was reimbursed by Towle Construction for the wages thus paid during that five-day period. During this same period a third company, K. L. Towle Trucking Company, was solely owned by K. L. Towle; but it has no connection with the present controversy.

Delmar Crossland acted as foreman for all three Towle companies. He served as foreman for the three companies from time to time, and his wages were handled in the same manner as was Meathenia’s described above. During the month of August of 1962 Crossland was carried on the payroll of Towle Construction. On August 27 Crossland sent Meathenia to a rock pile near Shamrock, Texas, with a Huff Pay-loader and instructed him to take the machine and load trucks with rocks to be used in making water crossings. Crossland did not tell Meathenia how to load the rocks as he was an. experienced operator, but he did instruct him to stay away from the walls of the pit and to get the loose rocks. The record does not show which company owned or controlled the payloader. This work by Meathenia was charged by Crossland to Towle Construction. Crossland, who had the authority to hire and fire employees of either company, including Meathenia, was the only person in direct control of Meath-enia at the time of his death, which occurred while performing the duties previously mentioned.

In response to a request, the trial court found the stipulations of the parties to be its findings of fact and conclusion as a matter of law: Meathenia was an employee of Towle Construction at the time of the accident; that at such time Meathenia was doing work for Towle Construction pursuant to its contract with El Paso Natural Gas Company; that Delmar Crossland was an employee of Towle Construction during August of 1962; that Crossland had the right of control over Meathenia as to details of the work he was performing at the time of his fatal accident; and that American Employers was not estopped to deny that it owes workmen’s compensation benefits to Meathenia’s beneficiaries.

Appellant’s contentions are: (1) since Meathenia was an employee of Towle, Inc. and American Employers was the compensation carrier for that company and obligated to pay the benefits unless the loaned employee principle has application. It asserts the loaned employee principle does not apply because the stipulated facts do not show an agreement transferring control of Meathenia from Towle, Inc. to Towle Construction; (2) That since Meathenia was on Towle, Inc.’s Payroll and American Employers received premiums on these wages, it had a contractual liability to pay the death benefits; (3) American Employers is estopped by its receipt and retention of the premiums to deny its liability; that alternatively American Employers is barred from a recovery from Employers; (4) American Employers had not sustained its burden of proof.

The primary question is which of the two insurance carriers is liable for payment of the death benefits to Meathenia’s beneficiaries. This question involves the manner of direction and control exerted over Meathenia by the employers. The special or borrowed employee principle is applicable in workmen’s compensation cases as well as in common law cases involving personal injuries to servants or employees. Insurors Indemnity & Ins. Co. v. Pridgen, 148 Tex. 219, 223 S.W.2d 217; Texas Employers’ Ins. Ass’n v. Baker (Tex.Civ.App.), 278 S.W.2d 419; Hanover Ins. Co. v. Holleman (Tex.Civ.App.), 372 S.W.2d 554, (Refused, NRE); Texas Employers’ Ins. Ass’n v. Neely (Tex.Civ.App.), 189. S.W.2d 626.

When the question whether an employee is a general or special employee is raised, the determination hinges on the authority and control over that employee under the facts of the particular case. In-surors Indemnity & Ins. Co. v. Pridgen, supra. The Workmen’s Compensation Act extends benefits only to employees or their beneficiaries. Article 8309, Section 1, Vernon’s Ann.Civ.St. In discussing the term “employee” under the Act, the Commission of Appeals in Shannon v. Western Indemnity Co., 257 S.W. 522 (Opinion Adopted), used the following language:

“ * * * whatever the position occupied by the person employed, he must, in order to come within the provisions of the law, be ‘in the service of another.’ * * * The authorities seem to be practically in accord in holding that to constitute one an ‘employé’ in the meaning of the compensation laws, there must exist between the parties the relation of master and servant, in the broad sense that the one has the right of ultimate control and direction over the other.”

It is stipulated by the parties here that the work being performed was pursuant to the contract between Towle Construction and El Paso Natural Gas Company. Meathenia was performing work for Towle Construction which that company had obligated itself to do under its contract with El Paso Natural Gas. This has been held to be a material element of the borrowed servant doctrine. Hilgenberg v. Elam, 145 Tex. 437, 198 S.W.2d 94; Dempster Mill Mfg. Co. v. Wiley (Tex.Civ.App.), 131 S.W.2d 257 (Dis., Judg. Corr.), and cases therein cited. As previously stated, another material element is the extent of control and direction over the employee. Under the stipulated facts of this case Crossland was the sole supervisor of the work. Crossland was an employee of Towle Construction and was paid by that company. He instructed the deceased to take the payloader and load trucks with rocks, but did not give him specific instructions as to the operation of the machine as Meathenia was an experienced operator. Crossland simply instructed him to stay away from the walls of the pit and to get loose rocks. Crossland was the only person in direct control of Meathenia, and at the time of the latter’s death, he had the right to hire and fire employees of either company, including Meathenia. The work done beginning on August 27,1962 and ending August 31, 1962 was billed to El Paso by Towle Construction under its contract. Meathenia’s time during this period was charged to Towle Construction, and Towle, Inc. was reimbursed by Towle Construction for the wages paid by Towle, Inc. to Meathenia for his services during this five-day period. There is nothing in this record to show Towle, Inc. had a right to control nor did it in fact give instructions on the work being performed under Towle Construction’s contract.

Obviously the arrangement under which the three Towle companies operated was an unusual one. Crossland, as foreman of each company, wore “three hats”. Separate contracts were obtained by the various companies, and their books were separately maintained. The work of each company was distinctly separated from the others, and the income and expenses of each was accounted for. The only factors tending to designate Meathenia an employee of Towle, Inc., who carried workmen’s compensation insurance with American Employers, was the stipulated fact that he was carried on the payroll of Towle, Inc. and that premiums on his earnings during the specified five-day period were paid to American Employers. In our opinion these are not controlling. Magnolia Petroleum Co. v. Francis (Tex.Civ.App.), 169 S.W.2d 286, (Writ Refused). This is particularly true in light of the other elements already discussed. Although Meathenia’s wages were included in the base upon which compensation premiums were determined and paid to American Employers, he was not listed as an employee. No specifically named employee is covered by the policy. American Employers’ policy was issued for the purposes of covering employees of Towle, Inc. when working in the scope of their employment with Towle, Inc. Under the stipulated facts of this case Mea-thenia did not come within that coverage. Under the named authorities and stipulated facts, we are of the opinion, and so hold, Meathenia was an employee of Towle Construction at the time of his fatal accident and that Towle Construction’s insurance carrier, Employers, is liable for the death benefits.

Employers next contends that whatever might be its strict liability under the Workmen’s Compensation Act, American Employers is liable by a special contract to pay death benefits. The argument is that since American Employers received and retained premiums computed on the wages paid Meathenia during this period, they are liable for benefits under the Act. In support of this contention Employers cites and relies on Superior Ins. Co. v. Kling, 160 Tex. 155, 327 S.W.2d 422. That case held the son of a deceased partner was not an employee within the Workmen’s Compensation Act, but there was sufficient evidence to sustain implied findings that the insurer knew the son was part owner of the father’s estate; and that the insurer expressly contracted with the son that he was to be insured according to the terms and benefits of a policy. That case is distinguishable from the instant case. American Employers made no contract with Meathenia that he be insured, and the policy in question contained no rider or provision that it would insure persons who are not otherwise covered under the Workmen’s Compensation Act. No express or implied contract appears in this record. We are of the opinion the Kling case is not authority for the application of the doctrine of estoppel in the present case. The Kling case applied estoppel between the insurance carrier and the insured. Estoppel was there asserted by the insured. Here Employers, an insurance carrier, is attempting to invoke the principle against another insurance carrier. A similar question was decided contrary to Employers’ contention in Hanover Ins. Co. v. Holleman, supra. In substance, that case held the only one who could plead estoppel as a third party beneficiary would be the employee himself. It rejects the estoppel theory as between two insurance carriers.

Employers also takes the position American Employers can not recover from Employers one-half of the benefits it has paid because American Employers has not sustained its burden of proof. The case was submitted wholly on stipulated facts. Burden of proof is not a factor under this state of the record. It was simply the duty of both the trial court and this court to determine the legal effect of those stipulated facts. Appellant’s last point of error is without merit.

The judgment of the trial court is affirmed.


author: WILSON, Justice.

text:
    LIVESTOCK FEEDER COMPANY et al., Appellants, v. R. W. FEW et al., Appellees.
    No. 4418.
    Court of Civil Appeals of Texas. Waco.
    Dec. 2, 1965.
    Rehearing Denied Dec. 22, 1965.
    Griffith & Lumpkins, Waxahachie, for appellants.
    Warwick H. Jenkins, Waxahachie, for appellees.
   WILSON, Justice.

Plaintiffs sought damages for reduction in market value of land owned by them, and loss of rental value of other land leased by them, arising from defendants’ operation of a nearby cattle feed lot, alleged to constitute a nuisance.

It was alleged that cattle excreta drained into and polluted a stream flowing through, and tanks located on, plaintiffs’ property, thereby rendering the water unfit for human or animal consumption; that the waste products from thousands of cattle had filtered into the underground water stream which fed plaintiffs’ wells and springs, resulting in necessary expenditures to mitigate the damages; that offensive odors and flies were produced. It was alleged these conditions constituted a permanent nuisance, and an injunction was prayed to restrain maintenance of the cattle-feeding operation, or the conducting of it so as to emit odors, attract flies, allow accumulation of fecal matter and refuse, or so as to permit effluent from the latter to pollute plaintiff’s water supply.

The jury found in effect that as a result of defendants’ operation the water on plaintiffs’ land had been polluted, and offensive odors were produced; and that these conditions would continue. It was found that the water pollution constituted a nuisance, but the odors did not. To Issue 7 the jury found defendants’ feed pens did not produce flies complained of. To issues 11-15 the jury answered that defendants were not negligent in polluting the water or producing odors. To a general issue the jury answered that “the land of plaintiff, R. W. Few, was damaged as a direct and proximate result of the operation of said cattle feeder pens by defendants,” and the damage was temporary, amounting to $750 per year in reduced rental value. The jury made a negative answer to an inquiry as to whether certain other plaintiffs “suffered unreasonable discomfort, annoyance or inconvenience” as a result of the operation of the cattle feeder pens. The sum of $1320 was found to be expense reasonably and necessarily incurred by R. W. Few for fencing and a coffer dam “for the purpose of protecting himself against the condition created by the defendants.” A “no” answer was returned to an issue as to whether plaintiffs’ “damages” were caused by the cattle of plaintiffs and their neighbors.

Judgment was rendered permanently enjoining defendants from conducting the feeding operation “so as to pollute the waters in, on or under the lands of plaintiffs,” and assessing damages to R. W. Few.

Complaint is made of admission over defendants’ objection of the testimony of three witnesses that the reputation of plaintiff R. W. Few for truth and veracity was good.

The basis for admission of this evidence appears to be that plaintiff Few had testified on cross-examination that neither he nor his son ever inquired about or asked for a job from defendant for the son. Defendant Emerson, the feedlot manager, testified both plaintiff and his son discussed with him the possibility of a job. Plaintiff concedes that at this point there was no more than contradiction of plaintiff’s testimony. He argues, nevertheless, that when defendant’s witness, who had assisted in locating a site, testified that on one occasion plaintiff told him he “would like to talk to Mr. Emerson about” a job for his son as manager of the feedlot, the state of the evidence was altered from contradiction to impeachment of plaintiff by a prior inconsistent statement, and evidence of reputation for his truth and veracity became admissible.

The latter testimony was not evidence of a prior inconsistent statement, as plaintiff contends. Such evidence concerns self-contradiction. Testimony that plaintiff had previously stated out of court that he had inquired about, or asked defendant for a job for his son would be an example of such impeachment evidence, if made admissible by the laying of a proper predicate. See McCormick & Ray, Texas Law of Evidence, Secs. 692, 693. The manager’s evidence and that of the other witness was no more than contradictory to that of plaintiff. It went to the question of whether or not plaintiff had actually asked defendant about a job for his son.

“Contradiction between witnesses, in their testimony given upon the trial of a cause,” said Justice Brown in Texas & P. Ry. Co. v. Raney, 86 Tex. 363, 25 S.W. 11, 12, “does not authorize the introduction of testimony to sustain the contradicted witness by proof of general character for truth and veracity.”

Rejecting authorities from other jurisdictions holding to the contrary, the Supreme Court adopted the rule that where a witness is contradicted by a witness for the opposing party, such conflicts in testimony furnish no ground for admitting evidence of “character for truth and honesty.”

In Grant v. Pendley, Tex.Com.App., 39 S.W.2d 596, 599, 78 A.L.R. 638, the rule was announced that such evidence was admissible only (1) where the nature of the action involves the character of a party, (2) where a witness has been impeached, or (3) where a party by pleading or evidence charges his adversary with commission of a crime involving moral turpitude. None of these conditions exist here. As said in Jenkins v. Pure Oil Co., Tex.Civ.App., 53 S.W.2d 497, 500, “there was merely a contradiction as to the facts herein referred to”, which is not impeachment, “and the contradiction of a witness by other witnesses testifying differently is not such an attack” as authorizes introduction of reputation evidence sustaining character for truth and veracity. See also Fort Worth Hotel Co. v. Waggoman, Tex.Civ.App., 126 S.W.2d 578, 588, writ dism. c. j.; Shell Pipe Line Corporation v. Coston, Tex.Civ.App., 35 S.W.2d 1056, 1058; Jones-O’Neal Furniture Co. v. Jones, Tex.Civ.App., 269 S.W. 180, 183, writ dism., and cases cited.

Whether admission of this evidence is harmless or reversible error may be determined in some measure in the present case, we believe, by the test applied in Grant v. Pendley, Tex.Com.App., 39 S.W.2d 596, 599, 78 A.L.R. 638, as to whether the contradictory testimony by virtue of which it was admitted related to a “material issue” presented to the jury. The contradictory testimony as to the job inquiry or application was evidentiary only on an issue not submitted to the jury in the present case, and was not material to any ultimate issue of recovery or defense. The evidence as to his reputation related to plaintiff’s credibility, but under the jury findings and the entire record we think it did not probably cause rendition of an improper judgment. See State v. O’Dowd, 158 Tex. 348, 312 S.W.2d 217, 220.

Error is assigned to admission of testimony as being beyond the scope of rebuttal evidence in contravention of Rule 265 (i), Texas Rules of Civil Procedure, which provides, in effect, that after parties have introduced their evidence in chief, they shall “be confined to rebutting testimony.” The evidence was not improperly admitted under the Rule. Where defendant offers evidence disputing, contradicting or negativing that of plaintiff, the latter may introduce evidence, “notwithstanding it was of the same character as that first introduced by plaintiff, and proper to be introduced in support of the issues made by his own pleadings, * * Ayers v. Harris, 77 Tex. 108, 13 S.W. 768, 773; Mayer v. Walker, 82 Tex. 222, 17 S.W. 505; Ochoa v. Winerich Motor Sales Co., 127 Tex. 542, 94 S.W.2d 416.

We have carefully considered each of appellants’ twenty points, including those asserting insufficiency of evidence and the failure to balance equities. None reflect reversible error, in our opinion, and all are overruled. Appellees’ cross-point is overruled.

Affirmed.